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

2

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 
SANDERS v. ALGER

Opinion of the Court

3

¶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.
SANDERS v. ALGER

Opinion of the Court

4

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 
SANDERS v. ALGER

Opinion of the Court

5

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.” 
SANDERS v. ALGER

Opinion of the Court

6

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 
SANDERS v. ALGER

Opinion of the Court

7

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).
SANDERS v. ALGER

Opinion of the Court

8

¶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 

 

2We 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).
SANDERS v. ALGER

Opinion of the Court

9

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.