Courtney Cramer v. Hon. Starr/ munguia/bejarano

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
COURTNEY RENE CRAMER,
Petitioner,
v.
HON. PATRICIA ANN STARR, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,
TAMMY MUNGUIA, INDIVIDUALLY, AND FRANCINE BEJARANO, INDIVIDUALLY,
Real Parties in Interest.
No. CV-15-0317-PR
Filed July 18, 2016
Special Action from the Superior Court in Maricopa County
The Honorable Patricia A. Starr, Judge
No. CV2012-016960
REVERSED AND REMANDED
Order of the Court of Appeals, Division One
No. 1 CA-SA 15-0216
Filed Sept. 8, 2015
COUNSEL:
Thomas C. Hall, Christopher Robbins (argued), Hill, Hall & DeCiancio,
PLC, Phoenix, Attorneys for Courtney Rene Cramer
Geoffrey M. Trachtenberg (argued), Justin Henry, Levenbaum
Trachtenberg, PLC, Phoenix; Francisco X. Gutierrez, Gutierrez Law Firm,
PC, Phoenix; and Julio M. Zapata, Zapata Law, PLLC, Phoenix, Attorneys
for Tammy Munguia and Francine Bejarano
CRAMER V. STARR (MUNGUIA/BEJARANO)
Opinion of the Court
Andrew J. Petersen, Humphrey & Petersen, P.C., Tucson, Attorney for
Amicus Curiae Tucson Defense Bar, Inc.
Barry D. Halpern, Paul J. Giancola, Sarah E. Delaney, Snell & Wilmer L.L.P.,
Phoenix, Attorneys for Amicus Curiae Arizona Medical Association and
Mutual Insurance Company of Arizona
Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C.,
Tucson; and David L. Abney, Knapp & Roberts, P.C., Scottsdale, Attorneys
for Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers
Association
Jeffrey C. Warren, Amanda Heitz, Bowman and Brooke LLP, Phoenix; and
Charles Callahan, Jones, Skelton & Hochuli, PLC, Phoenix, Attorneys for
Amicus Curiae Arizona Association of Defense Counsel
VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in
which CHIEF JUSTICE BALES, and JUSTICES BRUTINEL, TIMMER, and
BOLICK joined.
VICE CHIEF JUSTICE PELANDER, opinion of the Court:
¶1 Under Arizona’s comparative fault regime, “[i]n assessing
percentages of fault” in a personal injury action, “the trier of fact shall
consider the fault of all persons who contributed to the alleged injury.”
A.R.S. § 12-2506(B). In allocating fault, the trier may consider a nonparty’s
negligence or fault if the defendant, pursuant to Arizona Rule of Civil
Procedure 26(b)(5), gives notice that “a nonparty was wholly or partially at
fault.” Id. In view of these statutory directives, we today hold that the
common law “original tortfeasor rule” (“OTR”) does not preclude a
defendant from alleging and proving, or the trier of fact from considering
and finding, fault of a nonparty physician who treated the plaintiff for
injuries allegedly sustained from the defendant’s tort.
¶2 We further hold that under the OTR, an actor who negligently
causes an injury that reasonably necessitates medical treatment may also be
liable for any enhanced harm proximately resulting from the actor’s
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CRAMER V. STARR (MUNGUIA/BEJARANO)
Opinion of the Court
negligence, including subsequent injury and related damages negligently
but foreseeably caused by a medical provider. Any such liability, however,
results not from automatically imputing the medical negligence to the
original tortfeasor, but instead depends on the trier of fact’s assessment and
allocation of fault between the parties and nonparties, in accordance with
Arizona’s statutes.
I.
¶3 In November 2010, a car driven by Courtney Cramer rear-
ended a vehicle in which Tammy Munguia was a passenger. Munguia
complained of headaches that same day and began chiropractic treatment
a few days later. Because of persistent low back pain, Munguia had an MRI,
which revealed several disc protrusions in her lumbar spine.
¶4 Approximately eight months after the accident, John
Ehteshami, M.D., examined Munguia and recommended spinal fusion
surgery to treat her back pain. In September 2011, Dr. Ehteshami performed
that operation, which did not cure Munguia’s symptoms and might have
exacerbated her condition.
¶5 After the unsuccessful surgery, Munguia filed this personal
injury action against Cramer. At Cramer’s request, Zoran Maric, M.D.,
conducted an independent medical examination and found no objective
evidence that Munguia sustained any spinal injuries as a result of the car
accident. Dr. Maric opined that the spinal fusion performed by Dr.
