                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2020 UT 30


                                    IN THE

      SUPREME COURT OF THE STATE OF UTAH

                           DAVID SCOTT IPSEN,
                               Appellant,
                                       v.
                    DIAMOND TREE EXPERTS, INC.,
                            Appellee.

                            No. 20181052
                       Heard December 11, 2019
                         Filed May 20, 2020

                            On Direct Appeal

                     Third District, Salt Lake
                 The Honorable Andrew H. Stone
                         No. 160904449

                                 Attorneys:
James L. Ahlstrom, Steven R. Glauser, Salt Lake City, for appellant
Barbara K. Berrett, Zachary C. Myers, Salt Lake City, for appellee

  JUSTICE HIMONAS authored the opinion of the Court, in which
      CHIEF JUSTICE DURRANT and JUSTICE PETERSEN joined.
 ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion, in which
                     JUSTICE PEARCE joined.

   JUSTICE HIMONAS, opinion of the Court:
                           INTRODUCTION
   ¶1 A core principle of tort law is that we each owe “a duty to
exercise reasonable care” if our “conduct presents a risk of harm to
others.” Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 993 (2019)
(quoting RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL &
EMOTIONAL HARM § 7 (AM. LAW. INST. 2005)). To be sure, there are
a multitude of exceptions to this principle, the professional rescuer
rule that we adopted in Fordham v. Oldroyd, 2007 UT 74, 171 P.3d
                IPSEN v. DIAMOND TREE EXPERTS, INC.
                        Opinion of the Court
411, being but one. That rule provides that “a person does not owe
a duty of care to a professional rescuer for injury that was sustained
by the very negligence that occasioned the rescuer’s presence and
that was within the scope of hazards inherent in the rescuer’s
duties.” Id. ¶ 13 (emphasis added).
   ¶2 Today, we hold that the professional rescuer rule extends
no further than Fordham’s definite and careful formulation and that
a person does owe a duty of care to a professional rescuer for injury
that was sustained by the gross negligence or intentional tort that
caused the rescuer’s presence. Accordingly, we partially reverse
and remand this case to the district court to allow it to adjudicate
Ipsen’s gross negligence claims.1
                          BACKGROUND2
    ¶3 A mulch fire occurred on the property of appellee,
Diamond Tree Experts, Inc. In the week before the mulch fire, there
had been at least two other fires on the property. And ten days
before the mulch fire, a representative from the Salt Lake County
Health Department told Diamond Tree that the mulch on its
property was piled too high and that Diamond Tree needed to
reduce it. Diamond Tree did not comply, meaning that at the time
of the fire, it was in knowing violation of several ordinances—
including the fire code—and of industry standards regarding the
safe storage of mulch.
    ¶4 David Scott Ipsen was one of the firefighters who
responded to the mulch fire. While working by the fire engine, and
away from the fire, a thick cloud of smoke and embers engulfed
him, leaving him unable to breathe. Ipsen sustained severe and
permanent injuries—injuries that prevented him from returning to
his job as a firefighter.
    ¶5 Ipsen sued Diamond Tree in district court for gross
negligence, intentional harm, and negligent infliction of emotional
distress. Diamond Tree moved for summary judgment, claiming
that it owed no duty to Ipsen under Utah’s professional rescuer
rule, which says that “a person does not owe a duty of care to a
__________________________________________________________
    1 We do not opine on the sufficiency of the allegations that Ipsen

brings against Diamond Tree. That is for the district court to
evaluate on remand.
   2 On appeal from an order for summary judgment, we view “the
facts and all reasonable inferences . . . in the light most favorable to
the nonmoving party.” Espenschied Transp. Corp. v. Fleetwood Servs.,
2018 UT 32, ¶ 3 n.1, 422 P.3d 829 (citation omitted) (internal
quotation marks omitted).

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                        Opinion of the Court
professional rescuer for injury that was sustained by the very
negligence that occasioned the rescuer’s presence and that was
within the scope of hazards inherent in the rescuer’s duties.”
Fordham v. Oldroyd, 2007 UT 74, ¶ 13, 171 P.3d 411. The district court
agreed with Diamond Tree and dismissed Ipsen’s claim for three
main reasons. First, it held that under Fordham, Diamond Tree
owed Ipsen no duty of care, even if Diamond Tree’s underlying
conduct was egregious carelessness or violated ordinances. Second,
the district court found that all the injuries that Ipsen alleged were
inherent in firefighting. Third, the district court held that although
Fordham does not immunize intentional behavior from liability,
Ipsen had not established a genuine dispute of fact about an
intentional behavior on Diamond Tree’s part.
   ¶6 Ipsen appealed. We exercise jurisdiction under Utah Code
section 78A-3-102(3)(j).
                    STANDARD OF REVIEW
    ¶7 “We review a grant of summary judgment for correctness.
We give no deference to the district court’s legal conclusions and
consider whether the court correctly decided that no genuine issue
of material fact existed.” Heslop v. Bear River Mut. Ins. Co., 2017 UT
5, ¶ 15, 390 P.3d 314 (citations omitted) (internal quotation marks
omitted).
                             ANALYSIS
    ¶8 In Fordham v. Oldroyd, we announced the professional
rescuer rule. Under that rule, “a person does not owe a duty of care
to a professional rescuer for injury that was sustained by the very
negligence that occasioned the rescuer’s presence and that was
within the scope of hazards inherent in the rescuer’s duties.” 2007
UT 74, ¶ 13, 171 P.3d 411. Ipsen asks us to limit this rule so that
professional rescuers can recover in tort for injuries stemming from
gross negligence, intentional torts, and the violation of statutes and
ordinances. Based on public policy, we hold that the Fordham’s
professional rescuer rule does not apply in cases of gross
negligence and intentional torts.3 A person thus does owe a duty of
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    3 The dissent posits that the issue of duty in cases of intentional

tortious misconduct is not “presented.” Infra ¶ 29 n.17. But the
district court ruled on it, and one of the parties briefed the issue.
Supra ¶ 5. We see no reason to ignore it. Moreover, as we find that
gross negligence does not fall within Fordham’s professional rescuer
rule, it is mere common sense that the more severe case of
intentional torts does not fall within it either. “But Moses said to
                                                      (continued . . .)
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                IPSEN v. DIAMOND TREE EXPERTS, INC.
                        Opinion of the Court
care to a professional rescuer for injuries sustained by gross
negligence or an intentional tort causing the rescuer’s presence.
Our holding is based on the vast difference in culpability and the
considerably greater deterrence considerations gross negligence
and intentional torts present compared to ordinary negligence.
      ¶9 “[C]ommon law is an aggregation of judicial expressions
of public policy.” Id. ¶ 4. One area of the common law that is
especially appropriate for “judicial public policy judgments” is the
law of torts, and specifically the assignment of legal duty.4 Id.; Yazd
v. Woodside Homes Corp., 2006 UT 47, ¶ 17, 143 P.3d 283 (“Legal duty
. . . is the product of policy judgments applied to relationships.”).
The existence of a legal duty reflects this court’s conclusion, “on the
basis of the mores of the community,” William L. Prosser, Palsgraf
Revisited, 52 MICH. L. REV. 1, 15 (1953), that “the sum total” of the
policy considerations say that “the plaintiff is [or is not] entitled to
protection,” Univ. of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987)
(second alteration in original) (citation omitted).
    ¶10 The general rule, as we outline at the beginning of this
opinion, is that “we all have a duty to exercise care when engaging
in affirmative conduct that creates a risk of physical harm to
others.” B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 21, 275 P.3d 228. We
carve out exceptions to the existence of duty only in “categories of
cases implicating unique policy concerns that justify” doing so. Id.
In considering whether to make an exception, we rely on factors
such as the foreseeability or likelihood of injury, public policy as to
which party can best bear the loss occasioned by the injury, and




