Espinoza v. Schulenburg

• Decision Date: 10 March 2005
• Docket Number: No. 1 CA-CV 04-0438.,1 CA-CV 04-0438.
• Citation: 210 Ariz. 157,108 P.3d 936
• 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 Court of Appeals

108 P.3d 936

210 Ariz. 157

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

No. -0438.

Court of Appeals of Arizona, Division 1, Department A.

March 10, 2005.

Curran & Belville, P.A. By Christopher J. Curran, Chad L. Belville, Tempe, Attorneys for Plaintiff-Appellant.

Jones, Skelton & Hochuli, P.L.C. By Ronald W. Collett, Randall H. Warner, Phoenix, Attorneys for Defendants-Appellees.

OPINION

SULT, Judge.

¶ 1 While off-duty, Appellant Elizabeth Espinoza, a Phoenix firefighter and emergency medical technician, stopped to render assistance at the scene of an accident involving Appellees John and Debra Schulenburg and their daughter, Carrington. Espinoza was injured at the scene by another driver and later instituted this action, which included the Schulenburgs as defendants under the rescue doctrine. However, the trial court held that the fireman's rule precluded Espinoza from attempting to impose liability on the Schulenburgs and dismissed them as defendants.

¶ 2 In this opinion, we reiterate and enforce the principle that in Arizona, the fireman's rule as an exception to the rule of liability reflected in the rescue doctrine is to be applied narrowly. Because we find that the trial court's application of the rule violates this principle, we reverse the trial court's judgment. In so doing, we hold that the fireman's rule will not bar an off-duty firefighter or law enforcement agent from seeking recovery for injuries sustained while undertaking a rescue or rendering aid, if the professional is acting truly as a volunteer and is not under an employment mandate to respond when off-duty.

BACKGROUND

¶ 3 On February 10, 2002, Carrington Schulenburg was driving on State Route 101 with her parents, John and Debra Schulenburg, as passengers when they were involved in an automobile collision. Espinoza, a Phoenix firefighter/EMT was driving home with her nine-year-old daughter when she came upon the scene. Espinoza's normal duties as a firefighter/EMT included driving a fire truck, providing medical assistance at fires or accident scenes, and attaching fire hoses. Espinoza stopped and offered her assistance to a Department of Public Safety officer who was already present. At the direction of the officer, Espinoza attended to the Schulenburgs. She inquired of the Schulenburgs if they were in need of medical attention and then instructed them to move away from their vehicle.

¶ 4 The Schulenburg vehicle had come to rest partly on the left side shoulder and partly in the left through lane. Espinoza leaned into the vehicle to activate its emergency flashers, and as she did so, a vehicle driven by Casey John Barnett struck the rear of the vehicle. Espinoza sustained a broken hip, broken wrist, torn knee ligaments, a broken finger, and other injuries. She applied for and received workers' compensation benefits. ¶ 5 Espinoza filed suit against the Schulenburgs, Barnett, and DPS for negligence. Espinoza alleged that Carrington Schulenburg's negligence in causing the initial collision was a direct and proximate cause of her injuries because it resulted in Espinoza's stopping at the scene to render assistance. John and Debra Schulenburg were included on a theory of negligent entrustment, Espinoza asserting that they permitted their daughter to drive knowing that she was not properly licensed.

¶ 6 The Schulenburgs moved for summary judgment arguing that the fireman's rule precludes a firefighter or police officer who is injured while providing professional services from suing the person whose negligence made necessary the rendering of those services. Espinoza filed a cross-motion arguing that the rule should not apply to her because she was off-duty when she rendered assistance and encountered a greater risk of injury than she would have had she been on-duty.

¶ 7 The trial court found Espinoza's claim barred by the fireman's rule and dismissed all claims against the Schulenburgs. The court entered judgment accordingly, including appropriate finality language pursuant to Rule 54(b), Arizona Rules of Civil Procedure, and Espinoza timely appealed.

