Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-28-2006

Yurecka v. Zappala
Precedential or Non-Precedential: Precedential

Docket No. 05-2468




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                                              PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                          No. 05-2468


 MARIE M. YURECKA, Individually and as Administratrix
of the Estate of William J. Yurecka, Deceased, and as Natural
   Guardian of M.M. Yurecka and K.W. Yurecka, Minors;
                   BRIAN R. YURECKA,
                                     Appellants

                                v.

  JEFFREY ZAPPALA; ARLENE PICCIONI-ZAPPALA,
                    Defendants-/Third-Party Plaintiffs

                                v.

    RONALD M. ROCKWELL; PENNSYLVANIA
 TURNPIKE COMMISSION; RONALD C. ROCKWELL,
                      Third-Party Defendants



         On Appeal from the United States District
        Court for the Middle District of Pennsylvania
              (District Court No. 04-cv-01352)
         District Judge: Honorable Edwin M. Kosik


                 Argued: September 27, 2006

     Before: MCKEE and AMBRO, Circuit Judges, and
                  RESTANI,* Judge.



*Honorable Jane A. Restani, Chief Judge of the United States
Court of International Trade, sitting by designation.
                 (Filed: December 28, 2006)

Paul T. Sheppard, Esquire (Argued)
Hinman, Howard & Kattell, LLP
80 Exchange Street
700 Security Mutual Building
Binghamton, NY 13902

      Counsel for Appellants

Louis E. Bricklin, Esquire (Argued)
Lawrence R. Berger, III, Esquire
Bennett, Bricklin & Saltzburg, LLP
1601 Market Street, 16th Floor
Philadelphia, PA 19103

      Counsel for Appellees

                      ______________

                OPINION OF THE COURT
                    ______________

RESTANI, Judge.

      Plaintiffs-Appellants Marie Yurecka, individually and as
administratrix of the Estate of William Yurecka, and as natural
guardian of M.M. Yurecka and K.W. Yurecka, and Brian
Yurecka appeal from a judgment of the United States District
Court for the Middle District of Pennsylvania. The District
Court granted a motion for summary judgment in favor of
Defendants-Appellees Jeffrey Zappala and Arlene Piccioni-
Zappala on the ground that the rescue doctrine does not support
the Yureckas’ claims arising from two automobile accidents on
the Pennsylvania Turnpike, the second of which caused the
death of William Yurecka. For the reasons that follow, we
conclude that a genuine issue of material fact exists as to
whether the rescue was ongoing at the time of the second
accident, and reverse and remand for further proceedings.

                      BACKGROUND

                               2
       This action arises from two automobile accidents that
occurred on the Pennsylvania Turnpike on the evening of May
12, 2002. The following facts are undisputed.

        While driving north on the Turnpike in heavy rainfall,
William Yurecka, his wife Marie Yurecka, and their three
children saw a white Toyota 4-Runner pass their vehicle and
travel out of sight. The Toyota 4-Runner was driven by Jeffrey
Zappala, and seated in the front passenger seat was his wife,
Arlene Piccioni-Zappala. The Yureckas later noticed the Toyota
4-Runner lying overturned off of the right side of the highway.
They decided to stop to provide assistance, as both Mr. and Mrs.
Yurecka were trained and certified in first aid by the Red Cross.
The Yureckas pulled to the side of the highway, parked their
minivan with the “hazard lights” flashing, exited the vehicle and
walked downhill toward the 4-Runner.

        As the Yureckas approached the Zappalas’ vehicle,
which was visibly totaled as a result of the accident, the
Zappalas managed to climb out through the rear of their
vehicle.1 Although the Zappalas said that they were “all right”
and appeared externally uninjured, they followed the Yureckas
to their minivan, where the Yureckas made room for them to sit
under the minivan’s rear hatch to provide shelter from the heavy
rain. Mr. Yurecka walked to a nearby emergency call box to
phone the police and then returned to the minivan to assist the
Zappalas. The Yureckas’ three children remained inside the
passenger compartment.

      While the Zappalas sat beneath the rear hatch of the
Yureckas’ minivan, the Yureckas verbally comforted them,
provided them with warm blankets and a pair of shoes for Mrs.
Zappala, who had lost hers in the accident, and stayed with them
to monitor for possible shock and other injuries while the

       1
         It is not clear in the record whether another vehicle arrived
on the scene prior to the Yureckas’ arrival, or whether the
occupants of that vehicle assisted the Zappalas in leaving the
overturned 4-Runner. Following the Zappalas’ exit from their
vehicle, however, it is undisputed that the Yureckas were the sole
providers of assistance.

