IN THE

SUPREME COURT OF THE STATE OF ARIZONA

JEANETTE M. SANDERS,

Plaintiff/Appellant,

v.

FRANCIS ALGER,

Defendant/Appellee.

No. CV-16-0181-PR

Filed June 1, 2017

Appeal from the Superior Court in Pima County

The Honorable D. Douglas Metcalf, Judge

No. C20131310

REVERSED AND REMANDED

Opinion of the Court of Appeals, Division Two

240 Ariz. 90, 375 P.3d 1199 (App. 2016)

VACATED IN PART

COUNSEL:

J. Patrick Butler (argued), Tretschok, McNamara & Miller, P.C., Tucson, 

Attorneys for Jeanette M. Sanders

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor 

General, Daniel P. Schaack (argued), Assistant Attorney General, Phoenix, 

Robert R. McCright, Assistant Attorney General, Attorneys for Francis 

Alger

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE

CHIEF JUSTICE PELANDER, JUSTICES BRUTINEL, TIMMER, BOLICK,

and GOULD, and JUDGE VEDERMAN joined.∗

 ∗ Justice John R. Lopez, IV has recused himself from this case. Pursuant to 

article 6, section 3 of the Arizona Constitution, the Honorable Samuel E. 

Vederman, Presiding Judge of the La Paz County Superior Court, was 

designated to sit in this matter.
SANDERS V. ALGER

Opinion of the Court

2

CHIEF JUSTICE BALES, opinion of the Court:

¶1 We hold that a patient owes a duty of reasonable care to a 

caregiver allegedly injured by the patient’s actions, thereby making the 

patient potentially liable for negligence. We further hold that the 

negligence claim, which involves an in-home caregiver hired by the 

Arizona Department of Economic Security (“DES”), is not barred by the 

firefighter’s rule, a common law doctrine barring recovery by a rescuer for 

injuries incurred while performing duties as a professional firefighter.

I.

¶2 We review a trial court’s grant of summary judgment de 

novo. Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12 (2003). Because the trial court 

granted summary judgment in favor of Defendant Francis Alger, we view 

the evidence and reasonable inferences in the light most favorable to 

Plaintiff Jeanette M. Sanders as the non-moving party. See id.

¶3 In 2004, Sanders contracted with DES to provide in-home care 

to Alger, who is developmentally disabled and, as a “vulnerable adult,” is 

eligible for services from the DES Division of Developmental Disabilities. 

See A.R.S. § 36-559(A). Alger suffers from cerebral palsy and other 

conditions that limit his mobility and place him at risk of falling. Sanders 

worked for DES as an independent contractor rather than an employee. In 

2011, Sanders, then sixty years old, was assisting seventy-four-year-old

Alger in moving from his wheelchair to a car. Alger attempted to stand up 

and, distracted, did not respond to Sanders’ warnings and began to fall. 

When Sanders tried to prevent the fall, Alger grabbed her, and she said “let 

go, you’re hurting me.” Alger nonetheless fell on Sanders, seriously 

injuring her. Sanders subsequently sued Alger for negligence. Among 

other things, she alleged that he had negligently placed himself in jeopardy 

of falling, thereby requiring her to rescue him.

¶4 Alger moved for summary judgment, arguing that he did not 

owe a duty of care to Sanders, that the firefighter’s rule barred her claim, 

and that no reasonable jury could find that he had acted negligently. The 

trial court granted summary judgment based on the firefighter’s rule and 

did not address the other arguments.
SANDERS V. ALGER

Opinion of the Court

3

¶5 The court of appeals reversed, holding that the firefighter’s 

rule does not apply. Sanders v. Alger, 240 Ariz. 90, 93 ¶ 12 (App. 2016). The 

court also held that “Alger owed Sanders the basic duty that all persons 

owe each other: the duty to use reasonable care to avoid causing injury to 

others.” Id. at 94 ¶ 19 (footnote omitted) (citing Ontiveros v. Borak, 136 Ariz. 

500, 509 (1983)). The court concluded that Alger was not relieved of his 

duty by the fact that Sanders had contractually undertaken to care for him, 

including by helping to prevent the risks of his falling. Id. at 93–94 ¶¶ 15–

16. 

¶6 We granted review to consider whether a patient owes a 

caregiver a duty of reasonable care and, if so, whether the firefighter’s rule 

bars a caregiver’s negligence claim, both recurring issues of statewide 

importance. We have jurisdiction under article 6, section 5(3) of the Arizona 

Constitution and A.R.S. § 12-120.24.

