exhaust their classes.Applying ejusdem generis to the hypo-

thetical involving the Does, they are proba-bly not covered by their insurance policy.The specific enumerated list of items in thepolicy provision at issue includes types ofinsects. Thus phrase “or the like” will prob-ably not be construed to mean other insects.As a reptile, a rattlesnake is not considered aninsect and is not similar in nature to theobjects listed.

The Does’ insurer could have protecteditself by drafting a more carefully crafted listand including more general terms like“birds, insects, vermin, domestic animals andthe like.” Because the specifically enumerat-ed terms exhaust their individual classes,“the like” would, probably, include reptiles.

T H E R E S C U E D O C T R I N EThe Acme Mining Company negligentlycreates a tripping hazard that resulted in Mr.Jones falling into an open pit. Ms. Smith, awitness to the fall, tries to rescue Jones. Ms.Smith is, herself, injured during the rescueattempt. Is Acme Mining Company liable toMs. Smith? The answer is probably “yes” ifthe “rescue doctrine” applies.

The rescue doctrine is based on the ideathat “the attempted rescue of a person indanger is always foreseeable.”12 If a tortfea-sor’s negligence causes one to need rescue,then the tortfeasor is also negligent to theattempted rescuer and liable for injuries sus-tained in a reasonable rescue attempt.13

In Arizona, an injured rescuer may recov-er damages from the original tortfeasor thatnegligently caused the event that necessitat-ed the rescue, notwithstanding that theimmediate cause of the injury may be anintervening act by someone else.14 Even ifthe negligent party originally endangered noone but himself, he owes a duty of care tothe rescuer and is liable for any injuries therescuer suffers as a result of a rescueattempt.15

There are three exceptions to the rescuedoctrine:• Where the rescue attempt is unreason-

able or the rescuer acts unreasonably in

Gary Cohen is a partner at Mesch, Clark & Rothschild,P.C., in Tucson. His practice emphasizes personal injury,

medical malpractice defense, civil rights, employment lawand appeals.

The author thanks Mary Beth Canty and DavidHindman for their help researching and editing this article.

J U R I S D O C T R I N E SL e a r n i n g E s o t e r i c L a w

26 A R I Z O N A AT T O R N E Y J U LY / A U G U S T 2 0 0 6

The law consists of a number of legaldoctrines, the most fundamental ofwhich are taught in law school. Butas we all know, there is more to lawpractice than the basic. What about

the more esoteric doctrines, the ones thatmay catch you unawares and leave you—andyour client—scratching your head?

Typically, those esoteric doctrines arelearned after handling a number of legalmatters or by happenstance after going “offtrack” while conducting legal research. In aneffort to help you avoid learning from thecruelest teacher, experience, here is whatyou need to know about five esoteric legaldoctrines.

E J U S D E M G E N E R I SJohn and Jane Doe live in a nice areabetween Phoenix and Tucson. They have ahomeowner’s insurance policy with $1 mil-lion in liability coverage. This policy has a“losses-not-covered” provision that excludescoverage for damages caused by, directly orindirectly, “scorpions, termites, fleas, roach-es, wasps or the like.”

While the Does are giving a party, a rat-tlesnake makes its way into their living roomand bites a guest, causing her great injury.The guest sues the Does. Does the home-owner’s insurance policy provide coverageto John and Jane for this claim?

The answer is probably “no” if the ejus-dem generis doctrine is applied. This Latinterms means “of the same kind or class.”1 Itis a “canon of construction that when a gen-eral word or phrase follows a list of specificpersons or things, the general word orphrase will be interpreted to include onlypersons or things of the same type as thoselisted.”2 Ejusdem generis should not be con-fused with noscitur a sociis, which allows a

person to interpret the meaning of doubtfulwords by referring to the meaning of sur-rounding words.3

Arizona courts have applied ejusdemgeneris to assist in interpreting statutes, con-tracts and insurance policies. There must bean enumeration of items before ejusdemgeneris will apply.4 Thus, a statute that allowsfor an interlocutory appeal of judgmentwhen all that is left to decide is the amountof recovery through “an accounting orother proceeding” is not interpreted as lim-iting appeals to equitable proceedings. Thisis because such a statute does not give a list-ing of specific types of “other proceedings.”5

