White v. State

SALMON, J. Richard White was a member of the Thurmont Police force on October 24, 2002. On that date he was very severely injured when, in the course of his police duties, the vehicle he was driving went out of control and struck a tree. Officer White brought a suit for negligence in the Circuit Court for Frederick County and named as defendants William Henrickson, a State police communications officer, and Henrickson’s employer, the State of Maryland. 1 Trial commenced on September 18, 2007. At the conclusion of the evidentiary phase of the case, the trial judge granted the defendants’ motion for judgment for two reasons: 1) recovery was barred based on the “Fireman’s Rule” and 2) even if the claim was not barred by that Rule, White could not recover because, as a matter of law, his injuries were caused, in part, by his own contributory negligence.

In this appeal White claims that the trial judge erred in granting judgment in favor of Henrickson and the State. I The Trial 2 ⁶⁶¹ On the morning of October 24, 2002, Craig Main 3 was working at the Ace Hardware store in Thurmont, Maryland when he noticed two men. The first man engaged Main in conversation while the second wandered through the store. Shortly thereafter, the second man was observed running from the store carrying a “tool power pack” worth $200.00.

The man with whom Main had been talking ran into the parking lot and jumped into a get-away vehicle with the thief. Main stuck his hand in the vehicle through an opening in the window and told the men to give the merchandise back and that if they did so he would not call the police. With Main’s arm still in the vehicle, the driver backed the car up, which required Main to hold on to the car in order to avoid being run over. Main finally let go and the two men sped away.

Main called 911 and was connected with the Frederick County 911 dispatcher. Main said: “I need the police...., I just got robbed.” He was then transferred to William Henrickson, a communications officer for the Maryland State Police. The following exchange then occured: MR. HENRICKSON: “Maryland State Police in Frederick CPO Henrickson, may I help you?” MR.

MAIN: “Yeah, I’m in Thurmont at the Ace Hardware. I just got shafted. A guy just robbed it.” MR. HENRICKSON: “At the Ace Hardware Store?” MR.

MAIN: “Yeah.” ⁶⁶² MR. HENRICKSON: “(One long beep.) Frederick (Inaudible-two words) cars a robbery just occurred at the Ace Hardware in Thurmont. 23-87[ 4 ] UNIDENTIFIED MALE: “In route.” MR. HENRICKSON: “Subject left towards Route 15 in a red Nissan, King, Mary, Zebra 9-8-0, KMZ 9-8-0.” UNIDENTIFIED MALE: “(Inaudible-two words) they headed towards 15?” MR. HENRICKSON: “That’s right they headed around Route, towards Route 15.” Henrickson did not make further inquiry of Main to determine the exact nature of the crime that was committed at the hardware store.

He nevertheless told Officer White that: “an armed robbery just occurred at the Ace Hardware in Thurmont.” Officer White located the suspects and initiated pursuit. As he did so, the emergency lights on his police cruiser were activated and this, simultaneously, activated a dash board video camera. When Officer White’s car caught up with the suspect’s vehicle, the driver of the get-away vehicle did not stop. Instead, the driver tried to elude Officer White, as well as several other officers who joined in the pursuit.

The dash board camera showed that Officer White pursued the suspects over mostly rural, two-lane roads, with no shoulder. The camera at no point captured the image of the suspects’ vehicle, but it is clear from the video and the communications made by Officer White through his radio dispatches to Henrickson, that White was in sight of the vehicle at times throughout the chase. During the pursuit, Officer White radioed to Henrickson a corrected description of the suspects’ vehicle as a “red Toyota MR2.” He also reported that he saw one of the occupants throw something out the window during the chase. ⁶⁶³ Approximately nine minutes after the chase began, Officer White approached a sharp turn to the left on Yellow Springs Road, a two-lane roadway with a speed limit of 35 mph. Three vehicles approached the curve in the opposite direction from Officer White.

The first is visible on the camera and is shown approaching about two seconds before Officer White entered the curve. When the officer entered the curve, he initially remained in his lane of traffic, but lost control of his cruiser. His car then fish-tailed off of Yellow Spring Road and struck a culvert, then flew through the air and collided with a tree. The severe injuries received by Officer White in the crash made it impossible for him to recall the chase or any of the events that immediately preceded it.