II.

A.

¶7 Under Arizona law, a plaintiff must prove four elements to 

sustain a claim for negligence: “(1) a duty requiring the defendant to 

conform to a certain standard of care; (2) a breach by the defendant of that 

standard; (3) a causal connection between the defendant’s conduct and the 

resulting injury; and (4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143 

¶ 9 (2007). “Whether the defendant owes the plaintiff a duty of care is a 

threshold issue; absent some duty, an action for negligence cannot be 

maintained.” Id. ¶ 11 (citation omitted).

¶8 We first address whether Alger, the patient, owed any duty 

to Sanders, who provided caregiver services to him pursuant to her contract 

with DES. The court of appeals held that such a duty exists because all 

people have a duty to use reasonable care to avoid causing injury to others. 

Sanders, 240 Ariz. at 94 ¶ 19; cf. Restatement (Third) of Torts: Liab. for 

Physical & Emotional Harm § 7(a) (Am. Law Inst. 2010) (providing that 

“[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s 

conduct creates a risk of physical harm”). Although we agree with the court 

of appeals that Alger owed a duty of reasonable care to Sanders, we decline 

to adopt that court’s rationale, as we need not here decide whether people 

generally owe a duty of reasonable care to others. Cf. Gipson, 214 Ariz. at 

146 ¶ 24 & n.4 (noting tension in Court’s statements regarding scope of duty 
SANDERS V. ALGER

Opinion of the Court

4

and declining, as unnecessary, to base decision on broad statements of duty 

generally owed by all persons).

¶9 Under Arizona common law, duties of care may arise from, 

among other things, a direct relationship between the parties. Id. at 144–45 

¶ 18; see also Stanley v. McCarver, 208 Ariz. 219, 221 ¶ 7, 223 ¶ 13 (2004) 

(recognizing duty by examining physician even absent formal physicianpatient relationship); Ontiveros, 136 Ariz. at 508 (“The relation between 

individuals which imposes a legal obligation is usually a direct relationship 

between the plaintiff and defendant.”); cf. Alhambra Sch. Dist. v. Superior 

Court, 165 Ariz. 38, 41 (1990) (“Duty refers to the relationship between 

individuals; it imposes a legal obligation on one party for the benefit of the 

other party.”) (citation omitted).

¶10 No one questions that caregivers who contractually agree to 

provide services (such as helping a person with mobility issues) have a 

direct relationship with their patients and owe them a duty of reasonable 

care in connection with such services. Nor would anyone dispute that, 

given the relationship, the caregiver owes a duty of reasonable care with 

respect to actions beyond the contractually assumed responsibilities. For 

example, a caregiver hired to help with mobility issues would undoubtedly

owe a duty of care that would be implicated if the caregiver negligently 

spilled scalding water on the patient.

¶11 The question here is whether patients owe any duty to their 

caregivers. Recognizing such a duty comports with our recognition of 

duties in other contexts. If a patient sues a caregiver for alleged negligence, 

the defendant caregiver generally will be able to argue that the patient’s 

own failure to act with reasonable care constitutes contributory negligence. 

See, e.g., George Washington Univ. v. Waas, 648 A.2d 178, 184–85 (D.C. 1994) 

(citing case law and jury instructions from numerous states and other legal 

authority recognizing a patient’s contributory negligence and duty to his or 

her physician in medical contexts); Richard A. Epstein, Torts § 8.2.1, at 189 

(1999) (noting that duty is an element of contributory negligence). 

¶12 Recognizing a duty of care on the part of patients is also 

consistent with the rescue doctrine recognized in Espinoza v. Schulenburg, 

212 Ariz. 215 (2006). Under the rescue doctrine, an actor who negligently 

imperils himself or herself may be liable to a person who is physically 

harmed in attempting to aid or protect the actor. See Espinoza, 212 Ariz. at 
SANDERS V. ALGER

Opinion of the Court

5

217 ¶¶ 7–9 (adopting Restatement (Third) of Torts: Liab. For Physical & 

Emotional Harms § 32); see also Cowen v. Thornton, 621 So. 2d 684, 687–88 & 

n.1 (Fla. Dist. Ct. App. 1993) (finding patient owed duty of care to caregiver

despite patient’s assertion that the firefighter’s rule barred the caregiver

rescuer’s claim). “The law should encourage people to respond to those in 

distress. The rescue doctrine does so by allowing the possibility of 

compensation to those who injure themselves while taking risks to help 

others.” Espinoza, 212 Ariz. at 217 ¶ 9. Thus, the rescue doctrine presumes 

a “duty” on the part of the actor whose conduct creates the need for rescue 

- if the actor fails to exercise reasonable care and imperils the actor or 

another, the actor’s breach of that duty may result in liability to a person 

harmed while trying to aid or protect the actor. See Sears v. Morrison, 90 Cal. 