When general words are used after an enu-meration of particular classes, these generalwords are interpreted as applying only toclasses or things of the same general type asthe enumerated classes.6

The reverse is also true: Where generalwords are followed by specific enumeratedterms, the general words are presumed toinclude only things of the same nature as theenumerated terms.7 For example, where acontract states “including” followed by a listof specifically enumerated objects, “includ-ing” only encompasses objects that are similarin nature to those objects specifically listed.8

Ejusdem generis does not apply where thespecific words enumerated embrace allobjects of their class such that without a dif-ferent meaning the general words have nomeaning at all.9 For example, where a boardof directors is authorized in the corporate by-laws to use its funds to pay “office expenses,salaries of employees and all other expensesincurred in carrying out its duties,” thephrase “all other expenses” is interpreted tomean expenses that are not “office expenses”or “salaries of employees,” because “officeexpenses” and “salaries of employees”encompass all the specific objects within theirrespective classes.10 The same is true of aninsurance policy that covers an automobiledamaged in a collision with another “auto-mobile, vehicle or object.”11 The term“object” is interpreted to have a meaning dif-ferent from that of “automobile” or “vehi-cle” or it is meaningless; the preceding terms

BY GARY COHEN

w w w. m y a z b a r. o r g

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 rescuermay be guilty of contributory negligence.Contributory negligence is usually a ques-tion of fact for a jury to decide.18 Thus, forexample, a jury could find that a rescuer wasnot guilty of contributory negligence whenhe saw another person caught on a bare,“hot” electrical wire, with flames comingout of his neck, and twice attempted a res-cue that subsequently killed the would-berescuer.19

With regard to the third exception, mostattorneys 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 todetermine whether to proceed.20 Becauserescue personnel are hired and trained tohelp in emergency situations, they “cannotcomplain of negligence in the creation of thevery occasion for [their] engagement.”21

The rescue doctrine “recognizes the nat-ural human impulse to aid others in distressand rewards this impulse by including itsmanifestation 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 asa true volunteer and not under an employ-ment mandate to render aid. This holding“serves the significant policy of encouragingprofessionals otherwise under no obligationto provide their expertise where it may makea life-saving difference.”23

But rescue efforts must be reasonableand undertaken reasonably. It may not beprudent to jump into a lake to save a drown-ing man if you don’t know how to swim. Inthe aforementioned Acme MiningCompany hypothetical, the company could

*And other legal pitfalls

27J U LY / A U G U S T 2 0 0 6 A R I Z O N A AT T O R N E Y

be liable to the rescuer, Ms. Smith, for herinjuries. It depends, however, on whetherMs. Smith acted reasonably in her rescueattempt or was the person who created thedanger. And it may depend on whether anyadditional rescuer was on duty at the time ofthe attempted rescue.

T H E H O T P O TAT O D O C T R I N EAttorney Howie is about to land a newclient, Big Industrial Giant (“BIG”). If so,Howie will be retained to lobby the city touse its power of eminent domain to clearroom for BIG’s new factory. Howie has,however, frequently done estate planning forSusie. She is part of a homeowner’s groupopposing the eminent domain action.Howie thinks that representing BIG andSusie violates Arizona’s Rule of ProfessionalConduct ER 1.7. Therefore, he plans to endhis relationship with Susie before BIG signsthe retainer agreement.

Does this avoid any ER 1.7 rule viola-tion? Probably not if the “hot potato” doc-trine applies.

The hot potato doctrine maintains thatan attorney may not drop one client like a“hot potato” to avoid a conflict with anoth-er, more remunerative or favored client.24

The hot potato doctrine is intended to pro-tect the continuing loyalty owed to theclient.25

The Arizona Rules of ProfessionalConduct generally protect against conflictsin concurrently representing two clients withadverse interests (ER 1.7) and, less restric-tively, against conflicts arising from repre-senting one client with interests adverse to aformer client (ER 1.9). However, becauseER 1.9 is less restrictive than ER 1.7, anattorney may be tempted to convert a cur-rent client into a former client so that the lessrestrictive ER 1.9 applies instead of ER 1.7.The hot potato doctrine protects the clients’interests by disqualifying an attorney whoattempts such a conversion.

