Flood suit

[JamesVincent]

Is it me or has there been a plethora of seriously whacked suits lately popping up in the papers? I've posted, what, 3 of them in the past month or so, all different and unique. Well, how about someone suing..... for being saved. But not fast enough.

http://www.washingtontimes.com/news/201 ... k.facebook

A Colorado man is suing his rescuers for $500,000 after he was pulled out of a submerged car during the historic floods in September.

Roy Ortiz’s vehicle plunged into a creek in Broomfield County after hitting a portion of washed out road, a local ABC affiliate reported.

According to his attorney, Ed Ferszt, divers with North Metro Fire Rescue took longer than they should in rescuing Mr. Ortiz, because they hadn’t realized he was still alive in the car. Mr. Ortiz had found an air pocket to breathe for the two hours he was trapped underwater.

And I found the all time killer quote from an... ehem... attorney.

If divers went into the water in an attempt to locate Roy and they didn’t see him there, as dangerous a job that it is, and we are thankful for first responders, that was a mistake. And the legal term for that mistake is negligence,

So...... divers go into a flooded, racing section of water.... after traversing washed out roads to get there.... and make a mistake?

[Kestrel]

Yeah, I wondered about that one myself. The jackass ambulance-chaser is acting like the divers drifted around in a tranquil crystal-clear swimming pool and failed to see a guy waving at them through the window. The reality of the situation is that the divers probably put their own lives at risk in fast-moving silt-filled murky water with a visibility of maybe a foot, and failed to see a guy three or four feet away flattened against the inside roof of his car. Heck, the driver is lucky they were even able to secure tow lines to the car so they could pull it out.

If failing to find the guy in rough murky water is "negligence", what would the ambulance- chaser call it if they'd decided it was too risky to enter the water and pull the car out. Homicide?

[fortinbras]

Who would he be suing if the divers had decided not to suit up, or to attempt rescues of other people at other places in the flood?

[Arthur Rubin]

I seem to recall a principle of law which would prevent this suit from going forward, but I can't remember what it is.

[notorial dissent]

Having seen lots of pictures and footage of the flood in question, they were lucky they could even see or find the idiot's car in the first place, and he is incredibly lucky that they did.

On a side note, as I recall, Colorado has a shield law for first responders and emergency personnel, so I rather suspect that the ambulance chaser's suit will not survive long once it gets to court.

[webhick]

If there isn't a first responder's law, good samaritan law might apply.

[notorial dissent]

State has both as I remember, they weren't real interested in seeing people risking their lives, and the state, getting hit with law suits, so they plugged that pretty thoroughly a few years ago. They also have a strong good samaritan law as well, I have friends there in volunteer fire units and such, also covers people trying to help.

[Famspear]

I seem to recall a principle of law which would prevent this suit from going forward, but I can't remember what it is.

The principle is embodied in the elements of a cause of action for the tort of negligence.

Since I don't have time to study the statutes and case law in the applicable jurisdiction, I'll go with the secondary authority of Prosser. At common law, to prove the tort of negligence, the plaintiff had to prove:

1. Existence of a duty or obligation recognized by law (a duty imposed on the defendant, and owed to the plaintiff) to conform to a certain standard of conduct, for the protection of others against unreasonable risks;

2. A failure on the part of the defendant to conform to that standard of conduct: a breach of the duty;

3. Actual loss or damage or injury to the plaintiff;

4. A reasonably close causal connection between the defendant's failure and the plaintiff's loss, damage or injury.

--See, generally, W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on the Law of Torts, pp. 164-165 (West 1984) (hereinafter Prosser).

For the plaintiff who was trapped in the car, the main problems are the first and third elements.

What is the duty, if any, that the law imposes on the responder who is doing the rescue? Where's the law? Is it statutory? Is there some case law supporting the plaintiff's case?

And even if there is a duty imposed by law, and even if the defendant breached that duty, and even if the defendant's breach of the duty CAUSED some actual damage to the plaintiff, what exactly is the actual damage to the plaintiff? "Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred."-- Prosser, p. 165.