2014-0402, Scott Kukesh & a. v. Beverly P. Mutrie, Individually and as Trustee of the Beverly P. Mutrie Revocable Trust

claim to proceed under the “reckless, wanton or willful acts of misconduct” son. The plaintiffs argue that the trial court erred by: (1) not allowing their and wanton misconduct that result ed in their being shot and injured by her and as trustee of the Beverly P. Mutrie Revocable Trust, engaged in reckless J.) dismissing their claim that the defendant, Beverly P. Mutrie, individually Murphy, and Gregory Turner, appeal an order of the Superior Court (McHugh, BASSETT, J. The plaintiffs, Scott Kukesh, Eric Kulberg, Jeremiah

brief and orally), for the defendant. Devine, Millimet & Branch, P.A., of Manchester (Donald L. Smith on the

(Christopher E. Grant on the brief and orally), for the plaintiff s. Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth

No. 2014 - 402 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

unrelated negligent condu ct occurring during the officer’ s official this secti on does not affect such officer’ s causes of action for particular occasion fo r the officer’s official engagement. However, action for injuries arisin g from negligent conduct which created the officers and other public safety officers shall have no cause of Firefighters, emergency medical technicians. . . police

brought their claim provided: Boulter, 166 N.H. at 419. The statute in effect at the time the plaintiffs The l egislature codified the Firefighter’s Rule in 1993. See RSA 507:8 - h;

Found., 166 N.H. 414, 418 - 19 ( p. 2 2014) (quotation s omitted). paid to undertake for the citizen’s benefit.” Boulter v. Eli & Bessie Cohen second time for injuries sustained whi le performing the very service which he is compensate a public safety officer, already engaged at taxpayer expense, a uncircumspect citizenry,” and “it is fundamentally unfair to ask the citizen to firefighter s “are paid to confront crises and allay dangers created by an 468 - 72. The rule rests upon public policy c onsiderations: Police officers and same conduct that required the officer’s official presence. Tasker, 129 N.H. at recover ing in a negligence action when the officer’s injuries are caused by the in England v. Tasker, 129 N.H. 467 (1987), prevents a police officer from Firefighter’s Rule. See RSA 507:8 - h. The Firefighter’s Rule, which w e adopted filed a motion to dismiss, asser ting that the plaintiffs’ claim is barred by the facilitated [her son’s] criminal activity at the subject pr operty.” The defendant otherwise directly and indirectly and wantonly and recklessly supported and criminal activity and conduct to take place at the subject property and engaged in criminal activi ty, she “did re cklessly and wantonly allow... injuries because, “with the knowledge, information and belief” that her son was trustee to recover for their injuries, alleging that she was responsible for their The plaintiffs sued the defendant, individually and in her capacity as

defendant’s son shot and injured the plaintiffs. He then took his own life. the Greenland property. During the execution of the search warrant, the plaintiffs were attempting to serve a search warrant on the defendant’s son at Revocable Trust, of whi ch the defendant is the trustee. On April 1 p. 2 2, 2012, the Greenland where he lived. T he property is owned by the Beverly P. Mutrie defendant’s 29 - year - old son was engag ed in illegal drug activity at a property in served on a drug task force. The police had received reports that the otherwise drawn from the record. The plaintiffs are four police officers who The following facts are derived from the trial court’s orders or are

allowing criminal conduct to occur on her property. We affirm. discovery; and (4) failing to hold the defendant liable as a property owner for considering facts outside their w rit; ( p. 3 3) denying them a full opportunity for exception to RSA 507:8 - h ( p. 2 2010) (amended 2013) (the “Firefighter’s Rule”); (2) 3

facts” but merely “assumptions.” used to injure the police.” The trial court observed that these claims were “not defendant may have provided her son with weapons that he in turn may have injure the plaintiffs.” R ather, “t hey ma[d]e several speculative claims that the allege that the defen dant provided [her son] with weapons that were used to claim for reckless and wanton behavior,” the plaintiffs did not “affirmatively court explained that, although this allegation “could potentially establish a weapons despite knowing that he w as engaged in criminal activity, the trial In regard to the allegation that the defendant provided her son with

