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Injury Aiding Swimmer


In 1992, in a local Massachusetts town, a swimmer, George Kent, ¹swam out on a small pond late at night. He was a distance swimmer and had just had an argument with his wife. He swam out across the pond to relax, something he had done on numerous occasions before. It was, of course, dark and the weather was clear. Robert Brown was at a nearby keg party at a residential property on the pond. He borrowed a friend's boat and took his girlfriend out for a quick spin. Robert Brown failed to keep a lookout for swimmers or small craft and he operated the motorboat at an excessive speed for the dark conditions. As a result, he never saw the swimmer, George Kent, whom he passed over and struck with the propeller. Kent's right leg was severed and his abdomen was cut open.

Eventually Robert Brown discovered what happened, retrieved George Kent into the boat and called for emergency help. Kent remained in the back of the boat by the shore in the dark as the first help arrived. Sgt. David White was the first to respond. He waded out into the water and climbed into the dark boat. He applied a tourniquet and attempted to support the severed leg and open abdomen. At the same time, emergency personnel began entering the boat. As others entered and exited the boat, it was caused to rock back and forth in the shallow water. During this rocking action, Sgt. White slipped on blood and water on the floor of the boat and fell injuring his shoulder and seriously injuring his elbow. The injured swimmer was eventually airlifted to a regional hospital and lost his leg. He otherwise recovered from his injuries and brought his own injury claim which settled for a substantial sum.

Sgt. David White's fall resulted in a serious injury to the ulnar nerve in his elbow which required repositioning through surgery. Sgt. White was out on injured on duty status while he received therapy and recovered from his surgery. He was out a total of thirty-one weeks during which time the Town paid his base wages pursuant to G.L. c. 41, §111F. His medical expenses of approximately $6,000 were also paid by the Town. Fortunately for Sgt. White, he was able to return to his position post-surgery and has had no further complications. He is not pain free, but he has been able to return to his prior position and schedule.

Sgt. White was initially turned away by another attorney who saw no avenue to recovery. I subsequently took Sgt. White's case and through multiple depositions and re-investigation of all the pertinent witnesses, positioned him to take advantage of the "rescue doctrine".

For over eighty years the "rescue doctrine" has been the law in Massachusetts. This doctrine provides a person is liable to the primary victim as well as his rescuer, if, through his conduct, he endangers another's person or property and the rescuer, who goes to aid the endangered person or property, is injured during the rescue. Key to recovery in this case was proving Sgt. White's activity in response to the injured swimmer, the primary victim, placed him in the protected class of rescuer status.

A common thread runs through the cases which recognize the rescue doctrine, and that is some act of intervention, e.g., moving a vehicle, searching for a missing person, attempting to restrain a horse, running into a burning building, flagging down traffic, administering first aid, moving a burning barrel, or jumping into a swimming pool... It is not reasonable that the rescue doctrine be extended to all who run to the scene of a calamity to see what happened and on the chance that they might be able to do some good. To achieve the status of a rescuer, a claimant's purpose must be more than investigatory. There must be asserted some specific mission of assistance by which the plight of the imperilled could reasonably be thought to be ameliorated.
Barnes v. Geiger, 446 N.E.2d at 82 (1983)

During depositions, Robert Brown and George Kent testified they knew when pulling up to the shore, Kent remained in the boat in a life or death situation and would require emergency medical care to survive. Robert Brown confirmed the floor of the boat contained water and blood after he pulled George Kent into the boat. He also testified it was apparent emergency medical care would have to initially be delivered inside the boat. The testimony of the motorboat operator, which corroborated Sgt. David White's, set the stage for positioning Sgt. White as a "rescuer: since he was the first responder and was administering first aid in order to save George Kent's life. As such the "rescue doctrine" was invoked and we claimed tort damages from the motorboat operator Robert Brown. After numerous depositions, the case was settled at mediation for $155,000.00. This amount was paid in addition to the amounts the Town paid Sgt. White for injury on duty wages pursuant to G.L. c. 41, §111F. After prolonged negotiations, the Town was compensated an amount of money pursuant to G.L. c. 41, §100 and 111F for Sgt. White's medical expenses and injury on duty wages.

Sgt. David White's recovery is a point of reference to other officers who have been injured in the past and those who might be injured in the future. It is important to seek out competent, experienced and informed counsel to determine the existence of valuable compensation in excess of amounts which the injured officer receives for injury on duty wages and medical expenses. There is no reason why an injured officer should not seek out additional compensation for his pain and suffering, scarring and lost extra pay, as would any other municipal employee or private citizen.

¹ The officer’s name has been changed to protect his privacy. He has consented to having the facts of his case written about to help educate other officers about their rights. The name of the Defendant has also been changed. The similarity between the officer’s and or the defendant’s names with real persons living or deceased is merely coincidental and not intended.


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