rescue doctrine in California

2011(Henshaw v. Belyea (1934) 220 Cal. 458, 463-464 [ 31 P.2d 348 ] (Henshaw).) CBS and Boardman rely on Henshaw to argue that the rescue doctrine does not apply in this case because there was no threat of peril to human life or limb as the alleged rescue was only of Kendle’s vehicle, not Kendle himself.

2011(Henshaw v. Belyea (1934) 220 Cal. 458, 463-464 [ 31 P.2d 348 ] (Henshaw).) CBS and Boardman rely on Henshaw to argue that the rescue doctrine does not apply in this case because there was no threat of peril to human life or limb as the alleged rescue was only of Kendle’s vehicle, not Kendle himself.

1971In other words, defendant cannot be liable for [the rescuer’s] death, caused by his effort to save [the rescued person] from injury, however praiseworthy that effort was, unless [the latter’s] dangerous condition was due, in part at least, to defendant’s negligence.” (See Prosser, Torts, supra, at p. 277.) 5 As stated in Scott v. Texaco, Inc., supra, 239 Cal.App.2d 431, 434-435 , “Essentially, the rescue rule expands the risks which a rescuer may properly take in order to save a third person in danger from harm.

1967(See Scott v. Texaco, Inc., 239 Cal.App.2d 431, 436 [ 48 Cal.Rptr. 785 ] ; 1 Rest. of Torts, §472; 2 Witkin, Summary of Cal. Law (1960) p. 1528.) However, plaintiff concedes that he did not request a special instruction on the subject of the rescue doctrine, and we have concluded that there was sufficient evidence to instruct on the general doctrine of contributory negligence.

2009(See People v. Panah (2005) 35 Cal.4th 395, 471 [ 25 Cal.Rptr.3d 672 , 107 P.3d 790 ]; Coffman and Marlow, supra, 34 Cal.4th at p. 56; People v. Stevenson (1996) 51 Cal.App.4th 1234, 1239-1240 [ 59 Cal.Rptr.2d 878 ].) Here, in admitting defendant’s statements, the trial court relied in part on its conclusion that when Petaluma Police Sergeant Meese asked defendant to tell him where Polly was, Meese was motivated by the desire to save Polly’s life.

2009At trial, the parties referred to this location as the “Pythian Road site”; for convenience, we will do the same. 4 We disapprove the Court of Appeal’s decision in People v. Riddle, supra, 83 Cal.App.3d 563, 576-578 , and cases following it (People v. Stevenson, supra, 51 Cal.App.4th 1234, 1238-1239 ; People v. McDermand (1984) 162 Cal.App.3d 770, 796-797 [ 211 Cal.Rptr. 773 ]; People v. Willis, supra, 104 Cal.App.3d 433, 449 ) to the extent that those decisions apply Riddle’s three-part test in determining applicability of the rescue doctrine. 5 Even if Sergeant Meese was intentionally deceiv

2011Accordingly, we must first consider whether any duty of care owed to Kendle extends to Aaron. “[T]he rescue doctrine varies the ordinary rules of negligence . . . [as] it permits the rescuer to sue on the basis of defendant’s initial negligence toward the party rescued . . . .” (Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 368 [ 99 Cal.Rptr. 29 , 491 P.2d 821 ].) “[P]ersons 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.” (Ibid.) In order

2011Accordingly, we must first consider whether any duty of care owed to Kendle extends to Aaron. “[T]he rescue doctrine varies the ordinary rules of negligence . . . [as] it permits the rescuer to sue on the basis of defendant’s initial negligence toward the party rescued . . . .” (Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 368 [ 99 Cal.Rptr. 29 , 491 P.2d 821 ].) “[P]ersons 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.” (Ibid.) In order

2009(Willis, at p. 449; but see People v. Laliberte (1993) 246 Ill.App.3d 159, 171-172 [ 186 Ill.Dec. 9 , 615 N.E.2d 813 ] [refusing to apply the rescue doctrine when a suspect invokes the right to counsel]; State v. Miller (1985) 300 Ore. 203 [ 709 P.2d 225, 241 ] [same].) After the California courts had adopted the rescue doctrine, the high court in New York v. Quarles (1984) 467 U.S. 649 [ 81 L.Ed.2d 550 , 104 S.Ct. 2626 ] (Quarles) carved out a “public safety” exception to the requisite Miranda warnings.

