dissenting in part:
Gino Andrews was arrested for urinating behind a locked comfort station at Hains Point. When the police officer produced handcuffs and told Andrews that he would have to come to the station, Andrews fled. The policeman chased on foot and motor scooter until Andrews dove into the Washington Channel of the Potomac River and started swimming toward Fort McNair. While there is some dispute about how strenuous the Park Police on the scene were in their rescue efforts, there is no dispute that, shortly before Andrews drowned, a private boat operated by George and Jennifer Sozio got close to him. Ms. Sozio prepared to dive into the water, stating that she was trained in life-saving and could save Andrews. But a police officer on shore directed her not to attempt the rescue because Andrews was an escaped prisoner and could be dangerous. The statement was false: Andrews was not an escaped prisoner (at most one could call him a fleeing misdemeanant), his outstanding bench warrant only came to light after the incident, and no one had seen any weapon (nor was one recovered afterward). Indeed, if the majority is correct in their rendition of the facts, Gino Andrews was already unconscious at the time Ms. Sozio attempted her rescue, and therefore posed no conceivable threat to her or anyone else.
Gino Andrews’ parents filed suit against various defendants, including the Park Police and the United States, asserting constitutional, statutory and common law tort claims. The Andrews alleged that their son was chased into the Channel and that the Park Police officers at the scene refused to rescue him, prevented two persons on shore from attempting a rescue, and interfered with Ms. Sozio’s rescue attempt. Generally, I concur in the court’s disposition of the constitutional and statutory claims, as well as most of the common law claims against the individuals and the United States. I am dismayed, however, by the dismissal of appellants’ claim that the Park Police were negligent in their rescue efforts when they prevented Ms. Sozio’s rescue attempt. The majority calls this case “bizarre,” but what is truly bizarre is the behavior of the United States Park Police. Urinating in public (behind a locked comfort station) and fleeing arrest do not transform a 21 year old into a hardened criminal who poses a threat to private rescuers. The facts alleged by appellants, many of which were undisputed, warranted a trial on the common law tort claims which alleged that the Park Police interfered with rescue efforts. Accordingly, I dissent from the majority’s holding that the government was legally blameless.
I. Discussion
The trial court refused to let this case go to trial, disposing of it on the government’s motion for summary judgment. In opposition to the government’s motion, appellants introduced several witness statements and affidavits from disinterested eyewitnesses to corroborate their allegations that the government was culpable. In support of its motion, the government introduced a sworn statement from Sgt. Thomas Wilkins indicating that the Park Police acted expeditiously and did everything possible to rescue Andrews. It is undisputed, however, that the officers did prevent a private rescue effort that was much more likely to succeed than their feeble efforts made from the shore.
The district court granted summary judgment to the United States because it found that: (1) Andrews was contributorily negligent, evidenced by his flight from arrest, intoxication, and swimming in the Washington Channel in violation of federal regulations; (2) this contributory negligence barred application of the “negligent rescue” doctrine; (3) the lack of evidence of initial negligence by the defendants made *103the “last clear chance” doctrine inapplicable; and finally (4) the plaintiffs had not submitted sufficient evidence of willful or wanton misconduct by the Park Police. While I agree that the claims alleging chase and failure to initiate rescue were properly decided, the other claims concerning interference with rescue are much more compelling.
District of Columbia law recognizes the doctrine of negligent rescue. Cf. Remeikis v. Boss & Phelps, Inc., 419 A.2d 986, 991 (D.C.1980) (“One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” (internal quotation marks and citation omitted)). See also, Restatement (Second) of Torts § 323 (1965). Whether or not they initially owed any duty to rescue Andrews, the Park Police had a duty to act in a non-negligent, reasonable fashion once such a rescue was undertaken. Arbitrarily preventing a private rescue effort that had the greatest likelihood of success constituted a breach of that duty. If the police botched an opportunity to save Andrews from his predicament by stopping Ms. Sozio from her rescue efforts, the negligent rescue doctrine clearly would apply. Although the Park Police also owed the Sozios a countervailing duty not to endanger their lives as part of the rescue operations, the stated reason given by the Park Police as to why Ms. Sozio should not proceed further was not true, as discussed more fully below.
The interference with Sozio’s private rescue efforts stands alone as an act of negligence to which the prior contributory negligence of Andrews is irrelevant. Contributory negligence does not automatically bar recovery under a negligent rescue theory unless it is continuing.
It is incumbent on the part of such a plaintiff to act with due care not to make his predicament worse once succor is on the way, but the volunteer who defaults in his duty once assumed to assist with due care cannot evade liability by pointing to the fact that the plaintiff in peril brought his troubles on himself to begin with.
