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Tucker v. Shoemake5/18/1999
the sidewalk. The injury arose from a cause independent of the reason plaintiff was called to the premises"). Cf. Schreiber v. Cherry Hill Constr. Co., 105 Md. App. 462, 474-75, 660 A.2d 970, 976 (applying Flowers in holding that the Fireman's Rule did not bar a police officer's claim for injuries suffered when, while investigating a motor vehicle accident, a car went out of control, crossed through a flare safety line, and struck the police officer; the negligence of the driver and the contractor who constructed the curve on which the car lost control was independent of what necessitated the presence of the police officer), cert. denied, 340 Md. 500, 667 A.2d 341 (1995).
Conversely, had Officer Tucker suffered some injury due to a negligent condition in the trailer where the domestic dispute was or had been in progress, the Fireman's Rule likely would apply.
Shoemake argues that "the fireman's rule should be clarified to preclude recovery by public safety officers for acts of negligence which injure them, so long as the officer is injured during the transaction of performing an obligation of his occupation," subject to certain exceptions. "Any injury which occurred during ['the entire transaction of responding to the call'] must be within the scope of the fireman's rule." Contrary to Shoemake's "transactional approach" argument, the Fireman's Rule does not preclude recovery in all cases in which a police officer is injured in the line of duty. "We reiterate ... that firemen and policemen are not barred from recovery for all improper conduct." Flowers, 308 Md. at 448, 520 A.2d at 368-69.
This case is similar to cases holding that the Fireman's Rule is not a bar to a police officer's claim for injuries sustained when struck by a motor vehicle at the scene of an earlier motor vehicle accident to which the officer had responded. The courts consider that the police officer's injuries resulted from acts of negligence independent of the cause of the officer's presence. See Schreiber, 105 Md. App. at 474-75, 660 A.2d at 976; Wietecha v. Peoronard, 102 N.J. 591, 595-96, 510 A.2d 19, 21 (1986) (per curiam); Duda v. Griffin, 165 A.D.2d 298, 300, 567 N.Y.S.2d 194, 195-96 (1991); Aetna Cas. & Sur. Co. v. Vierra, 619 A.2d 436, 439-40 (R.I. 1993).
Shoemake further argues that Officer Tucker assumed the risk of being injured by the manner in which he approached the domestic dispute. Because this argument does not pertain to whether the Fireman's Rule operates to preclude recovery, it is not the basis on which the circuit court granted summary judgment. Consequently, we do not consider assumption of the risk as an alternative ground in support of the judgment. Gresser v. Anne Arundel County, 349 Md. 542, 552, 709 A.2d 740, 745 (1998).
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY REVERSED. CASE REMANDED FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY THE APPELLEE.
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