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Estate of Minser v. Poinsatte8/14/1998
SHERCK, Judge.
This is an appeal from a summary judgment granted by the Williams County Court of Common Pleas in favor of a tortfeasor who was sued under Ohio's common-law rescue doctrine for the death of a bystander at an automobile accident scene. Because the undisputed facts show that the decedent was removed in both time and space from any rescue attempt, we affirm.
On July 25, 1995, appellee Phillip S. Poinsatte was driving a delivery van owned by appellee Poinsatte Motors when he ran a stop sign and collided with another van at the intersection of U.S. 20 and Ohio Route 49 in Williams County. The collision sheared off an electrical pole and left Phillip Poinsatte's vehicle on its side and the other van upside down.
A few minutes later, Timothy Minser came upon the scene, as Minser had agreed to meet his former wife, nurse Cindy Abate, at the intersection to exchange the couple's child following visitation. Phillip Poinsatte testified at deposition that when Minser arrived be helped Poinsatte and the driver of the other van extricate a passenger trapped in the upside-down van. At some point, Cindy Abate also arrived and began to provide medical attention to the men from the overturned van. Poinsatte testified that shortly thereafter a police officesarrived and warned Poinsatte, in Minser's presence, to avoid the power wires downed during the accident. A few minutes later, Poinsatte reported hearing a loud pop followed by screams. When he looked, Poinsatte observed Minser, his left hand raised, grabbing a downed live power wire. Minser was some twenty-five feet from the overturned van when he was electrocuted.
Cindy Abate's account varied from Poinsatte's in some respects. Abate, in her affidavit, recalled arriving at the scene before Minser. She immediately began to aid the two occupants of the van who had already been removed from the overturned vehicle. Later, Minser arrived to offer help and, at Abate's request, obtained a flannel shirt to place under the head of one of the injured. According to Abate, no police were on the scene and emergency medical technicians were only just arriving when Minser came into contact with the live wire.
Following Timothy Minser's death, appellant, Janet L. Minser, brought a wrongful death and survivorship action against appellees on behalf of Minser's estate. In the trial court, appellees moved for summary judgment. Appellees argued that a tortfeasor's duty to a third party, arriving after the results of the primary negligent act are complete, exists only to the extent that the third party attempts to become a rescuer to someone in peril as a result of the original negligence. See Prosser & Keeton on Torts (5 Ed.1984) 307-308. Appellees contend that when Minser was electrocuted, he was no longer involved in any rescue attempt and, in any event, his own negligence in failing to avoid the downed power line was an intervening and superseding cause of his death.
Appellant responded to appellees' motion by submitting Cindy Abate's affidavit, arguing that summary judgment was inappropriate because questions of fact existed as to whether a police officer was at the scene prior to Minser's electrocution and whether the police warned Minser of the danger from the downed power line.
The trial court granted summary judgment, concluding that Timothy Minser did not fall within the "rescue doctrine." Additionally, the trial court ruled that Minser's own act of picking up a "hot" wire was an intervening and superseding cause which severed the chain of causation between appellee Phillip Poinsatte's negligence and Minser's death.
Appellant now appeals, set
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