Espinosa v. Schulenberg (Arizona Supreme Court explores the “Firefighter Rule”)
Injuries in the workplace are common. However, when your workplace is a burning building, dangerous accident scene on the highway, or a standoff with a gunman, the potential for injury is infinitely higher. But these risks are “part of the job” of a policeman and fireman aren't they? Yes and no. This blog discusses the legal issue of Public Safety v. Personal Safety and the Espinosa case. How are firefighters and police officers protected in Arizona?
The “Rescue Doctrine” – Danger invites rescue!
In American tort law, the “rescue doctrine” allows an injured rescuer to recover damages for personal injury from the person whose negligence created the need for the rescue. In other words, if a person is negligent and causes a fire, and a third party seeks to perform a rescue, the third party, if injured by risks inherent in a fire rescue, the rescuer can seek recovery for their foreseeable personal injury damages (ex. burns, broken bones, etc.) that were suffered because – as Judge Cordozo once put it – “danger invites rescue.” So the policy of the law is to encourage rescues in these types of situations, by allowing the rescuer to recover their damages from the “tortfeasor” or in other words, recover monetary damages against the person who was negligent. This is fairly well settled law in many states. See Espinoza v. Schulenburg, 212 Ariz. 215, 217 (2006) which explained:
“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…..The rescue doctrine removes the normal scope-of-liability barriers inherent in some actions for recovery for personal injury…..thus, notwithstanding arguments that harm to a rescuer is unforeseeable, or that the rescuer's decision to help is a superseding cause, the scope of liability extends to include the rescuer's injuries stemming from the rescue.” While Arizona has never expressly adopted the rule, it does follow the Restatement.
So it is fairly clear, for most “rescuers” in Arizona, if you are injured, you have a chance to recover for your personal injuries from the negligent third party that created the need for rescue in the first place. This is a matter of public policy. That is good news if you are a typical rescuer. But what if your job duties call for you to rescue people in danger, and that is part of the job description so to speak? Can you recover for your injuries under the same or similar circumstances? The answer to this question will probably depend upon how Arizona courts analyze the “firefighter rule” (in general, this is an EXCEPTION to the right of a rescuer to seek damages from the negligent third party who created the need for rescue).
Key Facts of Espinosa v. Schulenberg
This is considered by many to be a landmark Arizona Supreme Court case involving the “firefighter rule.” (Click on the picture above if you want to watch Attorney Steve discuss the case rather than read this). In this case, Espinosa was on off-duty firefighter and EMT. She was in the vicinity of an accident scene and went to help the driver in distress (16 year old Carrington Schulenberg who was driving her parents Chevy Camaro). Carrington was pulled to the side of the road, and was partially blocking traffic. Espinosa, the eventual Plaintiff, came over to the vehicle and tried to turn on the hazard / emergency lights in an effort to help out. A DPS (Arizona Department of Public Safety) representative was also on the scene. At this time, another driver (Casey Barnett) came up from behind and smashed into Carrington's vehicle injuring Espinosa (hip, wrist, finger and knee injuries). Espinosa (Plaintiff) sued Carrington (Defendant #1), DPS (Defendant #2) and Casey Barnett (Defendant #3), while also collecting workmen's compensation benefits, which are more limited in scope.
Can an off-duty firefighter recover for her damages from a third party who is negligent and necessitated the need for rescue notwithstanding the Arizona Firefighter Rule?
The Superior Court was the first to hear the case and decided that the Plaintiff could not maintain an action given the AZ firefighter rule (FFR). The Court of Appeals reversed and held that the FFR should be narrowly construed and should protect the off-duty firefighter, unless she had a “duty” to rescue (in which case her recovery would be barred).
The case made its way up to the Arizona Supreme Court where the court decided that being that Espinosa was an “off-duty” firefighter she was a “volunteer” to this accident scene off the 101 in Arizona and as such, she should not be precluded from tort recovery against Defendant despite the FFR.
1. Firefighters do not ASSUME THE RISK of injury (plus this does not preclude tort recovery in Arizona per A.R.S. 12-2505(A).
