                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                 HOWARD STEVENSON, a married man,
                        Plaintiff/Appellant,

                                        v.

           JOHN M. HARMON and BARBARA A. HARMON,
                      Defendants/Appellees.

                             No. 1 CA-CV 15-0329
                               FILED 6-23-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV 2014-052667
           The Honorable Thomas L. LeClaire, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

Vingelli & Company Law Offices, PLLC, Scottsdale
By John N. Vingelli
Counsel for Plaintiff/Appellant

Burch & Cracchiolo, PA, Phoenix
By Keith Olbricht, Daryl Manhart
Counsel for Defendants/Appellees
                       STEVENSON v. HARMON
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Donn Kessler joined.


D O W N I E, Judge:

¶1            Howard Stevenson appeals from the entry of summary
judgment in favor of John and Barbara Harmon based on the “firefighter’s
rule.” For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           According to the complaint, while on-duty as a Phoenix
Police Department sergeant, Stevenson and another officer were “flagged
down by a concerned citizen regarding an open gate and a menacing dog
roaming the front yard” of the Harmons’ home. The citizen had
previously called the police department, which classified her call about an
“aggressive” dog as a “Priority 2 call.” The dog was a “large pit bull
mixed breed.” The citizen advised Stevenson that the dog had been
“running into the street and causing a hazard to cars.” She also stated that
when she tried to approach the dog, “it started becoming aggressive and
growling.”

¶3             Stevenson called animal control and positioned himself to
monitor the dog “in case he became aggressive to people in the
neighborhood and also to keep cars from hitting him on the chance he ran
into the street.” Before animal control arrived, the dog attacked
Stevenson. Stevenson drew his service weapon to shoot the dog, but he
fell to the ground and hit his head. Stevenson sued the Harmons for his
resulting injuries.

¶4             The Harmons moved for summary judgment based on the
firefighter’s rule. See Espinoza v. Schulenburg, 212 Ariz. 215 (2006). After
briefing and oral argument, the superior court granted their motion.
Stevenson timely appealed. We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), -2101(A)(1).




                                     2
                         STEVENSON v. HARMON
                           Decision of the Court

                               DISCUSSION

¶5            We review a grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion,
and construing all reasonable inferences in that party’s favor. Wells Fargo
Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr.
Fund, 201 Ariz. 474, 482, ¶ 13 (2002). We will affirm the judgment if it is
correct for any reason. Link v. Pima Cty., 193 Ariz. 336, 340, ¶ 12 (App.
1998).

¶6             Although this Court had previously relied on the
firefighter’s rule, see, e.g., Grable v. Varela, 115 Ariz. 222, 223 (App. 1977);
Garcia v. City of S. Tucson, 131 Ariz. 315, 318–19 (App. 1981), the Arizona
Supreme Court did not adopt the doctrine until 2006. See Espinoza, 212
Ariz. at 218, ¶ 17. In doing so, the court described the rule as a limitation
on tort liability created by the common law “rescue doctrine,” which
generally permits an injured person to recover damages from an
individual “whose negligence created the need for rescue.” Id. at 217,
¶¶ 7, 9. Under the firefighter’s rule, “[a] rescuer who could otherwise
recover cannot do so if she is performing her duties as a professional
firefighter.” Id. at ¶ 11. The firefighter’s rule has since been extended to
police officers. See White v. State, 220 Ariz. 42, 45–46, ¶ 8 (App. 2008).1

¶7             We construe the firefighter’s rule narrowly. Espinoza, 212
Ariz. at 218, ¶ 17. The rule does not apply in certain circumstances:

       First, when the “independent negligence” of a third party
       causes the public safety professional’s injury, the rule is
       inapplicable. Second, non-emergency situations do not
       trigger application of the rule. And third, the rule is
       inapplicable to off-duty public safety professionals who
       voluntarily respond to an emergency.

Read v. Keyfauver, 233 Ariz. 32, 36, ¶ 11 (App. 2013).


1              We     decline     Stevenson’s    invitation     to   overrule
well-established Arizona precedent extending the firefighter’s rule to
police officers. As noted in White, 220 Ariz. at 45, ¶ 8, our extension of the
rule was consistent with the supreme court’s observation in Espinoza that
the rationale for the firefighter’s rule “would seem to apply equally well
to police officers.” 212 Ariz. at 218 n.3, ¶ 17.




                                       3
                        STEVENSON v. HARMON
                          Decision of the Court

¶8             It is undisputed that Stevenson was injured while on duty,
and he is not asserting independent negligence by a third party. The
relevant focus, then, is on the “non-emergency” exception to the
firefighter’s rule.