__________________________________________________________
the Lord, ‘If the Israelites will not listen to me, why would Pharaoh
listen to me . . . ?’” Exodus 6:12. We see no reason to leave litigants
in limbo about such a natural logical conclusion.
   4  We are not the “exclusive arbiters of public policy.” Fordham,
2007 UT 74, ¶ 5. Our public policy pronouncements yield to those
of the Utah Legislature. But, “[w]hen policy considerations bear on
a subject lodged firmly within the court’s sphere, like the common
law, it is entirely appropriate for the court to make the policy
judgments necessary to get the law right.” Yazd v. Woodside Homes
Corp., 2006 UT 47, ¶ 20, 143 P.3d 283. We have done so in numerous
tort law cases. See, e.g., Nixon v. Clay, 2019 UT 32, ¶ 21, 449 P.3d 11;
Fordham, 2007 UT 74, ¶ 6; Yazd, 2006 UT 47, ¶ 26. And we do so
again today.

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                        Opinion of the Court
other general policy considerations. Normandeau v. Hanson Equip.,
Inc., 2009 UT 44, ¶ 19, 215 P.3d 152.5
    ¶11 In Fordham, we determined, based on public policy,6 that
“a person does not owe a duty of care to a professional rescuer for
injury that was sustained by the very negligence that occasioned
the rescuer’s presence and that was within the scope of hazards
__________________________________________________________
    5 The parties have not briefed us on the foreseeability or

likelihood of injury of professional rescuers due to gross negligence
or intentional acts. That said, as we express below, we think that
general policy considerations are determinative here.
   6   The dissent argues that in Fordham, this court “rooted” the
“professional rescuer rule” in “the doctrine of primary assumption
of risk.” Infra ¶ 32. But the Fordham court relied on policy
considerations only. Fordham, 2007 UT 74, ¶¶ 7, 16; see also id. ¶ 25
(Wilkins, A.C.J., concurring and dissenting) (“[A] third rationale
became necessary to support the adoption of a professional rescuer
rule. That rationale, relied on by my colleagues and the court of
appeals in this case, is public policy.”). The court’s discussion of
“assumption of the risk” was only meant to explain “why we have
less to fear from an accusation that a professional rescuer rule is
little more than assumption of the risk in disguise.” Id. ¶ 10. And
although the dissent can attempt to re-write Fordham’s reasoning to
include the assumption of risk doctrine, infra ¶ 32 n.18, it is clearly
evident that the Fordham court discussed the doctrine for the
limited reason of rebuffing concerns about the professional
rescuer’s doctrine in other jurisdictions. Fordham, 2007 UT 74,
¶¶ 12–13. Indeed, in Rutherford v. Talisker Canyons Finance, Co., LLC,
2019 UT 27, 445 P.3d 474, our recent exploration of the assumption
of risk doctrine, which canvased our state’s case law about it, the
Fordham opinion is nowhere to be found.
     The dissent also contends that although the question in Fordham
was one of policy, “the policy inquiry under our case law is
centered on the question of implied consent.” Infra ¶ 46. But the
Fordham majority opinion does not even include the phrase
“implied consent,” nor any discussion of this concept. Instead, this
court focused on the need to assure the public’s ability to use
professional rescuers’ services “without fear of exposing their
assets to compensate their rescuer in the event of injury,” Fordham,
2007 UT 74, ¶ 7, and on the proposition that “the consequences of
one’s inattention do not include the compensation of those on
whom all of us collectively confer the duty to extricate us from our
distress.” Id. ¶ 8. We therefore reject the dissent’s attempt to imply
otherwise.

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                IPSEN v. DIAMOND TREE EXPERTS, INC.
                        Opinion of the Court
inherent in the rescuer’s duties.” 2007 UT 74, ¶ 13. We explained
that the public policy underlying this exception is that “firefighters
and police officers have a relationship with the public that calls on
them to confront certain hazards as part of their professional
responsibilities.” Id. ¶ 7. And “[i]t would be naive to believe that
fire and police professionals will be called on to draw on their
training in meeting only those hazards brought on by prudent acts
gone awry.” Id.
    ¶12 The question we must answer today is whether the policy
that supports a duty carve-out7 for professional rescuers’ suits for
injuries stemming from negligence also supports a carve-out for
their claims for injuries arising from gross negligence and
intentional torts.8
   ¶13 The two public policy concerns that drove us to apply the
professional rescuer rule to negligence in Fordham are culpability
and deterrence.9 And because these two concerns do not apply


__________________________________________________________
   7 The dissent argues that in this opinion we “establish[] an

exception to Fordham.” Infra ¶ 43. That argument misses the mark.
Fordham is the exception to the general rule that we all have a duty
to exercise reasonable care. All we do today is clearly delineate
Fordham’s boundaries.
   8 Fordham’s formulation of the professional rescuer rule only
referenced negligence. 2007 UT 74, ¶ 13. The district court here
found our statement in Fordham to be a broad determination of lack
of duty towards professional rescuers, “[r]egardless of whether [a
person’s] conduct was negligent, reckless, [or] indifferent.” It was
not.
   9 We recently decided in Nixon that a person’s state of mind does

