Two men suing woman they saved from burning vehicle

State Highway PatrolMark Kinkaid and David Kelley rescued Theresa Tanner from her burning SUV in Marion County on March 11, 2009.

MARION, Ohio — When David Kelley saw the bumper — headlights and all — lying in the roadway, it clicked that something was wrong.

The gray smoke rolling up from the highway embankment cemented his worry.

His buddy, Mark Kinkaid, was driving and saw the same things. Kinkaid slammed on the brakes, stopped his truck along Rt. ?23 in Marion County, and the two men jumped out.

They hopped a barbed-wire fence, knocked down trees and brush, half ran and half slid down the steep highway embankment, and rushed the flaming Hummer.

Kelley said in an interview last week that he still remembers the woman’s screams: “??‘Help me! Help me! Help me!’ Over and over and over, that’s all I could hear.”

Kinkaid and Kelley didn’t know who was inside, but they knew they had to get to her. They fought their way into the vehicle, wrenched a door open and pulled Theresa Tanner out, saving her from certain death.

That was on March 11, 2009, and now both men are suing Tanner, saying that the crash was her fault and that they both suffered permanent and disabling injuries in rescuing her.

They filed the lawsuit in Marion County Common Pleas Court and are asking for damages of at least $25,000 each, a standard starting point in civil lawsuits.

“All I know is that I am not the same man I used to be,” said Kelley, a 39-year-old truck driver and father of five. He says his lungs were so badly damaged from the heavy smoke and fire that day that he now can’t carry a laundry basket up the three flights of stairs in his Marion home.

“What I saw that day, that woman, it haunts me. The flames were so hot when we got to her that her hair was melting to her head — melting. There isn’t hardly a night that goes by that I don’t wake up in a sweat, that image in my mind.”

Tanner survived but was critically injured and spent several weeks in the intensive-care unit of Grant Medical Center.

Three months after the crash, the State Highway Patrol held a ceremony at the Marion post and honored Kelley and Kinkaid for their bravery.

A professor at Capital University Law School says this is no “man bites dog” story, that rescuers sue those they helped more often than people think.

“The precedent is clear: danger invites rescue … and if you’ve acted recklessly or negligently and someone gets hurt rescuing you, you could be in trouble,” said Stan Darling, who teaches tort law and civil procedure at Capital.

Every state, including Ohio, has a “Good Samaritan” law that is intended to absolve rescuers from liability when they, in good faith, attempt to save someone. But when it comes to the protection of the people being aided, judges and lawyers look to a federally recognized tort law known as “the Rescue Doctrine,” Darling said.

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It essentially says that, if the people being helped were negligent or reckless when they created real danger, there could be a chance to recover damages if the rescuers acted reasonably and can prove their injuries.

Kinkaid, 43, of Prospect, couldn’t be reached for comment. He was indicted on several felonies, unrelated to the crash, after the lawsuit was filed in March and, according to jail records, posted a $50,000 bond and was released from the Multi-County Jail in June. Kelley said he doesn’t know much about whatever Kinkaid is accused of, and he was not involved.

The attorney who filed the lawsuit, Robert E. Wilson, did not return calls for comment.

Tanner, 28, moved from Marion to Marysville since the crash. She was served the paperwork on the lawsuit two weeks ago and does not yet have an attorney. Her husband said the family isn’t commenting.

The State Highway Patrol report of the crash indicates that Tanner told authorities she had argued with someone the day of the crash and wanted to end her life. She told investigators she didn’t remember anything after veering off Richland Road at Rt. 23, just southeast of Marion at about 1:40 that afternoon.

Kelley said he and Kinkaid were on their way to Delaware, traveling south on Rt.?23, when they noticed the debris and the smoke.

Once they stopped and ran to the red 2008 Hummer, with a custom license plate that read 5POILED, it was already in flames and Tanner had been thrown into the passenger side.

Kinkaid broke a window out with a tire iron, and both men tried to reach her. But the windows on a Hummer are small, and it was at first fruitless.

Kelley said he was even more concerned about something else: “When I yanked the rear door open, a baby doll fell out and there was a car seat in the back. There was this screaming woman, her arms all crumpled and her body mangled in the front, but, I thought ‘Oh my God, what if she had kids in there?’??”

So despite the heavy smoke, he kept reaching and searching. The flames were so hot, so intense, that they burnt the hair from his body and melted the cell phone in his pocket. But he found no one else; Tanner had been alone.

Kelley finally pulled her out and, according to the written statement he gave to authorities that day, he was so overcome from the smoke that Kinkaid carried Tanner up the hill to safety.

Patrol Lt. Chuck Jones was commander of the Marion post when the crash happened and said news of the lawsuit surprised him. He said it does not, however, change his opinion that the men were rightly honored for their bravery.

“None of this or the underlying circumstances of that day change the fact that a life was saved,” Jones said. “She most definitely would have burned to death in that vehicle. I am sure of that.”

Kelley said he knows some people will scoff at the lawsuit and call it frivolous and mean. But he was a self-employed contractor at the time and had no insurance. He says his medical bills have mounted and his daily life is forever changed. He said they filed the lawsuit only after they found out from an acquaintance — long after the crash — that it had been a suicide attempt.

Still, he said, one thing is certain: “If it happened all over again today, I would still stop and get the person out of the vehicle. A life’s a life, you know.”

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