Fordham v. Oldroyd

• Decision Date: 14 September 2007
• Docket Number: No. 20060260.,20060260.
• Citation: 171 P.3d 411,2007 UT 74
• Parties: Richard G. FORDHAM, Plaintiff and Petitioner, v. Ryan OLDROYD, Defendant and Respondent.
• Court: Utah Supreme Court

171 P.3d 411

2007 UT 74

Richard G. FORDHAM, Plaintiff and Petitioner, v. Ryan OLDROYD, Defendant and Respondent.

No. 20060260.

Supreme Court of Utah.

September 14, 2007.

Rehearing Denied October 31, 2007.

Peter C. Collins, Salt Lake City, for plaintiff.

Aaron Alma Nelson, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals.

NEHRING, Justice:

¶ 1 This case calls on us to consider for the first time whether Utah recognizes a professional rescuer¹ rule that stakes its claim to legitimacy in its tie to sound public policy. We conclude that such a rule properly occupies a place in our law. By adopting a rule grounded in public policy, we intend to communicate the clear and unambiguous conviction that professional rescue activities are wholly compatible with, and in fact essential to, defining the proper role of professional rescuers in civil society. Accordingly, we hold that Ryan Oldroyd owed no duty to Utah Highway Patrol Trooper Richard Fordham, who was injured while responding to an automobile accident to which Mr. Oldroyd's negligence may have contributed.

BACKGROUND

¶ 2 While driving east into Salt Lake City on an off-ramp of Interstate 15, Ryan Oldroyd encountered icy and snowy road conditions, lost control of his vehicle, and crashed. Several Salt Lake City police officers and Utah Highway Patrol troopers including Richard Fordham responded to the scene. When Trooper Fordham arrived, he stopped his car in one of the eastbound travel lanes and walked to the rear of his patrol vehicle to retrieve warning flares from his trunk. As he was retrieving the flares, a third driver lost control of her automobile and struck Trooper Fordham, causing him serious bodily injuries.

¶ 3 Trooper Fordham filed suit in district court seeking damages from Mr. Oldroyd because Mr. Oldroyd's negligence was allegedly the proximate cause of the injuries. Mr. Oldroyd moved for summary judgment. He asserted that the professional rescuer doctrine barred Trooper Fordham as a matter of law from recovering damages for injuries sustained while acting in the course and scope of his employment as a highway patrol trooper. The district court agreed with Mr. Oldroyd and granted his motion for summary judgment. The court of appeals affirmed and adopted a professional rescuer doctrine. We granted certiorari to determine whether the court of appeals was correct in adopting the doctrine. We conclude that it was and affirm.

ANALYSIS

¶ 4 The common law is an aggregation of judicial expressions of public policy. Courts preserve the legitimacy of the common law in two ways: by ensuring that shared values are visible within its tenets and by accommodating the imperatives of experience and changed circumstance within the common law without using undue disruption. No realm of the common law is as saturated with judicial public policy judgments as the law of torts. This is most in evidence when judges go about the business of assigning duties of care. See, e.g., Yazd v. Woodside Homes Corp., 2006 UT 47, ¶ 17, 143 P.3d 283 ("Legal duty, then, is the product of policy judgments applied to relationships."); Webb v. Univ. of Utah, 2005 UT 80, ¶ 9, 125 P.3d 906 ("`A court's conclusion that duty does or does not exist is "an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection."'" (brackets in original) (quoting Univ. of Denver v. Whitlock, 744 P.2d 54, 57 (Colo.1987) (quoting Prosser and Keeton on the Law of Torts § 53, at 358 (5th ed.1984)))).

¶ 5 Of course, courts are not the exclusive arbiters of public policy. A court's pronouncements of public policy are vulnerable to the legislature's revision or outright rejection. Our recognition that the legislature is endowed with the primary responsibility to identify and codify public policy does not mean, however, that we are foreclosed from grounding our rulings in public policy judgments when circumstances invite us to enlist the common law in the cause of advancing a just society. Cf. Yazd, 2006 UT 47, ¶ 20, 143 P.3d 283 ("Typically, courts cede authority over matters of policy to the political branches of government. When policy considerations bear on a subject lodged firmly within the court's sphere, like the common law, it is entirely appropriate for the court to make the policy judgments necessary to get the law right."). We believe such circumstances are present here.

