                            IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     JEANETTE M. SANDERS,
                       Plaintiff/Appellant,

                               v.

                        FRANCIS ALGER,
                       Defendant/Appellee.

                     No. 2 CA-CV 2015-0158
                       Filed June 16, 2016


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

                REVERSED AND REMANDED


                           COUNSEL

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
                       SANDERS v. ALGER
                       Opinion of the Court


                            OPINION

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


E C K E R S T R O M, 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.


      1Under  the contract between Sanders and DES, the State of
Arizona Department of Administration “provide[d] benefits to
[Sanders] under the Provider Indemnity Program [PIP] per A.R.S.
[§] 41-621.” On appeal, Sanders asserts she filed a claim under the

                                 2
                        SANDERS v. ALGER
                        Opinion of the Court

¶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. In both instances,
the person is a professional who is paid to work with the hazard that
caused the person’s injury.”

¶7         In so concluding, the trial court identified an important
thread of our supreme court’s reasoning. See id. (observing that
person whose employment depends on existence of particular risk

PIP, but the claim was never acknowledged. This matter is not
within our record and we do not address the merits of this issue.


                                  3
                         SANDERS v. ALGER
                         Opinion of the Court

should not be permitted to recover in tort when that risk
materializes). Other jurisdictions have used this rationale to expand
the firefighter’s rule to professionals other than police and
firefighters. See, e.g., Grammar v. Dollar, 911 So. 2d 619, ¶¶ 1, 8 (Miss.
Ct. App. 2005) (barring recovery for housekeeper who slipped on
wet floor in bathroom).

¶8            However, other public policy concerns underlying the
firefighter’s rule do not apply as readily to caregivers. A fire poses a
broader public danger, which may be hazardous not only to the
person who started the fire, but also to those persons and structures
in proximity, and members of the public should not be dissuaded
from calling firefighters by fear of liability. See David L. Strauss,
Where There’s Smoke, There’s the Firefighter’s Rule: Containing the
Conflagration After One Hundred Years, 1992 Wis. L. Rev. 2031, 2038
(1992). This rationale applies with equal force to police officers, but
has no application here, where any negligence by Alger posed only a
private risk.

¶9           The supreme court in Espinoza also quoted this court’s
observation that “‘[p]robably most fires are attributable to
negligence, and in the final analysis the policy decision is that it
would be too burdensome to charge all who carelessly cause . . .
fires.’” 212 Ariz. 215, ¶ 11, 129 P.3d at 939, quoting Grable v. Varela,
115 Ariz. 222, 223, 564 P.2d 911, 912 (App. 1977). Falls that occur
because of disease or physical limitations, unlike fires or automobile
crashes, frequently occur without negligence on anyone’s part, and
our tort system is well accustomed to determining whether a
particular fall occurred due to negligence. Because Alger’s health
condition created a risk that Alger would fall even in the absence of
negligence, Sanders’s job description did not depend in any
substantial part on encountering “negligence that creates the very
need for [her] employment.” Id.

¶10          Finally, the court also noted that “[i]n return for
removing the firefighters’ right to sue, the public trains, equips, and
compensates” firefighters and provides for their care in the case of
injury. Id. At least one other jurisdiction has declined to expand this
rule to professionals other than police and firefighters, noting that
police and firefighters enjoy levels of compensation, training, and

                                    4
                         SANDERS v. ALGER
                         Opinion of the Court

statutory protection that are not given to other classes of workers.
DeLaire v. Kaskel, 842 A.2d 1052, 1055-56 (R.I. 2004).

¶11          Our record demonstrates that Sanders received some
measure of training as a caregiver. She also possessed a contractual
entitlement to seek compensation for her injuries from a state
indemnity program known as the Provider Indemnity Program, or
PIP. But the record before us is otherwise sparse in documenting
how Sanders’s compensation and training as a caregiver compares
to that of firefighters and police officers. Moreover, the record is
entirely silent on how other persons occupying Sanders’s field of
employment are compensated and trained, an important
consideration in evaluating whether public policy justifies a global
expansion of the firefighter’s rule to caregivers. And neither party
has presented this court with any statutes suggesting that home
caregivers such as Sanders receive any special legal protection that
would justify extinguishing their right to sue for damages arising
from the predictable risks of their employment.

¶12           The only established similarity between Sanders’s cause
of action and those causes of action extinguished by the firefighter’s
rule, therefore, is that Sanders was employed to respond to the very
type of event that caused her injury. This factor sounds in tort law
as assumption of risk. As our supreme court made clear in Espinoza,
that factor standing alone “does not support the complete bar that
the firefighter’s rule represents.” 212 Ariz. 215, ¶ 13, 129 P.3d at 940.
Accordingly, we do not find the similarities between caregivers and
firefighters sufficient to justify expanding the firefighter’s rule. For
the above reasons, and because our supreme court has yet to address
whether this rule should be expanded beyond its current
application, we decline to apply the rule to this case. Id. n.3; cf. Booth
v. State, 207 Ariz. 61, ¶¶ 22-23, 83 P.3d 61, 68-69 (App. 2004)
(declining to expand common law immunity).

