Fordham v. Oldroyd

1 The firefighter’s rule is not identical to the
professional rescuer rule. 	As the label implies, the
professional rescuer rule is not limited in its application to
firefighters, but has a broader reach to bar negligence claims by
those who take on a professional duty to rescue others
irrespective of whether they do so in a public or private
capacity. 	See Maltman v. Sauer, 530 P.2d 254, 257 (Wash. 1975)
(presenting both rules and holding that “a professional rescuer,
in making a deliberate attempt at saving a life, and under the
correct factual setting, is within the intended scope of the
‘rescue doctrine’”). 	We adopt the professional rescuer
nomenclature.
2007 UT 74
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Richard G. Fordham, 	No. 20060260
Plaintiff and Petitioner,
v.
F I L E D
Ryan Oldroyd,
Defendant and Respondent. 	September 14, 2007
---
Third District Court, Salt Lake
The Honorable L. A. Dever
No. 040910717
Attorneys: 	Peter C. Collins, Salt Lake City, for plaintiff
Aaron Alma Nelson, Salt Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1 	This case calls on us to consider for the first time
whether Utah recognizes a professional rescuer 1 rule that stakes
its claim to legitimacy in its tie to sound public policy. 	We
conclude that such a rule properly occupies a place in our law.
By adopting a rule grounded in public policy, we intend to
communicate the clear and unambiguous conviction that

No. 20060260 	2
professional rescue activities are wholly compatible with, and in
fact essential to, defining the proper role of professional
rescuers in civil society. 	Accordingly, we hold that Ryan
Oldroyd owed no duty to Utah Highway Patrol Trooper Richard
Fordham, who was injured while responding to an automobile
accident to which Mr. Oldroyd’s negligence may have contributed.
BACKGROUND
¶2 	While driving east into Salt Lake City on an off-ramp
of Interstate 15, Ryan Oldroyd encountered icy and snowy road
conditions, lost control of his vehicle, and crashed. 	Several
Salt Lake City police officers and Utah Highway Patrol troopers
including Richard Fordham responded to the scene. 	When Trooper
Fordham arrived, he stopped his car in one of the eastbound
travel lanes and walked to the rear of his patrol vehicle to
retrieve warning flares from his trunk. 	As he was retrieving the
flares, a third driver lost control of her automobile and struck
Trooper Fordham, causing him serious bodily injuries.
¶3 	Trooper Fordham filed suit in district court seeking
damages from Mr. Oldroyd because Mr. Oldroyd’s negligence was
allegedly the proximate cause of the injuries. 	Mr. Oldroyd moved
for summary judgment. 	He asserted that the professional rescuer
doctrine barred Trooper Fordham as a matter of law from
recovering damages for injuries sustained while acting in the
course and scope of his employment as a highway patrol trooper.
The district court agreed with Mr. Oldroyd and granted his motion
for summary judgment. 	The court of appeals affirmed and adopted
a professional rescuer doctrine. 	We granted certiorari to
determine whether the court of appeals was correct in adopting
the doctrine. 	We conclude that it was and affirm.
ANALYSIS
¶4 	The common law is an aggregation of judicial
expressions of public policy. 	Courts preserve the legitimacy of
the common law in two ways: 	by ensuring that shared values are
visible within its tenets and by accommodating the imperatives of
experience and changed circumstance within the common law without
using undue disruption. 	No realm of the common law is as
saturated with judicial public policy judgments as the law of
torts. 	This is most in evidence when judges go about the
business of assigning duties of care. 	See, e.g., Yazd v.
Woodside Homes Corp., 2006 UT 47, ¶ 17, 143 P.3d 283 (“Legal
duty, then, is the product of policy judgments applied to
relationships.”); Webb v. Univ. of Utah, 2005 UT 80, ¶ 9, 125
P.3d 906 (“‘A court’s conclusion that duty does or does not exist

