Read v. Keyfauver

• Decision Date: 27 August 2013
• Docket Number: No. 1 CA–CV 12–0007.,1 CA–CV 12–0007.
• Citation: 308 P.3d 1183,233 Ariz. 32,668 Ariz. Adv. Rep. 33
• Parties: Ross READ, a married individual, Plaintiff/Appellant/Cross–Appellee, v. Brittini Alexa KEYFAUVER, Defendant/Appellee/Cross–Appellant.
• Court: Arizona Court of Appeals

233 Ariz. 32

308 P.3d 1183

668 Ariz. Adv. Rep. 33

Ross READ, a married individual, Plaintiff/Appellant/Cross–Appellee,

v.Brittini Alexa KEYFAUVER, Defendant/Appellee/Cross–Appellant.

No. 1 CA–CV 12–0007.

Court of Appeals of Arizona,

Division 1, Department E.

Aug. 27, 2013.

Appeal from the Superior Court in Maricopa County, Cause No. CV2010–050444, The Honorable Linda H. Miles, Judge. AFFIRMED.

Friedl Richardson By Thomas M. Richardson and Raechel R. Barrios, Phoenix, And Knapp & Roberts, PC By David L. Abney, Scottsdale, Co–Counsel for Plaintiff/Appellant/Cross–Appellee.

DeCiancio Robbins PLC By Joel DeCiancio and Christopher Robbins, Tempe, And Diane M. Lucas PC By Diane M. Lucas and Michael S. Ferraro, Phoenix, Co–Counsel for Defendant/Appellee/Cross–Appellant.

Law Office of Elliot Glicksman, P.L.L.C. By Elliot Glicksman, Tucson, Attorney for Amicus Curiae Arizona Concerns Of Police Survivors, Inc.

Yen Pilch & Komadina & Flemming, P.C. By Robert E. Yen, Phoenix, Attorney for Amicus Curiae Arizona Fraternal Order Of Police.

OPINION

BROWN, Judge.

¶ 1 Ross Read, a law enforcement officer, was injured while providing assistance to Brittini Alexa Keyfauver, who was trapped in a vehicle after a rollover accident. In the ensuing action for damages, the trial court ruled as a matter of law that the firefighter's rule barred Read from pursuing a negligence claim against Keyfauver for injuries he sustained while rendering aid. Read appeals the court's decision, asserting (1) the rule should not apply here because he voluntarily assisted Keyfauver and (2) the rule necessarily invokes an assumption of risk question, which only a jury can determine. Because we conclude that Read's negligence claim is precluded by the firefighter's rule, we affirm.

BACKGROUND

¶ 2 While parked on the shoulder of southbound Interstate–17, Read was writing a traffic citation when he heard tires skidding. Read looked in the direction of the sound and observed Keyfauver lose control of her vehicle, roll through the median, and land upside down in the northbound lanes of the freeway.

¶ 3 Read immediately reported the rollover to dispatch, grabbed a fire extinguisher and first-aid kit from his patrol car, and ran across the median to the over-turned vehicle. Read saw Keyfauver inside the vehicle scratching at her window. In response, he told Keyfauver to close her eyes and cover her face. Read then kicked in the window, placed his foot on the door frame, and successfully extracted Keyfauver from the vehicle and placed her on the ground, where he administered minor first aid until paramedics arrived. In the course of pulling Keyfauver out of the vehicle, Read sustained a permanent and incapacitating injury to his left knee.

¶ 4 Read subsequently sued Keyfauver, alleging her negligent driving was the proximate and direct cause of his injury. Keyfauver answered, asserting the firefighter's rule and assumption of risk as affirmative defenses. Both parties sought summary judgment on the applicability of the firefighter's rule. Read argued he was under no obligation to try to extract Keyfauver from her vehicle and his decision to do so was beyond the scope of his employment. Read also asserted that the rule should not bar his complaint because his actions fell outside the policy rationale for the rule. Keyfauver countered that because Read was on-duty and present at the scene, the firefighter's rule precluded him from recovering damages for her alleged negligent conduct.

¶ 5 The trial court ruled that Keyfauver was entitled to summary judgment. Read unsuccessfully moved for a new trial, asserting for the first time that the trial court's ruling was contrary to law because allowing a judge, instead of a jury, to decide whether to apply the firefighter's rule violates the assumption of risk provision found in the Arizona Constitution. Read appealed from the court's final judgment, and for the reasons discussed in a separate memorandum decision filed herewith, we have jurisdiction over Read's appeal pursuant to Arizona Revised Statutes (“A.R.S.”) section 12–2101(A)(1).

DISCUSSION

¶ 6 Summary judgment is appropriate “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(a). ¹ We review de novo whether summary judgment was properly entered and view the evidence in the light most favorable to Read. White v. State, 220 Ariz. 42, 44, ¶ 5, 202 P.3d 507, 509 (App.2008).