risk of harm to others.” “reasonably be considered to have created or contributed to an unjustifiable to do so.” Therefore, the trial court concluded, the defendant could not not “ena ble [her son] to shoot the police,” nor did it “cont ribute to his decision support a finding of reckless or wanton conduct because that assistance did financial assistance, and also paid his legal defense costs were insufficient to allegation s that the d efendant had provided her son with housing, cars, and establish that sh e acted recklessly. The trial court explained that the her son’s criminal activities a nd potentially violent behavior,” they could not the plaintiffs’ “allegations sufficiently establish[ed] the defendant’s knowledge of light most favorable to the plaintiffs,” t he trial court concluded that, although activities. Accepting the plaintif fs ’ allegations “as true and viewing them in the the defendant “recklessly and wantonly supported and facilitated” her son’s parties b ecause the plaintiffs’ writ did not “contain any facts indicating how” the allegati ons in the writ a s well as the additional facts submitted by the trial court decided that it would, “in the interest of judicial economy,” c onsider defendant’s part . . . the Fire[fighter’s] Rule [would] not be applicable.” The succeeded “in stating a claim for reckless and wanton conduct on the R uling on the motion to dismiss, the trial court noted that if the plaintiffs

including the payment of his legal defense costs — and weapons. the defendant provided him with housing, cars, financial assistance — assertions that, despite knowing that her son was engaged in illegal conduct, alleged additional facts that had not been referenced in their wri t, including defendant’s conduct fit within the exception. In their objection, the plaintiffs conduct caused the ir injuries. Th e plaintiffs objected, arguing that the The defendant further contended that the plaintiffs could not show that her application of the rule for “reckless, wanton or willful acts of misconduct.” Id. defendant ’s conduct fit within the exception in the statute precluding allegations in the plaintiffs’ writ were true, they did not establish that the RSA 507:8 - h, I. The defendant argued that, even assuming that all of the

or willful acts of misconduct. engageme nt, or for other negligent conduct, or for reckless, wanton p. 4 4

unsustainably exercised its discretion when it denied the plaintiffs’ motion to discovery.”). Accordingly, we cannot conclude that the trial court interpretation, the trial court has discretion to determine the limits of (2009) (“Although discovery rules are to be given a broad and liberal injure the plaintiffs. See N. H. Ball Bearings v. Jackson, 158 N.H. p. 4 421, 429 show that the defend ant owned and provided the gun that her son used to court — whether the plaintiffs could provide “sufficient affirmative evidence” to discovery of admissible evidence given the narrow issue then before the trial their motion to compel can be found to be reasonably calculated to lead to the subpoenaed telephone records nor the information sought by the plaintiffs in W e conclude that t he plaintiffs fail to meet this burden. N either the

was clearly untenable or unreasonable to the prejudice of their case. Id. meet this standard, the plaintiffs must d emonstrate that the trial court’ s ruling the t rial court’ s order absent an unsust ainabl e exercise of discretion.” Id. To standard.” Petition of Stompor, 165 N.H. 735, 738 (2013). “We will not disturb the admissibility of evidence under an unsustainable exercise of discretion “We review a trial court’ s decisions on the management of discovery and

willful misconduct.” cars and financial assistance could not support a finding of reckless, wanton or evidence, especially given the trial court’s . . . finding that providing housing, plaintiffs “was not reasonably calculated to lead to the discovery of admissible conduct discovery in this c ase,” and that the information sought by the records. The defendant responds that “the plaintiffs had ample opportunity to the defendant’s motion to quash a subpoena for the defendant’s telephone defense, and information about her son’s health care providers; and (2) granted records, documentation of the defendant’s payment for her son’s criminal denied their motion to compel discovery o f the defen d a nt’ s bank account son] relating to the long - term criminal activity at the [p]roperty” when it: (1) information, support, facilitation, protection and communications with [her “developing the evidence of the entire nature of the [defendant’s] knowledge, T he plaintiffs first argue that the trial court prevented them from

dismissal under the Firefighter’s Rule. This appeal followed. engaged in reckless, wanton, or willful misconduct, as required to avoid he r son used to injure them, the plaintiffs could not show that the defendant identify any evidence that the defendant had owned and provided the gun that defendant’s motion, concluding that, because the plaintiffs had failed to twice renewed her motion to dismiss. Ultimately, the trial court granted the continued at the plaintiffs’ request, and was not res cheduled. T he defendant [her son], who then used those guns to injure the plaintiffs.” The hearing was with reasonable probability that the defendant owned and provided guns to with an opportunity to present “sufficient affirmative evidence to demonstrate The tri al court scheduled an evidentiary hearing to provide the plaintiffs p. 5 5