Rptr. 2d 528, 532–34 (Ct. App. 1999) (compiling cases from various 

jurisdictions and other authorities recognizing that rescuer may seek 

recovery from person negligently placing himself or herself in danger).

¶13 Recognizing a duty by patients to their caregivers is not, of 

course, the same as saying that patients will be liable for injuries incurred 

by a caregiver in doing his or her job or that the patient’s standard of care 

is the same as that of a caregiver. See Restatement (Second) of Torts § 299(A)

(Am. Law Inst. 1965) (noting “one who undertakes to render services in the 

practice of a profession or trade is required to exercise the skill and 

knowledge normally possessed by members of that profession or trade in 

good standing in similar communities”). That a duty exists does not mean 

that it has been breached in any particular case or that a negligent act has 

proximately caused an injury. Similarly, recognizing the existence of a duty 

of care does not preclude the jury’s application of doctrines such as 

comparative fault, assumption of risk, or superseding cause to limit 

recovery of damages. See Gipson, 214 Ariz. at 147 ¶ 30 (noting that 

“[w]hether the plaintiff’s conduct constituted an intervening (or even a 

superseding) cause of the harm suffered is a question of fact and does not 

determine whether a duty exists”); see also A.R.S. § 12-2505(A) (providing 

that defenses of contributory negligence or assumption of risk do not bar 

action but reduce damages “in proportion to the relative degree of the 

claimant’s fault which is a proximate cause of the injury or death”).

¶14 Alger argues that public policy factors weigh against 

imposing a duty on him as a disabled adult because doing so would 

discourage individuals and their families from seeking state-provided 

caregiving services. Although public policy may support the adoption of a 
SANDERS V. ALGER

Opinion of the Court

6

no-duty rule in some circumstances, see Guerra v. State, 237 Ariz. 183, 187 

¶ 20 (2015), we decline to adopt a rule that patients categorically owe no 

duty of care to those who provide caregiver services. Cf. Gipson, 214 Ariz. 

at 143–44 ¶ 11 (noting that “a conclusion that no duty exists is equivalent to 

a rule that, for certain categories of cases, defendants may not be held 

accountable for damages they carelessly cause, no matter how 

unreasonable their conduct”).

¶15 Contrary to Alger’s arguments, a blanket exemption of 

liability for injuries patients cause their caregivers is not “necessary as a 

matter of public welfare.” Ontiveros, 136 Ariz. at 513. Nor can we conclude 

that finding a duty here would “chill socially desirable conduct or 

otherwise have adverse effects.” Gipson, 214 Ariz. at 146 ¶ 29. Indeed, 

barring recovery by caregivers might well discourage people from 

providing such services.

¶16 Apart from whether patients generally owe any duty to their 

caregivers, Alger also argues that we should find that no duty exists here 

because Sanders agreed in her contract with DES to provide services to 

protect Alger, and his individual support plan - of which she was aware -

recognized that his condition placed him at risk of falling. Thus, Alger 

argues, he should not have owed any duty to Sanders to avoid the risk that 

she contractually undertook to prevent. This argument founders because, 

at bottom, it asserts that Sanders assumed the risk that caused her injury. 

Under Arizona law, whether a plaintiff has contractually assumed a risk is 

an issue of fact for the jury, not an issue of “duty” to be decided as a matter 

of law. See Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 404 ¶ 2, 405 ¶ 11

(2005); see also Ariz. Const. art. 18, § 5; A.R.S. § 12-2505(A).

¶17 In summary, we hold that, based on the direct relationship 

between caregiver and patient, the latter owes a duty of reasonable care 

with respect to conduct creating a risk of physical harm to the caregiver.

B.

¶18 Alger argues that even if he owed a duty of care to Sanders, 

her negligence claim should be barred by the firefighter’s rule. Like the 

court of appeals, we conclude that the rule does not apply here. 
SANDERS V. ALGER

Opinion of the Court

7

¶19 The firefighter’s rule is an exception to the rescue doctrine, 

i.e., “[a] rescuer who could otherwise recover cannot do so if she is 

performing her duties as a professional firefighter.” Espinoza, 212 Ariz. at 

217 ¶ 11. Our courts recognize the firefighter’s rule as a matter of public 

policy, noting that “the tort system is not the appropriate vehicle for 

compensating public safety employees for injuries sustained as a result of 

negligence that creates the very need for their employment.” Id. Rather, 

firefighters are compensated as public employees. Id.