                                  3
Zappalas waited for police to arrive.

       Approximately seventeen minutes later, while the
Zappalas waited inside the Yureckas’ minivan, a third vehicle,
driven by Third-Party Defendant Robert Rockwell, lost control
on the wet highway. His vehicle swerved and hydroplaned into
the Yureckas’ parked vehicle. Mr. Yurecka, who had been
standing near the rear corner of the minivan, was hit by the
Rockwell vehicle and dragged north into the left lane of the
Turnpike. The police arrived after Mr. Yurecka was hit, and he
was transported to the hospital, where he died as a result of
multiple traumatic injuries from the collision.

       In May 2004, the Yureckas brought an action for
wrongful death, survival claims, and negligent infliction of
emotional distress against the Zappalas in the Luzerne County,
Pennsylvania, Court of Common Pleas. The case was then
removed to the Middle District of Pennsylvania on the basis of
diversity jurisdiction. The Yureckas’ claims were based on the
Zappalas’ negligence in causing the first accident, which
prompted the Yureckas to come to their rescue, placing Mr.
Yurecka in the way of harm that ultimately led to his death. The
Zappalas argued that any rescue was completed at the time of
the subsequent accident, and that the rescue doctrine no longer
applied.

       The District Court agreed, granting a motion for
summary judgment on the grounds that the rescue doctrine did
not apply at the time of the second accident.2 The Court also
found, however, that the Zappalas were driving at an unsafe
speed at the time of their accident, and that the Yureckas had
been rescuers at the time they stopped to provide assistance.
Yurecka v. Zappala, No. 04-CV-1352, slip op. at 3, 12 (M.D.
Pa. Apr. 20, 2005). On April 20, 2005, the District Court


       2
         The District Court held that legal approaches to the rescue
doctrine “after the threat of imminent peril has ceased” may be
separated into distinct “narrow” and “broad” categories, and that
the peril in this case had ended at the time of Mr. Yurecka’s fatal
injury. J.A. at A-12.

                                 4
granted the motion for summary judgment on all counts of the
complaint in favor of the Zappalas. The Yureckas appeal.

    JURISDICTION AND STANDARD OF REVIEW

       We have jurisdiction to review a final decision of the
District Court pursuant to 28 U.S.C. § 1291. A district court’s
grant of summary judgment is reviewed de novo. Fertilizer Inst.
v. Browner, 

, 777 (3d Cir. 1998). In reviewing a
grant of summary judgment, we apply the same standard as the
District Court to determine whether there exists a genuine issue
of material fact. Id.; see also Fed. R. Civ. P. 56(c). All facts
must be viewed “‘in the light most favorable to the party
opposing the motion,’” Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 

, 587 (1986) (quoting United
States v. Diebold, Inc., 

, 655 (1962)), and the
burden is on the party moving for summary judgment to
demonstrate the absence of any material issues of fact. Celotex
Corp. v. Catrett, 

, 323 (1986).

       A federal court sitting in diversity is required to apply the
substantive law of the state whose laws govern the action.
Robertson v. Allied Signal, Inc., 

, 378 (3d Cir.
1990). In the absence of any clear precedent of the state’s
highest court, we must predict how that court would resolve the
issue. Polselli v. Nationwide Mut. Fire Ins. Co., 

,
528 n.3 (3d Cir. 1997). In making such a prediction, we should
consider “‘relevant state precedents, analogous decisions,
considered dicta, scholarly works, and any other reliable data
tending convincingly to show how the highest court in the state
would resolve the issue at hand.’” Nationwide Mut. Ins. Co. v.
Buffetta, 

, 637 (3d Cir. 2000) (quoting McKenna
v. Ortho Pharm. Corp., 

, 663 (3d Cir. 1980).

                         DISCUSSION

       Although the Pennsylvania Supreme Court has not
clearly defined the scope of Pennsylvania’s rescue doctrine,
other existing case law indicates that a rescuer plaintiff may
recover for injuries suffered in the course of a rescue if it can be
shown that: 1) the defendant negligently caused the dangerous

                                 5
situation; 2) the person requiring rescue was in imminent peril
or the rescuer reasonably believed that such peril existed; and 3)
the rescuer’s actions during the rescue were not reckless. See
Pachesky v. Getz, 

, 780–83 (Pa. Super. Ct. 1986).
Altamuro v. Milner Hotel, Inc., states that “[i]n applying the
rescue doctrine, [the court] must first determine the negligence
vel non of the [defendant].” 