(quotation s omitted). In their pleadings, t he plaintiffs had alleged that the 11 1. The insurance policies defined an “occurrence” as “an accident.” Id. trigger coverage under the terms of the subject i nsurance policies. See id. at alleged facts that could be construed to be an “occurrence” as was required to In Amica, we considered on ly the question of whether the plaintiffs had

insurance policies purchased by the defendant. W e agree with the defendant. the plaintiffs ’ writ alleged conduct that fit within the coverage language of the bearing on the outcome here because it addressed a distinct issue — whether the instant case were reckless. The defendant counters that Amica has no at 114, we, in effect, also determined that the alleged acts of the defendant in h er son’s criminal drug activity. . . was inherently injurious,” Amica, 167 N.H. defendant’s “alleged knowing, reckless, and wanton support and facilitation of RSA p. 5 507: 8 - h. The plaintiffs assert that, when we concluded in Amica that the the exception to the Firefighter’s Rule for “reckless, wanton or willful acts.” See v. Mutrie, 167 N.H. 108 (2014), is dispositive of whether their claim fits within The plaintiffs contend that our decision in Amica Mutual Insurance Co.

the law to the facts de novo. Id. v. Brady, 162 N.H. 362, 36 p. 5 5 (2011). W e review the trial court’s application of reasonably susceptible of a construction that would permit recovery. Chatman the plaintiffs’ allegations — here, as supplemented by additional facts — are reviewing the trial court’s grant of a motion to dismiss, we consider whether Rule for reckless, wanton, or willful mis conduct. See RSA 507: 8 - h. In claim, concluding that it did not fit within the exception to the Firefighter’s T he plaintiffs next argue that the trial court erred when it dismissed their

find no error in the trial court’s consideration of facts outside of the writ. 19 p. 5 5 (2013) (stating standar d of review for motion to dismiss). Accordingly, we presumption to which they were entitled. See Plaisted v. LaBrie, 165 N.H. 194, favorable to the plaintiffs.” Thus, the plaintiffs received the benefit of the plaintiffs’ affirmative allegations “as true and view [ed] them in the light most additional factual allegations. Finally, as the trial court noted, it accepted the dismissal motion as a summary judgment motion. It simply considered form of the proceeding.” Id. Moreover, the trial court did not treat the acquiesced in the procedure employed, the plaintiffs cannot now obje ct to the Chasan v. Village District of Eastman, 128 N.H. 807, 813 (1986). “Having inconsistent with their submission of facts in addition to the ir writ. See the plaintiffs’ challenge to the trial court’s treatment of the pleadings is submitted additional facts that w ere not contained in their writ. C onsequently, considering facts outside the writ. We disagree. T he plaintiffs themselves defendant’s mo tion to dismiss into a motion for summary judgment by T he plaintiffs next contend that the trial court improperly converted the

subpoena for telephone records. compel, or when it granted the defendant’s motion to quash the plaintiffs’ p. 6 6

174. for summary judgment, asserting t he Firefighter’s Rule as a defense. I d. at for failing to properly supervise their child. Id. at 173 - 74. The parents moved a police officer who responded to the scene. Id. The officer sued the parents the home and fired them throughout the house. Id. He then shot and injured eight guns and 500 rounds of ammunition” from an unsecured gun cabinet in released from the hospital into his parents’ custody, he took “approximately vandalized the family home. Migdal, 132 N.H. at 173. The day after he was lived with his parents was involuntarily hospitalized after he ransacked and Migdal v. Stamp, 132 N.H. 171 (1989). In that case, a 15 - year - old child who assistance. RSA 507:8 - h. In support of their argument, t he plaintiffs rely on criminal activity, she provided him w ith housing, cars, weapons, and financial willful acts of misconduct” when, knowing that her son was engaged in The plaint iffs argue that the defendant engaged in “reckless, wanto n or

RSA 507:8 - h. thus allow ing the plaintiffs to pursue their claim against the defendant. See proven, could be deemed to fit within the exception to the Firefighter’s R ule, implicitly — the question now before us: whether the alleged conduct, if (quotation omitted)). I n Amica, we did not decide — either explicitly or need not accept allegations in the writ that are merely conclusions of law” 708, 711 (2010) (stating that when deciding motion to dismiss, the “trial court acts of misconduct. RSA 507:8 - h; s ee Beane v. Dana S. Beane & Co., 1 p. 6 60 N.H. and financial assistance, the def e ndant engaged in reckless, wanton, or willful assertion that the defendant provided her son with weapons, housing, cars, In contrast, here, we are asked to determine whether, based upon the