For example, the U.S. district court inNew Jersey applied the “hot potato” doc-trine to disqualify a law firm that had repre-sented the plaintiff in contractual matters atthe request of a longtime client.26 After theclient died, plaintiff retained another attor-ney to file a palimony lawsuit against thedecedent’s estate.27 The law firm, recogniz-ing the conflict and wanting to represent thedecedent’s estate, withdrew as counsel for

w w w. m y a z b a r. o r g28 A R I Z O N A AT T O R N E Y J U LY / A U G U S T 2 0 0 6

responsible for injuries caused by the ani-mal.34 In addition, although courts mayimpose a duty on a landowner for negligentacts causing injury from wild animals, inpractice few courts have imposed such aduty.35

The doctrine tends to be applied onlywhere the defendant could not reasonablyhave foreseen an injury or protected againstit.36 The Arizona Court of Appeals recentlyheld that where the state knew that cars werefrequently colliding with elk on an 11-milestretch of freeway near Flagstaff, had takensteps to mitigate similar problems in otherareas of the state but did nothing more thanplace additional warning signs in that 11-mile stretch, immunity under the ferae nat-urae doctrine was not applicable and thestate could be found liable for negligence.37

On the other hand, a Florida court heldthat where experts testified that there was noway to prevent black widow spiders fromentering a hospital that was open to the pub-lic, there were no previous sightings of blackwidow spiders, and the hospital contractedto have a pest control company regularlyservice the building, then the hospital couldnot be found liable for a patient’s injurycaused by a black widow spider.38

The doctrine of ferae naturae can beimportant where a plaintiff is unable toshow that the defendant owed a duty to theinjured party. In the beehive hypothetical,unless Billy knew or should have known thebeehive was in his yard, he probably owedno duty to Johnny. As a result, Billy wouldlikely be immune from negligence per seclaims thanks to the doctrine of ferae natu-rae.

T H E S A L L A D AY D O C T R I N ELucy and friends discover an irrigation canalthat runs near their neighborhood. There isno fence to keep people away from the canal,and no signs warning of potential danger.Lucy slips and falls into the canal. She,unfortunately, drowns. Lucy’s parents wantto file a suit against the irrigation company,claiming no precautions were taken to pro-tect children from this attractive nuisance.

The Salladay doctrine provides immuni-ty from attractive nuisance claims to theoperators of canals and open flumes inArizona. Arizona courts cite public policyreasons for providing this immunity, whichextends to injuries caused by the canal itself

J U R I S D O C T R I N E S

the plaintiff approximately two weeks beforehe filed suit.28 The court held that these factswere exactly what the “hot potato” doctrinewas designed to prevent, and it disqualifiedthe law firm.29

No Arizona courts have specificallyapplied the hot potato rule. It is clear, how-ever, that Arizona attorneys have a strongduty of loyalty to their clients. For example,in In re Shano, the Arizona Court of Appealsfound an attorney had a continuing duty ofloyalty to a client beyond the length of theirrelationship.30 As such, the court affirmedthe disqualification of an attorney for repre-senting one client with interests adverse to aformer client who had been dropped onlyseven days before beginning the representa-tion of the new client.31

The temptation to drop one client infavor of another with adverse interests mightarise whenever law firms merge, attorneysswitch firms, or simply when interests ofexisting clients suddenly become adverse.Although Arizona courts have not adoptedthe hot potato doctrine in name, they haveapplied the underlying continuing duty ofloyalty past the termination of an attor-ney–client relationship. Therefore, attorneyspracticing in Arizona would do well to prac-tice under the assumption that this doctrinewill be applied should a client be droppedand questions of loyalty arise.

