Hopkins v. Medeiros, P-1369

• Decision Date: 24 February 2000
• Docket Number: P-1369
• Parties: (Mass.App.Ct. 2000) No.: 97- KENNETH D. HOPKINS vs. JORGE MEDEIROS. Essex County
• Court: Appeals Court of Massachusetts

Page 336

724 N.E.2d 336 (Mass.App.Ct. 2000)

MASSACHUSETTS COURT OF APPEALS

No.: 97-P-1369

KENNETH D. HOPKINS vs. JORGE MEDEIROS.

Essex County.

February 24, 2000

Present: Laurence, Smith, & Lenk, JJ.

Negligence, Standard of care, Duty owed to rescuer, Proximate cause, Violation of statute. Police, Injury on duty. Statute, Construction. Practice, Civil, Instructions to jury. Practice, Criminal, Admission to sufficient facts to warrant finding. Evidence, Admitted fact.

Civil action commenced in the Superior Court Department on May 11, 1992. The case was tried before Robert H. Bohn, J.

J. Michael Conley for the plaintiff.

Matthew Mahoney for the defendant.

Argued April 8, 1999.

LENK, J.

The plaintiff, Kenneth D. Hopkins, a Peabody police officer, filed suit against the defendant, Jorge Medeiros,¹ for negligence and for wanton and reckless conduct. Hopkins had sustained injuries while attempting to subdue a melee in Peabody. Hopkins claimed that Medeiros owed him a duty because it was foreseeable that police would respond to the dangerous situation created, in part, by Medeiros, even though Medeiros had no direct contact with Hopkins. A Superior Court jury returned a verdict in favor of the defendant, with special findings that Medeiros did not owe a duty to Hopkins and that Medeiros did not act in a wanton or reckless manner.² On appeal, Hopkins argues that the trial judge erred (1) by refusing to instruct the jury about the so-called rescue doctrine; (2) in giving limiting instructions to the jury about, and in restricting examination concerning, Medeiros's conviction for disorderly conduct; and (3) by giving incomplete jury instructions about the defendant's violations of law as evidence of negligence. Hopkins also argues that the firefighter's rule, an exception to the rescue doctrine, does not apply in the Commonwealth to bar his claims. Because Hopkins was entitled to a jury instruction on the rescue doctrine, we reverse.

1. Facts. There was testimony at trial to the following effect. On the night of October 27, 1989, Peabody police officers Bonaiuto and Waugh responded to a call to investigate a loud party at a residence in Peabody. As the officers were ticketing illegally parked vehicles, Acacio Pinto and the defendant Medeiros approached the police from the property where the party was being held. Both officers testified that Pintos and Medeiros were shouting obscenities and verbally harassing them. Medeiros in turn testified that he did not say anything. The officers asked Pinto and Medeiros for identification. Medeiros produced his driver's license, but Pinto refused, continuing the verbal abuse and threatening one of the officers. Pinto violently resisted Bonaiuto's attempt to arrest him. According to the officers, Medeiros vehemently urged Pinto to resist the arrest and shouted profanities at the police. However, Medeiros testified that he left the area at that point. The officers testified that a large crowd numbering over fifty people began to form. Pinto and the two officers struggled and repeatedly slammed against a police cruiser. A group of twelve to fifteen men formed a tight semicircle around Pinto and the officers, grabbing, punching and kicking the officers. According to the officers' testimony, Medeiros was part of the semicircle. There was no way for the officers to escape without climbing over the car or breaking through the irate crowd. Bonaiuto activated the emergency "officer needs assistance" button on his radio. Medeiros denied any involvement with the crowd or the police.

Officer Hopkins was one of the officers to respond to Waugh and Bonaiuto's call for help. Hopkins positioned himself between the officers and the violent semicircle of men and attempted to subdue the crowd. A shirtless young man with a blue baseball cap threw a can that just missed Hopkins's head.³ Hopkins chased him, but abandoned the chase when he felt a sharp, disabling pain in his lower back.

2. Rescue doctrine instruction. Hopkins argues that the trial judge erred in refusing to instruct the jury about the so-called rescue doctrine, i.e., he did not instruct the jury as requested about normal intervening forces, specifically, how the intervention of rescuers relates to duty and proximate cause. Hopkins submitted a detailed request for jury instructions before the charge and preserved his right to appeal the judge's refusal to give his requested instructions.⁴ The judge instructed the jury about the basic law of duty and proximate cause, including superseding causes. Neither party argues that the instructions given were erroneous statements of the law, but Hopkins contends that he was entitled to further instructions on the rescue doctrine, and that the absence of those instructions harmed him.

