JURIS DOCTRINES

Learning Esoteric BY GARY COHEN

he law consists of a number of legal person to interpret the meaning of doubtful exhaust their classes. doctrines, the most fundamental of words by referring to the meaning of sur- Applying ejusdem generis to the hypo- which are taught in law school. But rounding words.3 thetical involving the Does, they are proba- as we all know, there is more to law Arizona courts have applied ejusdem bly not covered by their insurance policy. practice than the basic. What about generis to assist in interpreting statutes, con- The specific enumerated list of items in the Tthe more esoteric doctrines, the ones that tracts and insurance policies. There must be policy provision at issue includes types of may catch you unawares and leave you—and an enumeration of items before ejusdem insects. Thus phrase “or the like” will prob- your client—scratching your head? generis will apply.4 Thus, a statute that allows ably not be construed to mean other insects. Typically, those esoteric doctrines are for an interlocutory appeal of judgment As a reptile, a rattlesnake is not considered an learned after handling a number of legal when all that is left to decide is the amount insect and is not similar in nature to the matters or by happenstance after going “off of recovery through “an accounting or objects listed. track” while conducting legal research. In an other proceeding” is not interpreted as lim- The Does’ insurer could have protected effort to help you avoid learning from the iting appeals to equitable proceedings. This itself by drafting a more carefully crafted list cruelest teacher, experience, here is what is because such a statute does not give a list- and including more general terms like you need to know about five esoteric legal ing of specific types of “other proceedings.”5 “birds, insects, vermin, domestic animals and doctrines. When general words are used after an enu- the like.” Because the specifically enumerat- meration of particular classes, these general ed terms exhaust their individual classes, EJUSDEM GENERIS words are interpreted as applying only to “the like” would, probably, include reptiles. John and Jane Doe live in a nice area classes or things of the same general type as between Phoenix and Tucson. They have a the enumerated classes.6 THE RESCUE DOCTRINE homeowner’s insurance policy with $1 mil- The reverse is also true: Where general The Acme Mining Company negligently lion in liability coverage. This policy has a words are followed by specific enumerated creates a tripping hazard that resulted in Mr. “losses-not-covered” provision that excludes terms, the general words are presumed to Jones falling into an open pit. Ms. Smith, a coverage for caused by, directly or include only things of the same nature as the witness to the fall, tries to rescue Jones. Ms. indirectly, “scorpions, termites, fleas, roach- enumerated terms.7 For example, where a Smith is, herself, injured during the rescue es, wasps or the like.” states “including” followed by a list attempt. Is Acme Mining Company liable to While the Does are giving a party, a rat- of specifically enumerated objects, “includ- Ms. Smith? The answer is probably “yes” if tlesnake makes its way into their living room ing” only encompasses objects that are similar the “rescue doctrine” applies. and bites a guest, causing her great injury. in nature to those objects specifically listed.8 The rescue doctrine is based on the idea The guest sues the Does. Does the home- Ejusdem generis does not apply where the that “the attempted rescue of a person in owner’s insurance policy provide coverage specific words enumerated embrace all danger is always foreseeable.”12 If a tortfea- to John and Jane for this claim? objects of their class such that without a dif- sor’s causes one to need rescue, The answer is probably “no” if the ejus- ferent meaning the general words have no then the tortfeasor is also negligent to the dem generis doctrine is applied. This Latin meaning at all.9 For example, where a board attempted rescuer and liable for injuries sus- terms means “of the same kind or class.”1 It of directors is authorized in the corporate by- tained in a reasonable rescue attempt.13 is a “canon of construction that when a gen- to use its funds to pay “office expenses, In Arizona, an injured rescuer may recov- eral word or phrase follows a list of specific salaries of employees and all other expenses er damages from the original tortfeasor that persons or things, the general word or incurred in carrying out its duties,” the negligently caused the event that necessitat- phrase will be interpreted to include only phrase “all other expenses” is interpreted to ed the rescue, notwithstanding that the persons or things of the same type as those mean expenses that are not “office expenses” immediate cause of the injury may be an listed.”2 Ejusdem generis should not be con- or “salaries of employees,” because “office intervening act by someone else.14 Even if fused with noscitur a sociis, which allows a expenses” and “salaries of employees” the negligent party originally endangered no encompass all the specific objects within their one but himself, he owes a to respective classes.10 The same is true of an the rescuer and is liable for any injuries the Gary Cohen is a partner at Mesch, Clark & Rothschild, P.C., in Tucson. His practice emphasizes personal injury, insurance policy that covers an automobile rescuer suffers as a result of a rescue medical defense, civil rights, employment law damaged in a collision with another “auto- attempt.15 and appeals. mobile, vehicle or object.”11 The term There are three exceptions to the rescue “object” is interpreted to have a meaning dif- doctrine: The author thanks Mary Beth Canty and David ferent from that of “automobile” or “vehi- • Where the rescue attempt is unreason- Hindman for their help researching and editing this article. cle” or it is meaningless; the preceding terms able or the rescuer acts unreasonably in