not affect the imposition of a duty in the context of the contact-
sports exception. Specifically, we held that “voluntary participants
in sports owe no duty to avoid contact that is inherent in the activity
they are engaged in.” 2019 UT 32, ¶ 15. We found that the
imposition of duty should not hinge on a participant’s mental state,
because such a standard is “unnecessary and potentially
problematic as applied to some sports.” Id. ¶ 22. We explained that
in some sports, “intentional conduct is expected and even
encouraged,” and that creating a duty of care for reckless or
intentional conduct, “could impose liability on players for simply
playing the game as it is designed and expected to be played.” Id.
¶ 23.
                                                      (continued . . .)
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                        Opinion of the Court
when it comes to gross negligence and intentional torts, they
compel the opposite result here.
   ¶14 First, sound public policy advised us in Fordham that the
“consequences of one’s inattention” do not create a duty to
compensate “those on whom all of us collectively confer the duty
to extricate us from our distress.” Id. ¶ 8 (emphasis added). But
gross negligence and intentional torts implicate far more than mere
inattention; they involve severe levels of culpability. Gross
negligence is “the failure to observe even slight care; it is
carelessness or recklessness to a degree that shows utter indifference
to the consequences that may result.” Atkin Wright & Miles v.
Mountain States Telephone & Telegraph Co., 709 P.2d 330, 335 (Utah
1985) (emphasis added) (internal quotation marks omitted)
(quoting Robinson Ins. & Real Estate, Inc. v. Sw. Bell Tel. Co., 366 F.
Supp. 307, 311 (W.D. Ark. 1973)); see also Penunuri v. Sundance
Partners, Ltd., 2017 UT 54, ¶ 35, 423 P.3d 1150. And intentional
__________________________________________________________
    Perhaps our language in Nixon was too slackly cabined. That is
lamentable because the dissent now attempts to strip this language
from its context and make it sweep more broadly. Infra ¶¶ 35, 40-41.
But Nixon’s conclusion is irrelevant to the professional rescuers’
rule for two reasons. First, in sports, a rule attributing liability
based on a participant’s state of mind might impose it even if a
participant played “by the rules.” But in the professional rescuers’
context, any grossly negligent or intentional behavior is not a part
of the accepted behavior in a well-ordered society. Although the
dissent resists this obvious difference, infra ¶ 49, Fordham’s
exception was expressly limited to situations resulting from one’s
inattention. 2007 UT 74, ¶ 8. The dissent argues that this limit is
only “the net effect of our holding,” infra ¶ 49, but misses that this
court expressly held this “broadly shared value about the workings
of a well-ordered society” is the rationale from which Fordham
emanates. Fordham, 2007 UT 74, ¶ 8.
    Second, sports are governed by a separate set of rules than
societal activities that may require the presence of professional
rescuers. Tort duty in sports is governed by courts, as the dissent
mentions, but there are other mechanisms to adjudicate one’s
tortious behavior during a sporting event. The rules of most—if not
all—sports impose penalties on individuals and teams. But there
are no such rules that protect professional rescuers from one’s gross
negligence or intentional tort. Courts, then, are the only institutions
with authority to do so. And in exercising that authority to decide
whether to impose a duty toward professional rescuers, it is proper
for courts to evaluate the relevance and weight of one’s state of
mind.
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               IPSEN v. DIAMOND TREE EXPERTS, INC.
                       Opinion of the Court
tortious conduct goes even beyond that. Atkin Wright & Miles, 709
P.2d at 335; see also Wagner v. State, 2005 UT 54, ¶ 32, 122 P.3d 599
(explaining that “[t]he intent with which tort liability is concerned
. . . is an intent to bring about a result which will invade the
interests of another in a way that the law forbids.”) (citation
omitted) (first alteration in original). So, although gross negligence
differs only in degree from ordinary negligence, Negligence,
BLACK’S LAW DICTIONARY 1134 (11th ed. 2019), that difference in
degree is large and matters. “[T]he workings of [our] well-ordered
society” include a “widely held belief that one is not exposed to tort
liability for negligence requiring rescue.” Fordham, 2007 UT 74, ¶ 8.
But they do not include such belief when the degree of negligence
is egregious, and even less so when the actions that requiring
professional rescuers’ assistance were intentional.
    ¶15 The second policy concern in Fordham was that negligent
people might be reluctant to call professional rescuers if they knew
they could be liable for the rescuers’ resulting injuries. Id. But
because people who act with gross negligence or intentionally are
an order or two of magnitude more culpable than those who act
negligently, they are unlikely to call professional rescuers in the
first place. Imagine the emergency call: “911, I was utterly callous
about setting (or deliberately set) my neighbor’s house on fire, and
I’d like to report myself.” Pure fantasy. Thus, we are not seriously
concerned that appreciably fewer of these individuals will call for
help if we do not extend the professional rescuer rule to their
situation.
    ¶16 For these very reasons, courts in other jurisdictions have
differentiated between negligence on the one hand and gross
negligence and intentional torts on the other. They have generally
held that “[w]hile the fireman’s rule may provide a shield of
liability for defendants in cases involving ordinary negligence, it is
not a license to act with impunity or without regard for the
[professional rescuer’s] well-being.” Lambert v. Schaefer, 839 S.W.2d
27, 29 (Mo. Ct. App. 1992) (citation omitted) (internal quotation
marks omitted). This “recognition of moral fault as a component of
public policy is a common principle of tort law.” Carson v. Headrick,
900 S.W.2d 685, 690–91 (Tenn. 1995) (holding that the rule does not
extend to injuries caused by “intentional, malicious, or reckless acts
of a citizen”).10

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   10 Courts around the country have articulated varied versions

