Levandoski v. Cone

• Citation: 841 A.2d 208,267 Conn. 651
• Decision Date: 24 February 2004
• Docket Number: (SC 16843)
• Court: Supreme Court of Connecticut
• Parties: JAMES R. LEVANDOSKI v. DOUGLAS CONE

267 Conn. 651

841 A.2d 208

JAMES R. LEVANDOSKI v. DOUGLAS CONE

(SC 16843)

Supreme Court of Connecticut

Argued October 21, 2003

Officially released February 24, 2004

Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.

William J. Melley III, for the appellant (defendant).

Kathryn Calibey, with whom were Douglas W. Hammond and, on the brief, John J. Houlihan, Jr., for the appellee (plaintiff).

Opinion

BORDEN, J.

The common-law "firefighter's rule" provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and, therefore, is owed a duty of care by the property owner that is less than that owed to an ordinary invitee. Furstein v. Hill, 218 Conn. 610, 615, 590 A.2d 939 (1991). Thus, under the firefighter's rule, the landowner generally owes the firefighter or police officer injured on his property "only the duty not to injure him wilfully or wantonly . . . ." Id., 616. The principal issue in this appeal is whether the firefighter's rule should be extended beyond the scope of premises liability so as to bar a police officer from recovering, based on a claim of ordinary negligence, from a tortfeasor who is neither an owner nor a person in control of the premises. The defendant, who is not a landowner or person in control of land, appeals¹ from the judgment of the trial court, following a jury trial, in favor of the plaintiff, a police officer who was injured by the defendant's negligent conduct on the land of another person. We conclude that the firefighter's rule should not be so extended and, accordingly, we affirm the judgment of the trial court in favor of the plaintiff.

The plaintiff, James R. Levandoski, a member of the East Lyme police department, brought this action against the defendant, Douglas Cone, for injuries negligently caused by the defendant while the plaintiff was pursuing the defendant on private property. The plaintiff's employer, the town of East Lyme (town), filed a motion to intervene as a party plaintiff seeking reimbursement of workers' compensation benefits it had paid to the plaintiff, which the court granted. Thereafter, the plaintiff filed an offer of judgment, which the defendant did not accept. After a jury trial and a verdict for the plaintiff, the defendant moved to set aside the verdict and for judgment notwithstanding the verdict, which the court denied.² Thereafter, the town, with the court's permission, withdrew its intervening complaint because it had reached a settlement with the plaintiff regarding the amount of its workers' compensation lien reimbursement. The trial court denied the defendant's request for a reduction in the amount of the verdict by the amount of the lien, awarded prejudgment interest on the verdict, and rendered judgment for the plaintiff accordingly.

The defendant claims that the trial court improperly: (1) denied his motions for a directed verdict and for judgment notwithstanding the verdict because the plaintiff's action was barred by the firefighter's rule; (2) denied his motions because the plaintiff failed to prove proximate cause; and (3) awarded prejudgment interest to the plaintiff. We conclude that: (1) the firefighter's rule does not apply to this case;³ (2) there was sufficient evidence to establish proximate cause; and (3) the court properly awarded prejudgment interest.

The jury reasonably could have found the following facts. On May 15, 1996, the plaintiff was a police officer of the town. At approximately 11 p.m., in response to a neighbor's complaint about a noisy party taking place at the home of David Baskin on Hillwood Drive, the plaintiff and another officer went to that residence, intending to end the party rather than to make arrests. When they arrived at the residence, they approached the house from different sides in order to observe the party. The plaintiff, watching from behind bushes and a tree, saw a group of young persons playing basketball, and heard music and noise. He then heard someone announce the arrival of the police, and saw cans of what he assumed was beer being discarded.

The plaintiff then saw the defendant retrieve some items from a bag in the garage, walk down the driveway while peering over his shoulder, and then put some sandwich size plastic baggies in his pants. The plaintiff believed that the baggies contained marijuana. The plaintiff, who had changed his position to behind a car, then stepped out from behind the car, turned his flashlight on the defendant, and requested that he remove the baggies from his pants. The defendant, in order to avoid being arrested, then began to run away toward some woods, and the plaintiff ordered him to stop. The defendant continued to run, and the plaintiff pursued him into the woods. Just as the plaintiff was about to apprehend the defendant, the plaintiff fell off of a ledge onto some rocks. As a result of the fall, the plaintiff suffered severe injuries to his hip and knee, including lacerations, dislocation of the hip, and a 20 percent permanent disability of his lower right leg.