Ehteshami was medically unnecessary and “effectively disabled” Munguia.
¶6 Based on that information, Cramer filed a notice naming Dr.
Ehteshami as a nonparty at fault. See Ariz. R. Civ. P. 26(b)(5). Munguia
moved for partial summary judgment to strike that notice, arguing that
(1) the notice was untimely, and (2) under the OTR, Cramer, as the original
tortfeasor, was liable for the foreseeable risks arising from her tort,
including subsequent medical negligence. The trial court rejected the first
argument but granted the motion based solely on the second ground.
Relying on the Restatement (Second) of Torts § 457 (Am. Law Inst. 1965)
(“Second Restatement § 457”) and some out-of-state cases holding that
“adoption of comparative fault has not superseded” the OTR, the court
ruled that Cramer “may not name Dr. Ehteshami as a non-party at fault,”
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Opinion of the Court
but “may still dispute at trial whether Munguia reasonably sought medical
care and/or reasonably selected her doctor.”
¶7 The court of appeals declined jurisdiction of Cramer’s special
action. We granted review because the case presents an unsettled legal
question that is of statewide interest and likely to recur. See Piner v. Superior
Court, 192 Ariz. 182, 184 ¶ 7, 962 P.2d 909, 911 (1998) (granting review to
address significant legal issue despite court of appeals having declined
special action jurisdiction). We have jurisdiction under article 6, section 5(3)
of the Arizona Constitution and A.R.S. § 12-120.24.
II.
¶8 We review de novo the trial court’s grant of partial summary
judgment. Weitz Co. v. Heth, 235 Ariz. 405, 409 ¶ 11, 333 P.3d 23, 27 (2014).
Because the pertinent facts are undisputed, we must determine whether
Munguia was entitled to judgment as a matter of law, precluding Cramer
from naming Dr. Ehteshami as a nonparty at fault. See Ariz. R. Civ. P. 56(a).
¶9 Cramer argues that the trial court, by striking her notice,
erroneously “took the issue of comparative fault from the jury,” in violation
of A.R.S. § 12-2506. She also asserts that Second Restatement § 457, on
which the trial court relied, “could never trump that controlling Arizona
statute and case law” and, in any event, has been superseded by
Restatement (Third) of Torts, Liability for Physical and Emotional Harm
§ 35 (Am. Law Inst. 2009) (“Third Restatement § 35”).
¶10 Munguia counters that Arizona courts have long embraced
the OTR embodied in Second Restatement § 457 (as retained and broadened
in Third Restatement § 35), a rule she characterizes as one of causation that
was not displaced or abrogated by the Uniform Contribution Among
Tortfeasors Act (“UCATA”). A.R.S. §§ 12-2501 through -2509. Under the
OTR, Munguia asserts, Cramer “cannot escape or reduce her liability by
claiming harm was caused by non-party Dr. Ehteshami,” but rather she is
independently liable “for any and all enhanced harm proximately resulting
from her actions” and “foreseeably caused by a successive tortfeasor.”
¶11 We agree with Cramer that UCATA applies and controls the
outcome here. As first enacted in 1984, the Act allowed a tortfeasor who
paid more than the percentage of damages attributed to it by the factfinder
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Opinion of the Court
to seek contribution from co-tortfeasors. A.R.S. § 12–2501; Watts v. Medicis
Pharm. Corp., 239 Ariz. 19, 26 ¶ 20, 365 P.3d 944, 951 (2016). The legislature
amended the Act three years later by generally “eliminating plaintiffs’
ability to recover jointly from any or all liable defendants.” Watts, 239 Ariz.
at 26 ¶ 20, 365 P.3d at 951. With certain exceptions not applicable here, see
§ 12-2506(D), (F)(1), “the liability of each defendant for damages is several
only.” § 12-2506(A). Thus, “Arizona’s pure comparative fault scheme
protects defendants from bearing more than their fair share of liability for
a plaintiff’s injuries under the harsh common-law rule of joint and several
liability.” Watts, 239 Ariz. at 26 ¶ 20, 365 P.3d at 951 (citing State Farm Ins.
Co. v. Premier Manufactured Sys., Inc., 217 Ariz. 222, 224–25 ¶¶ 8–12, 172 P.3d
410, 412–13 (2007)).
¶12 “UCATA requires apportionment of damages based on
degrees of fault.” Id. at 26 ¶ 22, 365 P.3d at 951. Under § 12-2506(A), “[e]ach
defendant is liable only for the amount of damages allocated to that
defendant in direct proportion to that defendant’s percentage of fault.”