, 875 (E.D. Pa.
1982). The Pennsylvania Superior Court has also recognized
that “the situation precipitating the ‘rescue’ must warrant a
reasonable belief that the peril facing the object of the rescue
was urgent and imminent.” Bell v. Irace, 

, 369
(Pa. Super. Ct. 1993). This approach reflects the broadly
accepted rescue doctrine principle that “a plaintiff remains in the
course of a rescue attempt where the plaintiff acts under a
reasonable belief that the endangered party’s peril continues.”
Sweetman v. State Highway Dept., 

, 790 (Mich.
App. 1984); see also Wagner v. Intl Ry. Co., 

, 438
(N.Y. 1921); Estate of Keck By and Through Cabe v. Blair, 

, 746 (Wash. App. 1993). Finally, Pachesky states that
rescuer plaintiffs may recover for injuries suffered in the course
of a rescue if they acted “‘in the exercise of ordinary care for
their own safety under the circumstances, short of rashness and
recklessness.’” 

(quoting Walker
Hauling Co. v. Johnson, 

, 499 (Ga. Ct. App.
1964)).3


       3
        For the purposes of apportioning damages under a
comparative fault standard, the Pachesky court further
distinguishes between rescuers who acted negligently but not
recklessly and those who acted non-negligently:


       When a plaintiff performs a rescue in a reasonable manner,
       he/she is entitled to full recovery from the negligent defendant
       for all damages occasioned thereby. However, when a
       plaintiff acts unreasonably, that is, in a negligent fashion, in
       performing a rescue, the relative causal negligence of the
       parties should be apportioned in accordance with [the law].

                                                    (continued...)

                                6
        The Zappalas do not dispute for summary judgment
purposes that Mr. Zappala was negligent in causing the first
accident, and have not alleged that the Yureckas acted recklessly
in carrying out the rescue. Rather, the Zappalas contend that
there was no imminent peril at the time of the second accident,
and that the Yureckas had no reasonable belief that such peril
existed. Therefore, the decisive issue in this case is the second
element of the rescue doctrine test: whether there existed either
continued peril or a reasonable belief of such peril in the minds
of the rescuers at the time of Mr. Yurecka’s fatal injury.

       Under the rescue doctrine, peril is defined as risk of
“suffering serious injury or death.” 

. The
peril must be “imminent and real, and not merely imaginary or
speculative.” Holle v. Lake, 

, 304 (Kan. 1965).
Reasonable belief of such peril requires “more than a suspicion
of danger,” but does not require actual injury or unmistakable
knowledge on the part of the rescuer. Gifford v. Haller, 

, 753 (N.Y. App. Div. 2000). A reasonable belief
cannot “exist in a case where the negligent act causing the
victim’s injuries has run its course . . . unless the knowledge of
the rescuer gave him reason to believe that the peril to the
victim’s life was continuing.” Marks v. Wagner, 

, 484 (Ohio App. 1977).                 The determination of
reasonableness is generally a “question for the trier of fact.”

. Because the parties to this case focus
on the reasonable belief of the rescuers, the discussion here will
also take that focus, although the possibility of actual ongoing
peril has not been ruled out.

       In support of their claims, the Yureckas argue that they


       3
       (...continued)

.

       In this case, however, the third element of the rescue
doctrine test is not contested, and there has been no claim of
either negligence or recklessness on the part of the Yureckas.


                                7
reasonably believed that the Zappalas were in imminent danger
and required immediate and ongoing assistance following the
initial accident. The Yureckas point to evidence on the record
to indicate a genuine factual issue as to the reasonableness of
that belief. If such an issue exists, the Zappalas’ motion for
summary judgment must be denied. Fed. R. Civ. P. 56(c).

        In order to determine whether a genuine issue exists
under the second factor of the rescue doctrine test, we must
consider all circumstances surrounding the initial and
subsequent collisions, as well as factors that could have affected
the parties’ states of mind during the rescue. See 

(court looks to “the facts alleged . . . together with the
reasonable inferences deducible from those facts” to determine
reasonableness of belief); see also Truitt v. Hays, 33 Pa. D. &
C.2d 453, 463 (Ct. Com. Pl. Pa. 1963) (court states that “[a]
rescuer is not to be charged with errors of judgment that result
from the excitement and confusion of the moment”). To
demonstrate the reasonableness of their belief of imminent peril,
the Yureckas point to evidence of the dangerous weather and
other conditions of the accident scene during the time that they
provided assistance, the proximity to a busy highway that had
already proved perilous, the possibility of shock and other latent
injuries, and the influence of Red Cross training principles on
their states of mind.

