2012-0926, Kathleen Boulter v. Eli and Bessie Cohen Foundation d/b/a Cohen Camps

summer of 2008, the defendant hired Michael Feld to serve as a counselor at The trial court found, or the record supports, the following facts. In the

We affirm. defendant, Eli and Bessie Cohen Foundation, doing business as Cohen Camps. Superior Court (McHugh, J.) granting summary judgment in favor of the CON BOY, J. The plaintiff, Kathleen Boulter, appeals an order of the

orally), for the defendant. Sulloway & Hollis, P.L.L.C., of Concord (Derek D. Lick on the brief and

plaintiff. Borofsky and Kara M. Simard on the brief, and Mr. Borofsky orally), for the Borofsky, Amodeo - Vickery & Bandazian, P. A., of Manchester (Step h en E.

No. 2012 - 926 Rockingham

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

had been called to the scene. apprehended following a struggle with the plaintiff and t wo other officers who the homeowner in her police cruiser to wait fo r backup. Feld was subsequently homeowner knocked Feld off the plaintiff and th e plaintiff locked herself and began to strangle her, nearly causing her to lose consciousness. T he charged at her, the plaintiff discharged her taser, but Feld tackled her and ran after Feld, repeatedly telling him to “get down on the ground.” When Feld homeowner, they observed Feld running down the road naked. The plaintiff the home invasion complaint.” As the plaintiff was interviewing the and/or arrest the suspect as a result of his alleged conduct, and t o investigate plaintiff, a Hampstead police officer, was dispatched “to detain, question homeowner ’s wife telephoned the police and Feld ran from the premises. T he wore no shirt, appeared confused, and was speaking a foreign language. The immediately adjacent to the camp. Feld was wearing pants that were wet. He A t a pproximately 5:00 a.m., Feld forced his way into a private residence

Feld became upset with his roommate and left the room. paranoid thoughts, and delusions of grandeur. At a round 4 a.m. on July 7, Feld’s behavior became increasingly erratic and he demonstrated mood swings, conversed with one another in their room for several hours, during which time Feld’s behavior to the boys’ head coun selor. Feld and his roommate then Upon their return to the camp around midnight, Feld’s roommate reported counselors ’ unfinished food and drinks in an attempt to compel them to leave. expressed a desire to return to the camp, and began throwing away the other Dunkin’ Donuts restaurant. While there, Feld became increasingly agitated, On the evening of July 6, Feld and a group of counselors went to a

Massachusetts. medication. That same week, Feld atten ded a psychiatric appointment in informed him that Feld could become “manic” and should be taking his approach. Shortly thereafter, Feld’s father spoke with the camp director and ca mp’s director, Feld recognized his error and agreed to adopt a softer attempt to evoke an emotional response from them. When spoken to by the counselor reported Feld for yelling at the children in Feld’s theater class in an During the first week of July p. 2 2008, Feld’s second week at the camp, a

at times. Feld ha s suffered from bip olar disorder for years. that he was more outgoing and eccentric, and that he behaved inappropriately c ounselors noticed a change in Feld’s personality from the prior year, including clear. During the beginning of his second summer at the camp, other performed a criminal background check on Feld, and each time hi s record was previous summer. Prior to employing him each summer, the defendant Camp Tel Noar (the camp) on Sunset Lake in Hampstead, as it had done the p. 3 3

to terminate the employ of and/or otherwise remove from Camp Tel Noar any respect to their job requirements and behavior while in its employ . . . and. . . care “to properly hire, train and supervise its employees and agents with In Count VII, the plaintiff alleged that the defendant owed her a duty of

risk of injury d ue to what it knew to be . . . Feld’s dangerous condition.” and with regard to warning the public, inc luding the Plaintiff. . ., as to the to its hiring, investigation, training, supervision and/or retention of . . . Feld the defendant owed her “a duty not to act or fail to act intentionally with regard In Count III, the plaintif f alleged that given its knowledge and conduct,