ANALYSIS

¶ 8 The rescue doctrine holds that an injured rescuer may recover damages from the original tortfeasor who negligently caused the event that precipitated the rescue. Orth v. Cole, 191 Ariz. 291, 293, ¶ 9, 955 P.2d 47, 49 (App.1998). The doctrine recognizes the natural human impulse to aid others in distress and rewards this impulse by including its manifestation within the realm of the forseeable results of a negligent act. Wagner v. International Railway Co., 232 N.Y. 176, 133 N.E. 437, 437-38 (1921). Thus, when a rescuer is injured in the process of rendering aid, that injury is considered proximately caused by the negligence of the original tortfeasor notwithstanding that the immediate cause may be an intervening act of negligence by another. Krause v. United States Truck Co., 787 S.W.2d 708, 710-11 (Mo.1990); see 1 Dan B. Dobbs, The Law of Torts § 184, at 456 (2001).

¶ 9 The fireman's rule arose from different conceptual origins than the rescue doctrine, being based originally on premises liability and concerned only with the legal question of duty. Heck v. Robey, 659 N.E.2d 498, 501 (Ind.1995); Dobbs, supra § 285, at 769. When the fireman's rule intersects the rescue doctrine, the former operates essentially as an exception to the latter's imposition of liability by removing a professional firefighter injured while performing firefighting duties from the class of rescuers protected by the doctrine. Orth, 191 Ariz. at 293, ¶ 9, 955 P.2d at 49.

¶ 10 The rule was first recognized in Arizona in Grable v. Varela, 115 Ariz. 222, 564 P.2d 911 (App.1977), where it was employed to "negate [ ] liability to a fireman by one whose negligence causes or contributes to the fire which in turn causes the death or injury of the fireman." Id. at 223, 564 P.2d at 912. In concluding that the fireman's rule barred the on-duty firefighter's claim, the Grable court noted that the rule was based primarily on policy considerations and, quoting the New Jersey Supreme Court, stated:

It is the fireman's business to deal with that very hazard and hence ... he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said that there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. 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.

Id. (quoting Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, 131 (1960)).

¶ 11 The rule was conceptually extended to police officers injured in the line of duty in Garcia v. City of South Tucson, 131 Ariz. 315, 318, 640 P.2d 1117, 1120 (App.1981). However, even though Garcia acknowledged the rule covered police officers, the court determined the rule should be applied narrowly. Thus, in considering the claim of the injured on-duty police officer against a third person not the original tortfeasor, the court declined to apply the rule because the claim was based on the independent negligence of the third person, not on the negligence of the person who caused the officer to be on the scene. Id. at 319, 640 P.2d at 1121.

¶ 12 Orth emphasized the narrow scope of the fireman's rule when it declined to apply the rule to bar recovery by a firefighter injured while conducting a routine, unannounced safety inspection. 191 Ariz. at 292, ¶ 5, 955 P.2d at 48. Notwithstanding that the firefighter was on duty at the time, the court commented that to apply the rule to routine inspections would expand it beyond the original purpose. Id. at 293, ¶ 8, 955 P.2d at 49. Rather, the rule should be limited to actual emergency situations where the professional has no choice but to encounter the imminent danger, and it should not be applied to non-emergency activities where the professional can choose not to proceed if the danger presented is unreasonable. Id. at ¶ 10 (citing Gray v. Russell, 853 S.W.2d 928, 930-31 (Mo.1993)).

¶ 13 Arizona has yet to determine whether the fireman's rule should apply when the public safety professional is off-duty but voluntarily attempts a rescue or renders aid. Addressing this omission, we find that to the extent the fireman's rule bars recovery because the firefighter or police officer expects to encounter hazards while on the job, Grable, 115 Ariz. at 223, 564 P.2d at 912, or that he renders aid not from a humanitarian impulse to help but because he is being paid, Heck, 659 N.E.2d at 502, these justifications cannot support extending the rule to an off-duty public safety professional who makes a voluntary effort to assist. This type of effort is precisely what the rescue doctrine was designed to protect, and we can conceive of no public policy that would be advanced by precluding such a volunteer from the benefit of the rescue doctrine. To the contrary, Arizona's narrow construction that confines the fireman's rule within the framework of its original justifications dictates that we should not apply it to off-duty public safety professionals when they voluntarily attempt a rescue or render aid.

¶ 14 Before pronouncing our holding, however, we acknowledge that some off-duty professionals may be under an employment mandate to render aid in emergency situations notwithstanding their off-duty status. Departmental policies or regulations may need to be consulted in order to make this determination. If such governing policies or regulations require an off-duty response to particular emergency situations, this may...