2009(Willis, at p. 449; but see People v. Laliberte (1993) 246 Ill.App.3d 159, 171-172 [ 186 Ill.Dec. 9 , 615 N.E.2d 813 ] [refusing to apply the rescue doctrine when a suspect invokes the right to counsel]; State v. Miller (1985) 300 Ore. 203 [ 709 P.2d 225, 241 ] [same].) After the California courts had adopted the rescue doctrine, the high court in New York v. Quarles (1984) 467 U.S. 649 [ 81 L.Ed.2d 550 , 104 S.Ct. 2626 ] (Quarles) carved out a “public safety” exception to the requisite Miranda warnings.

2009Later, the Court of Appeal in People v. Dean (1974) 39 Cal.App.3d 875 [ 114 Cal.Rptr. 555 ] first coined the phrase “rescue doctrine” to describe our holding in Modesto, supra, 62 Cal.2d 436 ; in rejecting the defendant’s argument in Dean that the doctrine was no longer viable in light of the high court’s decision in Miranda, supra, 384 U.S. 436 , the Court of Appeal pointed out that “[w]hile life hangs in the balance, there is no room to require admonitions concerning the right to counsel and to remain silent.” (Dean, supra, 39 Cal.App.3d at p. 882 .) Four years later, the Court of Appeal in

2009Later, the Court of Appeal in People v. Dean (1974) 39 Cal.App.3d 875 [ 114 Cal.Rptr. 555 ] first coined the phrase “rescue doctrine” to describe our holding in Modesto, supra, 62 Cal.2d 436 ; in rejecting the defendant’s argument in Dean that the doctrine was no longer viable in light of the high court’s decision in Miranda, supra, 384 U.S. 436 , the Court of Appeal pointed out that “[w]hile life hangs in the balance, there is no room to require admonitions concerning the right to counsel and to remain silent.” (Dean, supra, 39 Cal.App.3d at p. 882 .) Four years later, the Court of Appeal in

1971(See Bilyeu v. Standard Freight Lines, supra, 182 Cal.App.2d 536, 542-543 .) Therefore, if defendant negligently created the peril which entrapped those men, defendant would be liable under the rescue doctrine for the injuries *369 plaintiff suffered herein, assuming that plaintiff acted neither rashly nor recklessly.

1967(Bilyeu v. Standard Freight Lines, 182 Cal.App.2d 536, 545-546 [ 6 Cal.Rptr. 65 ].) The plaintiff also urges that the rescue exception to the contributory negligence rule operates not only against the defendant whose negligence created the original peril which plaintiff as a rescuer was attempting to surmount, but applies as well to all defendants negligently involved in an accident, regardless of the source and creation of the original peril.

2009(See People v. Manning (Colo. 1983) 672 P.2d 499, 502, 511-512 [refusing to apply the rescue doctrine because the three-year-old victim, who had been severely beaten before disappearing, had been missing for 14 weeks and the lead investigator had begun to search for the child’s dead body].) Defendant points out that in all California cases that have applied the rescue doctrine the victim had been missing for a far shorter time than here.

2009At trial, the parties referred to this location as the “Pythian Road site”; for convenience, we will do the same. 4 We disapprove the Court of Appeal’s decision in People v. Riddle, supra, 83 Cal.App.3d 563, 576-578 , and cases following it (People v. Stevenson, supra, 51 Cal.App.4th 1234, 1238-1239 ; People v. McDermand (1984) 162 Cal.App.3d 770, 796-797 [ 211 Cal.Rptr. 773 ]; People v. Willis, supra, 104 Cal.App.3d 433, 449 ) to the extent that those decisions apply Riddle’s three-part test in determining applicability of the rescue doctrine. 5 Even if Sergeant Meese was intentionally deceiv

2009(See Coffman and Marlow, supra, 34 Cal.4th 1, 57 [victim missing for seven days]; People v. Willis, supra, 104 Cal.App.3d 433 [victim missing for several days]; Riddle, supra, 83 Cal.App.3d 563 [the defendant was questioned over a two-day period shortly after the victim disappeared]; People v. Dean, supra, 39 Cal.App.3d 875 [victim missing for three days]; see also People v. Swoboda (N.Y.Crim.Ct. 2002) 190 Misc.2d 214 [ 737 N.Y.S.2d 821, 827 ] [victim missing for 11 days].) But the length of time a kidnap victim has been missing is not, by itself, dispositive of whether a rescue is still reaso