Federal Deposit Insurance Corp. v. Thomas W. Perry, Inc., 634 F.Supp. 349, 354 (D.D.C.1986). The district court rejected such an approach, insisting that Andrews “continue[d] his negligence during the rescue attempt.” Mem.Op. at 10-11. It is hard to define what Andrews did that constituted continuing negligence at the time of the Sozio rescue effort. Was it Andrews’ failure to revive himself from unconsciousness? Was it his failure to reflexively reach out for Ms. Sozio’s leg despite his unconsciousness? The relevant question is whether any negligent act of the victim, “whether occurring before or after the accident, relates to the rescue and either worsens the victim’s condition or hinders the rescue.” Berg v. Chevron U.S.A., Inc., 759 F.2d 1425, 1431 (9th Cir.1985). The illegal entry into the Channel was complete, and Andrews was no longer fleeing arrest (he had begun to swim back) when Sgt. Wilkins threw the life preserver. The sole “continuing” contributory negligence by Andrews that arguably worsened his position and hindered rescue was his intoxication. Even if that would cut off any liability for the alleged lack of due care in throwing the life preserver, Andrews was already unconscious at the time Ms. Sozio was instructed not to rescue him. Thus, no aspect of Andrews’ contributory negligence could worsen his peril any further and, but for the officers’ instructions, Ms. Sozio may still have been able to resuscitate him. The majority is noticeably silent on this issue.
Appellants also tried to avoid the contributory negligence barrier by arguing that the officers had acted in a willful or wanton fashion. The district court determined that there was no evidence of such conduct. While that conclusion may be appropriate when looking at the initial conduct of the Park Police, the record was replete with evidence that the Park Police had acted in a most disturbing manner when warning Ms. Sozio to desist in her rescue attempt. The district court simply concluded that the fact “that the park police prevented Jennifer Sozio from attempting a swim rescue cannot give rise to a claim of willfulness or wantonness.” Willfulness does not require *104an actual intent to cause injury but can be a conscious indifference to consequences under circumstances likely to cause harm. Bohannon v. District of Columbia Dep’t of Motor Vehicles, 288 A.2d 672, 675 (D.C.1972). There is evidence from several disinterested eyewitnesses suggesting indifference by the Park Police. See Witness Statement of George A. Sozio (May 20, 1987), at 2 (commenting on the officers’ “very casual” conduct); Affidavit of Bill Sheffey, at 1 (describing the rescue efforts as “nonchalant”); Affidavit of Jay F. Warthen, at 3-5 (describing officers’ “reluctance” and apparent intent to punish Andrews); Affidavit of Joanna M. Davis, at 2. While such descriptions may not by themselves create a genuine factual dispute concerning the alleged negligence of the Park Police in undertaking their own rescue efforts, these statements certainly raise an issue about the officers’ motivation in cutting off the Sozio rescue attempt because the warnings to Ms. Sozio that Gino Andrews was an “escaped prisoner [who] could be dangerous” were patently untrue.
These eyewitness accounts were dismissed, however, on the strength. of the sworn statement by Sergeant Wilkins that the police did everything possible to save Andrews. The majority gives no recognition to the clear stricture that in summary judgment review, the non-moving party gets the benefit of the doubt on any disputed facts. Instead, my colleagues “conjecture” about what may have motivated the officers to tell Jennifer Sozio that Andrews was an escaped and dangerous prisoner. See Maj.Op. at 99. The majority would deem Andrews’ “arrest” and flight as a sufficient basis for loosely describing him as an escaped prisoner, but Andrews was never actually arrested for urinating in public. See California v. Hodari D., — U.S. -, -, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991) (“An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority.”). This might well have been a different case if the officers only yelled to Ms. Sozio that she should not go in because of the treacherous undercurrents, but the inaccurate description of Andrews, combined with other evidence that the police may have been acting vindictively toward him, at least creates a colorable claim of willful and wanton misconduct.
This case resembles Ross v. United States, 910 F.2d 1422 (7th Cir.1990), where the court decided that the “plaintiff has pleaded sufficient facts for a jury to conclude that [the officers] acted in a reckless manner.” Id. at 1433. Although the focus of that decision related to alleged constitutional torts, the court’s treatment of the facts in that case provides us with some useful parallels, notwithstanding the majority’s strained effort to distinguish the case. See Maj.Op. at 98-99. In Ross, the officer on the scene “knew there was a substantial risk of death yet chose a course of action that ignored the risk.” 910 F.2d at 1433 (deeming such conduct “reckless”). This seems like a question that should be left for the fact-finder. See Mandel v. United States, 719 F.2d 963, 967-68 (8th Cir.1983) (reversing summary judgment because there was a genuine issue of material fact concerning alleged willful misconduct by National Park Service personnel when they suggested that a patron could swim in what proved to be a hazardous area).
II. Conclusion
A somewhat harmless misdemeanor formed the causal nexus for a tragic death. There is no law or precedent which requires the United States to compensate the aggrieved family for every such unfortunate incident. But the law and precedents are clear that the United States is responsible when its agents act in a negligent fashion. There was enough in this record to put the United States to the task of defending the conduct of its officers at trial, rather than passing through the summary judgment road to absolution of blame. I would remand to allow appellants an opportunity to prove their common law tort claims against the United States-