and scopes of the professional rescuer rule. However, almost all the
courts that have addressed whether the professional rescuer rule
                                                      (continued . . .)
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                         Opinion of the Court
     ¶17 According to the dissent, there is a “very real difficulty” in
distinguishing negligence from gross negligence. The dissent uses
colorful language to explain that the difference is one of degree
only—the existence of which is left to the fact finder to decide. Infra
¶¶ 44–45. The distinction we clarify today, the dissent warns us,
“will swallow the rule we adopted in Fordham,” infra ¶ 45,
presumably allowing for professional rescuers to flood the courts
with claims, by merely adding “a vituperative epithet” to their
filing. Infra ¶ 45.
    ¶18 This slippery-slope argument is unpersuasive. This court
has long dealt with the difference between negligence and gross
negligence. See, e.g., Atkin Wright & Miles, 709 P.2d at 335. We have
explained that “[w]hile negligence generally connotes the failure to
observe due care, gross negligence and recklessness are the failure
to observe even slight care.” Bingham v. Roosevelt City Corp., 2010
UT 37, ¶ 44, 235 P.3d 730 (citation omitted) (internal quotation
marks omitted). And we have repeatedly found that it is possible
to determine whether one was grossly negligent on summary
judgment. See, e.g., Penunuri, 2017 UT 54, ¶¶ 35–40; Blaisdell v.
Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 15, 284 P.3d 616.11
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applies to gross negligence and intentional torts have concluded
similarly to us today—that it does not. See, e.g., Gaither v. Metro.
Atlanta Rapid Transit Auth., 510 S.E.2d 342, 345 (Ga. Ct. App. 1998)
(“A firefighter’s or police officer’s job does not include assuming
the general risk of harm from a person’s wil[l]ful and wanton or
malicious conduct.”); Labrie v. Pace Membership Warehouse, Inc., 678
A.2d 867, 869 (R.I. 1996) (limiting the application of the rule to
“crisis created by a defendant’s ordinary negligence”); see also, e.g.,
BPS, Inc. v. Parker, 47 S.W.3d 858, 862 (Ark. 2001); Thomas v. Pang,
811 P.2d 821, 825 (Haw. 1991); Fox v. Hawkins, 594 N.E.2d 493, 498
(Ind. Ct. App. 1992); State Farm Mut. Auto. Ins. Co. v. Hill, 775 A.2d
476, 484–87 (Md. Ct. Spec. App. 2001); Torchik v. Boyce, 905 N.E.2d
179, 181–82 (Ohio 2009); Thomas v. CNC Invs., L.L.P., 234 S.W.3d 111,
120–21 (Tex. App. 2007); Goodwin v. Hare, 436 S.E.2d 605, 606 (Va.
1993); This policy preference is also exhibited by legislatures in
several states that have codified the professional rescuer rule but
have not extended its effect to gross negligence and intentional
torts. See, e.g., MICH. COMP. LAWS § 600.2967; N.H. REV. STAT.
§ 507:8-h.
   11 The dissent points to one case to substantiate its argument
that our general rule is that “the grossness of a party’s negligence
will be a matter left to the eye of the fact-finder.” Infra ¶ 45. But that
                                                         (continued . . .)
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                IPSEN v. DIAMOND TREE EXPERTS, INC.
                        Opinion of the Court
    ¶19 The dissent maintains that we should not treat negligence
and gross negligence differently just because of their difference in
degree. Infra ¶ 45. But in another context—that of liability
waivers—this court has found that the difference between ordinary
and gross negligence does matter.12 On public policy grounds, we
have disallowed liability waivers for grossly negligent acts while
permitting those that release liability stemming from negligent
acts.13 See, e.g., Hawkins v. Peart, 2001 UT 94, ¶ 9, 37 P.3d 1062,
superseded by statute on other grounds as stated in Penunuri v. Sundance
Partners, Ltd., 2013 UT 22, 301 P.3d 984 (noting that a liability release
“is always invalid if it applies to harm wilfully inflicted or caused
by gross or wanton negligence” (citation omitted)).
   ¶20 We are not the only court to make this distinction. See, e.g.,
City of Santa Barbara v. Superior Court, 161 P.3d 1095, 1097 (Cal. 2007)
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case, Norman v. Utah Hotel Co., stands for that proposition only in
that particular instance and certainly establishes no general rule. 206
P. 556, 560 (Utah 1922) (“As we view it, in order to hold that the
evidence in this case is insufficient to establish gross negligence, as
a matter of law, we would be compelled to depart from the uniform
holdings of this court that, under the circumstances here disclosed, the
question is one of fact for the jury and not one of law for the court.”
(emphasis added)).
   12 Moreover, Norman—the case that the dissent uses to argue
that gross negligence is a matter for the fact finder—presents an
ancient yet pertinent example of this difference, which the dissent
so vividly resists. Norman addressed the case of a gratuitous
bailment that requires a party “to exercise slight care only” which
meant they would be “liable only for what, in law, is termed to be
gross negligence.” Id. at 559. In other words, we recognized that a
gratuitous bailer would not be liable for any ordinary negligence
but would be liable for gross negligence.
   13 The dissent concedes our point but claims the difference in
context make our analogy irrelevant. Infra ¶ 45 n.22. But analogies
only require “similar[ity] in some ways.” Analogy, BLACK’S LAW
DICTIONARY (11th ed. 2019). Requiring identical circumstances
obviates our ability to use analogies. Our use of liability waivers is
in response to the dissent’s unsupported argument that our
distinction between ordinary and gross negligence “will swallow
the rule we adopted in Fordham.” See infra ¶ 45. We pointed out that
this court and many others have adopted this distinction in other
contexts, where such horrific predictions have not materialized.
The dissent prefers to not respond to this point, which we can only
assume means that it concedes its validity.

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(“[A]n agreement made in the context of sports or recreational
programs or services, purporting to release liability for future gross
negligence, generally is unenforceable as a matter of public
policy.”); Wolf v. Ford, 644 A.2d 522, 525 (Md. 1994) (“[A] party will
not be permitted to excuse its liability for intentional harms or for
the more extreme forms of negligence, i.e., reckless, wanton, or
gross.”); Rafferty v. Merck & Co., Inc., 92 N.E.3d 1205, 1218–19 (Mass.
2018) (“[W]hile a party may contract against liability for harm
caused by its negligence, it may not do so with respect to its gross
negligence or, for that matter, its reckless or intentional conduct”
and “[i]mplicit in both our common and statutory law, then, is a
long-standing public policy that, although we may be willing in
certain circumstances to excuse ordinary negligence, we will not
tolerate the reckless disregard of the safety of others.” (citation
omitted) (internal quotation marks omitted)); Shelby Mut. Ins. Co. v.
City of Grand Rapids, 148 N.W.2d 260, 262 (Mich. Ct. App. 1967)
(“[A] party may contract against liability for harm caused by his
negligence in performance of a contractual duty, [but] he may not
do so with respect to his gross negligence.”); Sommer v. Fed. Signal
Corp., 593 N.E.2d 1365, 1370 (N.Y. 1992) (“It is the public policy of
this State . . . that a party may not insulate itself from damages
caused by grossly negligent conduct.” (citations omitted)); Adams
v. Roark, 686 S.W.2d 73, 75 (Tenn. 1985) (“While the case law and
announced public policy of Tennessee favors freedom to contract
against liability for negligence, it does not favor contracting against
liability for gross negligence, and such an agreement is
unenforceable.” (citations omitted)). And state legislatures have
made the same differentiation in other contexts. See, e.g., MASS.
GEN. LAWS ch. 229, § 2 (railroads not liable for negligence for
causing death of trespasser but liable for reckless conduct); MICH.
COMP. LAWS § 257.606a (ordering that governmental immunity
from duty for highway maintenance “does not apply to actions
which constitute gross negligence.”).
    ¶21 Much like the dissent here, litigants in California raised a
slippery-slope argument in the liability waiver context. They
argued that voiding liability waivers for grossly negligent behavior
would “prove unworkable, or that application of such a standard
would frustrate the proper termination of suits on summary
judgment or foster untoward liability.” City of Santa Barbara, 161
P.3d at 1107. The California Supreme Court rejected this argument,
holding that “it does not appear that the application of a gross




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                        Opinion of the Court
negligence standard, as defined in California,[14] has a tendency to
impair the summary judgment process or confuse juries and lead
to judgments erroneously imposing liability.” Quite the opposite:
“[t]hese statutes reflect the sound legislative judgment that, under
a gross negligence standard, meritless suits will typically be
disposed of by summary judgment; that when a case goes to trial[,]
the jury, instructed on this standard, will be less likely to confuse
injury with fault;” and that “verdicts reflecting such confusion will
be more readily reversed, whether by the trial or appellate court,
than under an ordinary negligence standard.” Id. at 1108 (citation
omitted) (internal quotation marks omitted).
    ¶22 We agree with this reasoning. We have no reason to
believe, nor are we presented with evidence from the parties, the
dissent, or our sister states that, unlike with liability waivers,
limiting the professional rescuer’s rule to negligence will swallow
the rule in litigation about the potential grossness of negligent acts.
    ¶23 The dissent also writes expansively about the
compensation that “people who work in dangerous jobs” receive.
Infra ¶ 34 n.19. But the parties have not briefed this point, and
nothing in the record supports it. Moreover, many professional
rescuers volunteer their time and efforts. See, e.g., State v. Alonzo,
973 P.2d 975, 977 (Utah 1998) (police volunteer); State v. Graham,
2011 UT App 332, ¶ 20, 263 P.3d 569 (volunteer fire department);
Fox v. Brigham Young Univ., 2007 UT App 406, ¶ 3, 176 P.3d 446
(volunteer emergency medical technicians). We have not excluded
them from the Fordham exception, but other jurisdictions have
diverging decisions about the matter. Compare Roberts v. Vaughn,
587 N.W.2d 249, 252 (Mich. 1998) (holding that the professional
rescuer’s rule does not apply to volunteers on public policy
grounds), with Waggoner v. Troutman Oil Co., Inc., 894 S.W.2d 913,
916 (Ark. 1995) (holding that the rule does apply to volunteers on
public policy grounds), and Buchanan v. Prickett & Son, Inc., 279
N.W.2d 855, 860 (Neb. 1979) (holding that the rule does apply to
volunteers under assumption-of-the-risk principles). The dissent’s
compensation argument does not apply to volunteer professional
rescuers, but the harsh consequence of the dissent’s suggested
expansion of the Fordham professional rescuer’s rule most certainly
would. The dissent concedes this point, but contends “we could
easily reserve any decision on [volunteer rescuers] for a case in
which it arises.” Infra ¶ 34 n.19. The dissent’s move makes