26 ARIZONA ATTORNEY JULY/AUGUST 2006 www.myazbar.org the course of performing it • Where the rescuer has himself brought about or helped to bring about the dan- gerous situation16 • If the “fireman’s rule” applies17 In the first two exceptions the rescuer may be guilty of . Contributory negligence is usually a ques- tion of fact for a jury to decide.18 Thus, for example, a jury could find that a rescuer was not guilty of contributory negligence when he saw another person caught on a bare, “hot” electrical wire, with flames coming out of his neck, and twice attempted a res- cue that subsequently killed the would-be rescuer.19 With regard to the third exception, most attorneys are familiar with the fireman’s rule. This rule precludes firemen and police offi- cers (“rescue personnel”) from suing a neg- ligent person for creating a situation necessi- tating the fireman’s or police officer’s servic- es. The fireman’s rule only applies to on- duty rescue personnel in emergency or res- cue situations and is based on the rescue per- sonnel’s professional and trained ability to determine whether to proceed.20 Because rescue personnel are hired and trained to help in emergency situations, they “cannot complain of negligence in the creation of the very occasion for [their] engagement.”21 The rescue doctrine “recognizes the nat- ural human impulse to aid others in distress and rewards this impulse by including its manifestation within the realm of the fore- seeable results of a negligent act.”22 A recent Arizona case held that the fire- man’s rule does not apply to an off-duty fire- man or police officer undertaking a rescue as a true volunteer and not under an employ- ment mandate to render aid. This holding “serves the significant policy of encouraging professionals otherwise under no obligation to provide their expertise where it may make a life-saving difference.”23 But rescue efforts must be reasonable *And other and undertaken reasonably. It may not be legal pitfalls prudent to jump into a lake to save a drown- ing man if you don’t know how to swim. In the aforementioned Acme Mining Company hypothetical, the company could