                                  Duty

¶13          “[W]hether a duty exists . . . is a matter of law for the
court to decide.” Gipson v. Kasey, 214 Ariz. 141, ¶ 9, 150 P.3d 228, 230
(2007). And, “[t]he issue of duty is not a factual matter; it is a legal
matter to be determined before the case-specific facts are considered.”


                                    5
                         SANDERS v. ALGER
                         Opinion of the Court

Id. ¶ 21. As a general rule, “every person is under a duty to avoid
creating situations which pose an unreasonable risk of harm to
others.” Ontiveros v. Borak, 136 Ariz. 500, 509, 667 P.2d 200, 209
(1983), quoting Nazareno v. Urie, 638 P.2d 671, 674 (Alaska 1981);
accord Nunez v. Prof’l Transit Mgmt. of Tucson, Inc., 229 Ariz. 117,
¶ 17, 271 P.3d 1104, 1108 (2012). But see Gipson, 214 Ariz. 141, n.4,
150 P.3d at 233 n.4 (noting possible “tension” in this area).

¶14          Although a person has a duty to use reasonable care to
avoid injury to others, a person generally has no duty to come to the
aid of a person in peril. La Raia v. Superior Court, 150 Ariz. 118, 121,
722 P.2d 286, 289 (1986); Miller v. Arnal Corp., 129 Ariz. 484, 487, 632
P.2d 987, 990 (1981). But exceptions to this rule may be created
through special relationships, conduct, or, as in the instant case, by
contract. See Stanley v. McCarver, 208 Ariz. 219, ¶ 7, 92 P.3d 849, 851
(2004); Restatement (Second) of Torts § 323 (1965).

¶15           Here, Sanders, by contract, undertook to care for
Alger’s physical well-being. Specifically, in her contract with DES to
provide services, she agreed to “maintain [Alger’s] health and
safety,” and to assist him with “[a]mbulation” and “[t]ransfer to and
from wheelchair.” Because Sanders contractually assumed
responsibility to protect Alger from falling, Alger urges us to
conclude the obverse: Alger owed Sanders no duty of care in
preventing himself from falling. In essence, Alger argues that the
contractual provision, premised on the assumption that Alger posed
a risk of falling in the absence of assistance, relieved Alger of any
duty to prevent injury to Sanders during his transfer from his
wheelchair.

¶16           However, our supreme court has explained that a
contract that purports to relieve a defendant of any duty of care is
the legal equivalent to expressly assuming the risk. 1800 Ocotillo,
LLC v. WLB Group, Inc., 219 Ariz. 200, ¶ 25, 196 P.3d 222, 227 (2008);
see also Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, ¶¶ 2, 8, 111 P.3d
1003, 1004, 1005 (2005). The court observed that “‘[t]he very basis of
the doctrine was that the plaintiff had expressly or impliedly
consented to the defendant’s negligent conduct, the legal result
[being] that the defendant is simply relieved of the duty which
would otherwise exist.’” 1800 Ocotillo, 219 Ariz. 200, ¶ 25, 196 P.3d

                                    6
                        SANDERS v. ALGER
                        Opinion of the Court

at 227, quoting Schwab v. Matley, 164 Ariz. 421, 424, 793 P.2d 1088,
1091 (1990) (second alteration in Schwab). And, because the Arizona
Constitution provides that assumption of risk is always a factual
question for a jury, Ariz. Const. art. XVIII, § 5, our supreme court
has held such contractual provisions cannot take the question of
whether a person assumed a risk away from a jury. See Phelps, 210
Ariz. 403, ¶¶ 31, 39, 111 P.3d at 1010, 1012-13. In essence, our
supreme court has clarified that contractual provisions that arguably
shift risks have no effect on parties’ respective duties to each other.
Although the contract here imposed a higher duty of care on
Sanders, it did not thereby relieve Alger of his own duty. Even had
the contract contained an express provision stating Alger did not
owe Sanders any duty, our supreme court has instead characterized
such provisions as shifts in allocation of risk. Id. If the specific
provisions of a contract between Sanders and Alger could not take
away Alger’s duty to Sanders, a more general contractual
relationship cannot do so either.

