[No. 79976-8. En Banc.]
Argued May 29, 2007. Decided September 13, 2007.
[1] Judgment — Summary Judgment — Denial — Review — Standard of Review. An appellate court reviews a trial court's denial of a motion for summary judgment de novo. The appellate court reviews the trial court's decision by engaging in the same inquiry as the trial court under CR 56(c). [2] Negligence — Rescue — Rescue Doctrine — Professional Rescuer — In General. Whereas the rescue doctrine allows a voluntary rescuer to recover in tort for injuries incurred while reasonably undertaking the rescue of a person who has negligently placed him or herself in a position of imminent peril, the professional rescue doctrine bars professional rescuers from recovering under the rescue doctrine. The reason for the rule is that a professional rescuer assumes certain hazards not assumed by a voluntary rescuer. The professional rescue doctrine prevents a professional rescuer from recovering for injuries stemming from hazards inherently within the ambit of those dangers that are unique to and generally associated with the particular rescue activity. [3] Negligence — Rescue — Rescue Doctrine — Professional Rescuer — Limitation of Remedies — Scope. The professional rescue doctrine does not bar a professional rescuer from recovering in tort for injuries stemming from hazards that are hidden, unknown, and extrahazardous or that otherwise were not reasonably anticipated or foreseen. [4] Negligence — Rescue — Rescue Doctrine — Professional Rescuer — Limitation of Remedies — Intervening Act. The professional rescue doctrine does not bar a professional rescuer from recovering in tort for injuries occurring at the scene of a rescue that were caused by an intervening person who was not responsible for bringing the rescuer to the scene. [5] Pensions — Police and Fire Fighters — Action Against Employer — Professional Rescue Doctrine — Applicability — Negligence of Fellow Officer. In light of RCW 41.26.281, which specifically grants injured law enforcement officers the right to sue their employers for negligence in addition to benefits provided under the Law Enforcement Officers' and Fire Fighters' Retirement System Act (chapter 41.26 RCW), the professional rescue doctrine does not bar a police officer from recovering in tort for injuries received while engaged in official duties where such injuries were caused by the intervening negligence of a fellow officer. [6] Pleading — Defenses — Affirmative Defense — Waiver — Court Rule. Under CR 8(c), a party risks waiver of an affirmative defense if the defense is not affirmatively pleaded. [7] Negligence — Rescue — Rescue Doctrine — Professional Rescuer — Nature of Doctrine — Implied Primary Assumption of the Risk. The professional rescue doctrine is a type of implied primary assumption of the risk. [8] Negligence — Rescue — Rescue Doctrine — Professional Rescuer — Affirmative Defense — Pleading — Assumption of Risk. The assertion of assumption of the risk in an answer to a negligence action is sufficient to raise a professional rescue doctrine defense for purposes of CR 8(c), which requires affirmative defenses to be affirmatively pleaded. Nature of Action: A county sheriff's officer who was struck and injured by a vehicle driven by another county sheriff's officer while in hot pursuit of a criminal suspect sought damages for personal injuries from the county. Superior Court: The Superior Court for King County, No. 04-2-23610-0, John P. Erlick, J., on June 15, 2006, denied the county's motion for summary judgment, ruling that the professional rescue doctrine did not apply to preclude recovery. Supreme Court: Holding that the professional rescue doctrine does not bar the plaintiff's action against the county, the court affirms the trial court's order and remands the case for further proceedings. Gerald A. Horne-, Prosecuting Attorney, and Daniel R. Hamilton-, Deputy, for petitioner. Joseph E. Fischnaller- and Michael S. Dutton-, for respondent. En Banc ¶1 OWENS, J. — Pierce County appeals a trial court's denial of its motion for summary judgment. Pierce County contends that the trial court erred as a matter of law in ruling that the professional rescue doctrine does not bar Sergeant Curtis Beaupre's suit against Pierce County for injuries sustained when a fellow Pierce County sheriff's officer struck him with a patrol car during a hot pursuit. We hold as a matter of law that the professional rescue doctrine does not bar Beaupre's suit against his employer. Accordingly, we affirm the trial court's order and remand for further proceedings. FACTS ¶2 Beaupre, a sergeant with the Pierce County Sheriff's Office, filed suit against Pierce County for injuries he sustained while pursuing a domestic violence suspect's vehicle on Interstate 5 (I-5). According to the complaint, Beaupre and several other officers attempted to stop the suspect who was driving the wrong way on I-5. Clerk's Papers at 5. Some officers blocked I-5 traffic, others deployed spike strips, and some attempted PIT (pursuit intervention technique) maneuvers in an effort to stop the vehicle. Id. at 27-28. Believing the suspect's vehicle was stopping, Beaupre exited his vehicle. Id. at 28. The suspect, however, continued driving and Beaupre ran "along side of the [suspect's] vehicle with his sidearm drawn and pointed at the suspect while ordering him to stop." Id. at 5. While running, another patrol car struck Beaupre from behind, causing him to fly 5 to 10 feet and land in front of the suspect's vehicle, "which then ran over his pelvis with its two passenger-side wheels." Id. Other officers then shot and killed the suspect. Id. ¶3 Beaupre sued the county for negligence, seeking damages in excess of those awarded through workers' compensation. Pierce County moved for summary judgment, arguing in part that the professional rescue doctrine barred Beaupre's suit. The county argued that being hit by another patrol car during a foot pursuit was an inherent risk of the particular rescue operation and thus, Beaupre could not recover for his injuries. Id. at 73-74. King County Superior Court Judge John P. Erlick denied the county's motion for summary judgment, holding as a matter of law that the professional rescue doctrine did not apply. Id. at 124. The trial court further held that genuine issues of fact remained as to the alleged negligent training of the officer who hit Beaupre. Id. The trial court denied the county's motion for reconsideration, and the county sought discretionary review from the Court of Appeals. We transferred the case from