JULY/AUGUST 2006 ARIZONA ATTORNEY 27 JURIS DOCTRINES be liable to the rescuer, Ms. Smith, for her the plaintiff approximately two weeks before responsible for injuries caused by the ani- injuries. It depends, however, on whether he filed suit.28 The court held that these facts mal.34 In addition, although courts may Ms. Smith acted reasonably in her rescue were exactly what the “hot potato” doctrine impose a duty on a landowner for negligent attempt or was the person who created the was designed to prevent, and it disqualified acts causing injury from wild animals, in danger. And it may depend on whether any the law firm.29 practice few courts have imposed such a additional rescuer was on duty at the time of No Arizona courts have specifically duty.35 the attempted rescue. applied the hot potato rule. It is clear, how- The doctrine tends to be applied only ever, that Arizona attorneys have a strong where the defendant could not reasonably THE HOT POTATO DOCTRINE duty of loyalty to their clients. For example, have foreseen an injury or protected against Attorney Howie is about to land a new in In re Shano, the Arizona Court of Appeals it.36 The Arizona Court of Appeals recently client, Big Industrial Giant (“BIG”). If so, found an attorney had a continuing duty of held that where the state knew that cars were Howie will be retained to lobby the city to loyalty to a client beyond the length of their frequently colliding with elk on an 11-mile use its power of eminent domain to clear relationship.30 As such, the court affirmed stretch of freeway near Flagstaff, had taken room for BIG’s new factory. Howie has, the disqualification of an attorney for repre- steps to mitigate similar problems in other however, frequently done planning for senting one client with interests adverse to a areas of the state but did nothing more than Susie. She is part of a homeowner’s group former client who had been dropped only place additional warning signs in that 11- opposing the eminent domain action. seven days before beginning the representa- mile stretch, immunity under the ferae nat- Howie thinks that representing BIG and tion of the new client.31 urae doctrine was not applicable and the Susie violates Arizona’s Rule of Professional The temptation to drop one client in state could be found liable for negligence.37 Conduct ER 1.7. Therefore, he plans to end favor of another with adverse interests might On the other hand, a Florida court held his relationship with Susie before BIG signs arise whenever law firms merge, attorneys that where experts testified that there was no the retainer agreement. switch firms, or simply when interests of way to prevent black widow spiders from Does this avoid any ER 1.7 rule viola- existing clients suddenly become adverse. entering a hospital that was open to the pub- tion? Probably not if the “hot potato” doc- Although Arizona courts have not adopted lic, there were no previous sightings of black trine applies. the hot potato doctrine in name, they have widow spiders, and the hospital contracted The hot potato doctrine maintains that applied the underlying continuing duty of to have a pest control company regularly an attorney may not drop one client like a loyalty past the termination of an attor- service the building, then the hospital could “hot potato” to avoid a conflict with anoth- ney–client relationship. Therefore, attorneys not be found liable for a patient’s injury er, more remunerative or favored client.24 practicing in Arizona would do well to prac- caused by a black widow spider.38 The hot potato doctrine is intended to pro- tice under the assumption that this doctrine The doctrine of ferae naturae can be tect the continuing loyalty owed to the will be applied should a client be dropped important where a plaintiff is unable to client.25 and questions of loyalty arise. show that the defendant owed a duty to the The Arizona Rules of Professional injured party. In the beehive hypothetical, Conduct generally protect against conflicts THE FERAE NATURAE DOCTRINE unless Billy knew or should have known the in concurrently representing two clients with Johnny is playing catch with his friends when beehive was in his yard, he probably owed adverse interests (ER 1.7) and, less restric- his ball goes into Billy’s backyard. Johnny no duty to Johnny. As a result, Billy would tively, against conflicts arising from repre- climbs over Billy’s fence and lands under a likely be immune from negligence per se senting one client with interests adverse to a beehive that is not clearly visible. The bees claims thanks to the doctrine of ferae natu- former client (ER 1.9). However, because swarm Johnny and sting him multiple times. rae. ER 1.9 is less restrictive than ER 1.7, an Johnny, upset and physically injured in this attorney may be tempted to convert a cur- bee attack by the stings and the fact he never THE SALLADAY DOCTRINE rent client into a former client so that the less did find his ball, files a claim against Billy for Lucy and friends discover an irrigation canal restrictive ER 1.9 applies instead of ER 1.7. negligence for not preventing his injury. that runs near their neighborhood. There is The hot potato doctrine protects the clients’ Is Billy liable? Probably not if the doc- no fence to keep people away from the canal, interests by disqualifying an attorney who trine of ferae naturae is applied. and no signs warning of potential danger. attempts such a . Ferae naturae means “of a wild nature or Lucy slips and falls into the canal. She, For example, the U.S. district court in disposition.”32 According to the common unfortunately, drowns. Lucy’s parents want New Jersey applied the “hot potato” doc- law doctrine of ferae naturae, a landowner is to file a suit against the irrigation company, trine to disqualify a law firm that had repre- not liable for the acts of wild animals on his claiming no precautions were taken to pro- sented the plaintiff in contractual matters at land. In Arizona and elsewhere, this doctrine tect children from this attractive . the request of a longtime client.26 After the has been limited to provide immunity only The Salladay doctrine provides immuni- client died, plaintiff retained another attor- from , holding that a landown- ty from attractive nuisance claims to the ney to file a palimony lawsuit against the er may still be negligent for not preventing operators of canals and open flumes in decedent’s estate.27 The law firm, recogniz- the injury.33 From a property rights perspec- Arizona. Arizona courts cite public policy ing the conflict and wanting to represent the tive, an individual neither owns nor controls reasons for providing this immunity, which decedent’s estate, withdrew as counsel for a wild animal, and therefore is generally not extends to injuries caused by the canal itself

