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                 THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________


Rockingham
No. 2012-926


                                KATHLEEN BOULTER

                                          v.

         ELI AND BESSIE COHEN FOUNDATION D/B/A COHEN CAMPS

                           Argued: January 22, 2014
                         Opinion Issued: June 20, 2014

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


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

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

    The trial court found, or the record supports, the following facts. In the
summer of 2008, the defendant hired Michael Feld to serve as a counselor at
Camp Tel Noar (the camp) on Sunset Lake in Hampstead, as it had done the
previous summer. Prior to employing him each summer, the defendant
performed a criminal background check on Feld, and each time his record was
clear. During the beginning of his second summer at the camp, other
counselors noticed a change in Feld’s personality from the prior year, including
that he was more outgoing and eccentric, and that he behaved inappropriately
at times. Feld has suffered from bipolar disorder for years.

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

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

       At approximately 5:00 a.m., Feld forced his way into a private residence
immediately adjacent to the camp. Feld was wearing pants that were wet. He
wore no shirt, appeared confused, and was speaking a foreign language. The
homeowner’s wife telephoned the police and Feld ran from the premises. The
plaintiff, a Hampstead police officer, was dispatched “to detain, question
and/or arrest the suspect as a result of his alleged conduct, and to investigate
the home invasion complaint.” As the plaintiff was interviewing the
homeowner, they observed Feld running down the road naked. The plaintiff
ran after Feld, repeatedly telling him to “get down on the ground.” When Feld
charged at her, the plaintiff discharged her taser, but Feld tackled her and
began to strangle her, nearly causing her to lose consciousness. The
homeowner knocked Feld off the plaintiff and the plaintiff locked herself and
the homeowner in her police cruiser to wait for backup. Feld was subsequently
apprehended following a struggle with the plaintiff and two other officers who
had been called to the scene.




                                        2
       The plaintiff brought suit against the defendant and Feld to recover for
injuries she suffered as she was attempting to arrest Feld, alleging negligent,
reckless, and intentional misconduct. All four of the counts in her writ that
pertain to the defendant are based upon the assertion that the defendant owed
the plaintiff a duty of care. In Count I of her writ, the plaintiff alleged that the
defendant “knew or should have known that . . . Feld was likely to cause bodily
harm and that he represented a danger to . . . [her],” and that it was the duty
of the defendant

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

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

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

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

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



                                          3
employee and/or agent behaving in an erratic, aggressive, bizarre and/or
dangerous manner, which behavior exposed others to the unreasonable risk of
bodily harm,” and that the defendant breached its duty of care by

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

       The defendant moved for summary judgment, arguing that the plaintiff’s
claims are barred by RSA 507:8-h (2010) (amended 2013, eff. Jan. 1, 2014)
(the “Firefighter’s Rule”), that the plaintiff could not establish, as a matter of
law, that the defendant acted recklessly or intentionally, and that the
defendant owed no duty to the plaintiff to protect her from the criminal
conduct of third parties. The plaintiff objected, arguing that because her
claims are against the defendant, not Feld, they are not barred by RSA 507:8-h,
that on the undisputed facts it is clear that the defendant “acted recklessly,
and probably intentionally,” and that the defendant owed her a duty “to protect
her from the injuries she sustained during the arrest of [its] employee, Feld.”
The trial court granted the defendant’s motion, finding that the plaintiff’s
negligence claims are barred by RSA 507:8-h, that none of the defendant’s
actions or inactions could be deemed to be either reckless or intentional, and
that the defendant did not owe a duty to the plaintiff.

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

        We adopted the Firefighter’s Rule in England v. Tasker, 129 N.H. 467
(1987), holding that neither a firefighter nor a police officer can recover in
negligence when the officer’s injuries are caused by the same conduct that
required the officer’s official presence. Tasker, 129 N.H. at 468-72. The rule
rests upon public policy considerations: “Policemen and firemen are paid to
confront crises and allay dangers created by an uncircumspect citizenry,” and
“it is fundamentally unfair to ask the citizen to compensate a public safety



                                        4
officer, already engaged at taxpayer expense, a second time for injuries
sustained while performing the very service which he is paid to undertake for
the citizen’s benefit.” Id. at 470-71 (quotation omitted).

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

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

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

       The plaintiff, relying upon the exception in the statute for “other
negligent conduct,” argues that her claims against the defendant “represent
claims for independent acts of negligence, the negligence of a third party, as set
forth in Gould v. George Brox, Inc., 137 N.H. 85 (1997),” and thus are not
barred by the Firefighter’s Rule. The defendant argues that the plaintiff
“cannot claim that ‘but for’ the Camp’s conduct she would not have been at the
scene and injured, while, on the other hand, claiming that the Camp’s actions
did not ‘create the particular occasion for [her] official engagement’ to avoid the
[Firefighter’s Rule].” The defendant asserts that “[e]ither the Camp’s negligent
conduct caused her to be at the scene and her claim is barred under the
[Firefighter’s Rule], or the Camp’s conduct did not cause her to be at the scene
and her claim cannot proceed because that conduct did not proximately cause
her injuries.”

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



                                         5
into a section of the wire that had been raised above the ground by
construction personnel working for defendant Brox, causing it to strike and
injure the plaintiff. Id.

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

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

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



                                         6
plaintiff also asserts that the trial court erroneously weighed the evidence,
failed to determine whether there were disputed issues of fact or law, and failed
to consider her facts. The defendant argues that, based upon the undisputed
facts in the record, the trial court properly concluded that those facts are
insufficient as a matter of law to give rise to a claim of recklessness against it,
and that the defendant’s actions cannot be deemed intentional under New
Hampshire law.

      The plaintiff cites section 500 of the Restatement (Second) of Torts in
support of her argument that the camp’s conduct was reckless. See
Restatement (Second) of Torts § 500, at 587 (1965). Under the Restatement,
conduct is “reckless” if it “would lead a reasonable man to realize, not only that
his conduct creates an unreasonable risk of physical harm to another, but also
that such risk is substantially greater than that which is necessary to make his
conduct negligent.” Id. The conduct “must involve an easily perceptible danger
of death or substantial physical harm, and the probability that it will so result
must be substantially greater than is required for ordinary negligence.” Id.
comment a at 588.

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

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



                                          7
       We hold that, as a matter of law, viewing the evidence and the reasonable
inferences to be drawn therefrom in the light most favorable to the plaintiff, the
defendant’s alleged conduct cannot be deemed to have created a risk that was
“substantially greater than is required for ordinary negligence” or that the risk
was one involving “an easily perceptible danger of death or substantial physical
harm.” Restatement (Second) of Torts § 500 comment a at 588. We reach a
similar conclusion regarding the plaintiff’s claim of intentional conduct. See
Thompson v. Forest, 136 N.H. 215, 219 (1992) (“To constitute an intentional
tort, the tortfeasor must have known that his conduct was substantially certain
to result in injury.”).

       Accordingly, the Firefighter’s Rule applies and the plaintiff has not, as a
matter of law, alleged facts satisfying the exceptions set forth in the statute. In
light of our conclusion, we need not address the plaintiff’s argument that the
trial court erred in finding that the defendant did not owe her a duty of care.

                                                   Affirmed.

      DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.




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