facilitated” illegal drug activity. Amica, 1 p. 6 6 p. 7 7 N.H. at 113 (quotation omitted). defendant “directly and indirectly and wantonly and recklessly supported and to defend). Thus, in Amica we accepted the plaintiffs’ allegation that the ultimate liability in underlying suit is irrelevant to determining insurer’s duty Fidelity & Guar anty Co., 131 N.H. 257, 261 (1988) (concluding that insured’s “irrelevant to the narr ow issue before the court.” Id.; see Jespersen v. U.S. relevant to the “ultimate determination of [the defendant’s] liability” were [p] olicies.” Id. Moreover, in so ruling, we specifically stated that the facts constitute an ‘occurrence’ as is necessary to trigger coverage under the accidental.” Id. at 114. Therefore, we held that “her conduct [did] not condu ct was inherently injurious, and, therefore, [could not] be considered support and facilitation of her son’s criminal drug activity, [the defendant’s] that some harm would result from her alleged knowing, reckless, and wanton that “because a reasonable person in [the defendant’s] position would know allegations in the writ for the purpose of determining co verage, w e concluded facilitated” it. Id. at 113 (quotation omitted). Assuming the truth of the she “directly and indirectly and wantonly and recklessly supported and defendant knew of her son’ s involvement in dangerous drug activity, and that 7

the time of the shooting. Nonetheless, the plaintiffs maintain that the fact that the Greenland property, let alone the weapons that he had in his possession at defendant provided her son with any weapons during the time that he lived at plaintiffs have failed to identify evidence that support s their allegation that the that the defendant’s actions directly or indirec tly resulted in their injuries. The involvement in criminal activity, t he plaintiffs have not identified any evidence H ere, in contrast, even assuming that the defendant knew of her son’s

their actions and the officer’s injuries. See id. (quotation omitted). between the parents’ “disregard of or indifference to [the] consequences” of injure the plaintiff. See id. at 1 p. 7 76. Thus, there was a causal connection directly resulted in their son gaining access to the weapon that was used to emotionally unstable min or son alone in the house with unsecured firearms actions. See id. at 173. Further, in Migdal, the parents’ decision to leave their son, and there is no allegation that the defendant exercised control over his minor son lived in their home, the defendant did not live with her 29 - year - old and those in Migdal are readily apparent. U nlike the parents in Migdal who se The differences between the factual circumstances in the present case

Rule. defendant’s alleged conduct does not fit within the exception to the Firefighter’s no consequence because we conclude that, under either definition, the definitions; however, even assuming that a meaningful difference exists, it is of are not convinced that there is a material differen ce between the two disregard for or indifference to that risk”), with Migdal, 132 N.H. at 1 p. 7 76. W e substantial and unjustifiable risk of harm to others and by a conscious . . . ed. 2009) (defining “reckless” as conduct “[c]haracterized by the creation of a recklessness set forth in Migdal. Compar e Black’s Law Dictionary 1385 (9th definition of “reckless” in its analysis, rather than the standard for assert that the trial court erred when it used the 2009 Black’s Law Dictio nary did not fit with in the exception to the Firefighter’s Rule. The plaintiffs also therefore, the trial court erred when it concluded that the defendant’s conduct The plaintiffs contend that Migdal is “very similar” to this case, and that,

the Firefighter’s Rule did not bar the officer’s claim against the parents. Id. establish a claim of reckless or wanton conduct.” Id. W e held, therefore, that and had ransacked and vandalized the house the day before, were “sufficient to mental and emotional instabilities,” had “exhibited dangerous propensities,” ammunition,” despite their knowledge that their son “wa s suffering from treatment” for their son and allowed him access to “an array of firearms and the officer’s allegation s that the parents “failed to seek recommended medical (quoting Black’s Law Dictionary 1142 - 43 (5th ed. 19 p. 7 79)). We concluded that danger to life or safety of others, although no harm was intended. ’” Id. at 176 ‘ disregard of or indifference to consequences under circumstances involving officers from pursuing claims of reckless conduct — “conduct evincing In Migdal, w e observed that the Firefighter’s Rule does not bar police p. 8 8

100 (N.Y. 192 p. 8 8) (stating that a person only has a duty to prevent harm injury. Macie, 156 N.H. at 226; see Palsgraf v. Long Island R. Co., 162 N.E. 99, that [her son] would take the actions he did,” causing the plaintiffs’ eventual “could not reasonably have perceived that the series of events would occur and defendant provided he r son with housing, cars, and financial assistance, she Her son was an adult at the time of the shooting. Moreover, when the Here, however, the defendant did not owe a duty of care to the plaintiffs.