¶17         The contract under which Sanders provided care to
Alger imposed upon Sanders an additional duty of care, but we do
not treat duty as a seesaw—elevating one person’s duty does not
necessarily reduce another’s. A caregiver might undertake an
elevated duty to respond to a patient’s falls precisely because the
patient can be trusted to behave reasonably to mitigate their
frequency.

¶18          Furthermore, were we to conclude that no duty of care
was owed here, we would preclude any negligence claim by the
caregiver of a patient at risk for falling, even in cases of gross
negligence. See Gipson, 214 Ariz. 141, ¶ 11, 150 P.3d at 230-31
(absence of duty relieves defendants of liability “no matter how
unreasonable their conduct”). Under such a holding, patients who
required a cane or a walker, but declined to use it, who declined to
take prescribed medication that would assist in maintaining balance,
or who deliberately ignored directives from their caregiver would
all be protected from suit, even if a jury believed that behavior was
unreasonable. We are reluctant to so globally conclude that a
patient owes no duty whatsoever to his caregiver. See Cowen v.
Thornton, 621 So. 2d 684, 687-88 (Fla. Dist. Ct. App. 1993).


                                  7
                        SANDERS v. ALGER
                        Opinion of the Court

¶19           Although we recognize that “[t]he purpose of the
summary judgment rule is to enable trial courts to rid the system of
claims that are meritless and do not deserve to be tried,” Orme Sch.
v. Reeves, 166 Ariz. 301, 311, 802 P.2d 1000, 1010 (1990), “[w]e do not
anticipate that this opinion will subject a whole new cadre of cases
to jury consideration.” Phelps, 210 Ariz. 403, ¶ 41, 111 P.3d at 1013.
As to cases raising defenses of assumption of risk, our state
constitution decrees that the sound judgment of a jury must be the
deterrent to non-meritorious lawsuits. See id. ¶ 42 (noting juries will
reach appropriate results). For these reasons, we conclude 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.2
Ontiveros, 136 Ariz. at 509, 667 P.2d at 209.

                         Summary Judgment

¶20           Alger also sought summary judgment on the basis that
“no reasonable jury could find that [Alger] breached a duty.”
Summary judgment is appropriate if “no reasonable juror could
conclude that the standard of care was breached.” Gipson, 214 Ariz.
141, n.1, 150 P.3d at 230 n.1.

¶21           In Sanders’s deposition, she testified that “Alger started
to fall,” and then she “was trying to give him cues and prompts, and
he was not responding to them. He just proceeded to fall.” In
Alger’s own description of the incident, he “started to fall. [Sanders]
tried to stop [him] and [he] grab[b]ed her. She said you are hurting
me let me go.” Both parties’ statements support a conclusion that
Alger had already begun to fall at the time Sanders intervened. A
person is negligent if he “fail[s] to act as a reasonable and prudent
person would act in like circumstances.” Morris v. Ortiz, 103 Ariz.
119, 120, 437 P.2d 652, 654 (1968). Sanders essentially claims Alger
was negligent because he did not take reasonable steps to stop

      2 We  note that the duty owed by Alger is the duty of a
reasonable person under the circumstances, and those circumstances
include his physical disabilities. See Morris v. Ortiz, 103 Ariz. 119,
121, 437 P.2d 652, 654 (1968); Restatement (Second) of Torts § 283(C)
(1965).


                                   8
                         SANDERS v. ALGER
                         Opinion of the Court

himself from falling and that Alger fell in part because he was
distracted and not focused on his balance. Alger counters that the
risk he posed for falling arose from a physical condition over which
he had no control: a fact that was known, undisputed, and one of
the express bases of Sanders’s employment. Alger is entitled to
summary judgment if no reasonable juror could find negligence
existed under such circumstances. See Coburn v. City of Tucson, 143
Ariz. 50, 53-54, 691 P.2d 1078, 1081-82 (1984) (concluding city’s
failure to remove bush that partially obstructed view of road did not
violate duty of care). Because the trial court based its ruling on the
firefighter’s rule, it did not reach Alger’s claim that he was entitled
to summary judgment on this ground. We therefore remand this
case to the trial court for further proceedings consistent with this
opinion.

                               Damages

¶22           Sanders next contends the trial court erred because it
found her injuries covered under the PIP but did not require the
state to provide her any damages under that program. To the extent
Sanders claims the State of Arizona, through either DES or PIP, has
failed to fulfill its contractual responsibilities to “provide benefits,”
that issue was not before the court, as the state was not named in
this lawsuit. Cf. Dietz v. Gen. Elec. Co., 169 Ariz. 505, 507, 821 P.2d
166, 168 (1991) (jury finding of nonparty at fault “does not subject
the nonparty to liability”).

                              Disposition

¶23         For the foregoing reasons, we reverse the judgment of
the trial court and remand this case for further proceedings
consistent with this opinion.




                                   9
