Espinoza v. Schulenburg

SUPREME COURT OF ARIZONA
En Banc

ELIZABETH ESPINOZA, an unmarried ) Arizona Supreme Court
woman, ) No. CV-05-0158-PR
)
Plaintiff/Appellant, ) Court of Appeals
) Division One
v. ) No. 1 CA-CV 04-0438
)
CARRINGTON SCHULENBURG, an ) Maricopa County
unmarried woman; JOHN ) Superior Court
SCHULENBURG and DEBRA ) No. CV2003-002652
SCHULENBURG, husband and wife, )
)
Defendants/Appellees. ) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Frank T. Galati, Judge

REVERSED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division One
210 Ariz. 157, 108 P.3d 936 (App. 2005)

VACATED
________________________________________________________________
CURRAN & BELVILLE, P.A. Tempe
By Christopher J. Curran
Chad L. Belville
Attorneys for Elizabeth Espinoza

JONES, SKELTON & HOCHULI, P.L.C. Phoenix
By Ronald W. Collett
Randall H. Warner
Attorneys for Carrington Schulenburg, John
Schulenburg, and Debra Schulenburg

HUMPHREY & PETERSEN, P.C. Tucson
By Andrew J. Petersen
Attorneys for Amicus Curiae Arizona Association
of Defense Counsel
________________________________________________________________
B E R C H, Vice Chief Justice

¶1 This case requires us to decide whether the
firefighter’s rule bars an off-duty firefighter who volunteered

at the scene of an accident from suing the person whose

negligence caused the accident. We conclude that it does not.

We therefore reverse the grant of summary judgment by the trial

court, vacate the decision of the court of appeals, and remand

the case for trial.

FACTS AND PROCEDURAL BACKGROUND

¶2 On the evening of February 10, 2002, sixteen-year-old

Carrington Schulenburg was driving her parents in the family

Camaro when they were involved in an accident on State Route

101. While driving home from work with her daughter, Phoenix

firefighter and emergency medical technician (“EMT”) Elizabeth

Espinoza saw the accident scene and stopped to help. A

Department of Public Safety (“DPS”) officer was already on the

scene, and another person had also stopped to assist. Espinoza

identified herself as a firefighter/EMT to the DPS officer and

went to help the Schulenburgs.

¶3 The Schulenburg vehicle was resting on the left side

of the freeway, partially obstructing one lane of traffic. As

Espinoza reached inside to turn on the emergency flashers, the

car was rear-ended by another car, driven by Casey Barnett.

Espinoza suffered a broken hip, a broken wrist, a broken finger,

torn knee ligaments, and other injuries. She was paid workers’

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compensation benefits as a result of her injuries.

¶4 Espinoza sued the Schulenburgs, Barnett, and DPS to

recover for her injuries. The superior court granted summary

judgment to the Schulenburgs on the ground that the

firefighter’s rule bars Espinoza’s claim. That rule prevents a

firefighter from suing for the negligence that created the need

for rescue. The court of appeals reversed, holding that the

firefighter’s rule should be narrowly construed so as not to bar

the claims of off-duty firefighters. Espinoza v. Schulenburg,

210 Ariz. 157, 160, ¶ 13, 108 P.3d 936, 939 (App. 2005). The

court remanded, however, for determination of whether Espinoza

had a duty as part of her job as a firefighter to stop and help,

in which case the court would apparently conclude that the rule

should apply to bar her suit. Id. at 161-62, ¶¶ 23, 25, 108

P.3d at 940-41.

¶5 We granted review to decide the proper application of

the firefighter’s rule to off-duty firefighters. We have

jurisdiction in this case pursuant to Article 6, Section 5(3) of

the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”)

section 12-120.24 (2003).

DISCUSSION

¶6 We review the grant of summary judgment de novo and

view the evidence in the light most favorable to Espinoza, the

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party against whom summary judgment was entered. See Duncan v.

Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 308, ¶ 2, 70 P.3d

435, 437 (2003).

¶7 The rescue doctrine allows an injured rescuer to

recover damages from the person whose negligence created the

need for rescue. As stated in the forthcoming Restatement of

Torts, the doctrine provides that

if an actor’s tortious conduct imperils
another or the property of another, the
scope of the actor’s liability includes any
physical harm to a person resulting from
that person’s efforts to aid or protect the
imperiled person or property, so long as the
harm arises from a risk that inheres in the
effort to provide aid.

Restatement (Third) of Torts: Liability for Physical Harm § 32

(Proposed Final Draft No. 1, 2005) [hereinafter “Restatement”].

