# Bole v. Erie Insurance Exchange > Superior Court of Pennsylvania · February 27, 2009 · 2009 Pa. Super. 38 URL: https://www.frixlaw.com/law-library/cases/9694103 ## Case - **Full name:** Ronald T. BOLE and Susan M. Bole, Appellants v. ERIE INSURANCE EXCHANGE, Appellee - **Court:** Superior Court of Pennsylvania - **Decided:** February 27, 2009 - **Citations:** 2009 Pa. Super. 38; 967 A.2d 1017; 2009 Pa. Super. LEXIS 47; 2009 WL 489693 - **Precedential status:** Published - **Opinion:** Dissent by Fitzgerald - **Judges:** Klein, Popovich, Fitzgerald - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9694103 ## Opinion text DISSENTING OPINION BY FITZGERALD, J.: ¶ 1 I respectfully dissent from the learned majority’s opinion. Although I *1022 agree with the majority that the “fireman’s rule” is not applicable, I believe the majority expands the rescue doctrine’s definition of “rescue” beyond its intended means. Accordingly, I conclude, albeit reluctantly, that Mr. Bole fails to prove the rescue doctrine applies. ¶ 2 As explained by this Court en banc in Bell v. Irace, 422 Pa.Super. 298 , 619 A.2d 365 (1993) (en banc), the rescue doctrine acts as a substitute for the proximate-cause element: Even though we have found the element of proximate causation unmet as a matter of law, Appellants argue in the alternative that the “rescue doctrine” applies to satisfy the element for them. In very special cases, the law has created a narrow exception to the ordinary principles of negligence which require a showing of proximate causation. In certain situations, where a litigant otherwise would not recover for a failure to satisfy the proximate causation requirement, the law supplies another means to meet the requirement through the “rescue doctrine,” thereby permitting recovery. Id. at 368-69 . ¶ 3 A recitation of the Bell Court’s application of the rescue doctrine is particularly pertinent to the instant case. Appellant Sharen Bell was an emergency medical technician (EMT) who was called to an accident scene after the appellee, John Irace, struck the appellee, Elizabeth Reis. Both appellees were negligent in causing the accident. Bell administered first aid to Reis, who, by reacting to her injuries, severely injured Bell’s arm, wrist, and hand. An en banc panel of this Court, after determining that Bell failed to offer sufficient facts to justify a finding of proximate cause, unanimously held that the rescue doctrine did not apply. In so holding, this Court stated the applicable standards: The rescue doctrine, though infrequently cited, has been applied in cases where a plaintiff is injured while “rescuing” a defendant from a perilous situation created by the defendant’s own negligence. “Where a defendant’s negligent act, of commission or omission, has created a condition or situation which involves urgent and imminent peril and danger, to life or property, of himself or of others, those acts of negligence are also negligence in relationship to all others who ... may attempt, successfully or otherwise, to rescue such endangered life or property, by any means reasonably appropriate” and performed in the exercise of ordinary care. * * * In order to constitute a “rescue,” a person must attempt to prevent another person from suffering serious injury or death. In addition, the situation precipitating the “rescue” must warrant a reasonable belief that the peril facing the object of the rescue was urgent and imminent. There can be no reasonable belief of continued peril if the rescuer has knowledge that the victim’s condition is stable, requiring only medical attention.! ] These principles are clear from an examination of the facts in cases where the rescue doctrine was applied. Id. at 369 (citations and some quotations omitted; alteration in original). After considering these factors, along with other cases in which the rescue doctrine did apply, the Bell Court concluded: The allegations in the complaint do not indicate the severity of Ms. Reis’ injuries, whether her injuries were life-threatening, or whether Ms. Reis was conscious or in any immediate danger. Appellants’ allegation that Sharen Bell was “providing aide [sic] to Defendant REIS” does not suggest that Sharen *1023 Bell acted to prevent death or serious bodily harm to Ms. Reis. Furthermore, Sharen Bell was not injured while attempting a heroic rescue of the nature contemplated by the rescue doctrine. She arrived upon the scene after the accident had occurred and was injured while providing post-accident medical care to the pedestrian/victim. The rescue doctrine does not apply where, as here, a plaintiff gave assistance after the imminent peril had ceased. Id. at 370 (first emphasis added) (citation omitted). ¶ 4 Instantly, it is important to note that Mr. Bole was not called to respond as a rescuer in the literal sense. He was, in effect, acting as an EMT responder, similar to Sharen Bell. According to his own statement of the facts: Mr. Bole was 3.2 miles from the site of the accident and in responding, was to stop briefly at the station in McKe-an (which was directly on his route to the accident scene) and then proceed with the ambulance as long as there was another individual to man same. If no other fire department personnel arrived within 5 minutes, he was to proceed to the accident scene in his vehicle. Appellants’ Brief, at 7. Although I do not question the urgency by which