3 	No. 20060260
is “an expression of the sum total of those considerations of
policy which lead the law to say that the plaintiff is [or is
not] entitled to protection.”’” (brackets in original) (quoting
Univ. of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987)
(quoting Prosser and Keeton on the Law of Torts § 53, at 358 (5th
ed. 1984)))).
¶5 	Of course, courts are not the exclusive arbiters of
public policy. 	A court’s pronouncements of public policy are
vulnerable to the legislature’s revision or outright rejection.
Our recognition that the legislature is endowed with the primary
responsibility to identify and codify public policy does not
mean, however, that we are foreclosed from grounding our rulings
in public policy judgments when circumstances invite us to enlist
the common law in the cause of advancing a just society. 	Cf.
Yazd, 2006 UT 47, ¶ 20 (“Typically, courts cede authority over
matters of policy to the political branches of government. 	When
policy considerations bear on a subject lodged firmly within the
court’s sphere, like the common law, it is entirely appropriate
for the court to make the policy judgments necessary to get the
law right.”). 	We believe such circumstances are present here.
¶6 	In concluding that Mr. Oldroyd owed no duty to Trooper
Fordham, we inquire into two matters: 	(1) whether the injury was
derived from the negligence that occasioned the professional
rescuer’s response, and (2) whether the injury was within the
scope of those risks inherent in the professional rescuer’s
duties. 	See, e.g., Kreski v. Modern Wholesale Elec. Supply Co.,
415 N.W.2d 178, 183-89 (Mich. 1987) (“[T]he rule[’s] . . . most
basic formulation is that a fire fighter or police officer may
not recover damages from a private party for negligence in the
creation of the reason for the safety officer’s presence. . . .
[T]he rule [we] adopt[] . . . includes negligence in causing the
incident requiring a safety officer’s presence and those risks
inherent in fulfilling the police or fire fighting duties.”).
Where, as here, it is beyond dispute that Trooper Fordham’s
presence at the accident scene satisfied both inquiries, we hold
that Mr. Oldroyd owed Trooper Fordham no duty of care.
¶7 	Courts of sister states have given favor to some
formulation of a professional rescuer rule based on public
policy. 	See Moody v. Delta W., Inc., 38 P.3d 1139 (Alaska 2002);
Thomas v. Pang, 811 P.2d 821 (Haw. 1991); Winn v. Frasher, 777
P.2d 722 (Idaho 1989); Flowers v. Rock Creek Terrace Ltd. P’ship,
520 A.2d 361 (Md. 1987); Kreski, 415 N.W.2d at 183-89. 	The
dominant public policy rationale common to all these cases is
that firefighters and police officers have a relationship with
the public that calls on them to confront certain hazards as part

No. 20060260 	4
of their professional responsibilities. 	See, e.g., Thomas, 811
P.2d at 825 (“The very purpose of the fire fighting profession is
to confront danger. 	Fire fighters are hired, trained, and
compensated to deal with dangerous situations that are often
caused by negligent conduct or acts. 	‘[I]t offends public policy
to say that a citizen invites private liability merely because he
happens to create a need for those public services.’” (brackets
in original) (quoting Pottebaum v. Hinds, 347 N.W.2d 642, 645
(Iowa 1984))). 	It would be naive to believe that fire and police
professionals will be called on to draw on their training in
meeting only those hazards brought on by prudent acts gone awry.
Members of the public, who owing to their negligence find
themselves in need of aid, should summon assistance without fear
of exposing their assets to compensate their rescuer in the event
of injury.
¶8 	In rejecting the firefighter’s rule in Oregon, that
state’s supreme court brushed aside the rationale that the rule
was necessary because, without it, imperiled citizens may be
reluctant to summon aid, by quoting Dean Prosser’s
characterization of this hesitation as “‘preposterous rubbish.’”
Christensen v. Murphy, 678 P.2d 1210, 1217 (Or. 1984) (quoting
Prosser, Law of Torts § 68, 397 (4th ed. 1971)). 	This rhetoric
is enough to cool the ardor of any proponent of a “chilled
rescuee” justification for a professional rescuer rule. 	Dean
Prosser’s derisiveness does not deter us from believing that it
is not too farfetched to expect that prudent motorists might,
perhaps on the advice of their insurance carriers, confront their
rescuers with waiver of liability documents or, if able to do so,
engage in a dialogue with rescuers to gain assurance that they
are competent to undertake the rescue. 	Like many, we would
prefer to inhabit a society in which the consequences of one’s
inattention do not include the compensation of those on whom all
of us collectively confer the duty to extricate us from our
distress. 	We are confident that most citizens, including those
who are conversant with comparative negligence law, believe that
they now inhabit such a society. 	While judges do not perform
their judicial responsibilities by enshrining widely held
assumptions into the common law, the widely held belief that one
is not exposed to tort liability for negligence requiring rescue
emanates from a broadly shared value about the workings of a
well-ordered society.
¶9 	Most of the handful of jurisdictions rejecting or
significantly limiting the professional rescuer rule have done
so, at least in part, because of its association with the
discredited assumption of the risk doctrine. 	See Banyai v.
Arruda, 799 P.2d 441, 443 (Colo. Ct. App. 1990) (declining to

