White v. State
| Decision Date | 26 August 2008 |
| Docket Number | No. 1 CA-CV 07-0496.,1 CA-CV 07-0496. |
| Citation | 220 Ariz. 42,202 P.3d 507 |
| Parties | Colleen WHITE, an individual; Connor White and Alexa White, minor children of Eric and Colleen White, by and through their mother, Colleen White; James White and Christine White, husband and wife; Lynn McMinn, an individual on her own behalf and on behalf of all other statutory beneficiaries of Jason Wolfe, Plaintiffs/Appellants, v. STATE of Arizona, a body politic; Maricopa County, a body politic; Value Options, Inc., a Virginia corporation; Empact Suicide Prevention Center, an Arizona corporation; VO of Arizona, Inc., an Arizona corporation; Safdar Ali, M.D. and Jane Doe Ali, husband and wife, Defendants/Appellees. |
| Court | Arizona Court of Appeals |
Michael Napier PC by Michael Napier and Anthony J. Coury, Phoenix, Attorneys for Plaintiffs/Appellants.
Norling Kolsrud Sifferman & Davis PLC by Russell A. Kolsrud, Mark S. Sifferman, and Greg D. Honig, Scottsdale, Terry Goddard, Arizona Attorney General by Richard P. Broder, Tucson, Attorneys for Defendants/Appellees State of Arizona, et al.
Humphrey & Petersen PC by Andrew J. Petersen, Matthew G. Hayes, Ryan S. Andrus, and Marshall Humphrey, III, Tucson, Attorneys for Defendants/Appellees Empact Suicide Prevention Center.
¶ 1 This appeal requires us to examine the applicability and scope of the firefighter's rule. The issues we address are (1) whether the rule applies to police officers and (2) whether the superior court properly applied the rule to bar negligence claims filed on behalf of two police officers who died in the course of responding to an emergency situation. For the following reasons, we affirm the superior court's decision to grant summary judgment.
¶ 2 On August 28, 2004, Doug Tatar had a confrontation with two other residents of his apartment complex in the courtyard area. One of the residents was carrying a baseball bat and the other had a gun. Tatar retrieved a gun from his apartment, returned to the courtyard, and shot the individual holding the baseball bat. Responding to one or more calls to 9-1-1, a number of on-duty police officers and paramedics arrived at the scene. Tatar had retreated to his apartment and eventually made an additional 9-1-1 call. Several of the officers, including Officer White and Officer Wolfe, approached Tatar's second floor apartment. While Tatar was still on the phone with the 9-1-1 operator, the officers kicked in the front door. Tatar began firing shots, killing Officers White and Wolfe. With other officers returning fire, Tatar then shot and killed himself.
¶ 3 The beneficiaries of Officers White and Wolfe ("Plaintiffs") filed suit against the State of Arizona, Maricopa County, ValueOptions, Inc., VO of Arizona, Inc., Safdar Ali; and Empact Suicide Prevention Center (collectively "Defendants").1 According to Plaintiffs, in May 2004, Tatar's family members reported to Empact that Tatar had a mental condition that caused him be a danger to himself and others. In June, Tatar's mother completed and submitted an application for involuntary evaluation to ValueOptions. Employees from ValueOptions and Empact evaluated Tatar but declined to place him into treatment. Plaintiffs alleged that the behavior those employees observed, along with the information included in the application for evaluation, indicated it was likely that future intervention by law enforcement would be necessary to protect Tatar from engaging in violent conduct. Based on that information, Defendants' failure to properly diagnose and treat Tatar allegedly amounted to negligence and resulted in Tatar's violent conduct on August 28, 2004. Additionally, Plaintiffs alleged that the deaths of White and Wolfe were a direct and proximate result of negligence on the part of all Defendants.2
¶ 4 Defendants moved for summary judgment on the grounds that the firefighter's rule barred Plaintiffs from recovery.3 After considering various pleadings, the superior court granted the motion, finding that Defendants' alleged negligence did not fall within the independent negligence exception to the firefighter's rule described in Garcia v. City of South Tucson, 131 Ariz. 315, 640 P.2d 1117 (App.1981). The court later clarified its prior ruling:
To reiterate, the injury in Garcia was caused, not by the gunman's actions or anyone responsible in the chain of proximate causation for the gunman's actions, but by the wholly independent act of ordering an "assault" against the gunman. Here, Plaintiff alleges that Tatar shot the officers and that Defendants' negligence was the proximate cause of his doing so; Defendants did nothing that was not mediated through Tatar. Garcia is therefore not on point, as it excludes from the firefighter's rule only the independent negligence of a third person.
