                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                         JEANETTE M. SANDERS,
                           Plaintiff/Appellant,

                                    v.

                            FRANCIS ALGER,
                           Defendant/Appellee.

                           No. CV-16-0181-PR
                            Filed June 1, 2017

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

             Opinion of the Court of Appeals, Division Two
                240 Ariz. 90, 375 P.3d 1199 (App. 2016)
                         VACATED IN PART

COUNSEL:

J. Patrick Butler (argued), Tretschok, McNamara & Miller, P.C., Tucson,
Attorneys for Jeanette M. Sanders

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Daniel P. Schaack (argued), Assistant Attorney General, Phoenix,
Robert R. McCright, Assistant Attorney General, Attorneys for Francis
Alger

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER, JUSTICES BRUTINEL, TIMMER, BOLICK,
and GOULD, and JUDGE VEDERMAN joined. ∗


∗
 Justice John R. Lopez, IV has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, the Honorable Samuel E.
Vederman, Presiding Judge of the La Paz County Superior Court, was
designated to sit in this matter.
                            SANDERS V. ALGER
                            Opinion of the Court

CHIEF JUSTICE BALES, opinion of the Court:

¶1             We hold that a patient owes a duty of reasonable care to a
caregiver allegedly injured by the patient’s actions, thereby making the
patient potentially liable for negligence. We further hold that the
negligence claim, which involves an in-home caregiver hired by the
Arizona Department of Economic Security (“DES”), is not barred by the
firefighter’s rule, a common law doctrine barring recovery by a rescuer for
injuries incurred while performing duties as a professional firefighter.

                                      I.

¶2             We review a trial court’s grant of summary judgment de
novo. Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12 (2003). Because the trial court
granted summary judgment in favor of Defendant Francis Alger, we view
the evidence and reasonable inferences in the light most favorable to
Plaintiff Jeanette M. Sanders as the non-moving party. See id.

¶3             In 2004, Sanders contracted with DES to provide in-home care
to Alger, who is developmentally disabled and, as a “vulnerable adult,” is
eligible for services from the DES Division of Developmental Disabilities.
See A.R.S. § 36-559(A). Alger suffers from cerebral palsy and other
conditions that limit his mobility and place him at risk of falling. Sanders
worked for DES as an independent contractor rather than an employee. In
2011, Sanders, then sixty years old, was assisting seventy-four-year-old
Alger in moving from his wheelchair to a car. Alger attempted to stand up
and, distracted, did not respond to Sanders’ warnings and began to fall.
When Sanders tried to prevent the fall, Alger grabbed her, and she said “let
go, you’re hurting me.” Alger nonetheless fell on Sanders, seriously
injuring her. Sanders subsequently sued Alger for negligence. Among
other things, she alleged that he had negligently placed himself in jeopardy
of falling, thereby requiring her to rescue him.

¶4             Alger moved for summary judgment, arguing that he did not
owe a duty of care to Sanders, that the firefighter’s rule barred her claim,
and that no reasonable jury could find that he had acted negligently. The
trial court granted summary judgment based on the firefighter’s rule and
did not address the other arguments.



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                            SANDERS V. ALGER
                            Opinion of the Court

¶5             The court of appeals reversed, holding that the firefighter’s
rule does not apply. Sanders v. Alger, 240 Ariz. 90, 93 ¶ 12 (App. 2016). The
court also held that “Alger owed Sanders the basic duty that all persons
owe each other: the duty to use reasonable care to avoid causing injury to
others.” Id. at 94 ¶ 19 (footnote omitted) (citing Ontiveros v. Borak, 136 Ariz.
500, 509 (1983)). The court concluded that Alger was not relieved of his
duty by the fact that Sanders had contractually undertaken to care for him,
including by helping to prevent the risks of his falling. Id. at 93–94 ¶¶ 15–
16.

¶6           We granted review to consider whether a patient owes a
caregiver a duty of reasonable care and, if so, whether the firefighter’s rule
bars a caregiver’s negligence claim, both recurring issues of statewide
importance. We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.

                                      II.