¶20 In urging us to apply the firefighter’s rule, Alger notes that 

Sanders, although an independent contractor and not a public employee, 

was paid with public funds to care for him; Sanders may seek compensation 

for her injuries through the State’s Provider Indemnity Program (“PIP”); 

and Alger’s disabilities created the need for Sanders’ employment.

¶21 We construe the firefighter’s rule narrowly. Id. at 218 ¶ 17. 

“The rule applies when a firefighter’s presence at a rescue scene results 

from the firefighter’s on-duty obligations as a firefighter.” Id. (footnote 

omitted). Thus, the rule does not prohibit tort recovery for off-duty 

firefighters. Id. at 218–19 ¶ 17. Limiting the reach of the firefighter’s rule 

“comport[s] with Arizona’s policy of protecting its citizens’ right to pursue 

tort claims.” Id. at 218 ¶ 16; see also Ariz. Const. art. 18, § 6 (“The right of 

action to recover damages for injuries shall never be abrogated, and the 

amount recovered shall not be subject to any statutory limitation . . . .”); id.

art. 2, § 31 (prohibiting laws limiting damages for death and injury). 

¶22 Moreover, the firefighter’s rule is an exception to the rescue 

doctrine rather than a more general rule barring tort recovery. Our 

recognition of a patient’s duty to his or her caregiver is based on the direct, 

categorical relationship and is not limited to situations in which the 

caregiver responds to an emergency created by the patient’s negligence. 

Arguably, the rescue doctrine would not apply (nor would the firefighter’s 

rule as an exception to that doctrine) in this case, inasmuch as Sanders was 

performing her usual duties in assisting Alger rather than responding to an 

emergency. Cf. Orth v. Cole, 191 Ariz. 291, 292 ¶ 6 (App. 1998) (declining to 

apply firefighter’s rule to routine inspections). 

¶23 In any event, we decline to extend the firefighter’s rule to 

caregivers to prohibit their recovery when responding to an emergency. 

Unlike firefighters, caregivers generally are not “public safety employees”
SANDERS V. ALGER

Opinion of the Court

8

who are trained, equipped, and compensated to professionally rescue 

others. See Espinoza, 212 Ariz. at 217 ¶ 11. Even though the caregiver’s 

salary here was paid with public funds, like a firefighter’s, see id. (quoting 

Grable v. Varela, 115 Ariz. 222, 223 (App. 1977)), such compensation does not 

convert a caregiver into a professional rescuer. Furthermore, the existence 

of the PIP does not alter our conclusion. Cf. id. at 219 ¶ 20 (“[T]he 

availability of workers’ compensation to a particular worker does not 

control our determination of the applicability of the firefighter’s rule.”). 

Finally, we agree with the court of appeals that Sanders’ job did not depend 

on encountering “negligence that creates the very need for [her] 

employment” in the same way a firefighter encounters mostly negligently

caused fires. See id. at 217 ¶ 11.

C.

¶24 Alger argued in the trial court that no reasonable juror could 

find he acted negligently in the circumstances of this case. The trial court 

did not decide this issue, and the court of appeals declined to do so in the 

first instance. See Sanders, 240 Ariz. at 95 ¶ 21. We did not grant review on 

this issue, but we note it to underscore that our ruling does not establish 

liability on Alger’s part. As the court of appeals recognized, id. at 94 ¶ 19 

n.2, the duty owed by Alger is that of a reasonable person under the 

circumstances, and those circumstances include his physical disabilities

and limitations. See Alhambra Sch. Dist., 165 Ariz. at 42 (“The particular facts 

of the case . . . are the circumstances under which the reasonableness of the 

[defendant’s] conduct is to be judged.”) (footnote omitted); Morris v. Ortiz, 

103 Ariz. 119, 121 (1968); Restatement (Second) of Torts § 283(C) (Am. Law 

Inst. 1965). He will be entitled to summary judgment if, as he contends, “no 

reasonable juror could conclude that the standard of care was 

breached . . . .” Gipson, 214 Ariz. at 143 ¶ 9 n.1.

II.

¶25 We vacate ¶¶ 6–19 of the court of appeals’ opinion, reverse 

the trial court’s summary judgment in Alger’s favor, and remand the case 

to the trial court for further proceedings consistent with this opinion.