White v. State

BARBERA, J. Maryland’s so-called “fireman’s rule,” which we shall hereinafter refer to as the “firefighter’s rule,” is a common law rule that generally precludes police officers and firefighters injured in the course of their duties from suing those whose ²⁶⁸ negligence necessitated the public safety officers’ presence at the location where the injury occurred. We hold that, under the facts of this case, the firefighter’s rule bars Petitioner, Richard White, a police officer injured during a high-speed chase of a fleeing suspect, from suing Respondent, State of Maryland, the employer of a police dispatcher whose negligence caused Petitioner to engage in the high-speed chase. 1 I. The following undisputed facts were adduced at trial. On the morning of October 24, 2002, Petitioner was on duty as a police officer for the town of Thurmont, in Frederick County, Maryland. That morning, Craig Main, an employee of the Ace Hardware store in Thurmont, placed a 911 call to report an incident that had just occurred at the store.

The call was routed to the Maryland State Police Barrack in Frederick, where it was answered by the dispatcher, William Henrickson, an employee of the Maryland State Police. The call, set forth below, was recorded and later played at trial. [Henrickson]: Maryland State Police in Frederick CPO Henrickson, how may I help you? [Main]: Yeah I’m in Thurmont at the Ace Hardware. I just got shafted. A guy just robbed it. [Henrickson]: At the Ace Hardware Store? [Main]: Yeah.

Henrickson dispatched to the police Main’s call for assistance. The audiotape of the dispatch reveals that Henrickson dispatched the call for help as: “Frederick, all cars, an armed robbery just occurred at the Ace Hardware in Thurmont.” (Emphasis added.) The dispatch also included a description of the getaway vehicle as “a red Nissan” last seen heading toward Route 15. ²⁶⁹ Petitioner received the call and soon located the suspects driving on a nearby roadway. Petitioner initiated pursuit. He activated the lights on his cruiser, which automatically activated the video camera mounted on the dashboard.

The videotape of the pursuit was admitted into evidence at trial. It revealed the following events. Petitioner and several other police officers, in their respective police cruisers, pursued the suspects over mostly rural, two-lane roads that do not have a shoulder. The suspects’ vehicle is not seen in the video recording.

Petitioner, though, communicated to Henrickson that he was in sight of the vehicle intermittently throughout the chase. Approximately nine minutes into the chase, Petitioner approached a particularly sharp left turn on Yellow Springs Road, a two-lane roadway with a speed limit of 35 miles per hour. The camera recorded both a street sign that warned of the upcoming curve and three vehicles driving along the curve in the opposite direction of Petitioner’s vehicle. The recording shows that Petitioner remained in his lane as he entered the curve but eventually lost control of the vehicle.

It fish-tailed off the road, struck a culvert, became airborne, then collided with a tree. Petitioner suffered severe injuries that rendered him unable to recall the chase or any of the events preceding it. The Trial and Appeal Petitioner filed a complaint in the Circuit Court for Frederick County, Maryland, naming as defendants Henrickson and Respondent, State of Maryland, and alleging that Henrickson was negligent in issuing the dispatch. Petitioner alleged that Henrickson “owed [Petitioner] a duty to use reasonable care and/or the skill and care of a reasonably competent police dispatcher[,]” and Henrickson breached that duty of care when: [He] requested emergency personnel response to an armed robbery at the Ace Hardware Store rather than a mere shoplifting, failed to inquire as to whether the suspects had shown or used any type of weapon during the incident prior ²⁷⁰ to dispatching and/or requesting emergency personnel response, failed to make any substantive inquiry as to the threat posed by the suspects to the general public prior to dispatching and/or requesting emergency personnel response, and was in other ways careless, reckless and negligent.

Petitioner further alleged that he relied upon Henrickson to use reasonable care to provide accurate information and would not have commenced the high-speed chase had he not been given the false information that the suspects were armed. Petitioner sued Respondent under the theory of respondeat superior and alleged negligent hiring/supervision and negligence in supervising 911 dispatch protocols. Before trial, the Circuit Court granted Henrickson’s motion to dismiss the complaint on the basis of qualified immunity. The court, however, denied Respondent’s motion to dismiss the suit, which asserted, inter alia, that the firefighter’s rule barred Petitioner’s claim.