                                     A.
¶7            Under Arizona law, a plaintiff must prove four elements to
sustain a claim for negligence: “(1) a duty requiring the defendant to
conform to a certain standard of care; (2) a breach by the defendant of that
standard; (3) a causal connection between the defendant’s conduct and the
resulting injury; and (4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143
¶ 9 (2007). “Whether the defendant owes the plaintiff a duty of care is a
threshold issue; absent some duty, an action for negligence cannot be
maintained.” Id. ¶ 11 (citation omitted).

¶8            We first address whether Alger, the patient, owed any duty
to Sanders, who provided caregiver services to him pursuant to her contract
with DES. The court of appeals held that such a duty exists because all
people have a duty to use reasonable care to avoid causing injury to others.
Sanders, 240 Ariz. at 94 ¶ 19; cf. Restatement (Third) of Torts: Liab. for
Physical & Emotional Harm § 7(a) (Am. Law Inst. 2010) (providing that
“[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s
conduct creates a risk of physical harm”). Although we agree with the court
of appeals that Alger owed a duty of reasonable care to Sanders, we decline
to adopt that court’s rationale, as we need not here decide whether people
generally owe a duty of reasonable care to others. Cf. Gipson, 214 Ariz. at
146 ¶ 24 & n.4 (noting tension in Court’s statements regarding scope of duty

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                            SANDERS V. ALGER
                            Opinion of the Court

and declining, as unnecessary, to base decision on broad statements of duty
generally owed by all persons).

¶9             Under Arizona common law, duties of care may arise from,
among other things, a direct relationship between the parties. Id. at 144–45
¶ 18; see also Stanley v. McCarver, 208 Ariz. 219, 221 ¶ 7, 223 ¶ 13 (2004)
(recognizing duty by examining physician even absent formal physician-
patient relationship); Ontiveros, 136 Ariz. at 508 (“The relation between
individuals which imposes a legal obligation is usually a direct relationship
between the plaintiff and defendant.”); cf. Alhambra Sch. Dist. v. Superior
Court, 165 Ariz. 38, 41 (1990) (“Duty refers to the relationship between
individuals; it imposes a legal obligation on one party for the benefit of the
other party.”) (citation omitted).

¶10            No one questions that caregivers who contractually agree to
provide services (such as helping a person with mobility issues) have a
direct relationship with their patients and owe them a duty of reasonable
care in connection with such services. Nor would anyone dispute that,
given the relationship, the caregiver owes a duty of reasonable care with
respect to actions beyond the contractually assumed responsibilities. For
example, a caregiver hired to help with mobility issues would undoubtedly
owe a duty of care that would be implicated if the caregiver negligently
spilled scalding water on the patient.

¶11            The question here is whether patients owe any duty to their
caregivers. Recognizing such a duty comports with our recognition of
duties in other contexts. If a patient sues a caregiver for alleged negligence,
the defendant caregiver generally will be able to argue that the patient’s
own failure to act with reasonable care constitutes contributory negligence.
See, e.g., George Washington Univ. v. Waas, 648 A.2d 178, 184–85 (D.C. 1994)
(citing case law and jury instructions from numerous states and other legal
authority recognizing a patient’s contributory negligence and duty to his or
her physician in medical contexts); Richard A. Epstein, Torts § 8.2.1, at 189
(1999) (noting that duty is an element of contributory negligence).

¶12           Recognizing a duty of care on the part of patients is also
consistent with the rescue doctrine recognized in Espinoza v. Schulenburg,
212 Ariz. 215 (2006). Under the rescue doctrine, an actor who negligently
imperils himself or herself may be liable to a person who is physically
harmed in attempting to aid or protect the actor. See Espinoza, 212 Ariz. at

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                            SANDERS V. ALGER
                            Opinion of the Court

217 ¶¶ 7–9 (adopting Restatement (Third) of Torts: Liab. For Physical &
Emotional Harms § 32); see also Cowen v. Thornton, 621 So. 2d 684, 687–88 &
n.1 (Fla. Dist. Ct. App. 1993) (finding patient owed duty of care to caregiver
despite patient’s assertion that the firefighter’s rule barred the caregiver
rescuer’s claim). “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.” Espinoza, 212 Ariz. at 217 ¶ 9. Thus, the rescue doctrine presumes
a “duty” on the part of the actor whose conduct creates the need for rescue
- if the actor fails to exercise reasonable care and imperils the actor or
another, the actor’s breach of that duty may result in liability to a person
harmed while trying to aid or protect the actor. See Sears v. Morrison, 90 Cal.
Rptr. 2d 528, 532–34 (Ct. App. 1999) (compiling cases from various
jurisdictions and other authorities recognizing that rescuer may seek
recovery from person negligently placing himself or herself in danger).

