Greene v. Consolidated Freightways Corp. of Del.
| Decision Date | 15 November 1999 |
| Docket Number | No. CIV. A. 299CV384.,CIV. A. 299CV384. |
| Citation | 74 F.Supp.2d 616 |
| Parties | Jonathan M. GREENE, Plaintiff, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Judd B. Mendelson, Steingold & Mendelson, Portsmouth, VA, for Plaintiff.
James W. Walker, Morris & Morris, Richmond, VA, for Defendant.
This matter came before the Court for a hearing on Defendant's motion for summary judgment. The Court considered the parties' oral argument and the memoranda submitted, and at the conclusion of the hearing in this matter indicated that it would GRANT Defendant's motion. This Order and Opinion, together with the reasons set forth on the record, form the basis of the Court's decision, as summary judgment for the Defendant is GRANTED.
Plaintiff, Jonathan Greene, is a police officer for the City of Chesapeake, Virginia. This action stems from an injury Greene suffered while working as a police officer on July 29, 1997. Specifically, Greene injured his left shoulder while removing the driver from a tractor trailer truck. Greene claims that he and twelve fellow officers traveling on bicycles stopped the truck in Chesapeake, Virginia. Greene claims that he was the last in the line of thirteen police officers and that as he approached the front of the truck, he heard the truck shift into gear. Greene alleges that he saw at least two of his fellow officers in front of the truck and feared for their safety. Based on what Plaintiff perceived to be a threat to the safety of his fellow officers, Greene entered the cab of the truck on the driver's side and placed the driver, Delmar Gene Parker, in what is known as a "choke hold." The record indicates that Sergeant Torres and Officer Rowe had previously pulled up on the left side of the truck and were already talking to Parker when Greene decided to open the door and enter the cab of the truck. After Greene placed Parker in a choke hold, Parker took the truck out of gear and engaged the brake. Immediately thereafter, Greene forcibly removed Parker from the truck. It is this removal which resulted in Greene injuring himself.
Greene stated that he believed Parker's "skull would be split" if the truck driver fell to the ground. He further stated that in an effort to protect the driver from a potentially serious head injury, because the distance from the cab of the truck to the ground was approximately eight feet, Greene moved his body so that he would land first and cushion Parker's fall. The fall from the cab caused an injury to Greene's shoulder, which forms the basis of Greene's claims.
Greene initially filed a motion for judgment in Chesapeake Circuit Court seeking joint and several liability against Parker and his employer, Consolidated Freightways Corporation of Delaware ("Consolidated"), in the amount of $100,000.00. During the litigation in Chesapeake Circuit Court, Greene filed a non-suit dismissing Parker from the case.1 As a result of the non-suit of Parker, there was complete diversity of citizenship and Consolidated removed the case to this Court. Discovery commenced and Consolidated moved for summary judgment.
Consolidated advances three arguments in support of its motion for summary judgment. First, Consolidated argues that the Virginia fireman's doctrine applies in this case; therefore, Greene cannot recover as a matter of law. Consolidated also argues that summary judgment should be granted based on Greene's assumption of risk, or contributory negligence. However, the Court need not address the contributory negligence of Greene because it finds (1) the fireman's doctrine is applicable and (2) Greene assumed the risk of injury when he forcibly removed Parker from the truck. Therefore, Greene's recovery is barred as a matter of law under the facts of this case.
Summary judgment should be granted where it appears that the pleadings, depositions and answers, and other documentary evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. To defeat a motion for summary judgment, the non-moving party must demonstrate that there are specific and material facts in dispute which create a genuine issue for trial. Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the moving party, disposition by summary judgment is appropriate." United States v. Lee, 943 F.2d 366, 368 (4th Cir.1991).