¶ 6 In concluding that Mr. Oldroyd owed no duty to Trooper Fordham, we inquire into two matters: (1) whether the injury was derived from the negligence that occasioned the professional rescuer's response, and (2) whether the injury was within the scope of those risks inherent in the professional rescuer's duties. See, e.g., Kreski v. Modern Wholesale Elec. Supply Co., 429 Mich. 347, 415 N.W.2d 178, 183-89 (1987) ("[T]he rule['s] ... most basic formulation is that a fire fighter or police officer may not recover damages from a private party for negligence in the creation of the reason for the safety officer's presence.... [T]he rule [we] adopt[ ] ... includes negligence in causing the incident requiring a safety officer's presence and those risks inherent in fulfilling the police or fire fighting duties."). Where, as here, it is beyond dispute that Trooper Fordham's presence at the accident scene satisfied both inquiries, we hold that Mr. Oldroyd owed Trooper Fordham no duty of care.

¶ 7 Courts of sister states have given favor to some formulation of a professional rescuer rule based on public policy. See Moody v. Delta W., Inc., 38 P.3d 1139 (Alaska 2002); Thomas v. Pang, 72 Haw. 191, 811 P.2d 821 (1991); Winn v. Frasher, 116 Idaho 500, 777 P.2d 722 (1989); Flowers v. Rock Creek Terrace Ltd. P'ship, 308 Md. 432, 520 A.2d 361 (1987); Kreski, 415 N.W.2d at 183-89. The dominant public policy rationale common to all these cases is that firefighters and police officers have a relationship with the public that calls on them to confront certain hazards as part of their professional responsibilities. See, e.g., Thomas, 811 P.2d at 825 ("The very purpose of the fire fighting profession is to confront danger. Fire fighters are hired, trained, and compensated to deal with dangerous situations that are often caused by negligent conduct or acts. `[I]t offends public policy to say that a citizen invites private liability merely because he happens to create a need for those public services.'" (brackets in original) (quoting Pottebaum v. Hinds, 347 N.W.2d 642, 645 (Iowa 1984))). It would be naive to believe that fire and police professionals will be called on to draw on their training in meeting only those hazards brought on by prudent acts gone awry. Members of the public, who owing to their negligence find themselves in need of aid, should summon assistance without fear of exposing their assets to compensate their rescuer in the event of injury.

¶ 8 In rejecting the firefighter's rule in Oregon, that state's supreme court brushed aside the rationale that the rule was necessary because, without it, imperiled citizens may be reluctant to summon aid, by quoting Dean Prosser's characterization of this hesitation as "`preposterous rubbish.'" Christensen v. Murphy, 296 Or. 610, 678 P.2d 1210, 1217 (1984) (quoting Prosser, Law of Torts § 68, 397 (4th ed.1971)). This rhetoric is enough to cool the ardor of any proponent of a "chilled rescuee" justification for a professional rescuer rule. Dean Prosser's derisiveness does not deter us from believing that it is not too farfetched to expect that prudent motorists might, perhaps on the advice of their insurance carriers, confront their rescuers with waiver of liability documents or, if able to do so, engage in a dialogue with rescuers to gain assurance that they are competent to undertake the rescue. Like many, we would prefer to inhabit a society in which the consequences of one's inattention do not include the compensation of those on whom all of us collectively confer the duty to extricate us from our distress. We are confident that most citizens, including those who are conversant with comparative negligence law, believe that they now inhabit such a society. While judges do not perform their judicial responsibilities by enshrining widely held assumptions into the common law, the widely held belief that one is not exposed to tort liability for negligence requiring rescue emanates from a broadly shared value about the workings of a well-ordered society.

¶ 9 Most of the handful of jurisdictions rejecting or significantly limiting the professional rescuer rule have done so, at least in part, because of its association with the discredited assumption of the risk doctrine. See Banyai v. Arruda, 799 P.2d 441, 443 (Colo.Ct.App.1990) (declining to adopt a rule after noting that "[t]he reasons stated as modern support for the rule are that safety officers are employed, trained, and paid to confront dangerous situations ... and that these officers undertake their profession with knowledge that personal safety is at risk"); Christensen, 678 P.2d at 1214-18 ("As a result of statutory abolition of implied assumption of risk, we hold that the `fireman's rule' is abolished in Oregon."); Minnich v. Med-Waste, Inc., 349 S.C. 567, 564 S.E.2d 98, 101 (2002) (rejecting a professional rescuer rule even though "a number of courts reason that police officers and firefighters, aware of the risks inherent in their chosen profession, have assumed those risks"). The taint of assumption of the risk ties has spilled over into attempts to defend the professional rescuer rule on public policy grounds. As the Oregon Supreme Court noted, "Frequently, the so-called policy reasons are merely redraped arguments drawn from premises liability or implied assumption of the risk, neither of which are now available as legal foundations in this state." Christensen, 678 P.2d at 1217. The Christensen court was particularly...