Use, Operation and proximate cause liberally construed to afford coverageMay 14, 2013

Kesick v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 03366 (3d Dept. 2013)

“In June 2007, plaintiff — a State Trooper, licensed registered nurse and paramedic — responded to a 911 call for assistance following a two-vehicle accident that occurred when Joseph Prindle’s vehicle struck Ralph Williams’ vehicle from behind, causing Williams’ vehicle to flip over. Upon plaintiff’s arrival at the scene of the accident, Williams was trapped inside his vehicle and complained of pain in his chest, hip and neck. Once the fire department arrived and removed the roof of the vehicle with the Jaws of Life, plaintiff entered the vehicle and stabilized Williams’ neck. While he and two other individuals were lifting Williams out of the vehicle, plaintiff injured his right shoulder.”

…Now the Courts tells us that (1) There was an accident; (2) The accident occurred while the vehicle was being used and occupied; and (3) The use of the vehicle wast he proximate cause of plaintiff’s injury. Thus, there is SUM coverage.  The issue of PIP coverage was never raised since Plaintiff collected Workers Compensation Benefits; but, the analysis should be no different.

Here is the rest of the decision:


Plaintiff invokes the doctrine of danger invites rescue to establish the requisite causal connection between the motor vehicle accident and his injuries. The “danger invites rescue” doctrine imposes liability upon a defendant who, “by his [or her] culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his [or her] aid” (Provenzo v Sam, 23 NY2d 256, 260 [1968]; see Wagner v International Ry. Co., 232 NY 176, 180 [1921]; Gifford v Haller, 273 AD2d 751, 752 [2000]). In order for the doctrine to apply, the rescuer must have had a reasonable belief that the person being rescued was in peril (see Provenzo v Sam, 23 NY2d at 261; Carney v Buyea, 271 App Div 338, 342 [1946]). The reasonableness of a decision to intervene is generally a question for the factfinder (see O’Connor v Syracuse Univ., 66 AD3d 1187, 1191 [2009], lv dismissed 14 NY3d 766 [2010]; Gifford v Haller, 273 AD2d at 752; see also Hughes v Murnane Bldg. Contrs., Inc., 89 AD3d 1507, 1508 [2011]).

In the instant matter, plaintiff’s claims that Williams was injured as a result of the accident caused by Prindle’s negligent operation of his vehicle and that plaintiff was injured in the process of rescuing him are uncontroverted. Plaintiff’s affidavit established that he was directed to respond to the accident and was the first responder on the scene with medical training. When plaintiff spoke to Williams, he complained of extreme pain in his hip, chest and neck. Based upon his medical training, plaintiff knew the importance of stabilizing Williams’ neck to prevent further injury. Viewing this evidence in a light most favorable to plaintiff, we cannot conclude, as a matter of law, that his belief that Williams was in peril was unreasonable (see Villoch v Lindgren, 269 AD2d 271, 273 [2000]).

Moreover, if the facts here warrant application of the danger invites rescue doctrine, plaintiff’s injuries were not so remote in either time or space to the use of Prindle’s automobile as [*3]to preclude a finding of proximate cause as a matter of law. There is no dispute that Prindle’s negligent use of his vehicle directly caused the accident that led to Williams’ injuries which, in turn, led to plaintiff’s intervention. Considering the open question of the applicability of the danger invites rescue doctrine and liberally construing the provisions of the SUM policy in plaintiff’s favor, Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint (see Matter of Farm Family Cas. Ins. Co. [Trapani], 301 AD2d at 741; compare Zaccari v Progressive Northwestern Ins. Co., 35 AD3d at 597).

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