__________________________________________________________
   14 California defines gross negligence as the “failure to exercise

even slight care, or an extreme departure from the ordinary
standard of conduct.” City of Santa Barbara, 161 P.3d at 1106.

                                  12
                         Cite as: 2020 UT 30
                        Opinion of the Court
Fordham’s rule even more complex. Moreover, where does that
leave the rule in the case of a future professional rescuer who shows
they did not receive any additional hazardous compensation? Yet
a further complication of the rule?
    ¶24 Ipsen also asks us to hold that the Fordham professional
rescuer rule does not apply when the presence of professional
rescuers is required because of a violation of an ordinance or
statute. We decline that invitation. We hold that violations of
ordinances or statutes on their own are not enough to infer that a
duty exists.15 As we explain above, our public policy considerations
are shaped in connection with the degree of carelessness that
precipitated the actions requiring the presence of the professional
rescuers. In violating an ordinance or statute, one’s conduct might
be negligent, grossly negligent, or intentional. Narrowing the
professional rescuer rule in the way that Ipsen proposes would
allow suits for even minor infractions and violations. This would
generate litigation when there has been only ordinary negligence,
which would be against the rule’s rationale.
    ¶25 In sum, we decline to extend Fordham’s professional
rescuer rule any further. The professional rescuer rule applies only
when the relevant action was ordinarily negligent and “within the
scope of hazards inherent in the rescuer’s duties.” Fordham, 2007
UT 74, ¶ 13. But a person has a duty towards professional rescuers
in cases of gross negligence and intentional acts, and professional
rescuers may recover against them in such circumstances.
__________________________________________________________
    15 Ipsen also argues that his injuries, even if caused by mere

negligence, do not fall within the Fordham exception as they are not
inherent in firefighting. The district court treated the inherency
inquiry as a question of law and determined that Ipsen’s injury—
smoke inhalation—is inherent in firefighting. Ipsen argues that this
is a question of fact, which should be determined on case-by-case
examination. This argument fails because “duty is a question of law
determined on a categorical basis.” West, 2012 UT 11, ¶ 25. More
specifically, we “analyze each pertinent factor in the duty analysis
at a broad, categorical level for a class of defendants without
focusing on the particular circumstances of a given case.” Mower v.
Baird, 2018 UT 29, ¶ 16, 422 P.3d 837 (citation omitted) (internal
quotation marks omitted). The inherency of the injury is a factor in
the duty analysis under Fordham and is a question of law. We find
no reason to treat it differently than any other duty factor and reject
the notion that it should be adjudged factually and case-by-case.
We thus reject Ipsen’s argument on this point and affirm the district
court’s ruling that Ipsen’s injury was inherent in firefighting.

                                  13
               IPSEN V. DIAMOND TREE EXPERTS, INC.
                       Lee, A.C.J., dissenting
   ¶26 Because the district court held that Fordham’s exception to
duty extends to gross negligence, it did not determine whether
Ipsen’s claims about Diamond Tree’s conduct amount to gross
negligence. We reverse the district court’s decision in this regard
and remand the case to the district court to rule whether Diamond
Tree’s actions were grossly negligent, creating a duty to Ipsen.16
                          CONCLUSION
    ¶27 We clarify that the professional rescuer rule we adopted in
Fordham is tethered to its own language. We hold that a person
owes professional rescuers a duty of care when that person’s gross
negligence or intentional tort triggers the rescuers’ presence. We
thus partially reverse the summary judgment order and remand
the case to the district court for adjudication in accordance with this
opinion.


   ASSOCIATE CHIEF JUSTICE LEE, dissenting:
    ¶28 Diamond Tree is charged with “gross negligence” in
committing fire code and other violations that led to the
spontaneous combustion of merchandise (mulch) piled on its
business property. David Scott Ipsen was a firefighter called to put
out the fire. He suffered injuries from smoke inhalation and
ultimately retired when he was unable to continue his work. He
then filed suit against Diamond Tree in tort, asserting that its acts
of “gross negligence” were the cause of his injuries. The district
court dismissed this claim, concluding that Diamond Tree owed no
duty to Ipsen under the “professional rescuer rule” adopted in
Fordham v. Oldroyd, 2007 UT 74, 171 P.3d 411.
    ¶29 I would affirm. I find the question presented to be
controlled by our analysis in Fordham and reinforced by our more
recent decision in Nixon v. Clay, 2019 UT 32, 449 P.3d 11. These cases
establish that the duty inquiry here is based on the doctrine of
primary assumption of risk as informed by the principle of implied
consent. As applied here, these doctrines tell us that there is no duty
in a case like this one because smoke inhalation from fighting
__________________________________________________________
    16 The district court did rule that Fordham’s exception does not

cover intentional torts but held that Ipsen did not show that
Diamond Tree’s actions were intentional. Ipsen did not challenge
these findings in his briefing, only impliedly in oral argument.
Given the district court’s application of the correct legal rule, we
affirm the district court order in that regard.

                                    14
                         Cite as: 2020 UT 30
                        Lee, A.C.J., dissenting
fires—whether set negligently or by a higher level of negligence we
might call “gross”17—is “inherent” in the voluntary acts of a
firefighter.
   ¶30 I respectfully dissent on the grounds that (1) the rationale
and standards in Fordham and Nixon foreclose the imposition of a
duty; and (2) the majority’s attempts to distinguish these cases are
unpersuasive.
                                   I
    ¶31 In Fordham v. Oldroyd, we established the “professional
rescuer rule” in Utah, holding that “a person does not owe a duty
of care to a professional rescuer for injury that was sustained by the
very negligence that occasioned the rescuer’s presence and that was
within the scope of hazards inherent in the rescuer’s duties.” 2007
UT 74, ¶ 13, 171 P.3d 411. We rendered that ruling in recognition of
the fact that the injury at issue in that case “was within the scope of
those risks inherent in the professional rescuer’s duties.” Id. ¶ 6.
Noting that “firefighters and police officers have a relationship
with the public that calls on them to confront certain hazards as
part of their professional responsibilities,” we held that there was
no duty in tort that arises in the exercise of those duties. Id. ¶ 7. We
found it “naive to believe that fire and police professionals will be
called on to draw on their training in meeting only those hazards
__________________________________________________________
    17 The majority announces a rule establishing a duty that arises

