Garcia v. City of South Tucson, 2

• Decision Date: 22 December 1981
• Docket Number: CA-CIV,No. 2,2
• Citation: 131 Ariz. 315,640 P.2d 1117
• Parties: Julian Roy GARCIA and Susan J. Garcia, individually and as husband and wife; and as next best friends of Michelle Lona and Michael Timothy Garcia, minors, Plaintiffs/Appellees, v. The CITY OF SOUTH TUCSON, a Body Politic, Defendant/Appellant. 3893.
• Court: Arizona Court of Appeals

Page 1117

640 P.2d 1117

131 Ariz. 315

Julian Roy GARCIA and Susan J. Garcia, individually and as husband and wife; and as next best friends of Michelle Lona and Michael Timothy Garcia, minors, Plaintiffs/Appellees, v. The CITY OF SOUTH TUCSON, a Body Politic, Defendant/Appellant.

No. 2 CA-CIV 3893.

Court of Appeals of Arizona, Division 2.

Dec. 22, 1981.

Rehearing Denied Jan. 20, 1982.

Review Denied Feb. 17, 1982.

Richard D. Grand by James G. Heckbert, Tucson, for plaintiffs/appellees

Stompoly & Even, P. C. by William G. Walker and Robert L. Murray, Tucson, for defendant/appellant.

OPINION

HOWARD, Judge.

I

On October 11, 1978, a team of officers from the City of South Tucson and the City of Tucson surrounded a house in South Tucson which was being occupied by a lone gunman who had been firing random shots from the residence. During an attempt to flush the gunman out, appellee Roy Garcia, a policeman for the City of Tucson, was shot in the back by a member of the South Tucson Police Department and, as a result, is now a paraplegic. Other facts will be set forth as they apply to the issues under discussion.

The jury found appellant negligent and awarded appellees damages in the sum of $3,592,213. The issues on appeal are: (1) Whether Garcia's sole remedy was workmen's compensation. (2) whether the "fireman's rule" prevents appellees from recovering damages; (3) whether "assumption of risk" and "sudden emergency" jury instructions should have been allowed; and (4) whether they jury verdict was excessive. We affirm.

II

At the time of the incident, the City of Tucson police were rendering aid to the South Tucson police by virtue of an "Intergovernmental Agreement for Mutual Aid in Law Enforcement" which had been entered by all the various law enforcement agencies in the area pursuant to A.R.S. §§ 13-1362 (renumbered as § 13-3872 in 1978) and 11-952.

Section Two of the agreement states:

"The purpose of this agreement is to obtain maximum efficiency in cooperative law enforcement operations through mutual aid and assistance within each Party's jurisdiction pursuant to the prior consent herein given by the Chief Law Enforcement Officer and Governing Body of that Party."

Section Five of the agreement covers control in assistance operations and states:

"A Requesting Party shall have and exercise general control directing any assisting Party to places where they are needed; however, the commanding officer for any assisting Party shall be responsible for exercising exclusive control over his forces in response to the general directions of the Requesting Party." (Emphasis added)

The requesting party in this instance was the South Tucson police which called for help when it perceived that it could not handle the situation by itself. Appellant contends that Garcia's sole remedy is workmen's compensation because (1) the City of South Tucson and the City of Tucson were engaged in a joint venture and (2) the City of South Tucson is a statutory employer of Garcia. We do not agree.

In Conner v. El Paso Natural Gas Company, 123 Ariz. 291, 599 P.2d 247 (App.1979) we held that for the purposes of workmen's compensation, each individual joint venturer is the employer of all employees doing work on behalf of the joint venture and each employer is protected by the exclusive remedy provisions of the workmen's compensation laws.

Elements of a joint venture are found in West v. Soto, 85 Ariz. 255, 336 P.2d 153 (1959) and are as follows: (1) a contract; (2) a common purpose; (3) a community of interest; and (4) an equal right of control. The element which is missing here is the last one. As provision five of the agreement clearly shows, there was no equal right of control. The control of the requesting party is limited to directing the assisting party to a place where it is needed. Neither the requesting party nor the assisting party has the right to control the forces of the other in any other respect. There was no joint venture.

A.R.S. § 23-902(B) states:

"When an employer procures work to be done for him by a contractor over whose work he retains supervision or control, and such work is part or process in the trade or business of the employer, then such contractors and persons employed by him ..., are, within the meaning of this section, employees of the original employer."

Appellant argues that the City of South Tucson, by virtue of the mutual aid agreement, became the statutory employer of Garcia, thus limiting his remedy to workmen's compensation. We do not agree. The test to determine whether one doing work for another is an "independent contractor" or "employee" within the Workmen's Compensation Act is whether the alleged employer retains control over the method of reaching the required result or whether his control is limited to the result reached, leaving the method to the other party. Industrial Commission v. Navajo County, 64 Ariz. 172, 167 P.2d 113 (1946). Appellant had no control over the method used by the City of Tucson police to accomplish the desired result and was therefore not a statutory employer. Additionally, Section Five of the agreement provides that "(E)ach party shall be responsible and liable for damages caused by its personnel during the course of rendering mutual law enforcement assistance ..." further contradicting a joint venture, where joint liability could be expected to follow.

III

The "fireman's rule" negates liability to a fireman by one whose negligence causes or contributes to the fire which in turn causes the death or injury of a fireman. Grable v. Varela, 115 Ariz. 222, 564 P.2d 911 (1977). The fireman cannot complain of negligence in the creation of the very occasion for his engagement. Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960). 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. Krauth v. Geller, supra. The pertinent inquiry is whether or not the negligently created risk which resulted in plaintiff's injury was the reason for his being at the scene in his professional capacity. Scott v. E. L. Yeager Construction Co., 12 Cal.App.3d 1190, 91 Cal.Rptr. 232 (1970). The fireman's rule also applies to police officers. Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609 (1977).

Garcia was shot when the sergeant in charge of the South Tucson Police Department ordered his personnel to assault a residence without warning the law enforcement officers that the assault was going to take place. Garcia was caught on the front porch when the assault took place and was shot by one of the South Tucson police officers who mistook him for the gunman. The negligence which caused Garcia's injury was the negligence of the sergeant in control of the South Tucson police in ordering an assault without warning. The act which occasioned the summoning of the police in the first instance was the random shooting by the gunman. Since Garcia's injuries were caused by the independent negligence of a third person, the fireman's rule is inapplicable. The trial court did not err in failing to grant appellant's motion for a directed verdict which was based upon the fireman's rule.

IV

Although the trial court gave a contributory negligence instruction, appellant contends it erred when it refused to instruct the jury on the doctrine of assumption of risk. Appellant argues that since Garcia testified that he knew he was in a dangerous position while standing on the...