injury due to what it knew to be . . . Feld’s dangerous condition.” with regard to warning the public, including the Plaintiff. . ., as to the risk of hirin g, investigation, training, supervision and/or retention of . . . Feld and defendant owed her “a duty not to act or fail to act recklessly with regard to its act or failure to act “in conscious disregard of, [or] indifference to, the risk,” the c reated a high degree of risk of physical harm to. . . [her]” and its deliberate In Count II, the plaintiff alleged that, given its knowledge of facts “which

permanent injuries.” negligence of the Defendant,. . . [she] sustained painful, serious and According to the plaintiff, “as a direct, proximate, and for e seeable result of the

the Plaintiff herein. reasonable care so as to avoid bodily injury to persons, including so as to assure that he was not a danger; and to otherwise. . . use health or other services and making sure he was on his medication to include, but not limited to, ass isting him in obtaining mental actions to protect persons from the dangerous behavior of . . . Feld aggressive, bizarre and dangerous behavior; to take appropriate remove . . . Feld from Camp Tel Noar; to investigate his erratic, dangerous behavior of . . . Feld; to terminate the employ of and /or of Hampstead, from and of the erratic, aggressive, bizarre and protect and warn persons, including those in authority in the Town properly supervise and/or control the behavior of . . . Feld; to to reasonably apprehend the dangerousness of. . . Feld; to

of the defendant harm and that he represented a danger to . . . [her],” and that it was the duty defendant “knew or should have known that . . . Feld was likely to cause bodily the plaintiff a duty of care. In Count I of her writ, the plaintiff alleg ed that the pertain to the defendant are based upon the assertion that the defendant owed reckless, and intentional misconduct. All four of the counts in her writ that injuries she suffered as she was att empting to arrest Feld, alleging negligent, The plaintiff brought suit against the defendant and Feld to recover for p. 4 4

“it is fundamentally unfair to ask the citizen to compensate a public safety confron t crises and allay dangers created by an uncircumspect citizenry,” and rests upo n public policy considerations: “P olicemen and firemen are paid to required the officer’s official presence. Tasker, 129 N.H. at p. 4 468 - 72. T he rule negligence when the officer’s injuries are caused by the same conduct that (1987), holding that neither a fire fighter nor a police officer can recover in We adopted the F ire fighter ’s R ule in England v. Tasker, 129 N.H. 467

facts de novo. Id. a matter of law. Id. We review the trial court’s application of the law to the genuine issue of material fact, and the moving party is entitled to ju dgment as grant of summary judgment only if our review of that evidence discloses no moving party. Antosz v. Allain, 163 N.H. 298, 299 (2012). We will affirm the inferences properly drawn from them, in the light most favorable to the non summary judgment, we consider the affidavits and other evidence, and all the Fire fighter ’s Rule bars her claims. In reviewing the trial court’s grant of On appeal, the pl aintiff argues that the trial court erred in finding that

that the defendant did not owe a duty to the plaintiff. actions or inactions could be deemed to be either reckless or intentional, and negligence claims are barred by RSA 507:8 - h, that none of the defendant’s The trial court granted the defendant’s motion, f inding that the plaintiff’s her from the injuries she sustained during the arrest of [its] employee, Feld.” and probably intentionally,” and that the defendant owed her a duty “to protect that on the undisputed facts it is clear that the defendant “acted recklessly, claims are against the defendant, not Feld, they are not barred by RSA 507:8 - h, conduct of third parties. The plaintiff objected, arguing that because her defendant owed no duty to the plaintiff to protect her from the criminal law, that the defendant acted recklessly or intentionally, and that the (the “F ire fighter ’s R ule”), that the plaintiff could not establish, as a matter of claims are barred by RSA 507:8 - h (2010) (amended 2013, eff. Jan. 1, 201 p. 4 4) The defendant moved for summary judgment, arguing that the plaintiff’s

the camp, including children. uncontrollable and dangerous behavior towards other persons at receiving numerous complaints about his erratic, aggressive, terminate his employ and/or remove him from Camp Tel Noar after with regard to appropriate behavior at the camp; and its failure to children’s camp; its failure to properly train and supervise . . . Feld conditions which made it inappropriate for him to be employed at a i ts hiring of . . . Feld who had pre - existing mental health