At trial, Henrickson admitted that one of the cardinal rules of his profession, which was emphasized in his training, was thát a communications officer, when talking to a victim, must determine whether the perpetrator is armed. He further acknowledged that it is the responsibility of a communications officer to relay accurate information to the police officers with whom he is communicating, regardless as to whether the officer makes follow-up inquiries. He conceded that sometimes relaying accurate information can make the difference between life and death. Additionally, Henrickson conceded, shoplifting from a hardware store, without any use of force, would qualify as a lower-priority call for responding officers than would a report that the suspect had used a weapon in the commission of a crime.

Therefore, when a dispatcher states that a suspect is “armed,” the importance of the call is greater and can be expected to cause responding officers to alter the manner in which they handle the call. Officer White testified that he is trained to rely on the information supplied to him by the dispatcher and that it is improper for him to try and second guess the information he receives. Officer White further testified that, in determining whether to engage in a high-speed chase of a suspect, he must conduct a balancing test in which he evaluates the seriousness of the crime and the possibility that the suspect is a threat to the public against the danger of the pursuit. In conducting ⁶⁶⁴ such a balancing test, the more serious the crime or threat to the public, the more likely the need for a high-speed pursuit.

Officer White was trained not to engage in a high-speed pursuit when a person was suspected only of shoplifting. On the other hand, he was trained to engage in high-speed pursuits to apprehend a fleeing armed robbery suspect. According to Officer White’s testimony, if given an accurate report of the crime by Hemickson, Officer White would not have engaged in the high-speed pursuit that resulted in his severe injury. Based on the evidence just summarized, it was Officer White’s position at trial that Hemickson was negligent when he failed to find out from Main exactly what crime the suspects had committed.

Mr. Hemickson was also negligent, it was alleged, when he told Officer White that the suspects had committed an armed robbery. II The sole issue to be decided in this case is whether the trial judge erred in granting appellees’ motion for judgment. 5 We shall hold that the trial judge correctly granted judgment in favor of appellees, based on the “Fireman’s Rule.” It therefore is unnecessary for us to decide whether recovery by Officer White was barred by his (alleged) contributory negligence. Ill Analysis In Southland v. Griffith, 332 Md. 704, 713 , 633 A.2d 84 (1993), the Court said: ⁶⁶⁵ Our cases hold that the doctrine known as the Fireman’s Rule generally prevents fire fighters and police officers injured in the course of their duties from recovering tort damages from those whose negligence exposed them to the risk of injury. See Flowers v. Rock Creek Terrace, 308 Md. 432 , 520 A.2d 361 (1987); Sherman v. Suburban Trust Co., 282 Md. 238 , 384 A.2d 76 (1978); Aravanis v. Eisenberg, 237 Md. 242 , 237 Md. 242 , 206 A.2d 148 (1965); Steinwedel v. Hilbert, 149 Md. 121 , 131 A. 44 (1925).

(Emphasis added.) As can be seen, if the Fireman’s Rule is accurately stated in the excerpt just quoted from the Southland opinion, Officer White cannot recover from appellees, because it was Henrickson’s negligence that exposed Officer White to the risk of injury. Other cases from our sister states have applied the Fireman’s Rule in cases analogous to the one here at issue. In McGhee v. State Police Department, 184 Mich.App. 484 , 459 N.W.2d 67 (1990), McGhee, a Detroit Police Officer was on duty when he heard a broadcast by the Michigan State Police, that State Troopers were engaged in a high-speed chase of a vehicle driven by one Tawaine Jackson. After Officer McGhee joined the chase, Jackson’s vehicle struck McGhee’s cruiser head-on.

Id. McGhee sued the State of Michigan and two of its State Troopers for his injuries and alleged that the troopers had negligently “began and continued” the pursuit of Jackson, which resulted in his injuries. Id. The Michigan Court of Appeals said: We are not persuaded by plaintiffs’ argument that the rule does not apply because Officer McGhee was injured on a public street.