¶8 The rescue doctrine declares as a matter of policy

that injury to a rescuer is a foreseeable result of the original

negligence. Judge Cardozo eloquently stated the justification

for the rule as follows: “Danger invites rescue. The cry of

distress is the summons to relief. The law does not ignore

these reactions of the mind in tracing conduct to its

consequences. It recognizes them as normal.” Wagner v. Int’l

Ry. Co., 133 N.E. 437, 437 (N.Y. 1921). By making a volunteer’s

response foreseeable as a matter of law, the rescue doctrine

bridges what otherwise might be a fatal hole in an injured
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volunteer’s suit for damages.1

¶9 Arizona courts have never expressly adopted the rescue

doctrine. Cf. Sulpher Springs Valley Elec. Coop. v. Verdugo, 14

Ariz. App. 141, 144, 481 P.2d 511, 514 (1971) (discussing the

rescue doctrine in the context of contributory negligence).

Generally, however, absent law to the contrary, Arizona courts

follow the Restatement. Cunningham v. Goettl Air Conditioning,

Inc., 194 Ariz. 236, 239, ¶ 14, 980 P.2d 489, 492 (1999). We do

so here. As Judge Cardozo observed, rescue is a normal, if not

always predictable, response to danger. See Wagner, 133 N.E. at

437. The law should encourage people to respond to those in

distress. The rescue doctrine does so by allowing the

possibility of compensation to those who injure themselves while

taking risks to help others.

¶10 If Espinoza had been a lay person, the rescue doctrine

would permit her suit against the Schulenburgs. Indeed, the

doctrine is probably necessary to support the suit because

without it, Espinoza might not be able to show that the

1
A rescued defendant might argue assumption of the risk or
contributory negligence on the part of the rescuer. At the time
the rescue doctrine developed, those defenses typically served
as complete bars to recovery. As a matter of policy, the rescue
doctrine thus declared that a reasonable rescuer was not
contributorily negligent and did not assume the risk of injury.
Those defenses now operate only to comparatively reduce
recovery. See Restatement § 32 cmt. d.

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Schulenburgs’ actions, rather than her own actions on the scene,

were the proximate cause of her injuries. Although the rescue

doctrine alleviates those concerns, because Espinoza is employed

as a firefighter and EMT, the Schulenburgs assert that the

firefighter’s rule bars her suit.

¶11 The firefighter’s rule evolved as 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. Orth v. Cole, 191 Ariz. 291, 293, ¶ 9, 955 P.2d

47, 49 (App. 1998). The rule 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.

When the doctrine first came before the Arizona Court of

Appeals, that court described the rationale for the

firefighter’s rule this way:

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.

Grable v. Varela, 115 Ariz. 222, 223, 564 P.2d 911, 912 (App.

1977) (quoting Krauth v. Geller, 157 A.2d 129, 131 (N.J. 1960)).

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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.

¶12 The firefighter’s rule has its historical basis in the

law of premises liability, preventing suit against a landowner

when a firefighter was injured on the landowner’s property while

fighting a fire. See Gibson v. Leonard, 32 N.E. 182, 184, 186

(Ill. 1892) (finding that a firefighter injured while fighting a

fire was a “mere naked licensee” and therefore could recover

only for willful acts of the landowner), overruled by Dini v.

Naiditch, 170 N.E.2d 881 (Ill. 1960).2 The rationale for the

rule applies equally, however, outside the context of premises

liability. Fires and accidents can occur anywhere, and

firefighters respond and risk injury. See Grable, 115 Ariz. at

223, 564 P.2d at 912 (noting that the rule is no longer limited

to premises liability cases).

2
Dini discusses several firefighter’s rule cases that use
traditional premises liability analysis. Ultimately, that court
concluded, as we do, that the analysis has become “an illogical
anachronism” that does not serve public policy. 170 N.E. at
885.
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¶13 In a few jurisdictions, the firefighter’s rule is

based on the notion that professional firefighters assume the

risk of injury. See Armstrong v. Mailand, 284 N.W.2d 343, 349-

50 (Minn. 1979); 62 Am. Jur. 2d Premises Liability § 431 (1990 &

Supp. Westlaw 2005). That doctrine should not serve as the

basis in Arizona, however, because assumption of the risk no

longer serves as a complete bar to tort recovery under Arizona’s

comparative fault system. A.R.S. § 12-2505(A) (2003). It

therefore does not support the complete bar that the

firefighter’s rule represents.

¶14 Moreover, to say the firefighter’s rule exists because

firefighters assume the risk begs a comparison to lay volunteers

who similarly assume risk, yet are entitled by the rescue

doctrine to sue for compensation. The justification assumes

that professionals are more knowledgeable about the risks they

face than other volunteers. Although that may be true in many

cases, it would also be true of all those with training that has

informed them of the risks of a rescue situation. “Assumption

of the risk” therefore does not support distinguishing between

professional rescuers and other volunteers.

¶15 This court has never addressed the firefighter’s rule.

