December 16, 1999
ISADORE MELTON, APPELLANT,
CRANE RENTAL COMPANY, APPELLEE.
Before Steadman and Washington, Associate Judges, and Newman,
The opinion of the court was delivered by: Washington, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Jose M. López Trial Judge)
Argued September 27, 1999
The primary issue on appeal is whether this jurisdiction will recognize an exception to the Professional Rescuer's Doctrine *fn1 (doctrine) for independent acts of negligence. Appellant, Isadore Melton, challenges the trial judge's grant of summary judgment in favor of Crane Rental Company (Crane). The trial judge ruled that the doctrine barred a tort action by Melton for injuries sustained in a traffic accident while Melton was acting within the scope of his employment as an emergency medical technician (EMT). Melton argues that the trial court erred in ruling that the doctrine applied because Crane was a third party unrelated to the rescued victim and the negligent act was independent from the emergency to which Melton was responding. We agree, reverse the trial court's decision, and remand.
I. FACTUAL SUMMARY
On June 2, 1996, Melton and another EMT, Hassan Umarani, responding to an emergency, were transporting a pregnant woman to the hospital. Melton was stationed in the rear of the ambulance attending to the rescued party, and Umarani was driving the ambulance. The ambulance was traveling south on Vermont Avenue, N.W. with its emergency lights and siren activated. Melton attests that the ambulance came to a complete stop at the intersection of Vermont Avenue and L Street, N.W. Melton further asserts that all vehicles stopped for the ambulance, except for a truck crane owned and operated by Crane. The truck crane struck the ambulance. Melton sustained permanent injuries from the accident.
II. STANDARD OF REVIEW
We review the grant of a motion for summary judgment de novo and apply the same standard as the trial court when initially considering the motion. Lee, supra note1, 696 A.2d at 1373. "The motion will be granted if, viewing the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. (citations omitted); Super. Ct. Civ. R. 56 (c).
This court has addressed the scope and applicability of the doctrine previously in three cases, Gillespie, *fn2 supra note 1, Young v. Sherwin Williams, Inc., *fn3 569 A.2d 1173 (D.C. 1990); and Lee, *fn4 supra note 1. In those cases, this court developed and applied the test for determining under what circumstances the doctrine bars recovery by a professional rescuer for injuries sustained within the course of his/her employment. In Gillespie, we held that the proper test for determining whether the doctrine applies to bar recovery by a professional rescuer is "whether the hazard ultimately responsible for causing the injuries is inherently within the ambit of those dangers which are unique to and generally associated with the particular rescue activity." Gillespie, supra note 1, 395 A.2d at 20-21. In all three cases we recognized that the legal underpinning of the doctrine was to prevent the proliferation of suits in tort by rescuers in inherently dangerous jobs because they "have assumed the risks inherent in the profession for which they are compensated by the public." Lee, supra note 1, 696 A.2d at 1374 (citations omitted). *fn5 However broad that underlying policy appears to be, this court in Gillespie also declared that "[professional rescuers] . . . do not assume the risk of all injury in the course of their duties." Gillespie, supra note 1, 395 A.2d at 20-21 (citations omitted). In those cases, this court applied this narrower assumption of risk analysis and determined that the doctrine properly precluded recovery because there existed a definite connection between the negligent act which gave rise to the injury and the rescued person *fn6 and/or the situs *fn7 of the emergency; and thus the injuries sustained were "uniquely associated" to the "particular emergency." Although there was discussion about a possible independent tort exception to the doctrine in both Young and Lee, this court reserved judgment on the issue because the exception was not applicable to the facts of either case. This case presents us with the first real opportunity to explore the limits of the doctrine with respect to injuries caused to professional rescuers by the independent negligence of unrelated third parties. *fn8 In this case, unlike in Gillespie, Young, and Lee, there is no nexus between the injuries suffered by the rescuer and the negligence of the rescued party either personally or at the site of the rescue.
