TIDMORE v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA

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Court of Appeal, Second District, Division 4, California.

James TIDMORE, Plaintiff and Appellant, v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, et al., Defendants and Respondents.

No. B118513.

Decided: September 21, 1998

Jonathan Schwartz, for Plaintiff and Appellant. Beam & Hummel and Susan Beam, Glendale, for Defendants and Respondents.

Plaintiff James Tidmore appeals a summary judgment dismissing his negligence action against defendants Automobile Club of Southern California (Automobile Club), of which appellant was a member, Rowlette Towing, Inc. (Rowlette), a company with which the Automobile Club contracted to provide roadside assistance, and Melissa Fiss, the Rowlette tow truck driver who responded to appellant's call for assistance (occasionally collectively respondents).   Tidmore's action was based on injuries he received from lifting his car in an attempt to release Fiss's hand after it had become stuck between the body of the car and the flat tire she was changing.   We conclude the trial court erred in granting summary judgment and reverse.

FACTS

Tidmore, an Automobile Club member, telephoned the Automobile Club with a request for assistance to change a flat tire.   The Automobile Club contacted Rowlette which had a contract with the Automobile Club to provide roadside help to Club members.   Rowlette tow truck driver Fiss responded to the call.   In trying to replace the flat tire, Fiss got her hand caught between the wheel and the wheel well.   She screamed, “Get it off me.   Get it off me.”   Not knowing how to use Fiss's jack, and seeing she was hurt, Tidmore lifted the car twice from the left rear bumper.   Afterward, Tidmore felt pain in his shoulder and groin.

Tidmore filed a negligence action against respondents.   We have not been given a copy of the operative complaint but according to respondents' summary judgment motion, Tidmore gave the following “ ‘description of reasons for liability’ ” in his complaint:  “ ‘At Plaintiff's request, Auto Club of So. Calif. provided an employee of Rollettes [sic] Towing to change a flat tire on Plaintiff's car.   This employee jacked up the car in a negligent manner so that it rolled off the jack, trapping her hand between the tire and the car body, requiring immediate rescue by Plaintiff, who was injured in the process.’ ”

Respondents moved for summary judgment on the ground that respondents did not owe a duty of care to Tidmore under the circumstances presented.   They argued:  “The law is clear that ‘[a]s a rule, “[a]bsent a special relationship giving rise to a duty to act, a person is under no duty to take affirmative action to assist or protect another, no matter how great the danger in which the other is placed, or how easily he could be rescued․” ’  [¶] Special relationships which remove bystander status and invoke a duty to rescue or protect include a common carrier to its passenger, an innkeeper to his guest, possessors of land who hold it open to the public, and one who has a custodial relationship to another․  [¶] In the instant action, there is no special relationship that would invoke a duty to rescue or protect.”

Tidmore accepted the truth of the facts in respondents' separate statement of undisputed facts and argued as a matter of law the “rescue doctrine” applied to the facts presented.

Respondents replied citing Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 99 Cal.Rptr. 29, 491 P.2d 821 and Holland v. Crumb (1994) 26 Cal.App.4th 1844, 32 Cal.Rptr.2d 366 for the proposition that the rescue doctrine applies only when the plaintiff/victim is a third party to the dangerous situation created.

The trial court, relying on Holland v. Crumb, supra, 26 Cal.App.4th 1844, 32 Cal.Rptr.2d 366, granted respondents' motion:  “In addition, the rescue doctrine by its nature involves more than two persons.   It necessarily requires a third party victim placed in peril by the defendant's negligence.   Here [referring to the facts in Holland ], the only persons involved in the second rescue were Tufenkian and Holland.  [¶] Now, that is precisely the situation we have here.   We have a tow truck operator who allegedly places herself in a hazardous position because of her negligence, and we have the plaintiff, in this instance, who goes to her rescue and is injured in so doing.  [¶] The case of Holland and Crumb is compelling in the analysis.   It is a case that this court must follow, and I'm going to follow it.”

