Ipsen v. Diamond Tree Experts, Inc., No. 20181052

• Court: Supreme Court of Utah
• Citation: 466 P.3d 190
• Decision Date: 20 May 2020
• Parties: David Scott IPSEN, Appellant, v. DIAMOND TREE EXPERTS, INC., Appellee.
• Docket Number: No. 20181052

466 P.3d 190

David Scott IPSEN, Appellant,
v.
DIAMOND TREE EXPERTS, INC., Appellee.

No. 20181052

Supreme Court of Utah.

Heard December 11, 2019
Filed May 20, 2020

INTRODUCTION

¶1 A core principle of tort law is that we each owe "a duty to exercise reasonable care" if our "conduct presents a risk of harm to others." Air & Liquid Sys. Corp. v. DeVries , ––– U.S. ––––, 139 S. Ct. 986, 993, 203 L.Ed.2d 373 (2019) (quoting RESTATEMENT

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(THIRD) OF TORTS: LIABILITY FOR PHYSICAL & EMOTIONAL HARM § 7 ( AM. LAW. INST. 2005)). To be sure, there are a multitude of exceptions to this principle, the professional rescuer rule that we adopted in Fordham v. Oldroyd , 2007 UT 74, 171 P.3d 411, being but one. That rule provides that "a person does not owe a duty of care to a professional rescuer for injury that was sustained by the very negligence that occasioned the rescuer's presence and that was within the scope of hazards inherent in the rescuer's duties." Id. ¶ 13 (emphasis added).

¶2 Today, we hold that the professional rescuer rule extends no further than Fordham ’s definite and careful formulation and that a person does owe a duty of care to a professional rescuer for injury that was sustained by the gross negligence or intentional tort that caused the rescuer's presence. Accordingly, we partially reverse and remand this case to the district court to allow it to adjudicate Ipsen's gross negligence claims.¹

BACKGROUND²

¶3 A mulch fire occurred on the property of appellee, Diamond Tree Experts, Inc. In the week before the mulch fire, there had been at least two other fires on the property. And ten days before the mulch fire, a representative from the Salt Lake County Health Department told Diamond Tree that the mulch on its property was piled too high and that Diamond Tree needed to reduce it. Diamond Tree did not comply, meaning that at the time of the fire, it was in knowing violation of several ordinances—including the fire code—and of industry standards regarding the safe storage of mulch.

¶4 David Scott Ipsen was one of the firefighters who responded to the mulch fire. While working by the fire engine, and away from the fire, a thick cloud of smoke and embers engulfed him, leaving him unable to breathe. Ipsen sustained severe and permanent injuries—injuries that prevented him from returning to his job as a firefighter.

¶5 Ipsen sued Diamond Tree in district court for gross negligence, intentional harm, and negligent infliction of emotional distress. Diamond Tree moved for summary judgment, claiming that it owed no duty to Ipsen under Utah's professional rescuer rule, which says that "a person does not owe a duty of care to a professional rescuer for injury that was sustained by the very negligence that occasioned the rescuer's presence and that was within the scope of hazards inherent in the rescuer's duties." Fordham v. Oldroyd , 2007 UT 74, ¶ 13, 171 P.3d 411. The district court agreed with Diamond Tree and dismissed Ipsen's claim for three main reasons. First, it held that under Fordham , Diamond Tree owed Ipsen no duty of care, even if Diamond Tree's underlying conduct was egregious carelessness or violated ordinances. Second, the district court found that all the injuries that Ipsen alleged were inherent in firefighting. Third, the district court held that although Fordham does not immunize intentional behavior from liability, Ipsen had not established a genuine dispute of fact about an intentional behavior on Diamond Tree's part.

¶6 Ipsen appealed. We exercise jurisdiction under Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶7 "We review a grant of summary judgment for correctness. We give no deference to the district court's legal conclusions and consider whether the court correctly decided that no genuine issue of material fact existed." Heslop v. Bear River Mut. Ins. Co. , 2017 UT 5, ¶ 15, 390 P.3d 314 (citations omitted) (internal quotation marks omitted).