in cases of “gross negligence” or “intentional torts.” But the latter
question (of a duty in cases of intentional misconduct) is not
presented by the facts of this case, and I see no reason to reach it
here.
    The majority reaches this question on the grounds that “the
district court ruled on it, and one of the parties briefed the issue.”
Supra ¶ 8 n.3. But the majority itself affirms the district court’s
determination that Ipsen did not show that any of Diamond Tree’s
actions were intentional. See supra ¶ 26 n.16. It also concedes that
“Ipsen did not challenge these findings in his briefing.” Supra ¶ 26
n.16. So there is no intentional tort at issue in this case, and thus no
reason to decide whether intentional torts fall within Fordham’s
professional rescuer rule.
    The majority responds by asserting that the decision to
recognize a gross negligence exception to Fordham must logically
lead to an exception for intentional torts. Supra ¶ 8 n.3. This
“common sense” proposition, supra ¶ 8 n.3, may hold for some
forms of gross negligence and intentional torts, but not others. I
would thus reserve this question for a case in which it is squarely
presented.

                                       15
               IPSEN v. DIAMOND TREE EXPERTS, INC.
                       Lee, A.C.J., dissenting
brought on by prudent acts gone awry.” Id. And we accordingly
held that professional rescuers are owed no tort duty by those they
are duty-bound—and compensated—to protect.
    ¶32 We rooted this holding in the doctrine of primary
assumption of risk.18 Id. ¶¶ 13–15. Because the officer plaintiff in
Fordham was in the course of a “seemingly usual activity for a
highway patrol trooper at an accident scene” when he was injured
(by an automobile accident caused by a negligent driver), we held
that the professional rescuer rule established an exception to the
general rule imposing a duty of reasonable care. Id. ¶ 15. And we
emphasized that “[t]he nature of the rescuer-rescued relationship
is one that contemplates allocation of costs across society generally
for injuries sustained by professional rescuers.” Id. ¶ 17.
    ¶33 The Fordham rule was admittedly announced in the context
of an allegation of mere negligence. But the terms of and rationale
for our holding sweep more broadly—in a manner that covers the
gross negligence alleged in this case. A firefighter’s “relationship
with the public” anticipates that he will be asked to fight fires set
by a wide range of acts of carelessness. And there is no room for a
conclusion that a fire like the one at issue here—set by careless
disregard of the fire code and other regulations in a business that
surely desired not to have its merchandise go up in smoke—is
somehow outside the “scope of those risks inherent in” firefighting.




__________________________________________________________
    18 The majority insists that “the Fordham court relied on policy

considerations only,” asserting that the discussion of assumption
of risk in that case “was only meant to explain why ‘we have less
to fear from an accusation that a professional rescuer rule is little
more than assumption of the risk in disguise.’” Supra ¶ 11 n.6
(quoting Fordham v. Oldroyd, 2007 UT 74, ¶ 10, 171 P.3d 411). But
this wasn’t all we said about assumption of risk in Fordham. We also
explained that primary assumption of risk is “an alternative
expression for the proposition” that “there was no duty owed or
there was no breach of an existing duty.” Fordham, 2007 UT 74, ¶ 12
(internal quotation marks and citation omitted). And we went on
to hold that the defendant in that case “owed no duty” because
“imposing one would offend sound public policy.” Id. ¶ 14. The
public policy analysis in Fordham, in other words, is inextricably
intertwined with the assumption of risk analysis. Invocation of the
one hardly forecloses reliance on the other. And both lines of
analysis appear in Fordham, the majority’s insistence
notwithstanding.
                                   16
                         Cite as: 2020 UT 30
                       Lee, A.C.J., dissenting
The fighting of such fires is surely a “seemingly usual activity” for
a firefighter.19
    ¶34 The line between “mere negligence” and “gross
negligence” is a thin one. And a firefighter who arrives on the scene
of a fire is not stopping to ask about the level of egregiousness of
the negligence that caused the fire. It is therefore “naive to believe”
that firefighters “will be called on to draw on their training in
meeting only those hazards brought on by” mere negligence. See id.
¶ 7.
   ¶35 This conclusion is reinforced by our decision in Nixon v.
Clay, 2019 UT 32, 449 P.3d 11. In Nixon we applied the doctrine of
__________________________________________________________
    19 People who work in dangerous jobs like firefighting are

compensated by the market for these risks. Their salaries are higher
than those with otherwise comparable, but less dangerous jobs.
This is what economists call “hazard pay.” See W. Kip Viscusi, Job
Safety, in THE CONCISE ENCYCLOPEDIA OF ECONOMICS 490, 490–91
(David R. Henderson, ed., 2nd ed. 2007) (describing the “extra pay
for job hazards” as “establish[ing] the price employers must pay for
an unsafe workplace” and explaining that “[t]hese wage premiums
are the amount workers insist on being paid for taking risks”);
James C. Robinson, Hazard Pay in Unsafe Jobs: Theory, Evidence, and
Policy Implications, 64 MILBANK Q. 650, 652 (1986) (explaining that
according to “[m]ainstream economic theory,” “competitive
pressures in the labor market force firms with unsafe jobs to pay
extra-high wages” because if “a negative job characteristic of one
kind (dangerous conditions) is not balanced by a positive
characteristic of another kind (high wages, good fringe benefits,
etc.) the job will not be filled”). Hazard pay is thus rooted in the
theory of “compensating differentials” which traces its origin to
Adam Smith. Id. at 652; see also Rueda v. Utah Labor Comm’n, 2017
UT 58, ¶ 180 n.7, 423 P.3d 1175 (Lee, A.C.J., separate opinion)
(explaining how “an employee called upon to work with lead paint
on a daily basis is likely receiving higher compensation in the form
of hazard pay because of the known risks associated with that
employment” as opposed to “an office worker” who “is likely
compensated in accordance with the low risks associated with
office employment”).
    Volunteer rescuers of course receive no such hazard pay. See
supra ¶ 23. But the assumption of risk rationale discussed above is
merely supported by, and not dependent on this point. Contra supra
¶ 23. Regardless, this case does not involve a volunteer rescuer, and
we could easily reserve any decision on that fact pattern for a case
in which it arises.