5 	No. 20060260
adopt a rule after noting that “[t]he reasons stated as modern
support for the rule are that safety officers are employed,
trained, and paid to confront dangerous situations . . . and that
these officers undertake their profession with knowledge that
personal safety is at risk”); Christensen, 678 P.2d at 1214-18
(“As a result of statutory abolition of implied assumption of
risk, we hold that the ‘fireman’s rule’ is abolished in
Oregon.”); Minnich v. Med-Waste, Inc., 564 S.E.2d 98, 101 (S.C.
2002) (rejecting a professional rescuer rule even though “a
number of courts reason that police officers and firefighters,
aware of the risks inherent in their chosen profession, have
assumed those risks”). 	The taint of assumption of the risk ties
has spilled over into attempts to defend the professional rescuer
rule on public policy grounds. 	As the Oregon Supreme Court
noted, “Frequently, the so-called policy reasons are merely
redraped arguments drawn from premises liability or implied
assumption of the risk, neither of which are now available as
legal foundations in this state.” 	Christensen, 678 P.2d at 1217.
The Christensen court was particularly eager to disrobe redraped
arguments because the Oregon Legislature had abolished the
doctrine of assumption of the risk in all of its forms. 	See
generally Or. Rev. Stat. § 18.475(2) (1975) (“The doctrine of
implied assumption of the risk is abolished.”).
¶10 	Unlike Oregon, Utah has taken a more selective approach
to surrendering various forms of assumption of the risk to
comparative negligence. 	A brief description of express and
implied assumption of the risk and a historical summary of the
fate of each of its forms will assist in demonstrating why we
have less to fear from an accusation that a professional rescuer
rule is little more than assumption of the risk in disguise.
¶11 	We first confronted the conflict between comparative
negligence and assumption of the risk in Jacobsen Construction
Co. v. Structo-Lite Engineering, Inc., 619 P.2d 306 (Utah 1980).
The term “assumption of the risk,” we observed, had several
historical definitions and applications. 	We emphasized the
importance of the distinctions between different formulations of
this term when we said that “[i]ts overuse in the number and
variety of definitions of the term have [sic] brought disfavor to
the defense, and the trend has been to eliminate its use in favor
of the negligence language.” 	Id. at 309 & n.1 (“‘The phrase
“assumption of risk” is an excellent illustration of the extent
to which uncritical use of words bedevils the law. 	A phrase
begins life as a literary expression; its felicity leads to its
lazy repetition; and repetition soon establishes it as a legal
formula, undiscriminatingly used to express different and