bodily harm,” and that the defendant breached its duty of care by dangerous manner, which behavior exposed others to the unreasonable risk of emplo yee and/or agent behaving in an erratic, aggressive, bizarre and/or p. 5 5

vehicles (defendant Lavertu) failed to stop as directed by the plaintiff, and ran plaintiff direct ed automobiles over the wire. Id. The driver of one of the utility pole. Gould, 137 N.H. at 87. In order to clear the area of traffic, the (defendant Dionne) accidentally pull ed down a telephone wire from a nearby traffic at a highway construction site, when the operator of a dump truck working a private detail under the control of George Brox, Inc. (Brox), directing distinguishable from this case. In Gould, the plaintiff, a police officer, wa s exception in the statute is applicable and conclude that Gould is We disagree with the plaintiff that the “other negligent conduct”

her injuries.” and her claim cannot proceed because that conduct did not proximately cause [Firefighter ’s R ule], or the C amp’s conduct did not cause her to be at the scene conduct caused her to be at the scene and her claim is barred under the [Firefighter’s Rule].” T he defendant asserts that “[e]ither the C amp’s negligent did not ‘create the particular occasion for [her] official engagement’ to avoid the scene and injured, while, on the other hand, claiming that the C amp’s actions “cannot claim that ‘but for’ the Camp’s conduct she would not have been at the barred by the Fire fighter ’s Rule. The defendant argues that the plaintiff forth in Gould v. George Br o x, Inc., 137 N.H. 8 p. 5 5 (1997),” and thus are not claims for independent acts of negligence, the negligence of a third party, as set negligent conduct,” argues that her claims against the defendant “represent The plaintiff, relying upon the exception in the statute for “other

[her] presence on the scene.” Allain, 163 N.H. at 301. negligently - created risk that caused the [plaintiff’s] injury was the reason for inquiry in determining whether a cause of action is barred is whether the RSA p. 5 507:8 - h, I. “Under the plain language of the statute, the only relevant

or willful acts o f misconduct. engagement, or for other negligent conduct, or for reckless, wanton unrelated negligent conduct occurring during the officer’s this section does not affect such officer’s causes of action for particular occasion fo r the officer’s official engagement. However, injuries arising from negligent conduct which created the and other public safety officers shall have no cause of action for Firefighters, emergency medical technicians. . ., police officers

plaintiff brought her claims provided: RSA p. 5 507:8 - h; Allain, 163 N.H. at 300. The statute in effect at the time the The L egislature subsequently codified the Fire fighter ’s Rule in 1993. See

the citizen’s benefit.” Id. at 470 - 71 (quotation omitted). sustained while performing the very service which he is paid to undertake for officer, already engaged at taxpayer expense, a second time for injuries p. 6 6

he were not properly supervised, co ntrolled, or taking medica tion.” The was aware that Feld’s behavior was substantially certain to result in injury if behavior” and that the defendant’s “conduct was intentional because the C amp around Feld based on his increasingly unstable, aggressive and uncontrolled was reckless in that there was a high degree of risk of serious harm to anyone facts, along with reasonable inferences, that show the defendant’s “conduct Counts II and III of her writ. The plaintiff asserts that she adduced specific inactions of the defendant were not reckless or intentional, as she alleged i n t he plaintiff argues that the trial court erred in finding that the actions or of t he Fire fighter ’s Rule for “reckless, wanton or willful acts of misconduct,” id., In an effort to invoke the exception in the statute precluding application

claims are barred by the Fire fighter ’s Rule. occasion for [her] official engagement,” RSA 507:8 - h, I, we conclude that such directly arose from the alleg ed “negligent conduct which created the particular to arrest him. Because t he injury giving rise to the plaintiff’s negligence claim s plaintiff would not have been called to the scene and injured while attempting negligently, Feld would not have broken into the private residence and the set forth above, are based upon the assertion that had the defendant not acted Here, the negligence claims in Counts I and VII of the plaintiff’s writ, as

