Espinoza v. Schulenburg

• Decision Date: 15 March 2006
• Docket Number: No. CV-05-0158-PR.,CV-05-0158-PR.
• Citation: 129 P.3d 937,212 Ariz. 215
• Parties: Elizabeth ESPINOZA, an unmarried woman, Plaintiff/Appellant, v. Carrington SCHULENBURG, an unmarried woman; John Schulenburg and Debra Schulenburg, husband and wife, Defendants/Appellees.
• Court: Arizona Supreme Court

129 P.3d 937

212 Ariz. 215

Elizabeth ESPINOZA, an unmarried woman, Plaintiff/Appellant, v. Carrington SCHULENBURG, an unmarried woman; John Schulenburg and Debra Schulenburg, husband and wife, Defendants/Appellees.

No. CV-05-0158-PR.

Supreme Court of Arizona, En Banc.

March 15, 2006.

Curran & Belville, P.A. by Christopher J. Curran, Chad L. Belville, Tempe, Attorneys for Elizabeth Espinoza.

Jones, Skelton & Hochuli, P.L.C. by Ronald W. Collett, Randall H. Warner, Phoenix, Attorneys for Carrington Schulenburg, John Schulenburg, and Debra Schulenburg.

Humphrey & Petersen, P.C., by Andrew J. Petersen, Tucson, Attorneys for Amicus Curiae Arizona Association of Defense Counsel.

OPINION

BERCH, Vice Chief Justice.

¶ 1. This case requires us to decide whether the firefighter's rule bars an off-duty firefighter who volunteered at the scene of an accident from suing the person whose negligence caused the accident. We conclude that it does not. We therefore reverse the grant of summary judgment by the trial court, vacate the decision of the court of appeals, and remand the case for trial.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On the evening of February 10, 2002, sixteen-year-old Carrington Schulenburg was driving her parents in the family Camaro when they were involved in an accident on State Route 101. While driving home from work with her daughter, Phoenix firefighter and emergency medical technician ("EMT") Elizabeth Espinoza saw the accident scene and stopped to help. A Department of Public Safety ("DPS") officer was already on the scene, and another person had also stopped to assist. Espinoza identified herself as a firefighter/EMT to the DPS officer and went to help the Schulenburgs.

¶ 3 The Schulenburg vehicle was resting on the left side of the freeway, partially obstructing one lane of traffic. As Espinoza reached inside to turn on the emergency flashers, the car was rear-ended by another car, driven by Casey Barnett. Espinoza suffered a broken hip, a broken wrist, a broken finger, torn knee ligaments, and other injuries. She was paid workers' compensation benefits as a result of her injuries.

¶ 4 Espinoza sued the Schulenburgs, Barnett, and DPS to recover for her injuries. The superior court granted summary judgment to the Schulenburgs on the ground that the firefighter's rule bars Espinoza's claim. That rule prevents a firefighter from suing for the negligence that created the need for rescue. The court of appeals reversed, holding that the firefighter's rule should be narrowly construed so as not to bar the claims of off-duty firefighters. Espinoza v. Schulenburg, 210 Ariz. 157, 160, ¶ 13, 108 P.3d 936, 939 (App.2005). The court remanded, however, for determination of whether Espinoza had a duty as part of her job as a firefighter to stop and help, in which case the court would apparently conclude that the rule should apply to bar her suit. Id. at 161-62, ¶¶ 23, 25, 108 P.3d at 940-41.

¶ 5 We granted review to decide the proper application of the firefighter's rule to off-duty firefighters. We have jurisdiction in this case pursuant to Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 12-120.24 (2003).

DISCUSSION

¶ 6 We review the grant of summary judgment de novo and view the evidence in the light most favorable to Espinoza, the party against whom summary judgment was entered. See Duncan v. Scottsdale Med. Imaging Ltd., 205 Ariz. 306, 308, ¶ 2, 70 P.3d 435, 437 (2003).

¶ 7 The rescue doctrine allows an injured rescuer to recover damages from the person whose negligence created the need for rescue. As stated in the forthcoming Restatement of Torts, the doctrine provides that

if an actor's tortious conduct imperils another or the property of another, the scope of the actor's liability includes any physical harm to a person resulting from that person's efforts to aid or protect the imperiled person or property, so long as the harm arises from a risk that inheres in the effort to provide aid.

Restatement (Third) of Torts: Liability for Physical Harm § 32 (Proposed Final Draft No. 1, 2005) [hereinafter "Restatement"].