“Fault” is broadly defined as “an actionable breach of legal duty, act or
omission proximately causing or contributing to injury or damages
sustained by a person seeking recovery.” § 12-2506(F)(2). UCATA is thus
based on the concept of fault, which necessarily presupposes a duty, breach
of duty, and causation. Watts, 239 Ariz. at 26 ¶ 22, 365 P.3d at 951.
¶13 Under A.R.S. § 12-2506(B), the trier of fact assesses
percentages of fault after considering the fault of all persons who
contributed to the alleged injury. That mandate applies “regardless of
whether the person was, or could have been, named as a party to the suit.”
§ 12-2506(B); see Dietz v. Gen. Elec. Co., 169 Ariz. 505, 509, 511, 821 P.2d 166,
170, 172 (1991) (holding that “[w]hen an employer negligently contributes
to an employee’s injury, the joint tortfeasors may require the employer’s
negligence to be considered for the assessment of fault under A.R.S. § 12-
2506,” even though the employee, having received workers’ compensation
benefits, could not sue the employer and would have to repay the employer
from any third-party recovery).
¶14 UCATA thus contemplates and permits the naming of
nonparties whose alleged fault the trier of fact may consider in
apportioning liability. “Negligence or fault of a nonparty may be
considered . . . if the defending party gives notice before trial, in accordance
with requirements established by court rule, that a nonparty was wholly or
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CRAMER V. STARR (MUNGUIA/BEJARANO)
Opinion of the Court
partially at fault.” § 12-2506(B); see Ariz. R. Civ. P. 26(b)(5) (identifying
procedural requirements for parties’ providing notice of nonparty at fault
pursuant to § 12-2506(B)); Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431,
433, 937 P.2d 353, 355 (App. 1996) (“Rule 26(b)(5) merely prescribes the
method by which § 12-2506 is implemented and effectuated.”). 1 And under
§ 12-2506(C), “the relative degrees of fault of all defendants and
nonparties[] shall be determined and apportioned as a whole at one time
by the trier of fact.”
¶15 Our case law has consistently recognized and applied these
principles. We have repeatedly held that under UCATA, the trier of fact
must consider the fault of all parties and properly named nonparties in
assessing and allocating percentages of fault. See, e.g., Premier Manufactured
Sys., Inc., 217 Ariz. at 228 ¶ 30, 172 P.3d at 416 (stating that § 12-2506(F)(2)’s
“broad definition of fault” requires the trier of fact “to compare fault among
all tortfeasors”); Piner, 192 Ariz. at 188–89 ¶¶ 26–27, 962 P.2d at 915-16(holding that although UCATA “left intact the rule of indivisible injury,
relieving the plaintiff of apportioning damage according to causal
contribution,” § 12-2506 requires that “the factfinder [in an indivisible
injury case] is to compute the total amount of damage sustained by the
plaintiff and the percentage of fault of each tortfeasor”); Sanchez v. City of
Tucson, 191 Ariz. 128, 133 ¶ 25, 953 P.2d 168, 173 (1998) (noting that under
UCATA the state could name non-parties at fault and have the trier of fact
1 The trial court rejected Munguia’s argument that Cramer’s notice of
nonparty at fault should be stricken as untimely under Rule 26(b)(5).
Munguia did not argue the timeliness issue in response to Cramer’s petition
for special action in the court of appeals, in response to Cramer’s petition
for review in this Court, or in any cross-petition for review here. Therefore,
the issue was not preserved and is not before us, even though Munguia
alternatively argued in her supplemental brief in this Court that Cramer’s
notice of nonparty at fault was untimely. See State v. Ikirt, 160 Ariz. 113, 117,
770 P.2d 1159, 1163 (1987) (failure to file a cross-petition for review of issue
raised in but not decided by court of appeals “acts as a waiver”); cf. Dombey
v. Phx. Newspapers, Inc., 150 Ariz. 476, 482, 724 P.2d 562, 568 (1986) (noting
that generally a party waives an issue raised in neither the court of appeals
nor in petition for review filed in this Court); Ariz. R. Civ. App. P. 23(f)(2).
Nor do we address whether the medical malpractice requirements in A.R.S.
§§ 12-2603 and -2604 apply to Cramer’s notice of nonparty at fault and, if
so, whether the notice is compliant.