91. R ule, we reversed the grant of summary judgment to those defendants. Id. at 91. Because such conduct is excluded from immunity under the F ire fighter ’s of Lavertu in running into the partially raised wire with his vehicle.” Id. at 90 employees in manipulating the downed wire in a negligent manner and the act plaintiff sought damages for the “subsequent and indepen dent acts of the Brox judgment for defendant Dionne. Id. As to the other two defendants, the Accordingly, w e held that the trial court did not err in granting summary of Lavertu and/or Brox em ployees.” Id. (quotation and citation omitted). and trained to cope, but rather by the subsequent and independent negligence in his professional capacity to the very type of situation for which he was paid “res ponded to the scene to control traffic and was not injured while responding required the plaintiff’s presence.” Id. at 90. We explained that t he plaintiff wire to become disengaged from the utility pole, thus creating the hazard that plaintiff. . . was the negligence of defendant Dionne in causing the telephone omitted). Applied to the facts presented, “[t] he negligence that engaged the suffered from independent causes that may follow.” Id. at 89 (quotation that brought the firefighters or police to the scene in the first place and injuries “[c] ase law draws a distinction between injuri es stemming from the negligence In determining the applicability of the Fire fighter ’s Rule, w e noted that

injure the plaintiff. Id. construction personnel working for defendant Brox, causing it to strike and into a section of the wire that had b een raised above the ground by p. 7 7

to those events leading to his arrest.” mania” and that the severity of his psychiatric problems “was not known prior medication, but before the events leading to his arrest, he had no history of treatment for depression, including the use of psychotropic antidepressant at issue occurred concluded that “Feld had a long - standing history of physician who undertook a “dangerousness evaluation” of Feld after the events Feld was experiencing his first episode of mania at the time of his arrest. The danger of substantial physical harm or death. Further, i t is undisputed that is there evidence that the defendant’s actions, or failure to act, presented a physical harm or death prior to his encounter with the plaintiff on July p. 7 7, nor There is no evidence in the record that Feld threatened substantial

defendant acted reckl essly under the standard set forth above. to the plaintiff, it is insufficient to raise a triable issue of fact as to whether the around children.” However, even viewing t his report in the light most favorable are reported t o have expressed their concerns that [Feld] should not be working anger,” and that “[o]ther counselors were concerned about [Feld’s] behavior and that [Feld] was becoming more aggressive and might not be able to control his obvious to those who had contact with him,” that “[c]oncerns were also raised that “[i]t is clear that [Feld’s] increasingly severe psychiatric problems were based upon his review of “the available documentation,” containing his opinion question.” The plaintiff’s expert, a licensed psychologist, provided a report [Feld] did was exhibit unusual behavior shortly before the incident in a light most favorable to the plaintiff, from the perspective of the defendant, all the Restatement applies, we agree with the trial court that “[t]aking the facts in Assuming, without deciding, that the standard set forth in s ection 500 of

comment a at 588. must be substantially greater than is required for ordinary negligence.” Id. of dea th or substantial physical harm, and the probability that it will so result conduct negligent.” Id. The conduct “must involve an easily perceptible danger that such risk is substantially greater than that which is necessary to make his his conduct creates an unreasonable risk of physical harm to another, but also conduct is “reckless” if it “would lead a reasonable man to realize, not only that Restatement (Second) of Torts § 500, at 58 p. 7 7 (1965). Under the Restatement, support of her argument that the camp’s conduct was reckless. See The plaintiff cites s ection 500 of the Restatement (Second) of Torts in

Hampshire law. and that the defendant’s actions cannot be deemed intentional under New insufficient as a matter of law to give rise to a claim of reckless ness against it, facts i n the record, the trial court properly concluded that those facts are to consider her facts. The defendant argues that, based upon the undisputed failed to determine whether there were disputed issues of fact or law, and failed plaintiff also asserts that the trial court erroneously weighed the evidence, p. 8 8

DALIANIS, C.J.