The Appellate Group

Ipsen v. Diamond Tree Experts

Ipsen v. Diamond Tree Experts, 2020 UT 30 (Himonas, J.)


A mulch fire occurred on the property of Diamond Tree, following at least two other fires the week before, as well a warning from the Health Department that the mulch pile was too high. Firefighters, including David Ipsen, responded to the mulch fire, and Ipsen sustained severe injuries from smoke inhalation. Ipsen sued Diamond Tree, and Diamond Tree moved for summary judgment, claiming it owed no duty to Ipsen under Utah’s professional rescuer rule. The district court agreed and granted summary judgment against Ipsen. The Utah Supreme Court reversed, holding:

  • The professional rescuer rule set forth in Fordham v. Oldroyd, 2007 UT 74—which provides that a person does not owe a duty of care to a professional rescuer for injuries within the scope of hazards inherent in the rescuer’s duties—applies only in cases of ordinary negligence and does not apply if the emergency necessitating the rescuer’s presence was caused by gross negligence or an intentional tort.
  • There is not a public policy reason to exempt emergencies caused by gross negligence or intentional torts from the general rule that people owe a duty of care to one another. This “holding is based on the vast difference in culpability and the considerably greater deterrence considerations gross negligence and intentional torts present compared to ordinary negligence.”
  • The violation of an ordinance or statute on its own is not enough to infer that a duty exists. The question is whether the conduct violating the ordinance or statute is negligent, grossly negligent, or intentional.
  • Lee, J., dissented (joined by Pearce, J.): The dissentwould affirm. The dissent believes under Fordham and Nixon v. Clay, 2019 UT 32, ¶ 21, 449 P.3d 11, the question of duty is based on the doctrines of assumption of risk and implied consent, with the key inquiry being whether the risk is inherent in the professional rescuer’s duties. There is no duty in a case like this because smoke inhalation is inherent in fighting fires and firefighters impliedly consent to the risk of smoke inhalation in the course of their jobs.

Read the full court opinion