¶13            Recognizing a duty by patients to their caregivers is not, of
course, the same as saying that patients will be liable for injuries incurred
by a caregiver in doing his or her job or that the patient’s standard of care
is the same as that of a caregiver. See Restatement (Second) of Torts § 299(A)
(Am. Law Inst. 1965) (noting “one who undertakes to render services in the
practice of a profession or trade is required to exercise the skill and
knowledge normally possessed by members of that profession or trade in
good standing in similar communities”). That a duty exists does not mean
that it has been breached in any particular case or that a negligent act has
proximately caused an injury. Similarly, recognizing the existence of a duty
of care does not preclude the jury’s application of doctrines such as
comparative fault, assumption of risk, or superseding cause to limit
recovery of damages. See Gipson, 214 Ariz. at 147 ¶ 30 (noting that
“[w]hether the plaintiff’s conduct constituted an intervening (or even a
superseding) cause of the harm suffered is a question of fact and does not
determine whether a duty exists”); see also A.R.S. § 12-2505(A) (providing
that defenses of contributory negligence or assumption of risk do not bar
action but reduce damages “in proportion to the relative degree of the
claimant’s fault which is a proximate cause of the injury or death”).

¶14          Alger argues that public policy factors weigh against
imposing a duty on him as a disabled adult because doing so would
discourage individuals and their families from seeking state-provided
caregiving services. Although public policy may support the adoption of a

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                            SANDERS V. ALGER
                            Opinion of the Court

no-duty rule in some circumstances, see Guerra v. State, 237 Ariz. 183, 187
¶ 20 (2015), we decline to adopt a rule that patients categorically owe no
duty of care to those who provide caregiver services. Cf. Gipson, 214 Ariz.
at 143–44 ¶ 11 (noting that “a conclusion that no duty exists is equivalent to
a rule that, for certain categories of cases, defendants may not be held
accountable for damages they carelessly cause, no matter how
unreasonable their conduct”).

¶15             Contrary to Alger’s arguments, a blanket exemption of
liability for injuries patients cause their caregivers is not “necessary as a
matter of public welfare.” Ontiveros, 136 Ariz. at 513. Nor can we conclude
that finding a duty here would “chill socially desirable conduct or
otherwise have adverse effects.” Gipson, 214 Ariz. at 146 ¶ 29. Indeed,
barring recovery by caregivers might well discourage people from
providing such services.

¶16             Apart from whether patients generally owe any duty to their
caregivers, Alger also argues that we should find that no duty exists here
because Sanders agreed in her contract with DES to provide services to
protect Alger, and his individual support plan - of which she was aware -
recognized that his condition placed him at risk of falling. Thus, Alger
argues, he should not have owed any duty to Sanders to avoid the risk that
she contractually undertook to prevent. This argument founders because,
at bottom, it asserts that Sanders assumed the risk that caused her injury.
Under Arizona law, whether a plaintiff has contractually assumed a risk is
an issue of fact for the jury, not an issue of “duty” to be decided as a matter
of law. See Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 404 ¶ 2, 405 ¶ 11
(2005); see also Ariz. Const. art. 18, § 5; A.R.S. § 12-2505(A).

¶17           In summary, we hold that, based on the direct relationship
between caregiver and patient, the latter owes a duty of reasonable care
with respect to conduct creating a risk of physical harm to the caregiver.

                                      B.

¶18           Alger argues that even if he owed a duty of care to Sanders,
her negligence claim should be barred by the firefighter’s rule. Like the
court of appeals, we conclude that the rule does not apply here.



                                      6
                            SANDERS V. ALGER
                            Opinion of the Court

¶19            The firefighter’s rule is an exception to the rescue doctrine,
i.e., “[a] rescuer who could otherwise recover cannot do so if she is
performing her duties as a professional firefighter.” Espinoza, 212 Ariz. at
217 ¶ 11. Our courts recognize the firefighter’s rule as a matter of public
policy, noting 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. Rather,
firefighters are compensated as public employees. Id.