The Virginia Supreme Court first applied the fireman's rule in a case where a fireman was burned while fighting a fire that the defendant had negligently started in a right-of-way. Chesapeake & Ohio Ry. Co. v. Crouch, 208 Va. 602, 159 S.E.2d 650 (1968). In Crouch, the Virginia Supreme Court held that the fireman's doctrine is a type of assumption of risk and applies due to the relationship the fireman has with the public, from which arises his obligation to accept certain risks inherent in the position of fighting fires. Since the inception of the fireman's rule, courts have held that "[i]t is the fireman's [or policeman's] business to deal with that very hazard and hence ... he cannot complain of negligence in the creation of the very occasion for his engagement." Benefiel v. Walker, 244 Va. 488, 492, 422 S.E.2d 773, 775 (1992) (quoting Flowers v. Rock Creek Terrace Ltd., 308 Md. 432, 520 A.2d 361 (1987)). In any instance where a police officer arrests someone, that someone would have necessarily violated some law. The violation of the law brings about the arrest. Under the fireman's rule, the police officer cannot complain of negligence based upon the violation of some law which brings about the arrest. The question then is whether when the police officer suffers an injury not caused by the defendant during an arrest, but the injury is brought about by the police officer's own action, is the police officer entitled to recover from the defendant for the injuries the police officer thus sustained?
The fireman's rule is most commonly applied in cases in which police officers or firemen are injured while responding to the call of duty on a person's premises. See Pearson v. Canada Contracting Co., Inc., 232 Va. 177, 349 S.E.2d 106 (1986). However, the fireman's rule is not limited to premises liability. In a non-premises liability case involving an appeal based on the jury instructions, the Virginia Supreme Court noted that, although the matter was sent to the jury and the jury returned a verdict for the defendant, the trial court should have granted summary judgment pursuant to the fireman's rule. Commonwealth of Virginia v. Millsaps, 232 Va. 502, 352 S.E.2d 311 (1987). In Millsaps, the Commonwealth sought costs for property damages sustained during a police roadblock and arrest of an errant motorist. The damages occurred as a result of the police chase. The court found no distinction between property damages and personal injury of a police officer and indicated that under the fireman's rule, an officer must "accept the usual risks inherent in his duties." Id. The court held that the police acting on behalf of the Commonwealth "assumed the risk as a matter of law, pursuant to the fireman's rule ..." Id. In Pearson, the court addressed the issue of the duty of care owed to firemen as licensees or invitees stating:
We are persuaded by two fundamental policies to impose a rule of limited liability in cases such as these. First, injuries to firemen and policemen are compensable through workers' compensation. Code Sections 65.1-4,-4.1. The burden of their financial loss, therefore, is properly borne by the public rather than by individual property owners ... Second, and more important, firemen and policemen, unlike invitees or licensees, enter at unforeseeable times and go upon unusual parts of the premises, including areas not open to the public. Except for scheduled inspections, their presence at any particular time cannot be reasonably anticipated. In such situations, it is not reasonable to require the level of care that is owed to invitees or, without some modification, the level of care owed to licensees.
Plaintiff argues that the fireman's doctrine was abrogated by the Virginia General Assembly's amendment to Virginia Code Section 8.01-226 () in 1992. Section 8.01-226 was enacted in 1987 and provided:
An owner or occupant of real property containing premises normally open to the public shall, with respect to such premises, owe to firefighters ... and law-enforcement officers who in their performance of their duties come upon that portion of the premises normally open to the public the duty to maintain the same in a reasonably safe condition or to warn of dangers thereon of which he knows or has reason to know, whether or not such premises are at the time open to the public.
An owner or occupant of real property containing premises not normally open to the public shall, with respect to such premises, owe the same to duty to firefighters, ... and law-enforcement officers who he knows of, has reason to know are upon, about to come upon or imminently likely to come upon that portion of the premises not normally open to the public.
Va.Code Ann. § 8.01-226. Thus, the duty owed by a property owner would be that owed to a licensee for the condition of the premises.
In 1992, the General Assembly amended Section 8.01-226 to add a third paragraph which provides "while otherwise engaged in the performance of his duties, a law enforcement officer ... or firefighter shall be owed a duty of ordinary care." Id. Based on the 1992 Amendment to ...
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...liable for a fireman's injuries, the plaintiff-fireman must show at least willful or wanton conduct. Greene v. Consol. Freightways Corp. of Delaware, 74 F. Supp. 2d 616, 622 (E.D. Va. 1999), aff'd, 2 F. App'x 299 (4th Cir. 2001); Hudgins, 49 Va. Cir. 279, at *2. In this case, the parties do......