The court of appeals, however, has applied the firefighter’s

rule in one case. See Grable, 115 Ariz. at 223, 564 P.2d at

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912. But it has also declined to apply the rule and limited it

to emergency situations, see Orth, 191 Ariz. at 293, ¶ 10, 955

P.2d at 49, and to the immediate negligence that causes the

emergency, but not to subsequent acts, see Garcia v. City of S.

Tucson, 131 Ariz. 315, 319, 640 P.2d 1117, 1121 (App. 1982).

¶16 These limitations comport with Arizona’s policy of

protecting its citizens’ right to pursue tort claims. See Ariz.

Const. art. 18, § 6 (“The right of action to recover damages for

injuries shall never be abrogated, and the amount recovered

shall not be subject to any statutory limitation.”); see also

id. art. 2, § 31 (forbidding laws limiting damages for death and

injury); id. art. 18, § 5 (making contributory negligence and

assumption of risk jury questions); accord Stone v. Ariz.

Highway Comm’n, 93 Ariz. 384, 392, 381 P.2d 107, 112 (1963)

(“There is perhaps no doctrine more firmly established than the

principle that liability follows tortious wrongdoing; that where

negligence is the proximate cause of injury, the rule is

liability and immunity is the exception.”), overruled in part by

Grimm v. Ariz. Bd. of Pardons & Paroles, 115 Ariz. 260, 564 P.2d

1227 (1977).

¶17 We adopt the firefighter’s rule, but we construe it

narrowly. The rule applies when a firefighter’s presence at a

rescue scene results from the firefighter’s on-duty obligations

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as a firefighter.3 Those who volunteer to help while off duty

thus fall outside the rule, even if they do so to offer their

specialized rescue training. As a result, excluding volunteers

from the application of the firefighter’s rule serves the

important societal goal of encouraging those most qualified to

stop and render aid to do so – or at least of not discouraging

them from rendering aid by precluding suit for injuries suffered

in the course of their volunteer service.

¶18 Off-duty professionals who risk injury to volunteer

aid in emergency situations fall outside the policy rationale

for the firefighter’s rule because they are under no obligation

to act. In volunteering, they are thus going beyond the scope

of their employment. They are also not at the time paid and may

3
The rule’s application to professions other than
firefighters is not before us, and the court of appeals has
applied the rule only to firefighters. See Garcia, 131 Ariz. at
318-19, 640 P.2d at 1120-21 (describing the rule as applying to
police officers, but declining to apply it on the facts of that
case). We note, however, 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. See, e.g., Richard
C. Tinney, Annotation, Liability of Owner or Occupant of
Premises to Police Officer Coming Thereon in Discharge of
Officer’s Duty, 30 A.L.R.4th 81, § 8 (1984 & Supp. 2005). We
recognize that the rule has been extended both explicitly and
implicitly to other professions. See Carter v. Taylor Diving &
Salvage Co., 341 F. Supp. 628 (E.D. La. 1972) (surgeon who was
paid for emergency dive site care), aff’d, 470 F.2d 995 (5th
Cir. 1973); Griner v. Ga. Farm Bureau Mut. Ins. Co., 596 S.E.2d
758 (Ga. Ct. App. 2004) (tow truck driver); Pinter v. Am. Family
Mut. Ins. Co., 613 N.W.2d 110 (Wis. 2000) (EMTs). Absent facts
before us, however, we decline to decide the reach of the rule.
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not be equipped to confront the situation. They generally lack

identification, safety equipment, or the support of trained

colleagues. They are, instead, acting just like those whom the

rescue doctrine is intended to protect. Application of the

firefighter’s rule to preclude suit by such off-duty

professionals is therefore inappropriate.

¶19 As did the court of appeals, we also conclude that the

availability of workers’ compensation is not determinative of

the application of the firefighter’s rule. The definition of

“employment status” for peace officers in the workers’

compensation statutes was consciously limited by the legislature

and relies on policy considerations different from those that

inform the tort system. See A.R.S. § 23-1021.01(A) (Supp.

2005);4 1998 Ariz. Sess. Laws, ch. 60, § 3. The existence of

workers’ compensation, however, supports the policy rationale

for the firefighter’s rule by providing some compensation for

4
A.R.S. § 23-1021.01(A) provides as follows:

A peace officer or fire fighter as defined
in § 1-215 who is injured or killed while
traveling directly to or from work as a
peace officer shall be considered in the
course and scope of employment solely for
the purposes of eligibility for workers’
compensation benefits, provided that the
peace officer or fire fighter is not engaged
in criminal activity.

(Emphasis added.)
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those injured in the line of duty. The fact that off-duty

firefighters not traveling to or from work are not eligible for

workers’ compensation, see A.R.S. § 23-1021.01(A), means that

most off-duty professionals would not qualify for compensation

should they be injured while voluntarily rendering aid in an

emergency situation. If the firefighter’s rule then applies to

preclude suit, such volunteers may have no means of recovery for

injuries sustained in a rescue attempt. That hardly seems the

appropriate policy response to the altruistic actions of

valuable, trained volunteers.

