Farnam v. State , 2000 Daily Journal DAR 12627 ( 2000 )

Opinion

RYLAARSDAM, J.

A police dog handled by defendant, Joseph Morrison, a California Highway Patrol officer, bit plaintiff Ronald Farnam, a Los Alamitos police officer, at the scene of an arrest. Plaintiff sued Morrison and his agency, contending Morrison negligently handled the dog. We affirm the summary judgment in favor of defendants because primary assumption of risk (the firefighter’s rule) bars the claim.

Facts

After participating with other law enforcement agencies in the vehicular pursuit of a suspected felon, Morrison learned by radio the suspect had been stopped. Morrison, accompanied by his canine companion Barry, went to the scene of the attempted arrest. Upon his arrival, he stepped out of his vehicle, holding Barry by a choke collar. Thereafter, he discovered plaintiff standing by the suspect’s car with a gun pointed at the suspect.

Unfortunately, Barry mistook plaintiff for the villain, broke free of his handler, and bit plaintiff. Plaintiff then filed this action against Morrison and his employer. The trial court granted defendants’ summary judgment motion, concluding that public safety officers were shielded from liability under Government Code section 821.6, which creates an immunity caused by “instituting or prosecuting any judicial or administrative proceeding.”

After the parties had briefed the case, our Supreme Court decided Calatayud v. State of California (1998) 18 Cal.4th 1057 [77 Cal.Rptr.2d 202, 959 P.2d 360] (Calatayud) that addressed an almost identical scenario. We therefore directed the parties to file supplemental briefs analyzing the applicability of that case to the present one. We received and considered such briefs and conclude that under Calatayud, summary judgment was properly granted.

Discussion

Primary Assumption of Risk

In Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696], the California Supreme Court held, “In cases involving ‘primary assumption of risk’—where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury— the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” (Id. at pp. 314-315.) Knight involved application of the primary assumption of risk doctrine in the context of a sports-related injury (touch football).

In addition to employment of the doctrine in sports settings, primary assumption of risk has been applied to work-related injuries, frequently under the label “firefighter’s rule.” This rule was first adopted in California in Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355 [72 Cal.Rptr. 119], but the seminal Supreme Court case to discuss this aspect of primary assumption of risk is Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532 [34 Cal.Rptr.2d 630, 882 P.2d 347] (Neighbarger).

In Neighbarger, safety employees at a refinery were injured in a fire and sued the maintenance company whose employees had allegedly started the fire. Relying on primary assumption of risk in the context of the firefighter’s rule, the appellate court sustained summary judgment in favor of the defendant. Although the Supreme Court found the rule did not apply to the facts of the case, it confirmed the existence of the firefighter’s rule, limiting the public’s duty of care to firefighters and police officers. Thus, “a member of the public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combat the fire is not injured thereby.” (Neighbarger, supra, 8 Cal.4th at p. 538.)

The Neighbarger court relied on Knight v. Jewett, supra, 3 Cal.4th 296, to reiterate that the firefighter’s rule is but an application of the doctrine of primary assumption of risk. (Neighbarger, supra, 8 Cal.4th at p. 538.) It noted that the circumstances under which the rule should be applied in a work-related setting are the same as in the sports setting, where, “because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care. [Citation.]” (Id. at p. 538.)

The appellation “firefighter’s rule” can be misleading because its application is not limited to situations involving fires or firefighting. (See, e.g., Hubbard v. Boelt (1980) 28 Cal.3d 480 [169 Cal.Rptr. 706, 620 P.2d 156] [police officer injured while attempting to arrest speeder barred from recovery by firefighter’s rule]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1765 [53 Cal.Rptr.2d 713] [nurse’s aide employed specifically to care for violent patient who attacked and injured her, could not recover because patient owed no duty of care].) Additionally, what has been labeled the “veterinarian’s rule” is just another application of the firefighter’s rule in a different context. (Nelson v. Hall (1985) 165 Cal.App.3d 709, 714 [211 Cal.Rptr. 668] [veterinarian’s assistant bitten by dog being treated not entitled to recover damages due to acceptance of employment involving known risk].)

Test for Applying the Firefighter’s Rule

The language in some cases, including Neighbarger, appears to restrict the firefighter’s rule to conduct that necessitated summoning an officer. (Neighbarger, supra, 8 Cal.4th at p. 538.) But a review of the applications of the rule to specific facts in other cases demonstrates it is not so limited'. Rather, in the employment context, the rule has been applied to conduct in addition to that “which necessitated the summoning of the . . . officer.” (Ibid.) For example, the veterinarian cases: Nelson v. Hall, supra, 165 Cal.App.3d at page 714, Cohen v. McIntyre (1993) 16 Cal.App.4th 650 [20 Cal.Rptr.2d 143], and Willenberg v. Superior Court (1986) 185 Cal.App.3d 185 [229 Cal.Rptr. 625]. In none of these cases did the defendant’s conduct necessitate summoning the plaintiff. Instead, “the defendant [was] impliedly relieved of any duty of care by the plaintiff’s acceptance of employment involving a known risk or danger. [Citations.]” (Nelson v. Hall, supra, 165 Cal.App.3d at p. 714.)

Rather than restricting our inquiry to whether plaintiff was summoned due to defendant’s conduct, we must determine whether public policy considerations justify “exonerating defendants from their usual duty of care. . . .” (Neighbarger, supra, 8 Cal.4th at p. 539.) The policies enunciated in Neighbarger, Calatayud, and, most recently, City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269 [96 Cal.Rptr.2d 621] (City of Oceanside), support application of primary assumption of risk here.

