JURIS DOCTRINES Learning Esoteric Law 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 damages 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.” contract 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 negligence 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- laws 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 duty of care 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 malpractice 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. 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”).