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Read v. Keyfauver

Court of Appeals of Arizona, First Division, Department E

August 27, 2013

ROSS READ, a married individual, Plaintiff/Appellant/ Cross-Appellee,
v.
BRITTINI ALEXA KEYFAUVER, Defendant/Appellee/ Cross-Appellant.

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

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

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

Law Office of Elliot Glicksman, P.L.L.C., Elliot Glicksman Attorney for Amicus Curiae Arizona Concerns Of Police Survivors, Inc. Yen Pilch & Komadina & Flemming, P.C., Robert E. Yen Attorney for Amicus Curiae Arizona Fraternal Order Of Police

OPINION

MICHAEL J. 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 ΒΆ 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 ...


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