28 ARIZONA ATTORNEY JULY/AUGUST 2006 www.myazbar.org JURIS DOCTRINES or by the equipment used as an essential tion districts in Arizona in the maintenance causing injury, the courts have held that the component of the canal system.39 The strong of canals and diversion points, as well as the doctrine does not apply to injuries caused public policy in Arizona is to encourage the mechanical and electrical equipment needed by that component.51 More recently, irrigation of our arid desert land.40 In addi- to operate the water distribution system.46 courts, while upholding and applying the tion to being essential for both agricultural For example, when a 16-year-old who was doctrine, have noted that the continued and urban use, a canal system is an obvious, climbing a catwalk next to an electric trans- urbanization of Arizona may lead to the inherently dangerous condition that cannot former started to fall, grabbed a cable, and need to abandon it.52 be feasibly rendered harmless.41 was electrocuted, the Court of Appeals held Practitioners should realize that the The doctrine was first enunciated in that because an electrical transformer adja- Salladay doctrine no longer provides an Salladay v. Old Dominion Copper Mining & cent to a trough was an essential component impenetrable wall protecting canal and Smelting Co.42 In that case, the defendant of the system for discharging water, it was flume owners, and potentially could provide allowed children to play on and around the covered by the Salladay doctrine.47 less protection as urbanization continues. defendant’s open mining flume, which dis- There are limits to the doctrine. There is However, unless a situation is outside the charged water over a 15-foot fall.43 The no Salladay immunity for willful or wanton realm of attractive nuisance or does not defendant took no steps to safeguard the conduct.48 In addition, the Arizona involve an essential component of providing children from falling or being swept away by Supreme Court has held that where a com- water, the doctrine will probably still pro- the current, which is exactly what happened pany exerted no effort to increase safety at vide immunity to the canal owners and to the decedent, 3-year-old Katie Salladay.44 a bridge after multiple incidents of drown- operators. The Arizona Supreme Court noted that ing and near-drowning there, loss of immu- canals and other conduits of water are indis- nity would result.49 The Court stated, CONCLUSION pensable for maintaining life and prosperity “Unfortunately, this immunity sometimes The consummate Juris Doctor (doctor of in Arizona, and held that the liability based leads to the callous ‘public be damned’ pol- law) must keep abreast of all “juris doc- on attractive nuisance doctrine does not icy exemplified by the testimony of the trines” (legal doctrines). The esoteric doc- apply to canals or open flumes.45 manager … in the instant case.”50 In addi- trines discussed in this article may provide That reasoning later was extended to tion, where certain components of a canal knowledgeable Arizona attorneys with addi-

AZ provide almost complete immunity to irriga- system could reasonably be prevented from tional legal “arrows” for their quivers. AT

