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L.S. Ayres & Co. v. Hicks

Citation. L. S. Ayres & Co. v. Hicks, 41 N.E.2d 195, 220 Ind. 86
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Brief Fact Summary.

The Plaintiff, (Hicks), a six-year-old boy, fell and got his fingers caught in an escalator at the Defendant, L.S. Ayres & Co.’s (Defendant) store. Defendant unreasonably delayed in stopping the escalator, aggravating the injury.

Synopsis of Rule of Law.

Under the common law, certain special relationships give rise to a duty to assist or rescue injured individuals.


Plaintiff, a six-year-old boy was with his mother at the Defendant’s department store (defendant) when he fell and got his fingers caught in Defendant’s escalator. The court found that Defendant unreasonably delayed stopping the escalator, aggravating the Plaintiff’s injuries. Judgment was for the Plaintiff, with a new trial denied. The Defendant appeals, requesting a new trial.


Is a department store under a duty to assist an invitee who is in peril?


Yes. Judgment reversed with directions to sustain Defendant’s motion for a new trial.
* It is clear that there is no general duty to go to the rescue of someone who is in peril. However, certain relationships between parties may impose duties to rescue that would not otherwise exist. In some jurisdictions, a duty to rescue has been held to apply where one party is so injured as to render him helpless and the injury occurred due to the instrumentality under the control of another.
* The present case does not require this court to go so far. Based on previous holdings, it is clear that a duty to rescue arises in certain situations. These include when the person proceeded against is a master or invitor, or when the injury resulted from the use of an instrumentality under the control of the defendant. These situations give rise to a duty to rescue even if the original injury was not the fault of the defendant.
* In this case, the Plaintiff was an invitee and he received the initial injury using an instrumentality under the control of the Defendant. This is a sufficient relationship to place a duty upon the Defendant.
* The duty did not arise, however, until after the original injury occurred. Therefore, Defendant cannot be charged with its prevention, but only its failure to exercise reasonable care to avoid aggravation of the injury. The jury should have been limited in assessing damages to the injuries that were the proximate result of the Defendant’s actionable negligence.


Other special relationships imposing a duty to rescue are well recognized besides those mentioned by this court. Some include common carriers and passengers, innkeepers and guests and temporary legal custodians and their charge.

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