                                    17
                IPSEN v. DIAMOND TREE EXPERTS, INC.
                        Lee, A.C.J., dissenting
primary assumption of risk in holding that there is no duty in the
context of voluntary interactions occurring as a result of the
inherent risks of a sport. We said that this decision “involves a
policy determination (based on implied consent) that there is no
basis for the imposition of a duty in tort.” Id. ¶ 26 n.6. And we cited
Fordham for the proposition that “this doctrine is alive and well in
our law.” Id.
    ¶36 In reaching this conclusion we declined to establish a
“contact sports exception” per se. We rejected the “majority rule,”
which stated that there is no duty for injuries incurred in a “contact
sport” except where the tortfeasor acted “willfully or recklessly.”
Id. ¶¶ 9–10. Instead we established a “simpler framework” focused
purely on the primary assumption of risk doctrine. Id. ¶ 10. Citing
the Restatement (Second) of Torts section 50 comment b, we noted
that “[c]ontact . . . is a known and accepted risk of many sports.” Id.
¶ 19. And we held that there is no duty arising from contacts that
are a result of “voluntary participation in sports.” Id. ¶ 21.
    ¶37 In so concluding we held that the tortfeasor’s “state of
mind” is “not a necessary element” of the inquiry into the existence
of a duty in tort. Id. ¶ 10. We held that “the ‘intentional or reckless’
conduct standard” was “unnecessary and potentially problematic
as applied to some sports.” Id. ¶ 22. “In sports like football, rugby,
ice hockey, and other high-contact sports,” we noted that “contact
between players is often simultaneously intentional or reckless and
inherent in the game.” Id. And we therefore specified that the duty
inquiry is not tied to the tortfeasor’s state of mind but instead to
“inherency.” Id. ¶ 25.
    ¶38 “The inherency inquiry,” we explained, “is an outgrowth
of our longstanding doctrine of primary assumption of risk.” Id.
¶ 26. And that doctrine, in turn, “is rooted in a principle of implied
consent”—the notion “that participants implicitly consent to
dangers that are inherent in the activity they voluntarily participate
in.” Id. “For such dangers,” we held that “the doctrine of primary
assumption of risk provides that there is no duty, and thus no
liability, in tort.” Id.
    ¶39 Nixon thus provides that “the dispositive question” is
“whether the contact that caused the injury was either an essential
or inherent part of participation in a sport voluntarily engaged in
by the parties.” Id. ¶ 30. “And that inquiry should be rooted in the
implied consent basis for the doctrine of primary assumption of
risk.” Id. “The ultimate question,” then, “is whether the contact that
caused the injury” was such “that a person engaging in the activity
could be said to have impliedly consented to the contact.” Id.


                                    18
                          Cite as: 2020 UT 30
                        Lee, A.C.J., dissenting
    ¶40 The premises of our Nixon opinion further reinforce the
application of the Fordham rule to cases involving allegations of
gross negligence. Under Nixon the key inquiry is a matter of
inherency under the doctrine of primary assumption of risk. And
inherency is a question of implied consent. Nixon establishes that a
tortfeasor’s state of mind is not the controlling question. Acts that
cause injuries can be “simultaneously . . . reckless and inherent in”
a voluntary activity. Id. ¶ 22. So the “dispositive question” is
“whether the contact that caused the injury was either an essential
or inherent part of participation in” a voluntary activity. Id. ¶ 30.
That forecloses Ipsen’s position.
   ¶41 That also follows from the “implied consent” rationale in
Nixon. Firefighters impliedly consent to the risk of smoke
inhalation in the course of their jobs. Smoke inhalation is one of the
central risks of firefighting.20 It is surely inherent in the job. And the
inherency doesn’t disappear when the fire is caused by a
heightened level of negligence.
    ¶42 I would resolve this case on these grounds. I find these
conclusions dictated by Fordham and Nixon. And I would thus
affirm the district court’s decision dismissing Ipsen’s tort claim.
                                    II
    ¶43 The majority disagrees. It establishes an exception to
Fordham and imposes a duty for fires set by gross negligence. It says
that “[t]he two public policy concerns that drove us to apply the
professional rescuer rule to negligence in Fordham are culpability
and deterrence.” Supra ¶ 13. And it holds that there is a duty to a
firefighter in tort where a fire is set by gross negligence because
such activity “involve[s] severe levels of culpability”—“far more”
than mere negligence—and raises no concerns of deterring people
from calling the fire department for help. Supra ¶¶ 14–15. I agree


__________________________________________________________
    20 See P.W. Brandt-Rauf et al., Health hazards of firefighters:

exposure assessment, 45 BRIT. J. INDUS. MED. 606, 606 (1988)
(discussing various toxic chemical components of smoke from
common burning materials and explaining that these “hazardous
byproducts of combustion are encountered during the normal
occupational activities of firefighters” as attested by various studies)
(emphasis added); Tee L. Guidotti & Veronica M. Clough,
Occupational Health Concerns of Firefighting, 13 ANN. REV. PUB.
HEALTH 151, 151 (1992) (explaining that the “acute hazards of
firefighting, primarily trauma, thermal injury, and smoke inhalation[]
are obvious” (emphases added)).

                                     19
                IPSEN v. DIAMOND TREE EXPERTS, INC.
                        Lee, A.C.J., dissenting
with the latter point.21 But I don’t think the concern for deterrence
is the driving consideration. And the line between mere negligence
and gross negligence is too thin for me to agree with the court’s first
point.
     ¶44 As this court long ago recognized, “accordion words like
‘mere negligence’ and ‘gross negligence’ or ‘wanton negligence’
suggest comparisons only and give no absolute rule for guidance.”
__________________________________________________________
     21 While I agree with the conclusion that imposing tort liability

for gross negligence doesn’t raise deterrence concerns, I disagree
with the majority about why that is. The majority says that “people
who act with gross negligence” are “unlikely to call professional
rescuers in the first place.” Supra ¶ 15. It bases that conclusion on
the specter of a 911 call in which the caller reports that he was
“utterly callous about setting” a “neighbor’s house on fire” and is
calling “to report [him]self.” Supra ¶ 15. Because such a call is
“[p]ure fantasy,” the majority says that it is thus “not seriously
concerned that appreciably fewer of these individuals will call for
help” if we subject them to tort liability through imposition of a
duty to professional rescuers. Supra ¶ 15. I agree that the call
imagined by the majority is fantasy. But I don’t think that means
that people won’t call to report fires set by those who were utterly
callous.
     For one thing, fires are often reported by people who have no
idea how it was started—by someone other than the one who
started it, for example. For another, even the person who started
the fire may have no clear sense of whether his acts will ultimately
be deemed to cross the thin line between ordinary and gross
negligence. Like the firefighter who arrives on the scene, he “is not
stopping to ask about the level of egregiousness of the negligence
that caused the fire,” supra ¶ 34, before calling 911. And even if the
person who set the fire knew he was grossly negligent, he could
still decide it is worth it to call the fire department to mitigate any
damage to his property—despite the prospect that he might
ultimately be liable for any injuries to responding firefighters.
Lastly, the person who set the fire would have no reason to confess
to being “utterly callous” in setting the fire. That is “[p]ure fantasy”
for all sorts of reasons, not the least of which is that the degree of
any culpability in setting a fire is not the point of the 911 call. See
supra ¶ 15.
     My bottom line is that I think the 911 call will often get made
even for fires set by gross negligence. I thus disagree with the
premise of the majority’s deterrence analysis but agree that the
imposition of tort liability here would not raise meaningful
deterrence concerns.