¶20 On the other hand, in cases in which an off-duty

firefighter volunteer does qualify for workers’ compensation, we

need not worry about double recovery, as the workers’

compensation fund has a subrogation right against third-party

recoveries. A.R.S. § 23-1023(C) (1995). Furthermore, workers’

compensation payments are limited and do not cover pain and

suffering. Thus while the system itself is not irrelevant to

our analysis, the availability of workers’ compensation to a

particular worker does not control our determination of the

applicability of the firefighter’s rule.

¶21 While we agree with the court of appeals’ general

theory that the firefighter’s rule should not apply to off-duty

firefighters, we disagree with its test based on “an employment

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mandate to render aid.” Espinoza, 210 Ariz. at 160, ¶¶ 14, 15,

108 P.3d at 939. If the existence of an employment duty to stop

and render aid determines a firefighter’s right to sue, the

policies of each government unit would determine the duty owed

by the person being rescued. Tort responsibility should not be

so arbitrary, nor should the rescued person’s responsibility

turn on the fortuity of the policies of the employer of the

volunteer who stops to render aid.

¶22 Furthermore, a duty to stop or render aid does not

necessarily put a firefighter or police officer effectively back

on duty. For example, an employer’s policy could require

firefighters to provide medical attention if they encounter

persons in need. The scope and impact of that obligation,

including the risks faced by the firefighter, could differ

substantially depending on whether the firefighter was on or off

duty. An off-duty firefighter, acting in isolation, is unlikely

to have the benefits and protections of professional medical and

safety equipment or assistance from trained colleagues. Nor

will the officer usually be compensated for time spent or

injuries incurred in such a situation. The policy that removes

the right to sue in return for training and public compensation

should not apply in such a situation. The better policy should

encourage our best-trained responders to voluntarily render aid.

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¶23 A policy requiring volunteer firefighters to join any

firefighting effort they encounter may, in contrast, have a

different impact, and may essentially put those officers back on

duty. See Waggoner v. Troutman Oil Co., 894 S.W.2d 913, 916

(Ark. 1995) (volunteer firefighter under a statutory duty to

respond to fires in district and who took control of fire hose

in fighting fire near his home was acting as a fireman “as a

matter of law”). A policy that puts a paid officer back on duty

in a rescue situation and returns that officer to the system of

public compensation may justify application of the firefighter’s

rule. Thus, although department policy may be a factor in

determining the firefighter’s work status, the central question

remains whether the firefighter is on the scene as a result of

his on-duty obligations as a firefighter.

¶24 Several states use a multi-factor analysis to decide

whether an officer is acting in a “professional capacity” and

thus whether the firefighter’s rule applies. See, e.g., Hodges

v. Yarian, 62 Cal. Rptr. 2d 130, 133-34 (Ct. App. 1997); Alessio

v. Fire & Ice, Inc., 484 A.2d 24, 30 (N.J. Super. Ct. App. Div.

1984); Campbell v. Lorrenzo’s Pizza Parlor, Inc., 567 N.Y.S.2d

832, 833 (App. Div. 1991). We decline to require this analysis

because application of the rule should not turn on a

firefighter’s conduct at the scene. Such a test creates the

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anomalous situation that those who act more professionally on

the scene are less likely to be allowed to seek recovery for

injuries because they may be deemed to be acting in an official

capacity and thus be subject to the firefighter’s rule. When

those who do have professional skills volunteer to render aid in

an emergency situation, they should not be discouraged from

using those skills. The inquiry should instead focus on why the

professional is on the scene.5

¶25 Espinoza’s actions in this case were those of an off-

duty volunteer. No evidence in the record shows and no claim is

made that she was anything but a volunteer. Driving home in her

own car with her daughter, she was clearly off duty. She wore

no uniform and had no equipment or support, as she would had she

been on duty. Espinoza was not at the accident scene as a

result of her on-duty obligations as a firefighter. The

firefighter’s rule therefore does not bar her suit.

CONCLUSION

¶26 The trial court erred in granting summary judgment to

the Schulenburgs. Because Espinoza volunteered to render aid at

5
Hodges, Alessio, and Campbell, cited above, are also
distinguishable because they involve off-duty police officers.
The presence of a gun and a badge and the ability to make an
arrest distinguishes those situations from the one before us.
Such situations may require additional analysis, and we decline
to decide those questions today.

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the accident scene while she was off duty, the firefighter’s

rule does not apply to bar her lawsuit. We therefore reverse

the trial court’s decision, vacate the decision of the court of

appeals, and remand the case for trial.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

________________________________________
Andrew D. Hurwitz, Justice

________________________________________
W. Scott Bales, Justice

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