No. 20060260 	6
sometimes contradictory ideas.’” (quoting Tiller v. Atl. Coast
Line R.R. Co., 318 U.S. 54, 68 (1943))).
¶12 	Presented with the “considerable confusion” stemming
from the term’s indiscriminate use, we pared the varieties of
assumption of the risk down to two: 	primary and secondary. 	Id.
at 309-10. 	We defined primary assumption of the risk as an
“alternative expression for the proposition that defendant was
not negligent, that is, there was no duty owed or there was no
breach of an existing duty.” 	Id. at 310. 	We agreed with those
jurisdictions that had concluded that when used in its primary
sense, assumption of the risk served no purpose and should
properly be folded into the concept of common-law duty. 	Id. at
310-11 (citing Bolduc v. Crain, 181 A.2d 641 (N.H. 1962); Petrone
v. Margolis, 89 A.2d 476 (N.J. Super. Ct. App. Div. 1952);
McConville v. State Farm Mut. Auto. Ins. Co., 113 N.W.2d 14 (Wis.
1962)). 	We described secondary assumption of the risk as “an
affirmative defense to an established breach of duty and as such
is a phase of contributory negligence.” 	Id. at 310. 	Since
secondary negligence was linked to contributory negligence, it
could not coexist with comparative negligence. 	We therefore held
in Jacobsen that use of assumption of the risk terminology was
not appropriate to describe either its duty-based primary form or
its secondary meaning grounded in contributory negligence. 	Id.
at 310-11.
¶13 	For our purposes, Jacobsen imparts the important lesson
that we do not violate principles of comparative negligence when
we evaluate the presence or absence of duty under what had
previously been denominated as primary assumption of the risk.
Thus, our formulation of the professional rescuer rule--that a
person does not owe a duty of care to a professional rescuer for
injury that was sustained by the very negligence that occasioned
the rescuer’s presence and that was within the scope of hazards
inherent in the rescuer’s duties--is not infected with a rejected
strain of assumption of the risk. 	We have never gone so far as
to bar as offensive to comparative negligence all doctrines that,
as a matter of law, impose no duty of care on an arguably
negligent actor from whom an injured person might otherwise be
entitled to recover under traditional tort principles.
¶14 	We recently reaffirmed such a doctrine in Hale v.
Beckstead, 2005 UT 24, 116 P.3d 263. 	When considering Trooper
Fordham’s appeal, the court of appeals insightfully analogized
Hale’s duty-based approach to applying the “open and obvious
danger” defense to the assumption of the risk in the context of
the professional rescuer rule. 	Further, the court of appeals
correctly looked to Hale as an example of an instance where

7 	No. 20060260
despite the constraints of comparative negligence, a form of the
“open and obvious danger” rule endures as “‘a duty-defining rule
that simply states that, under appropriate circumstances, a
landowner’s duty of care might not include warning or otherwise
protecting visitors from obvious dangers.’” 	Fordham v. Oldroyd,
2006 UT App 50, ¶ 22, 131 P.3d 280 (quoting Hale, 2005 UT 24,
¶ 23). 	We believe that the duty-based analytical model that has
served us well since Jacobsen provides the soundest approach
here. 	We therefore hold that Mr. Oldroyd owed no duty to Trooper
Fordham because imposing one would offend sound public policy.
Because it is not necessary to do more to reach the result in
this case, we limit application of the rule to professional
rescuers who, like firefighters and police officers, are public
employees.
¶15 	The injuries Trooper Fordham sustained were within the
scope of those risks inherent in his duty as a highway patrolman.
Mr. Oldroyd rolled his car because he was driving too fast
considering the road conditions, and this alleged negligence was
what occasioned Trooper Fordham’s presence. 	Another car struck
Trooper Fordham while he was retrieving flares from the back of
his patrol car, a seemingly usual activity for a highway patrol
trooper at an accident scene. 	Cf. Steelman v. Lind, 634 P.2d
666, 668 (Nev. 1981) (barring recovery to a highway patrol
trooper for injuries he sustained while undertaking a rescue
because “affirmative action to protect anyone found in a
precarious situation upon the highway . . . forms a part of what
troopers are hired to do and falls directly under the ordinary
course of the duties of the occupation”).
¶16 	We do not find persuasive the argument that statutes
mandating universal automobile liability coverage can be
interpreted to communicate the legislature’s intention to make
the application of tort remedies universal. 	Moreover, although
in this case Trooper Fordham was injured after responding to an
automobile accident and would be permitted in the absence of a
professional rescuer rule to pursue a tort claim against
Mr. Oldroyd, an insurance-driven rationale would presumably leave
Trooper Fordham without a remedy if the negligence that
occasioned his response and subsequent injuries had arisen under
circumstances not involving an automobile. 	We do not find the
general availability of insurance sufficient to justify creating
an exception to a professional rescuer rule for automobile
accidents. 	It is the nature of the rescuer-rescued relationship
and not the presence or absence of insurance that serves as the
public policy value animating the professional rescuer rule.