We acknowledge that one of the Supreme Court’s primary policy reasons for adopting the rule was • that it would be an unreasonable burden on landowners to require them to prepare for the unanticipated arrival of police and fire fighters. Kreski, at 368-369, 415 N.W.2d 178 . However, the Court also held that the rule should not be limited to the landowner/occupier context and that it extended to negligence which caused the need for the presence of the police officers or fire fighters. Kreski, at ⁶⁶⁶ 374-377, 415 N.W.2d 178 .

See also Rozenboom v. Proper, 177 Mich.App. 49, 55 , 441 N.W.2d 11 (1989). Accordingly, we hold that plaintiffs are barred by the fireman’s rule from maintaining an action against defendants and affirm the summary disposition. Id. at 68 . See also Berko v. Freda, 93 N.J. 81 , 459 A.2d 663 (1983) (police officer who was injured when the driver of a stolen car ran into him, could not recover, based on the Fireman’s Rule, against the car owner who negligently left his keys in the car that was stolen).

Other Maryland cases, however, have summarized the Fireman’s Rule in a way different from the manner the Rule was expressed in Southland, supra. In several instances, the Court of Appeals has expressed the Rule by using language nearly identical to that used in a treatise by Professors Prosser and Keeton. In their treatise, Prosser and Keeton on the Law of Torts, section 61, at 431 (5th ed.1984) the authors state: If the act of negligence that causes the injury is something other then [sicjwhat necessitated the presence of the safety officer, then the Fireman’s Rule does not apply____[T]he Fireman’s Rule has been held only to apply when the firefighter or police officer is injured from the very danger, created by the defendant’s act of negligence, that required his professional assistance and presence at the scene in the first place. The Court of Appeals most recently paraphrased in Tucker v. Shoemake 354 Md. 413, 419 , 731 A.2d 884 (1999), what Prosser & Keeton had said in their treatise on the Law of Torts section 61: Under Maryland common law, the Fireman’s Rule provides that ‘firemen and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance.’ Flowers v. Rock Creek Terrace Ltd. Partnership, 308 Md. 432, 447 , 520 A.2d 361, 368 (1987). ⁶⁶⁷ A fireman or police officer may not recover if injured by the negligently created risk that was the very reason for his presence on the scene in his occupational capacity.

Someone who negligently creates the need for a public safety officer will not be liable to a fireman or policeman for injuries caused by this negligence. Id. at 447-48 , 520 A.2d at 368 . This public-policy grounded doctrine ‘is based on a relationship between firemen and policemen and the public that calls on these safety officers specifically to confront certain hazards on behalf of the public.’ Id. at 447 , 520 A.2d at 368 . (Emphasis added.) Between the wording of the Fireman’s Rule as set forth in Southland, supra, in comparison to the language used in Tucker, supra, while subtle, the difference provides White with the basis for his first argument as to why the trial judge should not have granted defendants’ motion for judgment.

White’s argument is that Henrickson’s negligence does not fall within the ambit of the Fireman’s Rule because that negligence did not require Officer White’s assistance. Appellant words his argument as follows: The negligence of dispatcher Henrickson was his act of erroneously dispatching the crime to be investigated by police as an “armed robbery.” It is this very negligence by Henrickson which caused Officer White to inappropriately evaluate the matter and unnecessarily engage in a high-speed pursuit, and thus, is the basis of Plaintiffs claims against the State. It was the larceny that required Officer White’s presence and response for the public. White was not called to investigate Henrickson’s dispatch.

PCO [Police Communications Officer] Henrickson’s negligence in dispatching the shoplifting crime as an armed robbery and thereby, elevating the need to apprehend the suspects through a high-speed pursuit for the apparent safety of the public, had nothing to do with the larceny need [sic] for which Officer White was called to the hardware store to respond. As such, the Fireman’s Rule is completely inapplicable to this matter. ⁶⁶⁸ While inventive, the above argument is without merit. As will be shown, in order for the Fireman’s Rule to apply to police officers in Maryland, it is not necessary for the defendant to prove that the police officer was injured by the “negligence that require[d] the assistance” of the police officer. In fact, if such a requirement existed, the Fireman’s Rule would seldom be applicable to police officers because, in most cases, police officers are not injured by negligent acts that require their assistance.

