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Sanders v. Alger

Court of Appeals of Arizona, Second Division

June 16, 2016

Jeanette M. Sanders, Plaintiff/Appellant,
v.
Francis Alger, Defendant/Appellee.

         Appeal from the Superior Court in Pima County No. C20131310 The Honorable D. Douglas Metcalf, Judge

          Tretschok, McNamara & Miller, P.C., Tucson By J. Patrick Butler Counsel for Plaintiff/Appellant

          Mark Brnovich, Arizona Attorney General By Robert R. McCright and Cassandra B. Meynard, Assistant Attorneys General, Tucson Counsel for Defendant/Appellee

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.

          OPINION

          ECKERSTROM, Chief Judge:

         ¶1 Plaintiff/appellant Jeanette Sanders appeals from the trial court's grant of summary judgment in favor of defendant/appellee Francis Alger. For the following reasons, we reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

         Factual and Procedural Background

         ¶2 "In reviewing a trial court's grant of summary judgment, we view the facts and reasonable inferences therefrom in the light most favorable to the losing party." Wyckoff v. Mogollon Health All, 232 Ariz. 588, ¶ 2, 307 P.3d 1015, 1016 (App. 2013). In 2004, Sanders began to provide in-home care services to Alger. Sanders contracted with the Arizona Department of Economic Security (DES) to provide these services to Alger as an independent provider and continued to do so until 2011. Sanders was not an employee of either Alger or DES.

         ¶3 In June 2011, Sanders, who was sixty years old, was assisting seventy year-old Alger from his wheelchair to a vehicle when Alger began to fall. Sanders attempted to use "cues and prompts" to assist Alger in regaining his balance, but he did not respond. Alger landed on Sanders as she intervened to prevent the fall and she was seriously injured.[1] Sanders then filed the instant case against Alger alleging negligence.

         ¶4 Alger moved for summary judgment, claiming that because Sanders had a contractual duty to protect Alger from falling, Alger did not owe Sanders a duty of care. The trial court agreed, citing Espinoza v. Schulenburg, 212 Ariz. 215, 129 P.3d 937 (2006). This appeal followed.

         Summary Judgment

         ¶5 Our review of a trial court's grant of summary judgment is de novo. Link v. Pima County, 193 Ariz. 336, ¶ 12, 972 P.2d 669, 673 (App. 1998). Here, the trial court concluded that the "firefighter doctrine" barred Sanders from recovering. This rule, as articulated by the Arizona Supreme Court, provides that "[a] rescuer who could otherwise recover cannot do so if she is performing her duties as a professional firefighter." Espinoza, 212 Ariz. 215, ¶ 11, 129 P.3d at 939. Because our supreme court has not yet expanded the firefighter's rule to professions other than traditional first responders, we decline to do so. We further conclude Alger owed Sanders a duty of care and remand to the trial court for further proceedings.

         Firefighter's Rule

         ¶6 In Espinoza, the court observed 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. Here, the trial court concluded that although Sanders was not a firefighter, the same logic would apply to her situation, noting that "[b]eing injured by a vulnerable adult while being paid to care for him is comparable to a firefighter being injured while putting out a fire. ...


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