endnotes

1. BLACK’S LAW DICTIONARY 535 ed their respective categories ing Orth v. Cole, 955 P.2d at 39. Salladay v. Old Dominion (7th ed. 1999). such that using appellant’s 49). Copper Mining & Smelting Co., 2. Id. application of ejusdem generis 21. Id. at 938. 100 P. 441 (Ariz. 1909). 3. Liristis v. American Fam. Mut. would render the phrase mean- 22. Id. 40. Elkins v. Roosevelt Water Ins. Co., 61 P.3d 22, 27 (Ariz. ingless). 23. Id. at 940. Conservation Dist., 524 P.2d Ct. App. 2002), rev. denied. 11. Southern Cas. Co. v. Johnson, 24. Santacroce v. Neff, 134 F. Supp. 964, 965 (Ariz. Ct. App. 1974). 4. Bilke v. State, 80 P.3d 269, 272 207 P. at 989. 2d 366, 367 (D.N.J. 2001). 41. Salt River Valley Water Users’ (Ariz. 2003). 12. BLACK’S LAW DICTIONARY 25. In re Rite Aid Corp. Securities Ass’n v. Superior Court, 870 5. Id. 1308-1309 (7th ed. 1999). Litigation, 139 F. Supp. 2d 649 P.2d 1166, 1171 (Ariz. Ct. 6. Young v. Superior Court of 13. Id. (E.D. Pa. 2001). App. 1994). Pima County, 125 P. 707, 708 14. Espinoza v. Schulenburg, 108 26. Santacroce, 134 F. Supp. 2d at 42. Salladay, 100 P. at 441. (Ariz. 1912). P.3d 936, 938 (Ariz. Ct. App. 367 n. 1. 43. Id. at 441-42. 7. Keggi v. Northbrook Prop. & 2005). 27. Id.at 368. 44. Id. Cas. Ins. Co., 13 P.3d 785, 789- 15. Transamerica Ins. Co. v. Doe, 28. Id. 45. Id. at 442. 790 (Ariz. Ct. App. 2000). 840 P.2d 288, 290 n.2 (Ariz. 29. Id. at 367. 46. Harris v. Buckeye Irrigation Co., 8. Id. 1992). 30. In the Matter of the Estate of 578 P.2d 177, 180 (Ariz. 1978) 9. Southern Cas. Co. v. Johnson, 16. Sulpher Springs Valley Elec. Shano, 869 P.2d 1203, 1210 (citing Dombrowski v. Maricopa 207 P. 987, 989 (Ariz. 1922) Coop., Inc. v. Verdugo, 481 P.2d (Ariz. Ct. App. 1993). County Mun. Water (citing U.S. Cement Co. v. 511, 514 (Ariz. Ct. App. 1971). 31. Id. Conservation Dist., 496 P.2d Cooper, 88 N.E. 69 (Ind. 17. Orth v. Cole, 955 P.2d 47, 49 32. BLACK’S LAW DICTIONARY 635 136, 137 (Ariz. 1972)). 1909)). (Ariz. Ct. App. 1998) (citing (7th ed. 1999). 47. Elkins, 524 P.2d at 965. 10. Conway v. Industrial Comm’n, Gray v. Russell, 853 S.W.2d 928 33. Booth v. State, 83 P.3d 61, 65 48. Salt River Valley Water Users’ 99 P.2d 88, 92 (Ariz. 1940) (Mo. 1993)). (Ariz. Ct. App. 2004). Ass’n, 870 P.2d at 1175. (appellant attempted to use 18. Hutto v. Francisco, 107 P.3d 34. Id. 49. Harris, 578 P.2d at 180. ejusdem generis to construe “all 934, 939 (Ariz. Ct. App. 2005) 35. Id. 50. Id. other expenses” as meaning “all (citing A.R.S. § 12-2505(A) 36. Id. 51. Bledsoe v. Goodfarb, 823 P.2d other office supplies.” The (2003)). 37. Id. at 68. 1264, 1273 (Ariz. 1991). Supreme Court of Arizona held 19. Sulpher Springs, 481 P.2d at 38. St. Joseph’s Hospital v. Cowart, 52. Salt River Valley Water Users’ that “office expenses” and 514-515. 891 So. 2d 1039 (Fl. Dist. Ct. Ass’n, 870 P.2d at 1171. “salaries of employees” exhaust- 20. Espinoza, 108 P.3d at 939 (cit- App. 2004).

30 ARIZONA ATTORNEY JULY/AUGUST 2006 www.myazbar.org