No. 20060260 	8
¶17 	This is not to say that cost is not relevant to the
public policy approach. 	It is. 	The nature of the rescuer-
rescued relationship is one that contemplates allocation of costs
across society generally for injuries sustained by professional
rescuers. 	In this respect, the professional rescuer rule departs
from the foundational tort law principle that, as between an
innocent party and a negligent one, the loss should fall on the
negligent party. 	Yet, as our analysis of the “open and obvious
danger” defense in Hale illustrates, see 2005 UT 24, ¶¶ 7-31, the
common law requires innocent parties to shoulder loss when the
law declines to impose a duty on a party arguably responsible for
a hazard. 	Cf. William L. Prosser, Business Visitors and
Invitees, 26 Minn. L. Rev. 573, 610-11 (1942) (“Why, then, are
visiting firemen and policemen set apart as a class to whom no
duty is owed to inspect and prepare the premises? 	One obvious
reason, which has been mentioned in nearly all of the cases, is
that these individuals enter at unforeseeable moments, upon
unusual parts of the premises, and under circumstances of
emergency, where care in preparation cannot reasonably be looked
for. 	A man who climbs in through a basement window in search of
a fire or a thief cannot expect an assurance that he will not
find a bulldog in the cellar. 	Regardless of benefit of
invitation, there is no reason to suppose that the place has been
made safe.”). 	Notably, the consequences for an injured
professional rescuer who is a public employee may be less unfair
than those that would befall a private party like the plaintiff
in Hale because responsible citizens can, and should, see to it
that their public officials fairly compensate those firefighters,
police officers, and others who are called upon to confront
hazards as part of their callings.
CONCLUSION
¶18 	Trooper Fordham’s injuries were within the scope of
risks inherent to a highway patrol trooper’s duties and derived
from the alleged negligence requiring his presence. 	Rather than
place unnecessary and excessive analytical strain on traditional
tort concepts, our law is better served by a limited formulation
of a professional rescuer rule. 	Consistent with the professional
rescuer rule we recognize today, we hold that Mr. Oldroyd owed
Trooper Fordham no duty of care and affirm the court of appeals.
---
¶19 	Chief Justice Durham, Justice Durrant, and Justice
Parrish concur in Justice Nehring’s opinion.
---