Mr. Bole felt compelled to respond, the facts indicate that: (1) Mr. Bole was not to respond directly to the accident scene, but rather report to the station to pick up an ambulance; (2) Mr. Bole was required to wait five minutes in the hope that a second individual would arrive at the station before he could leave with the ambulance; (3) other responders, by virtue of their geographic location, were responsible for going to the scene directly and performing the physical act of rescue; and (4) Mr. Bole’s responsibility was to assist in providing medical care. 1 By virtue of the fact that Mr. Bole was not to report directly to the scene and by his being required to wait five minutes if another responder was not at the station, I would conclude that his presence at the scene would not have cured a “peril facing the object of the rescue [that] was urgent and imminent.” Bell, 619 A.2d at 369 (emphasis added). Just like Sharen Bell, Mr. Bole would have arrived at the scene after the accident and provided post-accident medical care “after the imminent peril had ceased.” See id. at 370 . ¶ 5 In my view, the instant case reflects why the rescue doctrine must be the narrowest of exceptions to the proximate-cause element. I believe that with the majority’s application of the rescue doctrine to Mr. Bole’s case, the doctrine no longer becomes the narrow exception it was meant to be. While I agree with the majority that a “rescue encompasses the attempt to reach the site of the peril,” Majority Op. at 1020, the majority acknowledges that such expansion is limited to an “active rescue.” See id. As the Bell Court observes, there exists a difference between an “active rescue” and “post-accident medical care.” Bell, 619 A.2d at 370 . Bole’s own statement of the facts pertaining to his anticipated role at the accident scene, unfortunately, places him in the latter category. It appears that, based on the procedure as quoted above from Mr. Bole’s brief, his presence was not absolutely necessary to save the victims’ lives. Not only would Mr. Bole have acted primarily as an ambulance driver, but it appears that another responder could have taken the ambulance to the scene without *1024 Mr. Bole, provided that the responder waited five minutes. Accordingly, Mr. Bole’s role was not that of an active rescuer, but rather to provide post-accident medical care. ¶ 6 Finally, the majority suggests that the arbitrators, upon remand, should consider whether intervening factors affect the applicability of the rescue doctrine. Presumably, the majority’s concern focuses on Mr. Bole’s statement that he has crossed the bridge in question many times in adverse conditions, but acknowledged that “[in] daylight, [he] would have certainly seen the problem with his bridge and if he still drove forward, this would constitute a superseding cause.” Appellants’ Brief, at 29. These facts would be crucial because Mr. Bole may have had time to assess whether the bridge was safe to cross, knowing that an ambulance should arrive at the scene regardless of whether he made it or not. By driving through a “blinding rain” on a bridge with which he was very familiar, but which he should have known was easily subject to flooding, his actions, though brave and heroic, may not have been “reasonably appropriate,” or showed the “exercise of ordinary care.” Bell, 619 A.2d at 369 (quoting Pachesky v. Getz, 353 Pa.Super. 505 , 510 A.2d 776, 781 (1986)). 2 Such vast considerations, however, are what I believe the rescue doctrine was intended to avoid. The doctrine itself was intended to be a relatively simple factor of a negligence claim, allowing plaintiffs to avoid the complexities of proving proximate cause. We may easily adjust our perspective of “ordinary care,” as the majority suggests, when a person jumps into the water to save a drowning person, because the disregard for ordinary care was absolutely necessary to prevent imminent death. Opening the rescue doctrine to those providing post-accident medical care, however, unnecessarily complicates what is supposed to be a relatively simple analysis, as indicated by the majority’s instructions to the arbitrators that it consider intervening factors. ¶ 7 I commend Mr. Bole for his concern for the victims and his devotion to his duties as a fireman, and I certainly do not suggest that Mr. Boles was acting in any manner other than that which is most honorable and deserving of praise. However, I am constrained to conclude, based on the traditional concepts of the doctrine and this en banc Court’s mandates, that the rescue doctrine does not apply to Mr. Bole’s case. Accordingly, I must respectfully dissent from the majority’s decision. . Because I do not consider it necessary, I offer no comment as to whether Mr. Bole, by residing in such a location that would require a dangerous trek to the station, automatically disqualified himself from the rescue doctrine. . I do not mean to suggest, on the other hand, that such facts are not a reasonably foreseeable result and that Mr. Bole could not consequently prove proximate cause in the ordinary-negligence context. Because Mr. Bole raises his claim only under the context of the rescue doctrine, I find only that he fails to prove that the rescue doctrine should substitute for the proximate-cause element. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9694103. Public record. Not legal advice.