(quotation omitted). the paren ts owed a duty of care to the plaintiff. Migdal, 132 N.H. at 173 firearms and ammunition” would result in their son shooting another person, unstable minor s on alone in the house with “access to an array of dangerous Thus, because it was reasonably foreseeable that leaving their emotionally foreseeable und er the particular circumstances. See Macie, 156 N.H. at 224. of the parents’ duty of care was defined by what risks, if any, were reasonably (Duty of Those in Charge of Person Having Dangerous Propensities). T he scope have duty to “exercise reasonable care” in controlling min or child); id. at § 319 causing bodily harm. See Restatement (Second) of Torts § 316 (1965) (parents Migdal, 132 N.H. at 176, the parents had a duty to prevent their son from mental and emotional instabi lities and exhibited dangerous propensities,” responsible for their minor son’ s care and knew that he “was suffering from be considered together.” (quotation and brackets omitted)). Because t hey were (2007) (“The concepts of duty and legal causation are closely related and must plaintiff. Migdal, 132 N.H. at 176; s ee Macie v. Helms, 156 N.H. 222, 224 implicitly turned on the fact that the parents owed a duty of care to the establish a claim of reckless and w anton conduct” against the parents, also Our ruling in Migdal that the plaintiff s’ allegations were “sufficient to

to provide housing, cars, and financial assistance to her son. that the defendant could have prevented the plaintiffs’ injuries had she refused criminal activity and had weapons in h is possession, it is sheer speculation property as a result of their suspicion that the defendant’s son was engaged in decision to do so.” Indeed, given that the plaintiffs w ent to the Greenland enable [the defendant’s son] to shoot the police, nor did it contribute to his injuries: as the trial court correctly observed, t he alleged conduct “did not are insufficient to establish that the defendant’s c onduct caused the plaintiffs’ Additionally, t he plaintiffs ’ remaining fa ctual allegation s, even if proven,

defendant. now concede that “the weapon used to shoot [them] was not” owned by the two years later must have been supplied to him by her.” Indeed, the plaintiffs to logically conclude that any weapon in the possession of the defendant’s son we agree with the trial court that the weapons “seizure does not allow the Court the defendant provided her son with weapons. We are not persuaded. Instead, approximately two years before the shooti ng occurred is sufficient to show that the police confiscated weapons and ammunition from the defendant’s residence p. 9 9

Firefighter’s Rule. RSA 507:8 - h. did not err when it concluded that the plaintiffs’ claim was barred by the alleged conduct was “reckless, wanton or willful,” we hold that the trial court they have failed to allege fact s sufficient to establish that the defendant’s and trained to cope,” Boulter, 166 N.H. at 420 (quotation omitted), and because professional capacity to the very type of situation for which [they were] paid Thus, because the plaintiffs were injured “while responding in [their]

give rise to a duty to prevent her son’s criminal act. property where her son lived constituted a “special circumstance” sufficient to Accordingly, we are not persuaded that the defendant’s role as the owner of the led to her son shoot ing the defendants, nor contr ibute d to his decision to do so. defendant’s alleged provision of housing, cars, and financial assistance neither exercised control over her son’s behavior. Further, as we observed above, the o ccurred on residential property, and there is no allegation that the defendant Berry and Ian n elli are not controlling: here, the plaintiffs’ injuries

failed to alleviate” a foreseeable risk of harm. Ian n elli, 145 N.H. at 1 p. 9 94 - 95. independent and affirmative control over the property, and “unreasonably to protect patrons from an assault on its premises because it exercised criminal acts of others.” Id. In Ia n nelli, we held that a restaurant had a duty private citizen should be immune fro m civil liability for failure to prevent [the] 152 N.H. at 415. “Without sufficient control that would give rise to a duty, a individual “did not create and over which [s he] exercise[s] no control.” Berry, exception does no t give rise to individual liability in situations that the In Berry, we explicitly observed that the “special circumstances”

(2000), argue that the “special circumstances” exception applies here. The plaintiffs, citing Berry and Ian n elli v. Burger King Corp., 145 N.H. 1 p. 9 90 Tract Society of New York, Inc., 152 N.H. 407, 412 (2005) (quotation omitted). (3) where the duty is voluntarily assumed.” Berry v. Watchtower Bible and create an especial temptation and opportunity for the criminal misconduct; or special circumstances exist in cluding situations where the defendant’s acts parties: “(1) where there is a special relationship between the parties; (2) where private citizens are not responsible for the unanticipated criminal acts of third We have recognized three limited exceptions to the general rule that

Firefighter’s Rule. We disagree. conduct fits within the reckless, wanton, or willful acts exception to the ownership of the Greenland property compel the conclusion that her alleged The plaintiffs next argue that the defendant’s duties arising out of her

conclude that their claim fits within the exception to the Firefighter’s Rule. circumstances here, we disagree with the plaintiffs that Migdal requires us to given the differences between the circumstances in Migdal an d the resulting from risks that “reasonable vigilance” could perceive). Accordingly, p. 10 10

DALIANIS, C.J.