The court also denied Respondent’s later motion for summary judgment raising the same argument. At trial, Petitioner presented evidence of the undisputed facts we summarized above. Petitioner also presented the testimony of Henrickson, who acknowledged that one of the cardinal rules of dispatching is that a communications officer, when talking to a victim, must determine if the perpetrator is armed. Henrickson also conceded that the crime giving rise to the dispatch in question—shoplifting from a hardware store without any use of force—would qualify as a lower-priority call for a responding officer than a call for response to an armed robbery.

Charles Key, who was qualified as an expert in “police training, protocol and procedures[,] including high-speed pursuit and dispatch communications!],]” testified for Petitioner that his actions on the date in question were consistent with standard police training procedures and the actions of a reasonable police officer in the same or similar circumstances. Key opined that Petitioner would not have engaged in the ²⁷¹ high-speed pursuit if the dispatcher had described the crime as a simple theft. At the conclusion of Petitioner’s case-in-chief, Respondent moved for judgment, asserting, among other grounds, that Petitioner was barred from recovery by (1) operation of the firefighter’s rule, and (2) his contributory negligence in conducting the pursuit. The court denied the motion.

Respondent then presented in its case additional evidence of Petitioner’s contributory negligence, which included expert testimony on the subject. At the close of all the evidence, Respondent re-asserted both the firefighter’s rule and contributory negligence as grounds for its renewed motion for judgment. The court granted the motion on both asserted grounds. Petitioner argued on appeal to the Court of Special Appeals that neither the firefighter’s rule nor the doctrine of contributory negligence entitled Respondent to judgment as a matter of law.

The Court of Special Appeals affirmed the judgment, holding that the trial court correctly granted judgment in favor of Respondent, by application of the firefighter’s rule. See White v. State, 183 Md.App. 658, 664 , 963 A.2d 222, 226 (2008). The court did not address Petitioner’s contributory negligence argument. Tracing the development of the firefighter’s rule in Maryland, the Court of Special Appeals noted that the rule is now based on public policy that recognizes the relationship between public safety officers, who have assumed certain occupational risks, and the public, whom those officers serve and protect.

Id. at 669-72 , 963 A.2d at 229-32 . The court concluded that Petitioner was injured in the course of his duties as a police officer and no “exceptions” to the firefighter’s rule applied; therefore, the lawsuit “fits squarely within the Fireman’s Rule as it has evolved in this State.” Id. at 676-77 , 963 A.2d at 233-34 . We granted Petitioner’s petition for writ of certiorari to consider two questions, which we have re-phrased: ²⁷² 1. Whether the Court of Special Appeals erred in concluding that a police officer injured during a high-speed pursuit is barred by the firefighter’s rule from recovering in a tort action alleging negligence by a police dispatcher in giving the police officer faulty information that led to the commencement of the high-speed pursuit? 2.

Whether the Court of Special Appeals erred in declining to address whether a “special duty” exception to the firefighter’s rule should be recognized in Maryland? We agree with the Court of Special Appeals that Petitioner’s suit is barred by application of the firefighter’s rule and therefore affirm the judgment of that court. For reasons we shall explain, we decline to address the second question Petitioner presents. II. “[T]he 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.” Southland Corp. v. Griffith, 332 Md. 704, 713 , 633 A.2d 84, 88 (1993). 2 In 1925, Maryland joined a number of other states in recognizing this common law rule, and, like our sister jurisdictions did at the time, we grounded the doctrine on a theory of premises liability. 3 See Steinwedel v. Hilbert, 149 Md. 121, 123-24 , 131 A. 44, 45-46 (1925) (applying the then-prevailing common law ²⁷³ firefighter’s rule, grounded on premises liability, to hold that the firefighter, who entered the premises leased by the defendant to fight a fire and was injured when he fell down an elevator shaft, could not recover damages from the defendant because “the owner or occupant of the premises is not under any duty of care to keep his premises prepared and safe for a fireman”).

