Jeanette M. Sanders, Plaintiff/Appellant,
Francis Alger, Defendant/Appellee.
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
Brnovich, Arizona Attorney General By Robert R. McCright and
Cassandra B. Meynard, Assistant Attorneys General, Tucson
Counsel for Defendant/Appellee
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Miller concurred.
ECKERSTROM, Chief Judge:
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.
and Procedural Background
"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.
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. Sanders then filed the instant case
against Alger alleging negligence.
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.
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.
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. ...