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Opinion of the Court
apportion liability among them); Dietz, 169 Ariz. at 508, 510, 821 P.2d at 169,
171 (observing that under UCATA, the trier of fact must “consider the fault
of all persons who contributed to the alleged injury,” and each tortfeasor is
“responsible for paying for his or her percentage of fault and no more”)
(quoting § 12-2506(B)).
¶16 Munguia unpersuasively argues that § 12-2506(B) does not
control because this case involves successive, not joint, tortfeasors, and
Cramer is “severally liable for the full amount of damages” (including any
that Dr. Ehteshami might have caused), but may seek contribution from
him under A.R.S. § 12-2501. The argument is refuted by our case law. See
Piner, 192 Ariz. at 189 ¶ 30, 962 P.2d at 916 (stating in case of successive
tortfeasors and indivisible injury that “the jurors must be instructed to
allocate fault in accordance with § 12-2506”); Dietz, 169 Ariz. at 510, 821 P.2d
at 171 (finding that § 12-2506 prevailed over § 12-2501 and noting that,
“[w]ith a few specified exceptions, contribution will become virtually
unnecessary in actions filed after the effective date of § 12-2506”). The cases
on which Munguia relies are materially distinguishable because they were
anchored in well-established common law doctrines that implicated the
statutory exceptions to several liability in § 12-2506(D). See Young v. Beck,
227 Ariz. 1, 5 ¶¶ 16-17, 251 P.3d 380, 384 (2011) (recognizing the family
purpose doctrine as a “form of vicarious liability” that falls within the
agency exception in § 12-2506(D)(2)); Wiggs v. City of Phx., 198 Ariz. 367, 371
¶¶ 13-14, 10 P.3d 625, 629 (2000) (same regarding the common-law, non-
delegable duty doctrine, which UCATA did not abolish).
¶17 In striking Cramer’s notice of nonparty at fault, the trial court
did not address Arizona’s statutory requirements or related case law and
erred in preventing the trier of fact from considering any potential fault of
Dr. Ehteshami. Neither the court’s ruling nor Munguia’s argument can be
reconciled with UCATA’s clear directives. Section 12-2506(D) identifies
various circumstances under which “a party is responsible for the fault of
another person, or for payment of the proportionate share of another
person.” But those exceptions do not apply here. And the statutes contain
no exception to UCATA’s several-liability rule when (1) a medical
provider’s post-accident services, even if medically necessary and
foreseeable, are allegedly negligent and cause the claimant to sustain new
or enhanced injury, or, more broadly, (2) when a non-party at fault is a
medical practitioner. Cf. Dumas v. Louisiana, 828 So. 2d 530, 537 (La. 2002)
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Opinion of the Court
(noting that state’s pure comparative fault statute “makes no exceptions for
liability based on medical malpractice”).
¶18 Having named Dr. Ehteshami as a nonparty at fault, Cramer
is entitled to have the trier of fact consider Dr. Ehteshami’s alleged
negligence “[i]n assessing percentages of fault.” § 12-2506(B). The trier
“shall . . . determine[] and apportion[] as a whole at one time” the relative
degrees of fault of Cramer and Dr. Ehteshami. § 12-2506(C). As Cramer
acknowledges, she bears the burden of proving any fault on Dr.
Ehteshami’s part.
III.
¶19 The trial court based its ruling on Second Restatement § 457,
entitled “Additional Harm Resulting From Efforts to Mitigate Harm
Caused by Negligence,” which sets forth the OTR:
If the negligent actor is liable for another’s bodily injury, he is
also subject to liability for any additional bodily harm
resulting from normal efforts of third persons in rendering
aid which the other’s injury reasonably requires, irrespective
of whether such acts are done in a proper or a negligent
manner.
The comments to that section indicate that when a negligent actor causes
an injury that may require medical services, it is reasonably foreseeable that
such services could be performed negligently, thereby adding to the
original injury. In such cases, the original tortfeasor “is responsible for any
additional injury resulting from the other’s exposure” to the risk of
negligently performed medical services. Id. cmt. b.
¶20 Our court of appeals has referred to and arguably relied on,
but not expressly adopted, Second Restatement § 457. See Ritchie v. Krasner,
221 Ariz. 288, 299 ¶ 29, 211 P.3d 1272, 1283 (App. 2009) (finding § 457
“instructive” on whether substantial evidence supported jury’s
determination that independent medical examiner’s negligence increased
the risk of, and proximately caused, workers’ compensation claimant’s
death); Barrett v. Harris, 207 Ariz. 374, 379 ¶¶ 17–18, 86 P.3d 954, 959 (App.