During the course of the litigation, the town intervened to recover the amount of its workers' compensation lien, and the plaintiff filed an offer of judgment in the amount of $100,000, which the defendant did not accept. The jury rendered a verdict in favor of the plaintiff in the total amount of $147,535, which consisted of $65,000 in noneconomic damages and $82,535 in economic damages. The trial court denied the defendant's postverdict motions, and granted the town's request for permission to withdraw its intervening complaint because it had reached a settlement with the plaintiff in the amount of $58,000 with respect thereto. Thereafter, the court denied the defendant's request to reduce the award by the amount of the town's lien, and awarded the plaintiff prejudgment interest on the verdict pursuant to General Statutes § 52-192a.⁴ This appeal followed.

I

We first address the defendant's claim that the trial court improperly denied his motions for a directed verdict and for judgment notwithstanding the verdict because of the firefighter's rule.⁵ Although the defendant recognizes that the rule has its origins in claims based on premises liability, he argues, nonetheless, that it should be extended to nonpremises liability cases, such as the present case. We are not persuaded.

We begin our analysis with an overview of the history of and policies underlying the firefighter's rule. This court first applied the firefighter's rule in Roberts v. Rosenblatt, 146 Conn. 110, 148 A.2d 142 (1959). In that case, the plaintiff firefighter, who had responded to an alarm, sought to recover from the defendant landowners based upon the defendants' negligent maintenance of their property. Id., 113. The trial court declined the defendants' request "to charge the jury, as a matter of law, that the plaintiff was a licensee upon the defendant's property and that the duty which the defendants owed to the plaintiff was limited by that relationship." Id., 111. This court stated: "Upon these facts, the court should have instructed the jury as a matter of law that the plaintiff entered upon the premises in the performance of a public duty under a permission created by law and that his status was akin to that of a licensee and the defendants owed him no greater duty than that due a licensee." Id., 113.

In Furstein v. Hill, supra, 218 Conn. 610, we considered whether to extend the firefighter's rule to a police officer. We phrased the issue as "whether a police officer occupies the status of an invitee or of a licensee when, in the course of performing his official duties, he is injured by a defective condition on the property of a landowner." Id., 612. We read Roberts as "adopt[ing] the principle expressed in the Restatement (Second) of Torts, § 345 (1), that `the liability of a possessor of land to one who enters the land only in the exercise of a privilege, for either a public or a private purpose, and irrespective of the possessor's consent, is the same as the liability to a licensee.' 2 Restatement (Second), Torts (1965) § 345 (1), pp. 226-27." Furstein v. Hill, supra, 615. We concluded that the rule applies to police officers as well as firefighters. Id., 616. In doing so, we gave three reasons for extending the rule to police officers. Id., 616-20. Of the three reasons, the first we characterized as "[t]he most compelling argument"; id., 616; and the second and third we described as having been adopted by other jurisdictions as rationales for the firefighter's rule. Id., 617-20.

The first reason was cast in terms of the similarity of the roles of firefighters and police officers, and the reasonable expectations of landowners regarding those two types of public officers. We stated: "[F]irefighters and police officers often enter property at unforeseeable times and may enter unusual parts of the premises under emergency circumstances. Kreski v. Modern Wholesale Electric Supply Co., [429 Mich. 347, 368, 415 N.W.2d 178 (1987)]; Nared v. School District of Omaha, 191 Neb. 376, 379-80, 215 N.W.2d 115 (1974); 2 Restatement (Second), [supra, § 345 (1), p. 228, comment (c)]. Such public officers enter the land regardless of the owner's consent; indeed, if the conditions for the exercise of their public duty exist, the owner would not be privileged to exclude them. Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 396, 45 N.W.2d 549 (1951); Scheurer v. Trustees of the Open Bible Church, 175 Ohio St. 163, 168, 192 N.E.2d 38 (1963); 5 F. Harper, F. James & O. Gray, The Law of Torts (2d Ed. 1986) § 27.14, p. 260. Recognizing that only invitees may rely on an implied representation of safety, courts have considered it unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict. `There would be an obvious...