Hopkins's theory of the case was that Medeiros owed him a duty of reasonable care because it was foreseeable that police officers, such as Hopkins, would come to restore public order and to rescue Bonaiuto and Waugh from a dangerous situation created, in part, by Medeiros. A corollary to Hopkins's theory is that there were no intervening events which broke the chain of causation from Medeiros's actions to Hopkins's injury, including the can thrown by the shirtless man with the blue baseball cap. Hopkins contends that he was entitled to the rescue doctrine instructions based on evidence of Medeiros's instigation of the melee, his encouragement of Pinto, and his participation in the semicircle of men who entrapped and physically harassed Bonaiuto and Waugh while they sought to arrest Pinto. Medeiros argues that the judge's instructions on general foreseeability were correct and adequate.

The rescue doctrine has been characterized as follows: "negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well." Barnes v. Geiger, 15 Mass. App. Ct. 365, 369 (1983). Massachusetts recognizes the rescue doctrine in that "rescuers are not, as matter of law, precluded from recovery because they voluntarily placed themselves in danger." Migliori v. Airborne Freight Corp., 426 Mass. 629, 636 (1998), citing Barnes v. Geiger, supra at 370. See Barnes v. Berkshire St. Ry., 281 Mass. 47, 49-50 (1932); Burnett v. Conner, 299 Mass. 604, 607-608 (1938); Brown v. Hathaway Bakeries, Inc., 312 Mass. 110, 114 (1942). "'Rescue' as used in ordinary parlance means 'to free from . . . danger.'" Campbell v. Schwartz, 47 Mass. App. Ct. 360, 364 (1999), quoting from Webster's Third New Intl. Dictionary 1930 (1993). "Danger is defined as 'the state of being exposed to harm.'" Campbell v. Schwartz, supra. To be considered a rescuer, an individual must engage in a proactive attempt to free another from danger. "[A] claimant's purpose must be more than investigatory. There must be asserted some specific mission of assistance by which the plight of the imperilled could reasonably be thought to be ameliorated." Barnes v. Geiger, 15 Mass. App. Ct. at 371.

In addition, such rescue missions must be voluntary. "[I]nclusion within [the class of rescuers] is by virtue of a volunteered action by the putative claimant." Migliori v. Airborne Freight Corp., 426 Mass. at 637. However, the notion of "voluntary" does not preclude claimants who have arrived at the rescue scene as a result of their employment. In Rollins v. Boston & Maine R.R., 321 Mass. 586 (1947), the plaintiff's husband perished while attempting to extinguish a fire in a freight shed on his employer's property. The plaintiff sued on the grounds that the fire had started due to the employer's negligence. Id. at 588. The defendant employer moved for a directed verdict, arguing that the decedent employee's effort to put out the fire and not its own negligence was the proximate cause of death. Ibid. In affirming the jury's verdict for the plaintiff, the court stated that "[t]he deceased was under a duty to protect the property of his employer. That duty was to do what he could . . . to rescue his employer's property and to prevent the spread of the fire." Id. at 588-589. Therefore, the decedent's conduct in entering the building did not bar the plaintiff's recovery as a matter of law. Id. at 589. Hopkins qualifies as a rescuer. Hopkins was present at the melee because of his fellow officers' emergency call. His employment brought him to the scene where he engaged in proactive attempts to assist the other officers who were faced with a dangerous situation. Hopkins was injured during a rescue attempt and alleges that Medeiros was negligent. Therefore, Hopkins was entitled to the rescue doctrine instructions.

Medeiros contends that he owed Hopkins no duty because, insofar as Hopkins was a professional rescuer, the "firefighter's rule," a widely recognized exception to the rescue doctrine,⁵ should be adopted and applied.⁶ Application of this rule would serve to preclude rescuers such as firefighters and police officers from "maintaining a negligence action against a person allegedly responsible for bringing the officer to the scene of a crime, fire, or some other job-related incident of similar exigency where the officer is then injured because of this same person's alleged negligence." Day v. Caslowitz, 713 A.2d 758, 759 n.1 (R.I. 1998). Based on the testimony at hand, it was Medeiros's alleged negligent conduct that brought Hopkins, in the course of his police duties, to the scene of the melee in process where Hopkins then sustained an injury. Were we to adopt the firefighter's rule as Medeiros suggests, Hopkins would be barred from bringing this negligence action against Medeiros.

Historically, both in this Commonwealth and many other jurisdictions, the firefighter's rule was applied to limit the liability of landowners whose property conditions had resulted in injury to firefighters or police officers entering the premises. Wynn v. Sullivan, 294 Mass. 562, 564 (1...