2004) (stating that “[a]lthough § 457 can apply to successive acts of medical
malpractice,” no evidence showed that doctor’s consultation advice
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Opinion of the Court
proximately caused infant’s death, and therefore “§ 457 did not apply to
impute liability” to the doctor); Transcon Lines v. Barnes, 17 Ariz. App. 428,
430 n.1, 434, 498 P.2d 502, 504 n.1, 508 (1972) (noting in dicta, without
deciding, that § 457 supported original tortfeasors’ liability for enhanced
damages (claimant’s later death)). But as Barrett noted, “[n]o Arizona
opinion has applied [Second] Restatement § 457.” 207 Ariz. at 379 ¶ 15, n.4,
86 P.3d at 959 n.4.
¶21 This Court has not addressed, let alone adopted, Second
Restatement § 457.2 “In Arizona, if there is no statute or case law on a
particular subject, we have traditionally followed the Restatement of
Laws,” Martinez v. Woodmar IV Condos. Homeowners Ass’n, 189 Ariz. 206,
208, 941 P.2d 218, 220 (1997), and generally will embrace the Restatement if
it prescribes “a sound and sensible rule,” Webster v. Culbertson, 158 Ariz.
159, 162, 761 P.2d 1063, 1066 (1988). Here, however, UCATA and our case
law clearly permit Cramer’s notice of nonparty at fault and, assuming
evidentiary support exists, require the trier of fact to consider Dr.
Ehteshami’s alleged negligence in assessing and allocating fault and to
determine liability. Thus, to the extent Second Restatement § 457 can be
read to preclude those procedures and to support the trial court’s ruling, it
is directly contrary to Arizona law and we reject it. See Ft. Lowell-NSS Ltd.
P’ship v. Kelly, 166 Ariz. 96, 102, 800 P.2d 962, 968 (1990) (“Absent Arizona
law to the contrary, this court will usually apply the law of the
Restatement.”).
¶22 Based on UCATA, we likewise reject Munguia’s assertion that
the OTR should apply to automatically hold the original tortfeasor severally
liable for all damages she proximately caused “because the fault, if any, of
the negligent medical care is imputed to the original tortfeasor and is
subsumed within the original tortfeasor’s fault.” That argument cannot be
squared with UCATA’s provisions defining “fault” and requiring the trier
2 Inasmuch as Arizona courts have not adopted Second Restatement
§ 457 or any other form of the OTR, Munguia’s assertion that “UCATA did
not clearly and plainly abrogate the [OTR]” misses the mark. And contrary
to her argument, we find no indication that the legislature “intended to
codify” the OTR when it enacted § 12-2501, the contribution statute, in 1984.
Moreover, as stated, the trial court’s interpretation and application of § 457
to strike Cramer’s notice of nonparty at fault is plainly inconsistent with
§ 12-2506.
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Opinion of the Court
of fact to consider, determine, and apportion the fault of all parties and
properly named nonparties. § 12-2506(B), (C), (F)(2). Although we agree
with Munguia’s contention that the OTR is a rule of causation (treating the
original tortfeasor as proximately causing certain later inflicted harm), not
joint and several liability, that characterization does not alter our
conclusion. UCATA displaced our prior common law under which
multiple tortfeasors whose negligence proximately caused a particular
injury would be jointly and severally liable. The OTR is a doctrine of
causation and does not preclude applying UCATA. Cf. Larsen v. Nissan
Motor Corp. in U.S.A., 194 Ariz. 142, 146 ¶ 10, 978 P.2d 119, 123 (App. 1998)
(observing that “the causation element is factored in as ‘a necessary
condition precedent to consideration of a person’s fault’ under [UCATA]”)
(quoting Zuern v. Ford Motor Co., 188 Ariz. 486, 492, 937 P.2d 676, 682 (App.
1996)).
IV.
¶23 The Restatement (Second) of Torts has been updated and
revised by the Restatement (Third) of Torts. As it relates to the OTR, the
Third Restatement generally reiterates Second Restatement § 457. See Third
Restatement § 35, cmt. a. Entitled “Enhanced Harm Due to Efforts to
Render Medical or Other Aid,” Third Restatement § 35 provides:
An actor whose tortious conduct is a factual cause of harm to
another is subject to liability for any enhanced harm the other
suffers due to the efforts of third persons to render aid
reasonably required by the other’s injury, so long as the
enhanced harm arises from a risk that inheres in the effort to
render aid.