       First, the conditions of the accident scene provide
evidence that the Yureckas could reasonably have believed that
the Zappalas faced imminent and ongoing peril. In the
aftermath of the accident, the Zappalas’ vehicle laid overturned
and visibly impaired beside the Turnpike, leaving only a rear
hatch through which to escape. The Zappalas were stranded on
the side of the Turnpike, drenched from the rain, shaken up by
their accident, and Mrs. Zappala was left barefoot by the
accident. The Zappalas were in close proximity to a busy
highway that was wet and slick from the continuing heavy rain.
Both the Yureckas and the Zappalas had firsthand knowledge of
the peril that could be presented by a roadway under such
conditions, as the parties stood between a rain-soaked, high-
speed and heavily-traveled highway and the visible aftermath of
a serious accident that had occurred just moments before.

                                8
         The Yureckas protected the Zappalas from these hazards
by providing shelter from the rain and risks of the roadway,
remaining on hand to monitor for injuries and provide first aid
if it became necessary, and supplying blankets to reduce the risk
of shock. Mrs. Yurecka indicated in her deposition that she and
her husband were aware that the Zappalas were at risk for shock
and other latent injuries associated with accidents of this
severity. See M. Yurecka Dep. 31:2–14, Jan. 5, 2005. The
deposition also provides evidence that the Yureckas knew that
such injuries could be exacerbated by exposure to rain and cold.
See 

There was no way for the Yureckas to
determine the extent of the Zappalas’ injuries until medical help
arrived on the scene, and the Yureckas’ Red Cross training had
taught them the importance of remaining with the victims to
monitor for possible injuries until professional help arrived. The
fact that the Yureckas had some specialized knowledge of such
principles of first aid provides additional evidence to support the
reasonableness of their belief that the peril was ongoing. See

. (“[T]he knowledge of the rescuer
[may give him or her] reason to believe that the peril to the
victim’s life is continuing.”).

        The Yureckas have presented considerable evidence of
the circumstances surrounding their assistance to the Zappalas,
as well as of their belief in the continuing need for such
assistance. The conditions of the accident scene provided
numerous reasons to believe that the situation presented serious
and ongoing risks to life and limb of all who were present. In
providing assistance, the Yureckas sought to reduce these risks
to the Zappalas. From the evidence on the record, a jury could
reasonably infer that the Yureckas believed that there existed
ongoing and imminent peril and that the Zappalas were in need
of continued post-accident emergency assistance through the
time of the subsequent fatal accident. Therefore, this case
presents a genuine issue on the second element of the rescue
doctrine test and should proceed for a factual finding on the
reasonableness of the Yureckas’ belief that a condition of
imminent and ongoing peril existed.

      This outcome is not inconsistent with existing
Pennsylvania case law. In granting summary judgment, the

                                9
District Court erroneously relied on the Pennsylvania Superior
Court’s opinion in Bell v. Irace, 

. The District
Court mistook factual distinctions in the case law as evidence of
a divergence in legal approaches to the rescue doctrine.4 In
construing Bell, the District Court also presupposed the outcome
of the factual issue in this case by asking whether the law of
Pennsylvania recognizes a rescuer’s right to recover for injuries
after a rescue has definitively ended, rather than the correct
question of whether the Yureckas’ rescue was ongoing under the
second element of the rescue doctrine test.

        The facts of Bell underpin the Pennsylvania court’s
ruling in that case, and distinguish it from the facts of our case.
In Bell, the plaintiff was an emergency medical technician who
was called in her capacity as a medical professional to the scene
of a collision between a motorist and a pedestrian. 