In 1987, with our decision in Flowers v. Rock Creek Terrace, 308 Md. 432 , 520 A.2d 361 (1987), we shifted away from premises liability as the undergirding rationale for the firefighter’s rule. Flowers is particularly instructive in understanding the current iteration of Maryland’s firefighter’s rule. In Flowers , we traced the development of the rule in Maryland and elsewhere and concluded that the rule was “best explained by public policy!,]” rather than the law of premises liability. Id. at 447 , 520 A.2d at 368 .

We reasoned that the very nature of the firefighter’s or police officer’s occupation limits the public safety officer’s ability to recover in tort for work-related injuries. Id., 520 A.2d at 368 . We read our prior decision in Aravanis v. Eisenberg, 237 Md. 242 , 206 A.2d 148 (1965), as evidencing the need to abandon premises liability as the foundation for the rule. We explained that, although our application of the firefighter’s rule in Aravanis “purported to be grounded on the law of landowner’s liability and the status of the plaintiff on the premises,” we also acknowledged in Aravanis “the implications of a fireman’s public function regardless of whether he was classified as a licensee or invitee upon the property.” Flowers, 308 Md. at 442 , 520 A.2d at 365-66 .

We noted, too, the Aravanis Court’s caveat “that a fireman’s occupation does not involve facing unlimited risks on behalf of the public!.]” Id., 520 A.2d at 366 . In that regard we said: “ ‘It is when the fireman sustains injuries after the initial period of his anticipated occupational risk, or from perils not reasonably foreseeable as part of that ²⁷⁴ risk, that the justice of continuing to regard him as a licensee only is questioned.’ ” Id., 520 A.2d at 366 (quoting Aravanis, 237 Md. at 252 , 206 A.2d at 148 ). We also looked in Flowers to Sherman v. Suburban Trust Co., 282 Md. 238 , 384 A.2d 76 (1978). Sherman involved a police officer who sued a bank for injuries he sustained when, during his response to a call from a bank that someone was attempting to pass a forged check, he struck his back on a coin changing machine. 4 We recognized in Sherman , as we had done in Aravanis , that, after the initial period of anticipated risk, a public safety officer may be entitled to ordinary due care.

We held, though, that Officer Sherman’s status had not changed at the time of his injury, and, consequently, the firefighter’s rule applied to bar his suit against the bank. We explained why: Sherman 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. He was not injured by reason of any active dangerous force unleashed on the premises after he entered upon the routine performance of his duties.... 282 Md. at 246 , 384 A.2d at 81 . We saw in Flowers that all three previous Maryland cases— Sherman, Aravanis, and Steinwedel—“applied the proper standard of care owed to firemen and policemen, and the decisions were correct.” Flowers, 308 Md. at 443 , 520 A.2d at 366 .

Yet, the premises liability rationale that undergirded the firefighter’s rule at the time those three cases were decided “would not seem to be entirely appropriate for resolving the issues in cases like this. A premises liability rationale does not encompass cases in which a fireman is injured by a fire caused by the negligence of someone other than the owner or occupier of the premises.” Id., 520 A.2d at 366 . Realizing the ²⁷⁵ need for a broader reach of the firefighter’s rule, untethered to the doctrine of premises liability, we held: [A]s a matter of public policy, firemen and police officers generally cannot recover for injuries 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 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. Flowers, 308 Md. at 447-48 , 520 A.2d at 368 . 5 We recognized in Flowers , as we had done in Aravanis and Sherman , that the firefighter’s rule does not bar recovery of tort damages for all improper conduct. Id. at 448, 520 A.2d at 368-69 .

We explained that “[njegligent acts not protected by the fireman’s rule may include failure to warn the firemen of pre-existing hidden dangers where there was knowledge of the danger and an opportunity to warn.” Id., 520 A.2d at 369 . We also recognized that the firefighter’s rule does not bar suits against “arsonists or those engaging in similar misconduct.” Id. at 449 , 520 A.2d at 369 . Finally, the rule does not cover “acts which occur subsequent to the safety officer’s ²⁷⁶ arrival on the scene and which are outside of his anticipated occupational hazards.” Id. at 448 , 520 A.2d at 369 . This last example of non-coverage of the rule is consistent with our prior discussion in Aravanis that the firefighter’s rule does not apply “when the fireman sustains injuries after the initial period of his anticipated occupational risk, or from perils not reasonably foreseeable as part of that risk.” Flowers, 308 Md. at 448 , 520 A.2d at 369 (citing Aravanis, 237 Md. at 252 , 206 A.2d at 153 ) (emphasis added).