¶9             We reject the Harmons’ suggested dilution of this Court’s
jurisprudence establishing the firefighter’s rule’s inapplicability in
non-emergency situations.         See Reed, 233 Ariz. at 36, ¶ 11
(“[N]on-emergency situations do not trigger application of the rule.”);
Orth v. Cole, 191 Ariz. 291, 293, ¶ 10 (App. 1998) (“Because Plaintiff was
injured in a non-emergency, non-rescue situation, traditional tort rules
apply and the fireman’s rule does not.”). The Arizona Supreme Court at
least implicitly endorsed this principle when it adopted the firefighter’s
rule, stating:

      This court has never addressed the firefighter’s rule. The
      court of appeals, however, has applied the firefighter’s rule
      in one case. See Grable, 115 Ariz. at 223, 564 P.2d at 912. But
      it has also declined to apply the rule and limited it to emergency
      situations, see Orth, 191 Ariz. at 293, ¶ 10, 955 P.2d at 49, and
      to the immediate negligence that causes the emergency, but
      not to subsequent acts, see Garcia v. City of S. Tucson, 131
      Ariz. 315, 319, 640 P.2d 1117, 1121 (App. 1982).

      These limitations comport with Arizona’s policy of protecting its
      citizens’ right to pursue tort claims.

Espinoza, 212 Ariz. at 218, ¶¶ 15–16 (emphasis added).

¶10           The record supports the superior court’s ultimate conclusion
that, as a matter of law, Stevenson was injured in an emergency situation.
The facts of this case bear no resemblance to Orth — a case where we
concluded no emergency existed as a matter of law. Firefighter Orth was
performing a “routine” inspection at an apartment complex. 191 Ariz. at
291, ¶ 1. He opened an electrical panel door to ascertain “whether the
breakers were properly labelled so that emergency personnel or others
would know which to use in a given situation.” Id. at 292, ¶ 2. Due to an
apparent malfunction in the electrical panel assembly, he was severely
burned. Id.      We held that Orth was not responding to “emergency
conditions of a fire or some similar exigency;” as such, the situation did
not trigger application of “exceptional rules of law such as the rescue
doctrine and the firefighter’s rule.” Id. at 292–93, ¶¶ 6, 10.




                                      4
                        STEVENSON v. HARMON
                          Decision of the Court

¶11           Stevenson, in contrast, was not performing a routine
inspection, scheduled project, or quasi-administrative duty. By his own
description, he was called to deal with “a menacing dog” that “forcibly
attacked and viciously caused [him] to be knocked to the ground in a
violent manner.” The situation was sufficiently dire that Stevenson drew
his service weapon in an attempt to shoot the dog. Stevenson also
asserted in his complaint that the circumstances he encountered that day
posed a “substantial risk that [the dog] would cause serious injury.”
Indeed, he sought punitive damages based on the Harmons’ alleged
“conscious disregard for the value of human life.”

¶12            Stevenson’s own statements demonstrate the emergency
nature of the situation. Cf. Garvey v. Trew, 64 Ariz. 342, 354 (1946) (Citing
an accepted definition of “emergency” as “[a] sudden unexpected
happening; an unforeseen occurrence or condition; specifically, a
perplexing contingency or complication of circumstances; a sudden or
unexpected occasion for action; exigency; pressing necessity.”). His
affidavit — offered in an attempt to defeat summary judgment — does not
compel a contrary conclusion or create a genuine issue of material fact.
While the affidavit attempts to downplay the situation Stevenson
confronted, it does not contradict essential factual allegations made in the
complaint regarding a menacing dog at large that posed a substantial risk
of serious injury. And to the extent the affidavit conflicts with Stevenson’s
complaint, we disregard the contrary statements. “When a party by
pleading . . . has agreed to a certain set of facts, he may not contradict
them.” Black v. Perkins, 163 Ariz. 292, 293 (App. 1989). Nor do we
consider the conclusory statements in the affidavit that the situation was
not an emergency. See Florez v. Sargeant, 185 Ariz. 521, 526 (1996)
(“[A]ffidavits that only set forth ultimate facts or conclusions of law can
neither support nor defeat a motion for summary judgment.”).
Furthermore, the Harmons proffered uncontroverted evidence that the
police department classified the concerned citizen’s report as a “Priority
2” call, which the department defines as “urgent in nature, where a
potential for violence may be present, a timely response is necessary and
the incident is non-life threatening.”2


2       The police department also classifies motor vehicle accidents with
injuries as Priority 2 calls. Cf. Read, 233 Ariz. at 34, ¶ 1 (applying
firefighter’s rule to police officer who witnessed car accident and helped
driver exit the overturned vehicle, thereby injuring himself).




                                     5
                        STEVENSON v. HARMON
                          Decision of the Court

¶13            Stevenson acted laudably when, in the scope of his duties as
a police officer, he attempted to protect the community from an
aggressive, menacing dog on the loose. Unfortunately, he was injured in
the process. Though the firefighter’s rule can appear harsh in application,
it is premised on the notion that “the losses suffered by [officers and] their
loved ones should be borne by the public as a whole rather than the
individuals whose conduct occasioned the need for the officers’
involvement.” White, 220 Ariz. at 48, ¶ 16. The rule “reflects a policy
decision 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.” Espinoza, 212
Ariz. at 217, ¶ 11.

                              CONCLUSION

¶14          We affirm the judgment of the superior court. As the
successful parties on appeal, the Harmons are entitled to recover their
appellate costs upon compliance with Arizona Rule of Civil Appellate
Procedure 21. See A.R.S. § 12-342(A).




                                   :AA




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