dissenting.
Although I agree with the majority that the plaintiffs failure to allege wilful and wanton conduct barred it from invoking the rule in Griffin v. Shively, 227 Va. 317, 322, 315 S.E.2d 210, 213 (1984),* I cannot join the Court’s holding that the rescue doctrine does not apply in a case where the rescue efforts are undertaken to protect “potential but unperceived victims.”
I understand these words to mean that, even though the public is exposed to potential danger, the rescue doctrine does not apply unless at least one potential victim is within the rescuer’s field of vision.
I would hold that, in the enforcement of laws designed to promote public safety, a police officer has the benefit of the rescue doctrine when he reasonably perceives that a person’s violation of such laws, whether wilful or merely negligent, poses a potential danger of death or bodily injury to others. A police officer is uniquely trained and equipped to assess the nature and extent of a threat to public safety. Whether the officer’s perception of such danger is reasonable under the circumstances should ordinarily be a question for a jury.
Because I consider the evidence fully sufficient to support a finding that officer Fletcher reasonably perceived that Millsaps’ conduct posed such a danger, I would reverse the judgment, and on remand, instruct the trial court to grant an instruction on the rescue doctrine in terms relevant to the undisputed facts of this case.
CARRICO, C.J., and THOMAS, J., join in dissent.
Had the Commonwealth alleged wilful and wanton conduct and registered timely objection, the granting of the contributory-negligence instruction would have been reversible error under the rule in Griffin. I favor the view of courts in sister jurisdictions which hold that the same rule applies to an instruction on assumption of risk. See e.g., Korzun v. Shahan, 151 W.Va. 243, 252, 151 S.E.2d 287, 293 (1966). And in cases involving firemen or policemen, it should apply to bar an instruction on the “fireman’s rule”, a rule which this Court has applied only in cases involving ordinary negligence. See e.g., C & O Railway v. Crouch, 208 Va. 602, 159 S.E.2d 650, cert. denied, 393 U.S. 845 (1968) (fireman-plaintiff); Pearson v. Canada Contracting Co., 232 Va. 177, 349 S.E.2d 106 (1986) (policeman-plaintiff).