Plaintiffs timely appealed and this court has jurisdiction pursuant to Arizona Revised Statutes section 12-2101(B) (2003).
¶ 5 Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1). We review de novo whether summary judgment was properly entered and view the evidence in the light most favorable to the party against whom judgment was entered. Espinoza v. Schulenburg, 212 Ariz. 215, 216, ¶ 6, 129 P.3d 937, 938 (2006).
¶ 6 The firefighter's rule was initially addressed in Arizona by this court in Grable v. Varela, 115 Ariz. 222, 564 P.2d 911 (App. 1977).4 In Grable, a child started a fire that spread to an unoccupied residence. Id. at 223, 564 P.2d at 912. A firefighter who was injured trying to extinguish the fire sued the child and his parents. Id. at 222-23, 564 P.2d at 911-12. The superior court granted summary judgment to the defendants based on the firefighter's rule. Id. at 223, 564 P.2d at 912. On appeal, this court described the rule generally as prohibiting an injured firefighter from suing persons whose only connection with the injury was their negligent conduct in creating the fire. Id. We also explained the public policy behind the rule:
[I]t 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, 273-74, 157 A.2d 129, 131 (1960)). Applying the firefighter's rule, we concluded that the injured firefighter's claims were barred because a firefighter "has no cause of action against one whose negligence caused the fire in which he was injured." Id.
¶ 7 In 2006, our supreme court addressed the applicability of the firefighter's rule. Espinoza, 212 Ariz. 215, 129 P.3d 937. In that case, an off-duty firefighter had stopped to help with a car accident. Id. at 216, ¶ 21, 129 P.3d at 938. While she was reaching into the wrecked vehicle to turn on the emergency flashers, that vehicle was rear-ended by another, causing multiple injuries to the firefighter. Id. at ¶ 3. She sued for damages relating to her injuries, but the superior court determined that her claim was barred by the firefighter's rule. Id. at ¶ 4. This court reversed, holding that the rule should not be applied to off-duty firefighters. Id. at ¶ 5. Although the supreme court agreed with our determination, the court accepted review to clarify proper application of the rule. Id. The court discussed the rule's history and purpose, which "reflects a policy decision 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." Id. at 217, ¶ 11, 129 P.3d at 939.5 Adding to this court's description of the public policy rationale in Grable, the supreme court recognized as follows:
In return for removing the firefighters' right to sue, the public trains, equips, and compensates these public safety officers. So while the rescue doctrine expands tort responsibility 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, the firefighter's rule limits the expansion of tort liability created by the rescue doctrine.
Id. at 217-18, ¶ 11, 129 P.3d at 939-40. Based on public policy grounds, as opposed to assumption of risk principles, the supreme court adopted the firefighter's rule, noting it should be "construed narrowly" and that it "applies when a firefighter's presence at a rescue scene results from the firefighter's on-duty obligations as a firefighter." Id. at 218, ¶ 17, 129 P.3d at 940. The court then held that the rule does not apply to off-duty firefighters who volunteer to assist in emergency situations. Id. at 218-19, ¶ 17, 129 P.3d at 940-41.
¶ 8 The court in Espinoza did not determine whether the firefighter's rule should be extended to other professionals who respond to emergencies, such as police officers; however, the court noted "that the rationale for the rule would seem to apply equally well to police officers, and other states have consistently applied the rule to them." Id. at 218-19 n. 3, ¶ 17, 129 P.3d at 940-41 n. 3 ().6 Likewise, we see no compelling reason, and Plaintiffs have...
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