2009(See Coffman and Marlow, supra, 34 Cal.4th 1, 57 [victim missing for seven days]; People v. Willis, supra, 104 Cal.App.3d 433 [victim missing for several days]; Riddle, supra, 83 Cal.App.3d 563 [the defendant was questioned over a two-day period shortly after the victim disappeared]; People v. Dean, supra, 39 Cal.App.3d 875 [victim missing for three days]; see also People v. Swoboda (N.Y.Crim.Ct. 2002) 190 Misc.2d 214 [ 737 N.Y.S.2d 821, 827 ] [victim missing for 11 days].) But the length of time a kidnap victim has been missing is not, by itself, dispositive of whether a rescue is still reaso

2009(See People v. Peevy (1998) 17 Cal.4th 1184, 1199 [ 73 Cal.Rptr.2d 865 , 953 P.2d 1212 ] [citing decisions of the U.S. Supreme Court demonstrating that “applications of the Miranda rule generally do not turn upon the individual officer’s subjective state of mind . . .”].) For these reasons, applicability of the rescue doctrine must be grounded on objective facts known to law enforcement. “ ‘[Ujnder circumstances of extreme emergency where the possibility of saving the life of a missing victim exists, noncoercive questions may be asked of a material witness in custody even though answers to the

2009(See People v. Peevy (1998) 17 Cal.4th 1184, 1199 [ 73 Cal.Rptr.2d 865 , 953 P.2d 1212 ] [citing decisions of the U.S. Supreme Court demonstrating that “applications of the Miranda rule generally do not turn upon the individual officer’s subjective state of mind . . .”].) For these reasons, applicability of the rescue doctrine must be grounded on objective facts known to law enforcement. “ ‘[Ujnder circumstances of extreme emergency where the possibility of saving the life of a missing victim exists, noncoercive questions may be asked of a material witness in custody even though answers to the

2009At trial, the parties referred to this location as the “Pythian Road site”; for convenience, we will do the same. 4 We disapprove the Court of Appeal’s decision in People v. Riddle, supra, 83 Cal.App.3d 563, 576-578 , and cases following it (People v. Stevenson, supra, 51 Cal.App.4th 1234, 1238-1239 ; People v. McDermand (1984) 162 Cal.App.3d 770, 796-797 [ 211 Cal.Rptr. 773 ]; People v. Willis, supra, 104 Cal.App.3d 433, 449 ) to the extent that those decisions apply Riddle’s three-part test in determining applicability of the rescue doctrine. 5 Even if Sergeant Meese was intentionally deceiv

2009At trial, the parties referred to this location as the “Pythian Road site”; for convenience, we will do the same. 4 We disapprove the Court of Appeal’s decision in People v. Riddle, supra, 83 Cal.App.3d 563, 576-578 , and cases following it (People v. Stevenson, supra, 51 Cal.App.4th 1234, 1238-1239 ; People v. McDermand (1984) 162 Cal.App.3d 770, 796-797 [ 211 Cal.Rptr. 773 ]; People v. Willis, supra, 104 Cal.App.3d 433, 449 ) to the extent that those decisions apply Riddle’s three-part test in determining applicability of the rescue doctrine. 5 Even if Sergeant Meese was intentionally deceiv

2009At trial, the parties referred to this location as the “Pythian Road site”; for convenience, we will do the same. 4 We disapprove the Court of Appeal’s decision in People v. Riddle, supra, 83 Cal.App.3d 563, 576-578 , and cases following it (People v. Stevenson, supra, 51 Cal.App.4th 1234, 1238-1239 ; People v. McDermand (1984) 162 Cal.App.3d 770, 796-797 [ 211 Cal.Rptr. 773 ]; People v. Willis, supra, 104 Cal.App.3d 433, 449 ) to the extent that those decisions apply Riddle’s three-part test in determining applicability of the rescue doctrine. 5 Even if Sergeant Meese was intentionally deceiv