. Bell arrived only after other medical help had
arrived, and she was injured by the accident victim’s involuntary
spasms during the course of treatment. 

recovery
on the grounds that she was acting as a rescuer at the time of her
injury, and that she was therefore entitled to relief under the
rescue doctrine. 

in Bell held that the plaintiff’s
injuries were beyond the scope of the rescue doctrine because
the reasonable belief of continuing peril requirement was not
fulfilled.5 

The court explained that “the situation


       4
         Because we conclude that the proper question here under
Pennsylvania law is whether the plaintiffs have a reasonable belief
that a condition of imminent and ongoing peril exists, we find it
unnecessary to adopt the District Court’s approach. We note,
however, that the District Court’s “narrow” versus “broad”
categorization depended heavily on Bell, which will be
distinguished below, and on cases from jurisdictions outside of
Pennsylvania that may be distinguishable on their facts rather than
on any clear divergence in legal approaches to the rescue doctrine.

       5
        That court did not address whether the “Firefighter’s
Rule” also prevented Bell’s recovery under the rescue doctrine.

(“Because we conclude that the rescue
                                                     (continued...)

                                10
precipitating the ‘rescue’ must warrant a reasonable belief that
the peril facing the object of the rescue was urgent and
imminent,” and that “Bell was not injured while attempting a
heroic rescue of the nature contemplated by the rescue
doctrine.” 

         Unlike our case, Bell did not present a factual question of
whether the rescue had ended at some point between Bell’s
arrival and her injury. The Bell court concluded that Bell could
not reasonably have believed that the need for rescue was
ongoing because she was called to the scene in her capacity as
a medical professional, arrived after other emergency
professionals were on the scene, and provided assistance only
after the accident scene clearly had been stabilized. The
question in this case is not whether the Yureckas were acting as
rescuers at all, as in Bell. It is undisputed that the Yureckas
were acting as rescuers within the rescue doctrine at the time
that they approached the accident scene. Instead, our case
presents a genuine issue as to whether the rescue was ongoing
at the time of Mr. Yurecka’s injury. This basis for reversing the
District Court’s grant of summary judgment is in line with Bell’s
holding that the rescue doctrine provides relief only where the
peril is ongoing or the rescuer reasonably believes that such
peril exists. See 

The current holding is also
consistent with other cases interpreting Pennsylvania law. In
Pachesky, the Pennsylvania Superior Court denied recovery to
a rescuer on the ground that she had acted unreasonably in
performing the rescue, and was therefore subject to a jury’s
apportionment under the state’s comparative negligence statute.

. In reaching this conclusion,
however, the Pachesky court reinforced “rescuers’ favored
status in the eyes of the law,” 

n. 8, and used the

       5
        (...continued)
doctrine does not apply in this case, it is not necessary for us to
decide the question raised by Appellants whether the rescue
doctrine is available to ‘involuntary,’ or professional, rescuers.” ).
The Firefighter’s Rule is a narrow exception to the rescue doctrine,
stating that the rescue doctrine does not apply to professional
rescuers injured in the line of duty. See 57B Am. Jur. 2d
Negligence § 783.

                                 11
second part of the rescue doctrine test to determine that the
rescue was ongoing. See 

(citing 

). Unlike the case before us, Pachesky addressed the
rescuer’s comparative negligence in performing the rescue,
necessarily assuming that the rescue was ongoing at the time.

        Similarly, Altamuro granted rescuer status on the ground
that the rescuer had not acted unreasonably in reentering a
burning hotel to assist guests in peril. 

. The court assumed without discussion that the rescue
was ongoing due to the nature of the facts, and questioned only
whether the hotel had been negligent in causing the fire, and
whether the rescuer acted “so unreasonabl[y] as to preclude
recovery.” 

This approach follows that of the
Pennsylvania Supreme Court in Corbin v. City of Philadelphia,
an early rescue doctrine case that found rescuer status so long as
the rescuer acted without “rashness [or] imprudence” in carrying
out the rescue. Corbin v. City of Phila., 

, 1073 (Pa.
1900). Like Pachesky, the question in each of these cases was
not whether the rescue was ongoing, as in our case, but whether
the rescuer acted recklessly in performing the rescue.

       This case presents a genuine issue as to whether the
rescuers reasonably believed that the peril was imminent and
ongoing under the second element of the rescue doctrine test.
As mentioned previously, the determination of a rescuer’s belief
of continued peril is generally a question for a trier of fact.
Consistent with prior approaches to the rescue doctrine under
Pennsylvania law, this case presents a triable issue sufficient to
overcome summary judgment.

        Therefore, we reverse the District Court’s grant of
summary judgment in favor of the Zappalas and remand for
further proceedings on the factual issue of whether there was
continuing imminent danger or a reasonable belief of continued
peril in the minds of the Yureckas.




                               12