Menendez v. West Gables Rehabilitation Hospital, LLC

I dissent because I disagree with the majority that the applicability of the rescue doctrine was not properly before the lower court or this one; and as a matter of substance, a jury could find that it applies to the facts of this case.

Menendez did not, as the majority holds, forgo reliance on the issue by failing specifically to plead or otherwise invoke it. This is because the rescue doctrine is simply a gloss on or an aspect of questions of legal causation and scope of duty which were raised, as in any negligence case, by the pleadings and arguments below. It provides that a violation of…