T H E F E R A E N AT U R A E D O C T R I N EJohnny is playing catch with his friends whenhis ball goes into Billy’s backyard. Johnnyclimbs over Billy’s fence and lands under abeehive that is not clearly visible. The beesswarm Johnny and sting him multiple times.Johnny, upset and physically injured in thisbee attack by the stings and the fact he neverdid find his ball, files a claim against Billy fornegligence for not preventing his injury.

Is Billy liable? Probably not if the doc-trine of ferae naturae is applied.

Ferae naturae means “of a wild nature ordisposition.”32 According to the commonlaw doctrine of ferae naturae, a landowner isnot liable for the acts of wild animals on hisland. In Arizona and elsewhere, this doctrinehas been limited to provide immunity onlyfrom strict liability, holding that a landown-er may still be negligent for not preventingthe injury.33 From a property rights perspec-tive, an individual neither owns nor controlsa wild animal, and therefore is generally not

w w w. m y a z b a r. o r g30 A R I Z O N A AT T O R N E Y J U LY / A U G U S T 2 0 0 6

1. BLACK’S LAW DICTIONARY 535(7th ed. 1999).

2. Id.3. Liristis v. American Fam. Mut.

Ins. Co., 61 P.3d 22, 27 (Ariz.Ct. App. 2002), rev. denied.

4. Bilke v. State, 80 P.3d 269, 272(Ariz. 2003).

5. Id.6. Young v. Superior Court of

Pima County, 125 P. 707, 708(Ariz. 1912).

7. Keggi v. Northbrook Prop. &Cas. Ins. Co., 13 P.3d 785, 789-790 (Ariz. Ct. App. 2000).

8. Id.9. Southern Cas. Co. v. Johnson,

207 P. 987, 989 (Ariz. 1922)(citing U.S. Cement Co. v.Cooper, 88 N.E. 69 (Ind.1909)).

10. Conway v. Industrial Comm’n,99 P.2d 88, 92 (Ariz. 1940)(appellant attempted to useejusdem generis to construe “allother expenses” as meaning “allother office supplies.” TheSupreme Court of Arizona heldthat “office expenses” and“salaries of employees” exhaust-

or by the equipment used as an essentialcomponent of the canal system.39 The strongpublic policy in Arizona is to encourage theirrigation of our arid desert land.40 In addi-tion to being essential for both agriculturaland urban use, a canal system is an obvious,inherently dangerous condition that cannotbe feasibly rendered harmless.41

The doctrine was first enunciated inSalladay v. Old Dominion Copper Mining &Smelting Co.42 In that case, the defendantallowed children to play on and around thedefendant’s open mining flume, which dis-charged water over a 15-foot fall.43 Thedefendant took no steps to safeguard thechildren from falling or being swept away bythe current, which is exactly what happenedto the decedent, 3-year-old Katie Salladay.44

The Arizona Supreme Court noted thatcanals and other conduits of water are indis-pensable for maintaining life and prosperityin Arizona, and held that the liability basedon attractive nuisance doctrine does notapply to canals or open flumes.45

That reasoning later was extended toprovide almost complete immunity to irriga-

causing injury, the courts have held that thedoctrine does not apply to injuries causedby that component.51 More recently,courts, while upholding and applying thedoctrine, have noted that the continuedurbanization of Arizona may lead to theneed to abandon it.52

Practitioners should realize that theSalladay doctrine no longer provides animpenetrable wall protecting canal andflume owners, and potentially could provideless protection as urbanization continues.However, unless a situation is outside therealm of attractive nuisance or does notinvolve an essential component of providingwater, the doctrine will probably still pro-vide immunity to the canal owners andoperators.

C O N C L U S I O NThe consummate Juris Doctor (doctor oflaw) must keep abreast of all “juris doc-trines” (legal doctrines). The esoteric doc-trines discussed in this article may provideknowledgeable Arizona attorneys with addi-tional legal “arrows” for their quivers.

ed their respective categoriessuch that using appellant’sapplication of ejusdem generiswould render the phrase mean-ingless).