¶ 7 “The rescue doctrine allows an injured rescuer to recover damages from the person whose negligence created the need for the rescue.” Espinoza v. Schulenburg, 212 Ariz. 215, 217, ¶ 7, 129 P.3d 937, 939 (2006); see also Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 32 (2010) (“[I]f an actor's tortious conduct imperils another[,] the scope of the actor's liability includes any harm to a person resulting from that person's efforts to aid or to protect the imperiled person[.]”). As a matter of policy, “injury to a rescuer is a foreseeable result of the original negligence.” Espinoza, 212 Ariz. at 217, ¶ 8, 129 P.3d at 939. As such, the rescue doctrine “allow[s] the possibility of compensation to those who injure themselves while taking risks to help others.” Id. at ¶ 9. The doctrine thus expands tort liability “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[.]” Id. at 217–18, ¶ 11, 129 P.3d at 939–40. In so doing, the rescue doctrine encourages individuals to respond to those in distress. Id. at 217, ¶ 9, 129 P.3d at 939.

¶ 8 The firefighter's rule is 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.” Id. at 217, ¶ 11, 129 P.3d at 939. The rule thus specifically limits the expansion of tort liability the rescue doctrine created. Id. at 217–18, ¶ 11, 129 P.3d at 939–40. In the context of firefighters, the 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 the fireman.” Grable v. Varela, 115 Ariz. 222, 223, 564 P.2d 911, 912 (App.1977).

¶ 9 In Arizona, the rule is grounded on public policy:

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. As our supreme court has recognized, the rule thus reflects a policy choice 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.” Espinoza, 212 Ariz. at 217, ¶ 11, 129 P.3d at 939;see also Orth v. Cole, 191 Ariz. 291, 293, ¶ 10, 955 P.2d 47, 49 (App.1998) (recognizing that the cost of firefighters' and police officers' injuries should be borne by the public as a whole).

¶ 10 In short, “[i]n return for removing the firefighters' right to sue, the public trains, equips, and compensates these public safety officers.” Espinoza, 212 Ariz. at 217, ¶ 11, 129 P.3d at 939. The supreme court in Espinoza limited its application of the rule to firefighters, but noted “that the rationale for the rule would seem to apply equally well to police officers[.]” Id. at 218 n. 3, ¶ 17, 129 P.3d at 940 n. 3. Two years after Espinoza, this court determined that the rule applies to police officers. White, 220 Ariz. at 45–46, ¶ 8, 202 P.3d at 510–11.

¶ 11 As recognized in Espinoza, however, the firefighter's rule should be construed narrowly. 212 Ariz. at 218, ¶ 17, 129 P.3d at 940. As such, several exceptions have emerged. First, when the “independent negligence” of a third party causes the public safety professional's injury, the rule is inapplicable. Garcia v. City of South Tucson, 131 Ariz. 315, 319, 640 P.2d 1117, 1121 (App.1981). Second, non-emergency situations do not trigger application of the rule. Orth, 191 Ariz. at 291, 293, ¶¶ 1, 10, 955 P.2d at 47, 49. And third, the rule is inapplicable to off-duty public safety professionals who voluntarily respond to an emergency. Espinoza, 212 Ariz. at 218–19, ¶ 17, 129 P.3d at 940–41.

¶ 12 Relying generally on the third exception, Read asserts the firefighter's rule does not bar his claim. In Espinoza, an off-duty firefighter (Espinoza), who was also an emergency medical technician, was driving home from work and stopped to help at a car accident scene. Id. at 216, ¶ 2, 129 P.3d at 938. The wrecked vehicle was on the side of the highway, partially obstructing traffic. Id. at ¶ 3. As Espinoza reached into the vehicle to turn on the emergency flashers, the car was rear-ended by another car, causing her to suffer injuries. Id. She sued for damages, but the superior court determined the firefighter's rule barred her negligence claim. Id. at ¶ 4.

¶ 13 Recognizing that public policy considerations form the basis of the firefighter's rule, our supreme court held that the firefighter's rule “applies when a firefighter's presence at a rescue scene results from the firefighter's on-duty obligations as a firefighter.” Espinoza, 212 Ariz. at 218, ¶ 17, 129 P.3d at 940. The court expressly excluded off-duty volunteers from the application of the firefighter's rule, reasoning that doing so “serves the important societal goal of encouraging those most qualified to stop and render aid[.]” Id. at 219, ¶ 17, 129 P.3d at 941. The court reasoned that such volunteers “are under no obligation to act” and, in acting, go “beyond the scope of their employment.” Id. at ¶ 18. The court recognized that an off-duty firefighter is not paid to render aid, may not be equipped to handle the situation, and may lack...