2. Public policy in Arizona is to make injured persons whole. As the Court put it:
“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); See 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.”), See Grimm v. Ariz. Bd. of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977).
3. Public policy is best when persons with skill and training continued to be encouraged to stop and help those in distress. As the Court stated:
“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 as a firefighter. 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.”
4. The Plaintiff Espinosa was NOT involved in her professional capacity as a firefighter at the time she rendered assistance to Schulenberg, and thus, the FFR rule will not bar her seeking to recover from her tort injuries. As the Court noted:
“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.”
The “firefighter” exception to the “recuse doctrine” and the FFR exceptions.
As this case highlights, American tort law (specifically as addressed in this blog, the Arizona Courts) have developed an exception to the “rescue doctrine” known as the “firefighter's rule.” Under the rule, a rescuer who could otherwise recover cannot do so if he or she is performing his or her duties as a professional firefighter. (they are paid to endure these known risks of danger). In these circumstances when the firefighter is acting in their professional performance of their contractual duties, they will not be able to sue third party tortfeasors who put them in the position of danger, necessitating a rescue effort.
From a public policy standpoint, a narrow application of the firefighter rule makes sense. After all, most fires or other dangerous situations are caused by someone's negligence. Fire and police departments have the training, access to public funds, and are charged with dealing with dangerous situations and the tort system is not the most efficient method to compensate them for injuries suffered on the job. However, as with any law, exceptions almost always apply. There are three generally accepted exceptions to the firefighter's rule in Arizona.
(1) First, the “independent negligence” of a third party renders the rule inapplicable. See Garcia v. City of South Tucson, 131 Ariz. 315, 319 (App. 1981). In Garcia, a police officer was shot in the back by a police officer from another department. In reaching its decision, the Garcia court reasoned that the cause of the officer's injury was not related to the dangerousness of the situation per se, but rather the negligence of a fellow officer.
(2) Second, non-emergency situations do not trigger the firefighter rule. For example, in Orth v. Cole, 191 Ariz. 291 (App. 1998), the court allowed a firefighter to recover damages for personal injuries after he was electrocuted during a routine safety inspection of an apartment electrical panel.
(3) Finally, the rule is inapplicable to off-duty public safety professionals who voluntarily respond to an emergency. Which is the Espinoza, 212 Ariz. at 218 case discussed herein. The court in Espizona reasoned that off-duty public safety professionals should be treated as volunteers just like any other citizen.
What types of professionals are covered under the “Firefighter Rule” is it just fireman or policemen too?
The firefighter rules above also applies to police officers. See White v. State, 220 Ariz. 42, 44 (App. 2008) wherein the Arizona Court of Appeals discussed:
“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….likewise, we see no compelling reason, and Plaintiffs have suggested none, for differentiating between firefighters and police officers for purposes of allocating liability in the context of emergency responses. In Orth, we recognized the overlapping policy considerations: Firefighters and police officers are hired, trained, and compensated to deal with dangerous situations affecting the public as a whole. Because of their exceptional responsibilities, when firefighters and police officers are injured in the performance of their duties the cost of their injuries should also be borne by the public as a whole, through the workers' compensation laws and the provision of insurance benefits and specialty disability pensions. 191 Ariz. at 293, 955 P.2d at 49 (quoting Gray v. Russell, 853 S.W.2d 928, 931 (Mo.1993)). Consistent with the rationale stated in Orth, as well as the approach taken by the majority of courts from other jurisdictions, we hold that the firefighter's rule in Arizona applies to police officers.'”
Contact an Arizona Personal Injury Lawyer
It is important that any public safety professional know their rights after an injury. The rule which originally was limited to premises liability issues (ex. injuries that occur on a property) that has been extended to reach other venues such as injuries that occur on streets, highways, and other areas on the public stream of commerce. For any questions regarding this article, or to seek to know your legal rights for any on-the-job injuries that might result as a fighter-fighter, Police, or EMT in Arizona, please contact us a (877) 276-5084 and ask for phoenix personal injury lawyer Carl A. Guerrieri, Esq. You may also fill out the contact form below to have one of our personal injury lawyers contact you. Please leave your phone number and best time to call.