                                    20
                          Cite as: 2020 UT 30
                        Lee, A.C.J., dissenting
State v. Lingman, 91 P.2d 457, 466 (Utah 1939). The tenuous nature
of the distinction has been recognized by numerous courts and
commentators. Prosser commented on the “vague and
impracticable” nature of the distinction between “degrees of
negligence.” W. PAGE KEATON ET AL., PROSSER AND KEATON ON THE
LAW OF TORTS § 34, at 210–11 (5th ed. 1984) [hereinafter PROSSER ON
TORTS]. In his view, as in mine, “‘gross’ negligence is merely the
same thing as ordinary negligence, ‘with the addition,’ as Baron
Rolfe once put it, ‘of a vituperative epithet.’” Id.; see also Stanulonis
v. Marzec, 649 F. Supp. 1536, 1543 (D. Conn. 1986) (describing the
distinction between mere negligence, gross negligence, and
recklessness as “the difference between ‘a fool, a damned fool, and
a God-damned fool’”) (quoting W. PROSSER ET AL., TORTS 207 (6th
ed. 1976)).
    ¶45 The “very real difficulty of drawing satisfactory lines of
demarcation” thus “justifies the rejection of the distinctions in most
situations.” PROSSER ON TORTS § 34, at 211. For these reasons the
grossness of a party’s negligence will be a matter left to the eye of
the factfinder. See Norman v. Utah Hotel Co., 206 P. 556, 560 (Utah
1922) (“[T]he question [of gross negligence] is one of fact for the
jury and not one of law for the court.”). That problem opens up the
real possibility that the exception we establish today will swallow
the rule we adopted in Fordham. Most allegations of negligence can
be recast as gross negligence. All it takes is the addition of “a
vituperative epithet.” For that reason I do not agree that the mere
difference in degree between the two forms of negligence “matters”
here.22 Supra ¶ 14. I see little difference as a matter of culpability.


__________________________________________________________
    22 I do not dispute that our law has recognized this distinction

in other areas—such as where we have disallowed liability waivers
for gross negligence while permitting them for ordinary
negligence. Supra ¶ 19. But the fact that we have recognized this
distinction elsewhere hardly requires us to do so here. Admittedly,
the general concept of assumption of risk is implicated in both
contexts. But the question implicated by the liability waiver context
is different from the one presented in the professional rescuer
setting. In the first context we are deciding whether and when
private parties are allowed to contract out of underlying duties in
tort. In the second we are determining, in the first instance, what
the scope of those underlying tort duties should be. The line-drawing
problem arises in both contexts. But the fact that we have tried to
draw the line in the first context tell us nothing about whether we
should endorse it in the second.

                                     21
                IPSEN v. DIAMOND TREE EXPERTS, INC.
                        Lee, A.C.J., dissenting
    ¶46 Culpability, moreover, is not the controlling consideration
in our case law. Fordham and Nixon root the duty inquiry in the
doctrine of primary assumption of risk. The question of whether to
endorse a duty in tort is surely a question of “policy,” as the
majority states. Supra ¶ 9. But the policy inquiry under our case law
is centered on the question of implied consent. And for reasons
explained above we should conclude that smoke inhalation from
fighting fires is an inherent part of the job—and one that Ipsen
impliedly consented to in entering into this profession.
    ¶47 The tortfeasor’s state of mind is not controlling under
Nixon. The majority concedes the general point but opines that the
“conclusion is irrelevant to the professional rescuers’ rule for two
reasons.” Supra ¶ 13 n.9. First the court tries to distinguish sports
and firefighting in terms of what is “part of the accepted behavior”
of these activities. Supra ¶ 13 n.9. It says that sports may involve
reckless or even intentional contact that is within the expected
course of the game, but “in the professional rescuers’ context, any
grossly negligent . . . behavior is not a part of the accepted behavior
in a well-ordered society.” Supra ¶ 13 n.9. Then the court seeks to
draw a distinction based on who governs these activities. It asserts
that “sports are governed by a separate set of rules than societal
activities that may require the presence of professional rescuers,”
and concludes that, by contrast, courts are “the only institutions
with authority” to “protect professional rescuers from [] gross
negligence,” and therefore can properly “evaluate the relevance
and weight of one’s state of mind” to the duty imposed. Supra ¶ 13
n.9.
   ¶48 I see no basis for these distinctions. They are circular. And
the court’s holding is an effective override of our case law.
    ¶49 The scope of “accepted behavior” in the activities covered
by our tort law is precisely the question presented for our decision.
We have held that that question turns on whether the conduct
giving rise to injury is “inherent” in a voluntary activity. So we can
hold that gross negligence that causes smoke inhalation is “not a
part of the accepted behavior” tolerated by our tort law in this
setting. And we can claim to distinguish that from sports, where
reckless and even intentional contact is “accepted.” But that is just
the net effect of our holding today. It is not a basis for a decision.23

__________________________________________________________
    23 The majority seeks to refute the assertion that its analysis on

this point is circular, pointing to the Fordham court’s reliance on
“broadly shared value[s] about the workings of a well-ordered
                                                       (continued . . .)
                                    22
                          Cite as: 2020 UT 30
                         Lee, A.C.J., dissenting
    ¶50 The second point is similarly problematic. There is no
distinction in who “governs” the two activities for purposes of our
decision in this case. Sports are not “governed” by a separate
institution when it comes to duty in tort law. They are governed by
the courts. And this court decided on the scope of “accepted
behavior” in sports in Nixon—in holding that there was no duty in
tort arising out of activity that is inherent in voluntary sports. So
again there is no distinction to be made. “Courts . . . are the only
institutions with authority to” govern the “societal activities that
may require the presence of professional rescuers.” Supra ¶ 13 n.9.
But we are also “institutions with authority to” govern sports—
insofar as we are deciding on the kind of sporting activity that gives
rise to tort liability.24
   ¶51 The majority’s attempts to distinguish Fordham and Nixon
are accordingly unpersuasive. Faithful application of these
decisions can only lead to one conclusion.
    ¶52 We should apply our precedents and affirm the decision
dismissing Ipsen’s claims. The majority’s contrary conclusion is
unfaithful to our decisions in Fordham and Nixon. And the opinion
in this case will effectively unravel the holding in Fordham in light
of the thin line between negligence and gross negligence.




__________________________________________________________
society” in establishing the professional rescuer’s exception. See
supra ¶ 13 n.9 (quoting Fordham, 2007 UT 74, ¶ 8). But again, that
was not the sole basis for our analysis in Fordham. The “broadly
shared value[s]” that we cited in Fordham rested on principles of
primary assumption of risk and implied consent. See supra ¶ 13 n.9.
These policy considerations, in other words, were not freestanding;
they were underpinned by specific legal doctrines regarding the
imposition of duty. So my point about circularity stands. The
majority has presented no grounds for abandoning those
underlying doctrines in its decision today.
   24 The majority’s only response to this problem is its assertion
that “there are other mechanisms to adjudicate one’s tortious
behavior during a sporting event,” since the rules of the game will
“impose penalties on individuals and teams” where rules
violations result in injury. Supra ¶ 13 n.9. That’s fine as far as it goes.
But the cited mechanisms don’t impose tort duties or provide a
means of compensation for victims.

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