11. Southern Cas. Co. v. Johnson,207 P. at 989.

12. BLACK’S LAW DICTIONARY

1308-1309 (7th ed. 1999).13. Id.14. Espinoza v. Schulenburg, 108

P.3d 936, 938 (Ariz. Ct. App.2005).

15. Transamerica Ins. Co. v. Doe,840 P.2d 288, 290 n.2 (Ariz.1992).

16. Sulpher Springs Valley Elec.Coop., Inc. v. Verdugo, 481 P.2d511, 514 (Ariz. Ct. App. 1971).

17. Orth v. Cole, 955 P.2d 47, 49(Ariz. Ct. App. 1998) (citingGray v. Russell, 853 S.W.2d 928(Mo. 1993)).

18. Hutto v. Francisco, 107 P.3d934, 939 (Ariz. Ct. App. 2005)(citing A.R.S. § 12-2505(A)(2003)).

19. Sulpher Springs, 481 P.2d at514-515.

20. Espinoza, 108 P.3d at 939 (cit-

ing Orth v. Cole, 955 P.2d at49).

21. Id. at 938.22. Id.23. Id. at 940.24. Santacroce v. Neff, 134 F. Supp.

2d 366, 367 (D.N.J. 2001).25. In re Rite Aid Corp. Securities

Litigation, 139 F. Supp. 2d 649(E.D. Pa. 2001).

26. Santacroce, 134 F. Supp. 2d at367 n. 1.

27. Id.at 368.28. Id. 29. Id. at 367.30. In the Matter of the Estate of

Shano, 869 P.2d 1203, 1210(Ariz. Ct. App. 1993).

31. Id.32. BLACK’S LAW DICTIONARY 635

(7th ed. 1999).33. Booth v. State, 83 P.3d 61, 65

(Ariz. Ct. App. 2004).34. Id.35. Id.36. Id.37. Id. at 68.38. St. Joseph’s Hospital v. Cowart,

891 So. 2d 1039 (Fl. Dist. Ct.App. 2004).

39. Salladay v. Old DominionCopper Mining & Smelting Co.,100 P. 441 (Ariz. 1909).

40. Elkins v. Roosevelt WaterConservation Dist., 524 P.2d964, 965 (Ariz. Ct. App. 1974).

41. Salt River Valley Water Users’Ass’n v. Superior Court, 870P.2d 1166, 1171 (Ariz. Ct.App. 1994).

42. Salladay, 100 P. at 441.43. Id. at 441-42.44. Id.45. Id. at 442.46. Harris v. Buckeye Irrigation Co.,

578 P.2d 177, 180 (Ariz. 1978)(citing Dombrowski v. MaricopaCounty Mun. WaterConservation Dist., 496 P.2d136, 137 (Ariz. 1972)).

47. Elkins, 524 P.2d at 965.48. Salt River Valley Water Users’

Ass’n, 870 P.2d at 1175.49. Harris, 578 P.2d at 180.50. Id.51. Bledsoe v. Goodfarb, 823 P.2d

1264, 1273 (Ariz. 1991).52. Salt River Valley Water Users’

Ass’n, 870 P.2d at 1171.

endnotes

J U R I S D O C T R I N E S

tion districts in Arizona in the maintenanceof canals and diversion points, as well as themechanical and electrical equipment neededto operate the water distribution system.46

For example, when a 16-year-old who wasclimbing a catwalk next to an electric trans-former started to fall, grabbed a cable, andwas electrocuted, the Court of Appeals heldthat because an electrical transformer adja-cent to a trough was an essential componentof the system for discharging water, it wascovered by the Salladay doctrine.47

There are limits to the doctrine. There isno Salladay immunity for willful or wantonconduct.48 In addition, the ArizonaSupreme Court has held that where a com-pany exerted no effort to increase safety ata bridge after multiple incidents of drown-ing and near-drowning there, loss of immu-nity would result.49 The Court stated,“Unfortunately, this immunity sometimesleads to the callous ‘public be damned’ pol-icy exemplified by the testimony of themanager … in the instant case.”50 In addi-tion, where certain components of a canalsystem could reasonably be prevented from AZ

AT