¶20           In urging us to apply the firefighter’s rule, Alger notes that
Sanders, although an independent contractor and not a public employee,
was paid with public funds to care for him; Sanders may seek compensation
for her injuries through the State’s Provider Indemnity Program (“PIP”);
and Alger’s disabilities created the need for Sanders’ employment.

¶21             We construe the firefighter’s rule narrowly. Id. at 218 ¶ 17.
“The rule applies when a firefighter’s presence at a rescue scene results
from the firefighter’s on-duty obligations as a firefighter.” Id. (footnote
omitted). Thus, the rule does not prohibit tort recovery for off-duty
firefighters. Id. at 218–19 ¶ 17. Limiting the reach of the firefighter’s rule
“comport[s] with Arizona’s policy of protecting its citizens’ right to pursue
tort claims.” Id. at 218 ¶ 16; see also 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 . . . .”); id.
art. 2, § 31 (prohibiting laws limiting damages for death and injury).

¶22           Moreover, the firefighter’s rule is an exception to the rescue
doctrine rather than a more general rule barring tort recovery. Our
recognition of a patient’s duty to his or her caregiver is based on the direct,
categorical relationship and is not limited to situations in which the
caregiver responds to an emergency created by the patient’s negligence.
Arguably, the rescue doctrine would not apply (nor would the firefighter’s
rule as an exception to that doctrine) in this case, inasmuch as Sanders was
performing her usual duties in assisting Alger rather than responding to an
emergency. Cf. Orth v. Cole, 191 Ariz. 291, 292 ¶ 6 (App. 1998) (declining to
apply firefighter’s rule to routine inspections).

¶23           In any event, we decline to extend the firefighter’s rule to
caregivers to prohibit their recovery when responding to an emergency.
Unlike firefighters, caregivers generally are not “public safety employees”

                                       7
                            SANDERS V. ALGER
                            Opinion of the Court

who are trained, equipped, and compensated to professionally rescue
others. See Espinoza, 212 Ariz. at 217 ¶ 11. Even though the caregiver’s
salary here was paid with public funds, like a firefighter’s, see id. (quoting
Grable v. Varela, 115 Ariz. 222, 223 (App. 1977)), such compensation does not
convert a caregiver into a professional rescuer. Furthermore, the existence
of the PIP does not alter our conclusion. Cf. id. at 219 ¶ 20 (“[T]he
availability of workers’ compensation to a particular worker does not
control our determination of the applicability of the firefighter’s rule.”).
Finally, we agree with the court of appeals that Sanders’ job did not depend
on encountering “negligence that creates the very need for [her]
employment” in the same way a firefighter encounters mostly negligently
caused fires. See id. at 217 ¶ 11.

                                      C.

¶24              Alger argued in the trial court that no reasonable juror could
find he acted negligently in the circumstances of this case. The trial court
did not decide this issue, and the court of appeals declined to do so in the
first instance. See Sanders, 240 Ariz. at 95 ¶ 21. We did not grant review on
this issue, but we note it to underscore that our ruling does not establish
liability on Alger’s part. As the court of appeals recognized, id. at 94 ¶ 19
n.2, the duty owed by Alger is that of a reasonable person under the
circumstances, and those circumstances include his physical disabilities
and limitations. See Alhambra Sch. Dist., 165 Ariz. at 42 (“The particular facts
of the case . . . are the circumstances under which the reasonableness of the
[defendant’s] conduct is to be judged.”) (footnote omitted); Morris v. Ortiz,
103 Ariz. 119, 121 (1968); Restatement (Second) of Torts § 283(C) (Am. Law
Inst. 1965). He will be entitled to summary judgment if, as he contends, “no
reasonable juror could conclude that the standard of care was
breached . . . .” Gipson, 214 Ariz. at 143 ¶ 9 n.1.

                                      II.

¶25            We vacate ¶¶ 6–19 of the court of appeals’ opinion, reverse
the trial court’s summary judgment in Alger’s favor, and remand the case
to the trial court for further proceedings consistent with this opinion.




                                       8