See also 1 Dan B. Dobbs et al., The Law of Torts, § 211, at 740 (2d ed. 2011)
(noting that the “original actor may be liable, for example, not only for the
harm he directly causes, but also for the additional harm inflicted by . . .
negligent medical treatment of [the first] injury,” citing cases and Third
Restatement § 35).
¶24 The Third Restatement emphasizes that adoption of several-
only liability statutes like UCATA does not require or imply any change to
the OTR. Third Restatement § 35 cmt. d. As Comment (d) explains, this is
because “[m]odern adoption of pure several liability limits the liability of
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Opinion of the Court
each defendant liable for the same harm to that defendant’s comparative
share of the harm.” Id. (emphasis added) (citing Restatement (Third) of
Torts, Apportionment of Liability § 11). “Several liability, however, does
not provide rules about when defendants are liable for harm that they
caused.” Id. (emphasis added). Instead, as Comment (d) clarifies, when
“the [state’s] governing law imposes several liability, each of the defendants
is held liable for the amount of damages reflecting the enhanced harm
discounted by the comparative share of responsibility assigned by the
factfinder to that defendant.” Id. (emphasis added).
¶25 Thus, the OTR, now set forth in Third Restatement § 35, can
be read in conjunction with the governing law of the state. When the state’s
law generally provides for several-only liability, as does UCATA, the OTR
provides guidelines only regarding when a defendant may be subject to
liability for future, enhanced harm that stems from the original negligent
conduct—e.g., when the original tortfeasor’s conduct created a reasonably
foreseeable risk that future medical services may be necessary and that
those services may be performed negligently. But the Third Restatement
makes clear that the OTR yields to a state’s law governing the
apportionment of fault (and consequently, damages) based on the
factfinder’s determination of each potential tortfeasor’s comparative share
of responsibility. See 2 Dobbs, § 494, at 93 (noting that “under the traditional
rule, a tortfeasor who causes injury is jointly and severally liable for any
aggravation caused by a negligent health care provider, but under the
several liability regime, the initial tortfeasor is liable only for his
comparative fault share”); see also Dumas, 828 So. 2d at 537 (holding that
under state’s pure comparative fault statutes, the fault of both the
defendant/tortfeasor and nonparty medical providers who treated the
original injury “should be determined” and each tortfeasor “will be liable
only for his portion of fault”). These fault-related issues, including
causation, generally are questions of fact for a jury to resolve. See § 12-
2506(B), (C), (F)(2); Third Restatement § 35, illus. 4; see also Gipson v. Kasey,
214 Ariz. 141, 143 ¶ 9, 150 P.3d 228, 230 (2007).
¶26 In sum, we harmonize the common law doctrine with
Arizona’s statutory scheme by adopting the OTR set forth in the Third
Restatement § 35, but only to the extent it does not conflict with UCATA.
Doing so is consistent with our embracing the Restatement (Third) of Torts,
Liability for Physical and Emotional Harm § 32, the corollary to Third
Restatement § 35, in Espinoza v. Schulenberg, 212 Ariz. 215, 217 ¶¶ 7-9, 129
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P.3d 937, 939 (2006) (adopting the “rescue doctrine” set forth in Third
Restatement § 32 and noting that “injury to a rescuer is a foreseeable result
of the original negligence”).
¶27 Subject to UCATA, the OTR can serve a useful purpose in
cases like this. As stated earlier, the rule cannot be used to automatically
impute to the original tortfeasor the subsequent negligence of a medical
provider or other person who renders aid reasonably required by the
original tortfeasor’s act. But because UCATA defines fault as an actionable
breach of duty that proximately caused the plaintiff’s injury, § 12-
2506(F)(2), plaintiffs remain free to argue under Third Restatement § 35 that
an original tortfeasor proximately caused subsequent, enhanced injury and
shares all or at least some responsibility for that injury. See Third
Restatement § 35, cmt. d (noting that the “subsequent negligence of one
rendering assistance to an injured person is not a superseding cause of any
enhanced harm, thereby including such harm within the initial tortfeasor’s
scope of liability”).
¶28 UCATA does not immunize or shield Cramer from liability
for the enhanced harm allegedly caused by Dr. Ehteshami’s negligence. If
Munguia shows that the conditions of Third Restatement § 35 are met,
Cramer will have proximately caused the enhanced harm, and her liability
for such harm will be determined, consistent with UCATA, by the jury’s
assessment of comparative fault. See Third Restatement § 35.
V.
¶29 The trial court erred in striking Cramer’s notice of nonparty
at fault based on Second Restatement § 457. We reverse that order and
remand the case to the trial court for further proceedings consistent with
this opinion.
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