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Detrimental reliance exception: If the victim detrimentallyrelied on the rescue or a third person is deterred from rescuing the victim and the rescuer did a bad job – then the person being rescued is worse off. Therefore, the rescuer will be liable.RULE: No general duty to rescue, exception:1.An undertaking can create a duty2.Can stop if victim is not worse offa. Increase dangerb. Deprive victim of a chance of other aidc. Induce victim to forego aid in relianceIf D has superior knowledge (expert/professional), D will beheld to a higher standard of duty of care.71
Torts – David FischerCharlene Warner, 0399112L.S. Ayres & Co. v HicksIndiana, 1942Rule: A party may be under a legal duty to rescue aperson who is helpless or in a situation of peril whenthe party is an invitor of the person, or when an injuryresults from use of an instrumentality under the controlof the party.FactsThe plaintiff, a six-year-old, was in the defendant’sdepartment store when he fell and injured his fingers inthe store’s escalator. The defendant negligently delayedstopping the escalator which made the plaintiff’sinjuries worse. The plaintiff brought suit for his injuriesand the trial court found in his favor. The defendantmoved for a new trial and the motion was denied. Thedefendant appealed.IssueDoes an invitor have a duty to help or rescue an inviteehelpless or in danger on the invitor’s property?Holding and Reasoning (Shake, C.J.)Yes. Although there is no general duty to rescue aperson in danger, a legal duty arises when a party is aninvitor of the endangered person, or when an injuryresults from use of an instrumentality under the controlof the party. This represents a principle of socialconduct that is “so universally recognized” that a dutymust be created. In the present case, the plaintiff wasan invitee in the defendant’s department store. Inaddition, the plaintiff was injured using an escalator—an instrumentality under the control of the defendant.Consequently, a duty arose for the department store toassist the child after the initial injury occurred. Whenthe defendant negligently delayed shutting off theescalator, it violated its duty and is liable for thatbreach. However, the defendant is only liable for theaggravation of the plaintiff’s injuries after the initialinjury occurred because that is when the duty to rescuecame about. As a result, the trial court’s award of fulldamages must be reduced. The judgment is reversedand the defendant’s motion for a new trial should begranted.Where there is a special relationship between the P and the D, it can give rise to a duty on the part of the D to aidthe P:Here, the D is an invitor and and P is an invitee (there is an economic benefit involved); ORThe instrumentality is under the control of the D.