Division One of the Court of Appeals. ISSUES ¶4 1. Did the trial court err in denying summary judgment on the basis of the professional rescue doctrine? ¶5 2. Did Pierce County waive the professional rescue doctrine by not specifically raising it as an affirmative defense in its answer? ANALYSIS A. Standard of Review B. Professional Rescue Doctrine ¶9 Similarly in Ward, the Court of Appeals refused to apply the professional rescue doctrine to bar an officer's recovery for injuries sustained when a car hit her patrol car while in route to a prowler assist call. 52 Wn. App. at 287-88. The court reasoned that the risk of a collision was not a risk inherent in a prowler assist call. Id. The court further held that the professional rescue doctrine "relieves the perpetrator of the act that caused the rescuer to be at the scene; it does not relieve a party whose intervening negligence injures the rescuer." Id. at 287. Likewise in Ballou, the Court of Appeals held the professional rescue doctrine did not bar officers from suing individuals who intentionally hit them. 67 Wn. App. at 73-74. The court reasoned that the doctrine was inapplicable because "the officers were not injured by the defendants' negligence; rather, they were injured by the defendants' criminal assaults." Id. at 73. ¶10 Although Pierce County agrees with the Court of Appeals holdings in Ward, Sutton, and Ballou, it nonetheless asserts that the professional rescue doctrine bars Beaupre's recovery. ¶11 In Calatayud, the California Supreme Court held that the professional rescue doctrine barred a city police officer from suing a highway patrol officer and the patrol officer's employer for injuries sustained while the officers were involved in a joint rescue. Id. at 1062. The Calatayud court noted that under California law, officers may not sue their employer for negligence resulting in injury and must instead recover under the State's workers' compensation program. Id. The court then held that the legislature did not intend a statutory exception to the doctrine to apply where an officer involved in a rescue operation caused the injury of an officer from another agency. Id. at 1064. The court stated that holding otherwise would undermine the "exclusivity" of the State workers' compensation system: "We can discern no rational reason the Legislature would intend liability to depend solely on whether the plaintiff and defendant wore different badges and uniforms when the risk of injury is the same." Id. at 1072. The court likewise listed several other public policy considerations in support of its holding: (1) allowing officers to respond to issues of public safety without the worry of injury to fellow officers, (2) relieving public agencies of the financial burden of litigation, and (3) promoting efficient judicial administration by preventing the causation problems inherent in such suits. Id. at 1068-72. Pierce County argues that we should adopt the same approach. ¶12 California law, however, stands in stark contrast to Washington law. In California, officers may not sue their own agency for negligence; rather, California law requires officers to recover exclusively under the workers' compensation system. See id. at 1072. In contrast, the Washington Law Enforcement Officers' and Fire Fighters' Retirement System Act (LEOFF), chapter 41.26 RCW, specifically grants officers the "right to sue" their employers for negligence in addition to recovering workers' compensation. See RCW 41.26.281 ("right to sue" provision); Fray v. Spokane County, 134 Wn.2d 637, 952 P.2d 601 (1998). In Fray, we noted that the State specifically enacted LEOFF "to provide greater benefits to injured police officers and fire fighters than they would receive under the workers' compensation system," including the " 'right to sue' their employers for negligence." Id. at 643 (emphasis added). Further, unlike Washington law, California law does not distinguish between the individual responsible for bringing the rescuer to the scene and an intervenor. Instead, California recognizes only those statutory exceptions in California Civil Code, section 1714.9. ¶13 Pierce County also relies on New York cases for the proposition that the professional rescue doctrine applies to fellow officers. New York courts apply the doctrine to bar "those claims for injuries caused by the negligence of a fellow police officer when the injury is related to the dangers that are associated with police." Cooper v. City of New York, 81 N.Y.2d 584, 591, 619 N.E.2d 369, 601 N.Y.S.2d 432 (1993). However, unlike Washington courts, New York jurisprudence does not recognize an independent act exception when an intervening party injures an officer. E.g., id. at 590. ¶14 We thus reject Pierce County's argument and hold that the professional rescue doctrine does not bar Beaupre's law suit. The doctrine does not apply to negligent or intentional acts of intervening parties not responsible for bringing the rescuer to the scene. We therefore affirm the trial court's denial of summary judgment on this issue. C. Waiver of Affirmative Defense ¶17 We have previously discussed professional rescue doctrine in terms of assumption of risk. Maltman, 84 Wn.2d at 978 ("In the case of a professional rescuer certain hazards are assumed which are not assumed by a voluntary rescuer."). Further, the professional rescue doctrine is essentially a type of implied primary assumption of the risk. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 496-99, 834 P.2d 6 (1992) (listing the four types of assumption of risk and describing implied primary assumption of the risk as a situation where an individual assumes the risks inherent in an activity); see Vroegh v. J&M Forklift, 165 Ill. 2d 523, 530, 651 N.E.2d 121, 209 Ill. Dec. 193 (1995) (describing fireman's rule as an implied primary assumption of risk "whether an owner or occupier of land has any duty to fire fighters injured"). Because we have recognized the professional rescue doctrine as an assumption of risk, we hold that Pierce County's assertion of assumption of risk in its answer was sufficient to raise the professional rescue doctrine under CR 8(c). CONCLUSION ¶18 We hold that the professional rescue doctrine does not bar Beaupre's law suit because the doctrine does not apply to negligent or intentional acts of intervening parties not responsible for bringing the rescuer to the scene. We thus affirm the trial court and remand for further proceedings. ALEXANDER, C.J., and C. JOHNSON, MADSEN, SANDERS, BRIDGE, CHAMBERS, FAIRHURST, and J.M. JOHNSON, JJ., concur.