¶ 8 The rescue doctrine declares as a matter of policy that injury to a rescuer is a foreseeable result of the original negligence. Judge Cardozo eloquently stated the justification for the rule as follows: "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal." Wagner v. Int'l Ry. Co., 232 N.Y. 176, 133 N.E. 437, 437 (N.Y.1921). By making a volunteer's response foreseeable as a matter of law, the rescue doctrine bridges what otherwise might be a fatal hole in an injured volunteer's suit for damages.¹

¶ 9 Arizona courts have never expressly adopted the rescue doctrine. Cf. Sulpher Springs Valley Elec. Coop. v. Verdugo, 14 Ariz.App. 141, 144, 481 P.2d 511, 514 (1971) (discussing the rescue doctrine in the context of contributory negligence). Generally, however, absent law to the contrary, Arizona courts follow the Restatement. Cunningham v. Goettl Air Conditioning, Inc., 194 Ariz. 236, 239, ¶ 14, 980 P.2d 489, 492 (1999). We do so here. As Judge Cardozo observed, rescue is a normal, if not always predictable, response to danger. See Wagner, 133 N.E. at 437. The law should encourage people to respond to those in distress. The rescue doctrine does so by allowing the possibility of compensation to those who injure themselves while taking risks to help others.

¶ 10 If Espinoza had been a lay person, the rescue doctrine would permit her suit against the Schulenburgs. Indeed, the doctrine is probably necessary to support the suit because without it, Espinoza might not be able to show that the Schulenburgs' actions, rather than her own actions on the scene, were the proximate cause of her injuries. Although the rescue doctrine alleviates those concerns, because Espinoza is employed as a firefighter and EMT, the Schulenburgs assert that the firefighter's rule bars her suit.

¶ 11 The firefighter's rule evolved as an exception to the rescue doctrine: A rescuer who could otherwise recover cannot do so if she is performing her duties as a professional firefighter. Orth v. Cole, 191 Ariz. 291, 293, ¶ 9, 955 P.2d 47, 49 (App.1998). The rule reflects a policy decision that the tort system is not the appropriate vehicle for compensating public safety employees for injuries sustained as a result of negligence that creates the very need for their employment. When the doctrine first came before the Arizona Court of Appeals, that court described the rationale for the firefighter's rule this way:

Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences.

Grable v. Varela, 115 Ariz. 222, 223, 564 P.2d 911, 912 (App.1977) (quoting Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, 131 (1960)). In return for removing the firefighters' right to sue, the public trains, equips, and compensates these public safety officers. So while the rescue doctrine expands tort responsibility by extending the duty of care of the negligent person who caused the accident to those who risk their safety to engage in the rescue, the firefighter's rule limits the expansion of tort liability created by the rescue doctrine.

¶ 12 The firefighter's rule has its historical basis in the law of premises liability, preventing suit against a landowner when a firefighter was injured on the landowner's property while fighting a fire. See Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182, 184, 186 (1892) (finding that a firefighter injured while fighting a fire was a "mere naked licensee" and therefore could recover only for willful acts of the landowner), overruled by Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881 (1960).² The rationale for the rule applies equally, however, outside the context of premises liability. Fires and accidents can occur anywhere, and firefighters respond and risk injury. See Grable, 115 Ariz. at 223, 564 P.2d at 912 (noting that the rule is no longer limited to premises liability cases).

¶ 13 In a few jurisdictions, the firefighter's rule is based on the notion that professional firefighters assume the risk of injury. See Armstrong v. Mailand, 284 N.W.2d 343, 349-50 (Minn.1979); 62 Am.Jur.2d Premises Liability § 431 (1990 & Supp. Westlaw 2005). That doctrine should not serve as the basis in Arizona, however, because assumption of the risk no longer serves as a complete bar to tort recovery under Arizona's comparative fault system. A.R.S. § 12-2505(A) (2003). It therefore does not support the complete bar that the firefighter's rule represents.

¶ 14 Moreover, to say the firefighter's rule exists because firefighters assume the risk begs a comparison to lay volunteers who similarly assume risk, yet are entitled by the rescue doctrine to sue for compensation. The justification assumes that professionals are more knowledgeable about the risks they face than other volunteers. Although that may be true in many cases, it would also be true of all those with training that has informed them of the risks of a rescue situation. "Assumption of the risk" therefore does not support distinguishing between professional rescuers and other volunteers.

¶ 15 This court has never addressed the firefighter's rule. The court of appeals, however, has applied the firefighter's rule in one case. See Grable, 115 Ariz. at 223, 564 P.2d at 912. But it has also declined to apply the rule and limited it to emergency situations, see Orth, 191 Ariz. at 293, ¶ 10, 955 P.2d at 49, and to the immediate negligence that causes the emergency, but not to subsequent acts, see Garcia v. City of S....