DISCUSSION

The sole issue presented is one of law, whether a duty of care was owed by respondents to appellant.   The issue is presented in the context of the so-called “rescue doctrine.”

The basic doctrine is stated in Solgaard v. Guy F. Atkinson Co., supra, 6 Cal.3d at page 368, 99 Cal.Rptr. 29, 491 P.2d 821 as follows:  “persons injured in the course of undertaking a necessary rescue may, absent rash or reckless conduct on their part, recover from the person whose negligence created the peril which necessitated the rescue.  [Citations.]”   The court also noted that “[t]he theory which underlies the rescue rule is, in essence, that ‘rescuers, as a class, are always foreseeable when the defendant's negligence endangers anyone.’  [Citation.]   Thus, if defendant creates a situation of peril for one person (the victim), defendant properly may be charged with having proximately caused not only that peril but also the rescue and any injury suffered during its course.  [Citation.]”  (Id. at p. 368, 99 Cal.Rptr. 29, 491 P.2d 821.)

As previously noted, respondents and the court relied upon Holland v. Crumb, supra, 26 Cal.App.4th 1844, 32 Cal.Rptr.2d 366 as controlling precedent that the rescue doctrine does not apply in this situation.   We conclude that Holland is not controlling and has no application to the facts presented.

First, the facts in Holland are inapposite to this case.   There, the injured tow truck operator was suing the driver of the disabled vehicle for injuries the operator received while coming to the aid of the driver.   The question was whether or not the driver of the disabled vehicle by placing the operator in a dangerous situation should be held responsible for the injuries received by the operator.   In the first portion of the opinion the court concluded that the so-called “firefighter's rule” applied to preclude recovery by the operator of the tow truck against the driver, a conclusion which has been questioned by our Supreme Court in Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 545, footnote 4, 34 Cal.Rptr.2d 630, 882 P.2d 347.1 Here, it is the stranded motorist suing the tow truck driver for injuries received in coming to the aid of the operator when she negligently carried out her duties.

Next, the court in Holland also concluded that application of the “firefighter's rule” precluded application of the “rescue doctrine.”   (Holland v. Crumb, supra, 26 Cal.App.4th at p. 1853, 32 Cal.Rptr.2d 366.)   Notwithstanding this conclusion, the court then discussed the rescue doctrine and, without analyzing the issue, stated as follows:  “In addition, the rescue doctrine by its nature involves more than two persons;  it necessarily requires a third party victim placed in peril by the defendant's negligence.   Here, the only persons involved in the ‘second rescue’ were Tufenkian and Holland.”   (Id. at p. 1853, 32 Cal.Rptr.2d 366.)   At best, this language is a dictum.

 There is no doubt that the rescue doctrine usually applies in a situation where there are three actors:  the original negligent actor who places a second person in jeopardy, and a rescuer who attempts to rescue the second person.   As previously explained, the reason for the doctrine is to bridge the proximate cause gap of foreseeability from the imperiled party to the third party rescuer.   We see no reason why the rescue doctrine cannot be applied where only two parties are involved.

 The original focus of respondents' motion was on the issue of duty and an assertion that under the facts of the case no special relationship existed upon which a duty could be established.   We disagree with this assertion.   Respondents were each under a contractual duty to come to the aid of Tidmore by reason of his Automobile Club membership.   We believe this establishes the necessary special relationship upon which the rescue doctrine may be applied.  “A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner.   A negligent failure to do so may be both a breach of contract and a tort.  [Citation.]”  (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774, 69 Cal.Rptr.2d 466.)   Therefore, the trial court erred in granting summary judgment for respondents.

DISPOSITION

The judgment is reversed, and the matter is remanded.   Costs on appeal are awarded to appellant.

FOOTNOTES

1.   In Dyer v. Superior Court (1997) 56 Cal.App.4th 61, 65 Cal.Rptr.2d 85, we have since concluded that the doctrine of assumption of the risk precludes the operator from recovering against the stranded driver.

HASTINGS, Associate Justice.

EPSTEIN, Acting P.J., and COOPER, J.,* concur.

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