Our neighboring jurisdictions, Maryland and Virginia, both recognize an exception to the doctrine based on independent acts. See Tucker v. Rio Vista Plaza, 713 A.2d 884 (Md. 1999); Benefiel v. Overstreet, 422 S.E.2d 773 (Va. 1992). In Tucker, the Maryland court rejected the notion that the doctrine should be understood under a transactional approach, that "[a]ny injury which occurred during the entire transaction of responding to the call must be within the scope of the fireman's rule." Tucker, supra, 713 A.2d at 892 (internal quotation marks omitted). This holding is particularly relevant to the facts of the present case because it demands that a negligent act have a significant connection to the emergency, something more than the fortuitous chance that the negligent act occurred during the scope of the rescuer's employment. Accordingly, the fact that the EMT was en route to the hospital when the accident transpired would be insufficient, alone, to invoke the doctrine.
The Supreme Court of Virginia, likewise, acknowledges an exception to the doctrine based on independent acts of a third party or subsequent negligent acts. The factual scenario in Benefiel is, for the most part, identical to the facts of the instant case, and the reasoning utilized in Benefiel is helpful in justifying the recognition of an exception based on independent acts of negligence in the District. In Benefiel, a fireman injured while riding on a fire truck that was struck by another motorist was not precluded from bringing an action in tort. The Virginia court expresses that "[a] plaintiff may be said to assume a risk  when [he/she] deliberately chooses to encounter that risk." Benefiel, supra, 422 S.E. 2d at 775 (citing 4 Fowler V. Harper, Et Al., The Law of Torts §21 at 189 (1986)). The case further explains that "the plaintiff is aware of the risk that has already been created by the defendant's negligence and, yet, he voluntarily encounters it." Id. (citation omitted).
Benefiel carefully distinguished "between those situations where the injury occurred from the very circumstance which gave rise to the emergency and those circumstances where the negligent act was subsequent to that giving rise to the emergency." Irby v. Doe, 46 Va. Cir. 323 (1998). Moreover, the court in Benefiel speaks directly to our conclusion in the present case, that some nexus is required between the negligence and the emergency via either a connection with the negligent person rescued or situs of the emergency.
Specifically, these defendants were not occupiers of the premises where the negligence arose, . . . nor did their alleged acts of ordinary negligence cause the emergency that brought a fireman or a policeman to the scene, . . . . Benefiel, supra, 422 S.E.2d at 776.
It is the final decision of the Virginia court that the risk of injury by a third party is not a risk inherent in a rescuer's employment shielded under the doctrine. Therefore, the negligence of a third party at a place remote from the situs and unrelated to the cause of the emergency is independent and an exception to the doctrine. See id. at 777. Maryland and Virginia are not alone in adopting an independent tort exception to the doctrine. In fact, we know of no other jurisdiction that has failed to recognize such an exception to the doctrine, *fn9 and Crane could not proffer an authority from any jurisdiction to the contrary. *fn10
Although EMT's regularly ride in emergency vehicles as part of their employment obligations, the fact that the emergency vehicle might become involved in a traffic accident is not a risk associated with the reason for the rescuer's presence at the scene. "[Melton] may have exposed himself to the risk of [vehicular traffic], but he has not consented to relieve a [third party of] any future duty to act with reasonable care." *fn11 W. Page Keeton et al., supra note 11, § 68, at 485. Crane owed Melton a duty of reasonable care and any question as to the propriety of allowing recovery to an EMT in an emergency vehicle, authorized to travel against the normal dictates of traffic laws, is a question of contributory negligence and not assumption of risk. *fn12 Nothing precludes Crane from arguing that the operation of the emergency vehicle was not reasonable under the circumstances and the jury finding Melton contributorily negligent. See Sutton, supra note 9, 643 P.2d at 925.
It is precisely because a professional rescuer can not be held to assume all risks that the doctrine envisions some nexus between the rescuee, the specific rescue activity, and the negligent act causing injury. Therefore, the only activities that the doctrine seeks to immunize from liability are those negligent acts that occasioned the professional rescuer's presence at the scene. See Harris-Fields, supra note 9, 461 Mich. at 197. The absence of such a nexus, in effect, would immunize all negligent and reckless conduct by third parties based solely on status distinctions. The test as announced in this court's decisions in Gillespie and Lee is consistent with this limited interpretation of the doctrine. *fn13
Accordingly, this case is hereby Reversed and remanded.