1 57A Am. Jur. 2d Negligence § 782 (2004).
2 32 N.E. 182 (Ill. 1892).
3 Id. at 189-92.
4 Id.
5 Id.
6 See, e.g., Flowers v. Rock Creek Terrace Ltd. P’ship, 520
A.2d 361, 367 (Md. 1987) (“Nothing in traditional premises
liability law [justifies] classifying some . . . public employees
as invitees and others as licensees.”).
7 See, e.g., Pearson v. Can. Contracting Co., 349 S.E.2d
(continued...)
9 	No. 20060260
WILKINS, Associate Chief Justice, concurring and dissenting:
¶20 	I concur in the result reached by my colleagues, but
disagree with the necessity of adopting any additional new rule
of law to handle the questions presented by the case.
¶21 	Although the professional rescuer rule has a fairly
long and complex history in the courts of our sister states, this
is the first time we have been presented with the question of
whether Utah does or should recognize such a rule. 	The
professional rescuer rule “bars those engaged in rescue work as
part of their employment from recovering damages for injuries
sustained on the job as a result of the negligence of the person
rescued.” 1
¶22 	The concept of a professional rescuer rule first arose
in the 1892 case of Gibson v. Leonard. 2 	In Gibson, the Illinois
Supreme Court held that a firefighter who was injured while
fighting a fire on private property could not recover tort
damages from the property owner whose ordinary negligence had
caused the fire. 3 	The rule was couched in terms of premises
liability. 4 	The court determined that a firefighter who comes to
the scene of a fire is a licensee, and as such, the property
owner, even if he negligently started the fire, owed only those
duties to the firefighter that were owed to any other licensee. 5
¶23 	Over the years since, courts have struggled with the
logic of the premises liability rationale, both because it
singles out fire and police officers, 6 and because of the
tortured application of the status of licencee. 7 	Some courts

7 (...continued)
106, 110 (Va. 1986) (“Policemen and firemen . . . enter premises
as of right, under a privilege based on a public purpose. 	They
clearly are not trespassers. 	Nor can they be classified as
licensees or invitees, who enter with consent or invitation of
the occupant, as consent and invitation are irrelevant to a
policeman’s or fireman’s privileged entry.”).
8 Pettebaum v. Hinds, 347 N.W.2d 642, 645 (Iowa 1984).
9 Christensen v. Murphy, 678 P.2d 1210, 1218 (Or. 1984).
10 Fordham v. Oldroyd, 2006 UT App 50, ¶ 16, 131 P.3d 280
(citations omitted) (quoting Hale v. Beckstead, 2005 UT 24, ¶ 21,
116 P.3d 263); see Utah Code Ann. § 78-27-38 (2002).
No. 20060260 	10
have since abandoned the premises liability rationale because it
“unfairly limit[s] the rule’s application to the
landowner/occupant context, thus denying liability for negligent
acts of these individuals but not for others whose negligent acts
injure police officers or firemen elsewhere.” 8
¶24 	Many courts adopted a professional rescuer rule by
applying an assumption of risk analysis. 	However, as states have
abandoned the assumption of risk doctrine as part of the
evolution of comparative negligence, so too have courts ceased to
rely on assumption of risk as a foundation for their professional
rescuer rule. 	For example, the Oregon courts adopted a
professional rescuer rule using assumption of risk underpinnings
but later abolished it after the Oregon State Legislature
eliminated assumption of risk as a defense to tort liability. 9
Our court of appeals correctly noted that, “[a]s in Oregon
. . . , assumption of risk ‘is no longer recognized in Utah as a
total bar to recovery.’ 	Thus, adoption of the professional-
rescuer doctrine in Utah cannot be supported by a rationale based
upon a theory of assumption of risk.” 10
¶25 	Ultimately, a third rationale became necessary to
support the adoption of a professional rescuer rule. 	That
rationale, relied on by my colleagues and the court of appeals in
this case, is public policy. 	In fact, the majority of modern
decisions adopting a professional rescuer rule are supported, at
least in part, on a statement of public policy. 	On the other
hand, some courts have rejected the proffered public policy
rationale, concluding that “[t]he more sound public policy . . .