Most police officers are injured when responding to request for aid caused by the criminal acts of third parties. The case of Sherman v. Suburban Trust Co., 282 Md. 238 , 384 A.2d 76 (1978), is illustrative. Gary Sherman, a police officer, was on duty when he received a radio call that an attempt was being made to negotiate a forged check at a bank. Id. at 239 , 384 A.2d 76 .

He drove to the bank where he observed that two persons were being detained by uniformed police officers in front of the drive-in window. Sherman entered the teller’s cage at the bank where, for several minutes, he questioned the teller about the attempt of the suspects to pass a forged check. Id. During the same period he also watched the two suspects who were standing nearby.

Id. at 240 , 384 A.2d 76 . While in the teller’s cage, one of the bank’s employees accidently dropped the forged check. Sherman stepped backwards about two or three feet and squatted down to retrieve the check. As he did so, he struck his buttocks and back on the metal scoop arm of a coin changing machine that was positioned on a stool.

Id. Sherman sued the bank and claimed that the coin machine had been placed by Suburban Trust in a precarious position out of his view. He also alleged that, although the bank was aware of the placement of the coin machine, it failed to give him adequate warning of its placement. Id.

The trial court instructed the jury that a police officer “takes the property as he finds it, that is, an owner of property isn’t liable to a police officer if there exists usual or ordinary and customary safety hazards____ By unusual or extraordinary hazards we mean something that is rare, uncommon, and not found in common ⁶⁶⁹ experience.” Id. at 240-41 , 384 A.2d 76 . The jury returned a verdict in favor of the bank and the Court of Appeals affirmed, finding that Sherman could not recover because he was “injured during, and not after, the initial period of his anticipated occupational risk, and from a hazard reasonably foreseeable as a part of that risk.” Id. at 246 , 384 A.2d 76 . Although Sherman was decided on premise liability principles, the holding by the Sherman Court was cited with approval by the Court of Appeals in Flowers v. Rock Creek Terrace, 308 Md. 432, 443 , 520 A.2d 361 (1987), when it discussed the breadth of the Fireman’s Rule. The Flowers Court said that Sherman was correctly decided and that the Sherman Court applied the proper standard of care owed to policemen and firemen.

Id. at 443, 384 A.2d 76 . 6 In Flowers , the Court departed from traditional principles of land owners’ premises liability when explaining the basis for the Fireman’s Rule. Previously, police officers and firemen had been denied recovery (under certain circumstances) because of their status as mere licensees. Id. at 447 , 520 A.2d ⁶⁷⁰ 361. In changing the basis for the Fireman’s Rule, the Court said that the Rule was “best explained by public policy” i.e., that it is the nature of the safety officers’ occupation that limits the officer’s ability to recover in tort for work-related injuries.

Id. at 447-48 , 520 A.2d 361 . Once again paraphrasing what Professors Keeton and Prosser had said, the Flowers Court stated: Instead of continuing to use a rationale based on the law of premises liability, we hold that, as a matter of public policy, firemen and police officers generally cannot recover for injuñes attributable to the negligence that requires their assistance. This public policy is based on a relationship between firemen and policemen and the public that calls on these safety officers specifically to confront certain hazards on behalf of the public. A firemen!sic] or police officer may not recover if injured, by the negligently created risk that was the very reason for his presence on the scene in his occupational capacity.

Someone who negligently creates the need for a public safety officer will not be liable to a fireman or policeman for injuries caused by this negligence. Id. at 447-48 , 520 A.2d 361 (emphasis added). In Flowers , a fireman sustained severe injuries when he fell twelve stories down an open elevator shaft while responding to a fire in an apartment building. Id. at 436 , 520 A.2d 361 .

Flowers sued the building owners, the apartment’s security guard company, and the elevator manufacturer alleging a general failure to properly maintain the building and elevator in a safe condition, which caused his injuries. Id. In evaluating the public policy considerations 7 for the Fireman’s Rule, the Court stated: ⁶⁷¹ With few exceptions, courts elsewhere have retained the Fireman’s Rule but have based the rule on public policy considerations. Some of these courts emphasize a public policy somewhat analogous to the assumption of risk doctrine applied in negligence cases.

Firemen are engaged by the public to encounter risks inherent in firefighting; they assume those risks, and therefore they should not recover for