2009At trial, the parties referred to this location as the “Pythian Road site”; for convenience, we will do the same. 4 We disapprove the Court of Appeal’s decision in People v. Riddle, supra, 83 Cal.App.3d 563, 576-578 , and cases following it (People v. Stevenson, supra, 51 Cal.App.4th 1234, 1238-1239 ; People v. McDermand (1984) 162 Cal.App.3d 770, 796-797 [ 211 Cal.Rptr. 773 ]; People v. Willis, supra, 104 Cal.App.3d 433, 449 ) to the extent that those decisions apply Riddle’s three-part test in determining applicability of the rescue doctrine. 5 Even if Sergeant Meese was intentionally deceiv

2009(See People v. Fitch (1997) 55 Cal.App.4th 172, 185 [ 63 Cal.Rptr.2d 753 ] [§ 1108 applies to cases tried after its effective date of Jan. 1, 1996, and no ex post facto violation occurs when it is applied to a charged offense occurring before its enactment].)

2009(See People v. Fitch (1997) 55 Cal.App.4th 172, 185 [ 63 Cal.Rptr.2d 753 ] [§ 1108 applies to cases tried after its effective date of Jan. 1, 1996, and no ex post facto violation occurs when it is applied to a charged offense occurring before its enactment].)

2009(Coffman and Marlow, supra, 34 Cal.4th at p. 56.) In the handful of post-Quarles cases involving the rescue of missing persons, California decisions have continued to apply the rescue doctrine independently of the public safety exception articulated by the high court.

2009(Coffman and Marlow, supra, 34 Cal.4th at p. 56.) In the handful of post-Quarles cases involving the rescue of missing persons, California decisions have continued to apply the rescue doctrine independently of the public safety exception articulated by the high court.

2009(See People v. Panah (2005) 35 Cal.4th 395, 471 [ 25 Cal.Rptr.3d 672 , 107 P.3d 790 ]; Coffman and Marlow, supra, 34 Cal.4th at p. 56; People v. Stevenson (1996) 51 Cal.App.4th 1234, 1239-1240 [ 59 Cal.Rptr.2d 878 ].) Here, in admitting defendant’s statements, the trial court relied in part on its conclusion that when Petaluma Police Sergeant Meese asked defendant to tell him where Polly was, Meese was motivated by the desire to save Polly’s life.

2009(See People v. Panah (2005) 35 Cal.4th 395, 471 [ 25 Cal.Rptr.3d 672 , 107 P.3d 790 ]; Coffman and Marlow, supra, 34 Cal.4th at p. 56; People v. Stevenson (1996) 51 Cal.App.4th 1234, 1239-1240 [ 59 Cal.Rptr.2d 878 ].) Here, in admitting defendant’s statements, the trial court relied in part on its conclusion that when Petaluma Police Sergeant Meese asked defendant to tell him where Polly was, Meese was motivated by the desire to save Polly’s life.

2004(See Dickerson v. United States (2000) 530 U.S. 428, 441 [ 147 L.Ed.2d 405 , 120 S.Ct. 2326 ] [describing the Quarles rule (New York v. Quarles, supra, 467 U.S. 649 ) as an exception to the Miranda rule].) In any event, because the record on appeal sheds no light on why counsel failed to request such an instruction, and this is not a case in which there could be no satisfactory explanation, the claim of ineffective assistance should be raised in the context of a habeas corpus petition.

2004(See Dickerson v. United States (2000) 530 U.S. 428, 441 [ 147 L.Ed.2d 405 , 120 S.Ct. 2326 ] [describing the Quarles rule (New York v. Quarles, supra, 467 U.S. 649 ) as an exception to the Miranda rule].) In any event, because the record on appeal sheds no light on why counsel failed to request such an instruction, and this is not a case in which there could be no satisfactory explanation, the claim of ineffective assistance should be raised in the context of a habeas corpus petition.