ANALYSIS

¶8 In Fordham v. Oldroyd , we announced the professional rescuer rule. Under

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that rule, "a person does not owe a duty of care to a professional rescuer for injury that was sustained by the very negligence that occasioned the rescuer's presence and that was within the scope of hazards inherent in the rescuer's duties." 2007 UT 74, ¶ 13, 171 P.3d 411. Ipsen asks us to limit this rule so that professional rescuers can recover in tort for injuries stemming from gross negligence, intentional torts, and the violation of statutes and ordinances. Based on public policy, we hold that the Fordham ’s professional rescuer rule does not apply in cases of gross negligence and intentional torts.³ A person thus does owe a duty of care to a professional rescuer for injuries sustained by gross negligence or an intentional tort causing the rescuer's presence. Our holding is based on the vast difference in culpability and the considerably greater deterrence considerations gross negligence and intentional torts present compared to ordinary negligence.

¶9 "[C]ommon law is an aggregation of judicial expressions of public policy." Id. ¶ 4. One area of the common law that is especially appropriate for "judicial public policy judgments" is the law of torts, and specifically the assignment of legal duty.⁴ Id. ; Yazd v. Woodside Homes Corp. , 2006 UT 47, ¶ 17, 143 P.3d 283 ("Legal duty ... is the product of policy judgments applied to relationships."). The existence of a legal duty reflects this court's conclusion, "on the basis of the mores of the community," William L. Prosser, Palsgraf Revisited , 52 MICH. L. REV . 1, 15 (1953), that "the sum total" of the policy considerations say that "the plaintiff is [or is not] entitled to protection," Univ. of Denver v. Whitlock , 744 P.2d 54, 57 (Colo. 1987) (second alteration in original) (citation omitted).

¶10 The general rule, as we outline at the beginning of this opinion, is that "we all have a duty to exercise care when engaging in affirmative conduct that creates a risk of physical harm to others." B.R. ex rel. Jeffs v. West , 2012 UT 11, ¶ 21, 275 P.3d 228. We carve out exceptions to the existence of duty only in "categories of cases implicating unique policy concerns that justify" doing so. Id. In considering whether to make an exception, we rely on factors such as the foreseeability or likelihood of injury, public policy as to which party can best bear the loss occasioned by the injury, and other general policy considerations. Normandeau v. Hanson Equip., Inc. , 2009 UT 44, ¶ 19, 215 P.3d 152.⁵

¶11 In Fordham , we determined, based on public policy,⁶ that "a person does not owe a

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duty of care to a professional rescuer for injury that was sustained by the very negligence that occasioned the rescuer's presence and that was within the scope of hazards inherent in the rescuer's duties." 2007 UT 74, ¶ 13, 171 P.3d 411. We explained that the public policy underlying this exception 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." Id. ¶ 7. And "[i]t 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." Id.

¶12 The question we must answer today is whether the policy that supports a duty carve-out⁷ for professional rescuers’ suits for injuries stemming from negligence also supports a carve-out for their claims for injuries arising from gross negligence and intentional torts.⁸

¶13 The two public policy concerns that drove us to apply the professional rescuer rule to negligence in Fordham are culpability and deterrence.⁹ And because these two concerns

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do not apply when it comes to gross negligence and intentional torts, they compel the opposite result here.

¶14 First, sound public policy advised us in Fordham that the "consequences of one's inattention " do not create a duty to compensate "those on whom all of us collectively confer the duty to extricate us from our distress." Id. ¶ 8 (emphasis added). But gross negligence and intentional torts implicate far more than mere inattention; they involve severe levels of culpability. Gross negligence is "the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result." Atkin Wright & Miles v. Mountain States Telephone & Telegraph Co. , 709 P.2d 330, 335 (Utah 1985) (emphasis added) (internal quotation marks omitted) (quoting Robinson Ins. & Real Estate, Inc. v. Sw. Bell Tel. Co. , 366 F. Supp. 307, 311 (W.D. Ark. 1973) ); see also Penunuri v. Sundance Partners, Ltd. , 2017 UT 54, ¶ 35, 423 P.3d 1150. And intentional tortious conduct goes even beyond that. Atkin Wright & Miles , 709 P.2d at 335 ; see also Wagner v. State , 2005 UT 54, ¶ 32, 122 P.3d 599 (explaining that "[t]he intent with which tort liability is concerned ... is an intent to bring about a result which will invade the interests of another in a way that the law forbids.") (citation omitted) (first...