With that explication of the firefighter’s rule as a backdrop, the Flowers Court applied the rule to the facts of the case. The plaintiff, firefighter David Flowers, plummeted twelve floors down an open elevator shaft while attempting to evacuate people from a burning apartment building. Id. at 436 , 520 A.2d at 363 . He sued in tort the owner of the building, the private security company that monitored the building, and the manufacturer of the elevator.

We held that the firefighter’s rule barred the suit against all three defendants. With respect to the claims against the building owner and the security company for negligently failing to prevent the fire, we held that Flowers’s claims were “precisely what the fireman’s rule prevents.” Id. at 450 , 520 A.2d at 370 . That is because “firemen are engaged to fight fires for the public, and they enter upon dangerous circumstances without regard to whether the fire is attributable to otherwise tortious conduct.” Id., 520 A.2d at 370 . As for the suit against the elevator manufacturer, we stated: Although these are not allegations of negligence in the creation of the fire that originally brought the firemen to the apartment building, an accident involving an open elevator shaft nevertheless is within the range of the anticipated risks of firefighting----An open elevator shaft concealed by the smoke of the fire is not a hidden danger in the sense of an unreasonable danger that a fireman could not anticipate upon attempting to perform his firefighting duties.

Id. at 451-52 , 520 A.2d at 370-71 . We applied the reasoning of Flowers in Tucker v. Shoemake, 354 Md. 413 , 731 A.2d 884 (1999), and more recently in ²⁷⁷ Hart v. Swaroop, Inc., 385 Md. 514 , 870 A.2d 157 (2005). Those two cases serve as useful guideposts for our analysis of the present case. Tucker presents a clear example of the inapplicability of the firefighter’s rule.

In that case, the plaintiff, Officer Tucker, sustained injuries after he fell into a negligently maintained manhole while creeping up to the location of a domestic violence report. Tucker, 354 Md. at 415-16 , 731 A.2d at 885 . Officer Tucker sued the individual responsible for maintenance of the manhole cover, who, in response, contended that the firefighter’s rule barred the suit. We rejected that contention, explaining: Officer Tucker was not injured by a negligently-created risk that occasioned his presence at the trailer park.

He was at the trailer park in response to a domestic dispute call, whereas he was injured as a result of stepping on the allegedly improperly seated metal cover to the underground valve compartment. Thus, the negligence alleged to have caused Officer Tucker’s injuries was independent and not related to the situation requiring his services as a police officer. 354 Md. at 419-20 , 731 A.2d at 887 (emphasis added). We rejected in Tucker a “transactional approach” to application of the firefighter’s rule, which, as advocated by the respondent in that case, would bar a public safety officer’s recovery for all “acts of negligence which injure them, so long as the officer is injured during the transaction of performing an obligation of his occupation.... ” Id. at 421 , 731 A.2d at 888 . We refused to adopt such a broad approach to the rule, repeating, by way of explanation, our previous caution in Flowers that the firefighter’s rule does not bar recovery for all negligent conduct. 6 Id., 731 A.2d at 888 . ²⁷⁸ Notwithstanding that the firefighter’s rule has its limits, our recent opinion in Hart makes clear that the rule applies whenever the officer is injured by risks “inherent ] [in the] dangerous occupation” of firefighting and law enforcement, Hart, 385 Md. at 534 , 870 A.2d at 168 , so long as the risks are “directly related to ” the situation requiring the firefighter’s or police officer’s services, id. at 529 , 870 A.2d at 165 .

We held in Hart that the firefighter’s rule barred the firefighter’s suit against a negligent motel owner for injuries the firefighter suffered when he fell down a negligently unguarded stairwell while navigating through heavy smoke to gain