1999Co. (10th Cir. 1982) 675 F.2d 1130, 1134 (Federal Employers’ Liability Act case: “The railroad’s novel argument overlooks that the rescue doctrine also permits a rescuer to recover for his injuries from the imperiled *585 party if that person has negligently placed himself in danger.”); see Barnett v. Des Moines Electric Co. (8th Cir. 1925) 10 F.2d 111, 114 (reckless rescue on the facts, but cites many cases, including Saylor, and concludes “. . . the courts recognize the human instinct which prompts a person to go to the rescue of another in a position of imminent danger”); Maltman v. Sauer (

1999Co. (10th Cir. 1982) 675 F.2d 1130, 1134 (Federal Employers’ Liability Act case: “The railroad’s novel argument overlooks that the rescue doctrine also permits a rescuer to recover for his injuries from the imperiled *585 party if that person has negligently placed himself in danger.”); see Barnett v. Des Moines Electric Co. (8th Cir. 1925) 10 F.2d 111, 114 (reckless rescue on the facts, but cites many cases, including Saylor, and concludes “. . . the courts recognize the human instinct which prompts a person to go to the rescue of another in a position of imminent danger”); Maltman v. Sauer (

1999Co. (10th Cir. 1982) 675 F.2d 1130, 1134 (Federal Employers’ Liability Act case: “The railroad’s novel argument overlooks that the rescue doctrine also permits a rescuer to recover for his injuries from the imperiled *585 party if that person has negligently placed himself in danger.”); see Barnett v. Des Moines Electric Co. (8th Cir. 1925) 10 F.2d 111, 114 (reckless rescue on the facts, but cites many cases, including Saylor, and concludes “. . . the courts recognize the human instinct which prompts a person to go to the rescue of another in a position of imminent danger”); Maltman v. Sauer (

1999Co. (10th Cir. 1982) 675 F.2d 1130, 1134 (Federal Employers’ Liability Act case: “The railroad’s novel argument overlooks that the rescue doctrine also permits a rescuer to recover for his injuries from the imperiled *585 party if that person has negligently placed himself in danger.”); see Barnett v. Des Moines Electric Co. (8th Cir. 1925) 10 F.2d 111, 114 (reckless rescue on the facts, but cites many cases, including Saylor, and concludes “. . . the courts recognize the human instinct which prompts a person to go to the rescue of another in a position of imminent danger”); Maltman v. Sauer (

1999Co. (10th Cir. 1982) 675 F.2d 1130, 1134 (Federal Employers’ Liability Act case: “The railroad’s novel argument overlooks that the rescue doctrine also permits a rescuer to recover for his injuries from the imperiled *585 party if that person has negligently placed himself in danger.”); see Barnett v. Des Moines Electric Co. (8th Cir. 1925) 10 F.2d 111, 114 (reckless rescue on the facts, but cites many cases, including Saylor, and concludes “. . . the courts recognize the human instinct which prompts a person to go to the rescue of another in a position of imminent danger”); Maltman v. Sauer (

1999Co. (10th Cir. 1982) 675 F.2d 1130, 1134 (Federal Employers’ Liability Act case: “The railroad’s novel argument overlooks that the rescue doctrine also permits a rescuer to recover for his injuries from the imperiled *585 party if that person has negligently placed himself in danger.”); see Barnett v. Des Moines Electric Co. (8th Cir. 1925) 10 F.2d 111, 114 (reckless rescue on the facts, but cites many cases, including Saylor, and concludes “. . . the courts recognize the human instinct which prompts a person to go to the rescue of another in a position of imminent danger”); Maltman v. Sauer (

1999(Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 545, fn. 4 [ 34 Cal.Rptr.2d 630 , 882 P.2d 347 ] (Neighbarger).) In discussing the rescue doctrine, Holland overstates a decision of the California Supreme Court, Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361 [ 99 Cal.Rptr. 29 , 491 P.2d 821 ] (Solgaard).

1999(Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 545, fn. 4 [ 34 Cal.Rptr.2d 630 , 882 P.2d 347 ] (Neighbarger).) In discussing the rescue doctrine, Holland overstates a decision of the California Supreme Court, Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361 [ 99 Cal.Rptr. 29 , 491 P.2d 821 ] (Solgaard).

1999Co. (10th Cir. 1982) 675 F.2d 1130, 1134 (Federal Employers’ Liability Act case: “The railroad’s novel argument overlooks that the rescue doctrine also permits a rescuer to recover for his injuries from the imperiled *585 party if that person has negligently placed himself in danger.”); see Barnett v. Des Moines Electric Co. (8th Cir. 1925) 10 F.2d 111, 114 (reckless rescue on the facts, but cites many cases, including Saylor, and concludes “. . . the courts recognize the human instinct which prompts a person to go to the rescue of another in a position of imminent danger”); Maltman v. Sauer (