11 Minnich v. Med-Waste, Inc., 564 S.E.2d 98, 103 (S.C.
2002).
12 See, e.g., Miller v. Bock, 567 N.W.2d 253, 256 (Mich. Ct.
App. 1997) (“[A] tortfeasor who acts wilfully and wantonly is so
culpable that the fireman’s rule ought not to preclude the
injured officer from suing the egregiously culpable wrongdoer.”).
13 Minnich, 564 S.E.2d at 101-03 (analyzing the various
forms the professional rescuer rule has taken and determining
that “those jurisdictions which have adopted the firefighter’s
rule offer no uniform justification therefor, nor do they agree
on a consistent application of the rule”).
14 Id. at 103.
11 	No. 20060260
is to decline to promulgate a rule singling out police officers
and firefighters for discriminatory treatment.” 11 	I agree.
¶26 	Not only have courts differed in their rationales for
adopting a rule, those courts that have adopted a professional
rescuer rule have fashioned widely different parameters for their
rules. 	A number of courts have allowed the rule as a defense to
negligence claims but not for willful and wanton conduct that
results in injury. 12 	Other courts have allowed recovery only for
injuries resulting from an act of negligence beyond the initial
negligence that required the officer’s presence at the scene. 13
Still other courts have declined to adopt any special rule.
¶27 	In rejecting a professional rescuer rule, the South
Carolina Supreme Court said, “[T]he tort law of this state
adequately addresses negligence claims . . . arising out of
injuries incurred by firefighters and police officers during the
discharge of their duties.” 14 	Again, I agree. 	Special
exceptions, new rules, and policy driven changes really are best
left to the legislative branch of government, in my view.
Courts, albeit happy to fill the breach, are least skilled at
broad policy applications.
¶28 	Absent the adoption of an exception or other special
rule, traditional tort law governs. 	One relevant exception that
courts in some states have adopted is the “rescue doctrine.” 	The
rescue doctrine, as distinguished from a professional rescuer
rule, allows an injured rescuer to recover damages from the
person whose negligence created the need for rescue. 	The
professional rescuer rule, on the other hand, “evolved as an
exception to the rescue doctrine,” making it so a “rescuer who
could otherwise recover [under the rescue doctrine] cannot do so

15 Espinoza v. Schulenburg, 129 P.3d 937, 939 (Ariz. 2006).
16 Id. at 940 (emphasis added).
17 Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1346
(Utah 1993).
18 Dillard v. Pittway Corp., 719 So. 2d 188, 192 (Ala.
1998).
19 Steffensen, 862 P.2d at 1346.
No. 20060260 	12
if she is performing her duties as a professional.” 15 	The
professional rescuer rule “limits the expansion of tort liability
created by the rescue doctrine.” 16 	We have not adopted the
“rescue doctrine.” 	Consequently, it becomes even more awkward to
create an exception to the doctrine we have not adopted.
¶29 	I am of the opinion that we should apply instead a
traditional negligence analysis to the facts of this case. 	Under
this analysis, Oldroyd’s simple act of negligence, in losing
control of his car in icy conditions, by itself is not enough to
sustain Fordham’s claim for damages. 	Fordham’s claim fails
because, as a matter of law, Oldroyd did not breach any duty owed
to Fordham and Oldroyd’s act was not the proximate cause of
Fordham’s injuries.
¶30 	Proximate cause is a legal limit to liability. 	A
negligent act may at times be part of a chain of events
eventually leading to an injury, but still be too remote to
warrant holding the negligent party liable for the injury. 	For
proximate cause to exist, the relationship between the negligent
act and the injury must be foreseeable. 	We have held that
“foreseeability is an element of proximate cause.” 17 	Similarly,
other courts have concluded that “[f]oreseeability is the
cornerstone of proximate cause.” 18 	In this case, Fordham asks us
to conclude that as Oldroyd navigated his car through the snow,
he should have foreseen the risk of injury to an assisting
trooper from another driver and that Oldroyd should have acted,
in part, with that risk in mind. 	We have said that
“foreseeability is required to meet the test of negligence.” 19
Fordham’s injuries were not reasonably foreseeable by Oldroyd, in
my view. 	Oldroyd did not have a duty to protect Fordham from
those injuries. 	The legal separation between Oldroyd’s driving
onto the slick road and the trooper’s injury is just too great to
sustain a claim under our established law. 	I do not see a need,
policy driven or otherwise, to adopt a new and “special” rule to
deal with these facts. 	I would affirm the decision of the court

13 	No. 20060260
of appeals on the basis of existing negligence law, and resist
the temptation to express any further policy preference.
---