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Bradley v. Powell

Superior Court of Delaware

May 23, 2018


          Date Submitted: February 23, 2018

         Upon Defendant's Motion for Summary Judgment. Denied.

          Joseph W. Weik, Esq., Weik, Nitsche & Dougherty, Attorney for Plaintiffs

          Louis J. Rizzo, Jr., Esq., Reger Rizzo & Darnell, Brandywine Plaza East, Attorney for Defendant


          STOKES, J.


         This matter is presently before the Court on the motion of the Defendant, Emmittee E. Powell ("Defendant"), for summary judgment against the Plaintiffs Frank D. Bradley, III and Jaimie Bradley ("Plaintiffs"). The Plaintiffs oppose the Motion. For the foregoing reasons, Defendant's Motion for Summary Judgment is DENIED.


         This Motion stems from an incident between Defendant, a bar patron, and Plaintiff Frank D. Bradley, III ("Bradley"), a Seaford police officer. On December 20, 2013, Bradley was called to the Crazy 8's Bikini Lounge to investigate Defendant's claim that his wallet had been stolen. According to Plaintiffs, Defendant was intoxicated and very agitated. Despite Bradley's instructions to remain outside, Defendant rushed toward Bradley and attempted to re-enter the premises. This action prompted Bradley to grab Defendant and pull him away from the doorway. An altercation between the parties ensued. According to Defendant, Bradley lost his footing during this altercation and fell, causing Defendant to fall on top of Bradley's leg. Bradley claims that Defendant fell onto his leg during the interaction, but that Defendant's fall was not caused by Bradley's own fall. Regardless of exactly how the fall occurred, Bradley allegedly suffered an injury to his right knee, forcing him to undergo surgery and be out of work for eight weeks.

         Therefore, on August 16, 2017, Plaintiffs filed suit against Defendant. They allege negligence/recklessness and loss of consortium claims. Plaintiffs seek a judgment "in an amount sufficient to compensate them for their injuries and losses...."[1]

         On January 24, 2018, Defendant filed this Motion for Summary Judgment. According to Defendant, even in light of Plaintiffs' well-pled allegations, insufficient facts have been alleged to establish a cause of action for negligence. He seeks to extend the "Fireman's Rule" to apply to actions by police officers against negligent tortfeasors. The Fireman's Rule states that "a fireman may not recover when he is injured from the very risk, created by the defendant's act of negligence, that required his professional assistance and presence at the scene."[2] Defendant asserts that the extension of the rule may be justified through the principle of assumption of the risk and other public policy rationales. The principle of assumption of the risks holds that, if the plaintiff knew of the existence of a risk and takes the risk despite this knowledge, he will not be able to recover for negligence. Thus, in Defendant's view, this principle applies to the risk that a police officer takes while performing his job duties. Additionally, Defendant argues that it is in the interest of good public policy to extend the Fireman's Rule. He states, ".. .the taxpayer should not be forced to pay twice: once for the salary, benefits, and cost of insurance of first responders and a second time for damages for injuries incidental to their duties."[3] For these reasons, Defendant believes that the Fireman's Rule should be expanded to cover police officers, thereby negating Plaintiffs' claims.

         On January 25, 2018, Plaintiffs filed their Response to Defendant's Motion for Summary Judgment. Plaintiffs examine other jurisdictions that have adopted the Fireman's Rule in the police context. In those jurisdictions, it has generally been held that "the policy behind the Fireman's Rule is to encourage an individual, particularly a landowner, who requires professional assistance, to summon police officers by limiting the circumstances under which the individual may be liable for the injuries the professionals may suffer.. ."[4] However, this does not mean that the Fireman's Rule provides a complete bar from recovery. In most jurisdictions "the rule does not apply to claims against interfering third-party tortfeasors who negligently injure police officers while performing their duties."[5] In Plaintiffs' view, Defendant injured Bradley as a result of his reckless conduct. Therefore, Defendant's conduct would not fall under the Fireman's Rule, as adopted in most other jurisdictions. In short, Plaintiffs assert that, under the facts and circumstances of this case, the Fireman's Rule, even if extended to the police, would not apply.

         On February 23, 2018, Defendant filed his Reply in Support of Motion for Summary Judgment. Defendant takes issue with the idea that his negligent or reckless action caused Bradley's injury. According to Defendant, Bradley's footing merely slipped while he was pulling Defendant back from the doorway, causing him to lose his balance. Defendant claims that he only fell onto Bradley's leg because Bradley himself fell, not because Defendant fell first. Thus, at best, this behavior would only constitute an act of ordinary negligence, which should be barred from recovery under the Fireman's Rule.

         III. ...

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