PHOENIX — Police officers injured while doing more than they are required have no legal right to sue those who caused the problem in the first place, the Arizona Court of Appeals ruled Tuesday — a ruling an attorney says could have public safety implications.
In a unanimous decision, the judges said on-duty officers essentially make conscious decisions to put themselves at additional risk. That makes any injuries they sustain part of their job, whether it really fits within their job description or not.
Attorney David Abney warned that the ruling, if not overturned, could lead to police officers refusing to take those extra steps — in this case, a Department of Public Safety officer extracting a woman from an overturned vehicle — rather than waiting for firefighters to arrive.
“Instead, he wrenched his back and badly damaged his knee, permanently injured his knee, by doing it himself,” Abney said.
“He could have waited,” the attorney continued. “And in the future maybe police officers and firefighters and others will wait, possibly to the harm of people that they are ready to rescue but hesitant to rescue because they know if they get injured all they're going to get are the small benefits that the public provides.”
Those benefits come from the workers' compensation system. Abney said replacement wages under that system are “miniscule” and medical benefits are “occasionally spotty.”
He said the better system would be to allow an injured officer to sue whoever caused the mishap — in this case, the woman whose negligent driving caused her to flip her vehicle in the first place. Abney said that not only paves the way for better reimbursement but actually could save money for the government programs that otherwise would be paying the medical bills.
Abney vowed to seek review by the Arizona Supreme Court.
The case stems from a 2008 incident on a Phoenix freeway where DPS Officer Ross Read had been writing a citation for a motorist when he observed Brittini Keyfauver lose control of her vehicle, roll through the median and land upside down.
After notifying his dispatcher, Read grabbed a fire extinguisher and first-aid kit from his patrol car and ran across the median. Seeing Keyfauver inside, scratching at the window, he told her to cover her face while he kicked in the window, put his foot and the door frame and extracted her from the vehicle.
Read suffered a permanent injury to his knee.
He sued Keyfauver, saying her negligent driving was direct cause of his injury. His attorney argued that he was under no obligation to try to extract Keyfauver from her vehicle, making his decision to do so beyond the scope of his employment.
If nothing else, Abney argued that the Arizona Constitution requires any question of whether Read assumed the risk for his injuries to be decided by a jury.
Appellate Judge Michael Brown acknowledged Arizona has what is known as a "rescue doctrine.'' It allows an injured rescuer to recover damages from the person whose negligence created the need for the rescue in the first place.
“The rescue doctrine encourages individuals to respond to those in distress,” Brown wrote.
But the judge said there is an exception known as the “firefighter's rule.”
In essence, Brown said, Arizona courts have concluded lawsuits are not the best way to compensate not only firefighters but all public safety employees for injuries they suffer due to negligence, as the negligence itself “creates the very need for their employment.”
Read, however, noted that rule does not apply to off-duty officers.
In this case, Read argued he was acting beyond what he was required to do: Secure and investigate the accident scene. And he said DPS would not have disciplined him if he had failed to extract Keyfauver from her vehicle.
Brown called that “irrelevant.” He said Read was not acting as a volunteer and therefore he cannot sue.
Abney said there are implications from Tuesday's ruling.
“Police officers, firefighters and other emergency personnel may hesitate in the future when they are trying to figure out whether they want to go the extra step to rescue somebody, to provide aid to somebody, when technically they don't need to,” he said.
Abney also pointed out that the workers' compensation system, initially responsible for lost wages and medical bills, routinely puts a lien on any money recovered by someone in a lawsuit. He said that means if someone like Read were to be able to sue and win, the government — the insured entity for benefits for public employees — would be able to recoup its costs.
He argued that the only one who wins under the way the appellate court ruled is the person who caused the initial incident that resulted in the injury.
DPS spokesman Bart Graves said his agency was still reviewing Tuesday's ruling and had no comment.