The Calatayud Case

In Calatayud, supra, 18 Cal.4th 1057, a highway patrol officer, who was attempting to subdue a suspect, accidentally shot a city police officer who came to his assistance. The underlying facts are similar to ours; both incidents occurred in the course of an arrest, involved law enforcement officers from different agencies, and in neither case did the defendant’s conduct require summoning the plaintiff. In Calatayud, the victim came upon the scene intending to assist the arresting officers; here an officer who was about to come to the assistance of the arresting officer injured the latter.

The Calatayud court did not directly analyze the applicability of the firefighter’s rule; rather, it focused on whether a statutory exception to the rule (Civ. Code, § 1714.9, subd. (a)(1)) applied. But the opinion implicitly supports the view that under its own facts and those in this case, the rule applies. At the outset, the opinion notes, “The question we must resolve is whether the firefighter’s rule or the statutory exception should govern the negligent officer's, and his employer’s, liability.” (Calatayud, supra, 18 Cal.4th at p. 1060.) In the face of this dichotomy, the court’s conclusion that the statutory exception did not apply (id. at p. 1072) necessarily leads to the conclusion that the firefighter’s rule governed. (Id. at p. 1060.)

The policy considerations discussed in Calatayud also compel the conclusion that the rule controls here. The opinion explains the firefighter’s rule and its rationale. (Calatayud, supra, 18 Cal.4th at pp. 1061-1063.) The court first gives a brief history of the development of the rule (id. at p. 1061), then explains that “[t]he undergirding legal principle of the rule is assumption of the risk,” and that “[t]he rule is equally grounded in considerations of public policy.” (Ibid.) Next, the court proceeds to analyze that policy. (Id. at pp. 1062-1063, 1068-1072.)

It is not necessary to repeat the court’s analysis in detail. Suffice it to summarize it as follows: Public safety employees are employed to handle the very hazard that causes the injury, and they receive special public compensation for being exposed to the dangers caused by the defendants’ negligence. The firefighter’s rule is founded on a public policy decision to compensate the officers collectively through tax-generated revenue and not through individual negligence actions which would overburden the courts. (Calatayud, supra, 18 Cal.4th at pp. 1062-1063.)

Calatayud also explains the public policy considerations supporting its decision that the statutory exception of Civil Code section 1714.9, subdivision (a)(1) should not be applied. (Calatayud, supra, 18 Cal.4th at pp. 1068-1072.) These policy considerations apply equally to a determination of whether primary assumption of risk applies in the first instance. Again, we need not repeat the Calatayud court’s detailed analysis but will merely summarize it: (1) A public safety officer’s primary responsibility is to protect the public; to impose a duty of care on one officer to another creates a substantial potential for conflicting duties, especially given the large number of possible defendants and the scope of liability; (2) joint operations involving public safety officers from different agencies are to be encouraged, and a failure to apply the firefighter’s rule “could seriously compromise public safety during joint operations” (id. at p. 1069); (3) failure to extend the rule to claims between officers from different agencies would fly in the face of a critical public policy underlying the firefighter’s rule, to spread the cost, and would cause an “adverse effect on the fisc” and “impair efficient judicial administration” (id. at p. 1070; see Comment, The Fireman’s Rule: Defining Its Scope Using the Cost-Spreading Rationale (1983) 71 Cal. L.Rev. 218, 235-236); (4) to permit such claims would require resolution of “the propriety of chosen police tactics or emergency procedures and in reality may simply involve, a judgment call on the part of the officer who inadvertently inflicts injury”; and, (5) there is “no rational reason [for] liability to depend solely on whether the plaintiff and defendant wore different badges and uniforms when the risk of injury is the same.” (18 Cal.4th at pp. 1072.)

All of the policy reasons advanced to support the court’s refusal to apply the statutory exception to the firefighter’s rule apply support with equal force to a determination that the rule applies in the first instance.

The City of Oceanside Case

In City of Oceanside, supra, 81 Cal.App.4th 269, our colleagues in Division One of this district viewed the limitation that “ ‘[t]he [firefighter’s] rule does not apply to . . . independent acts of misconduct that are committed after the [public safety officer] has arrived on the scene’ ” as a common law exception to the rule. (Id. at p. 275.) Whether we accept this characterization or not, the issue remains the same: When one public safety officer injures another during their joint response to an emergency, may the former be liable to the latter? City of Oceanside supports the conclusion that the question must be answered in the negative. This is true even where the conduct of the defendant-officer did not occur until the plaintiff-officer arrived at the scene of the emergency.

In City of Oceanside, lifeguards employed by different agencies were involved in a rescue. One of them, apparently in a position of authority, directed another, employed by a second agency, to move into a dangerous position which subsequently resulted in her injuries. The injured lifeguard sued the one who had given her directions, arguing the firefighter’s rule did not apply because the alleged misconduct did not occur until after she had arrived on the scene. The court disagreed and applied primary assumption of risk in spite of this fact. In doing so, the court concluded that “Calatayud’s rationale for holding the [Civil Code] section 1714.9(a)(1) statutory exception inapplicable to actions between safety officers engaged in a joint operation applies equally to the common law independent acts exception.” (City of Oceanside, supra, 81 Cal.App.4th at p. 280.)

As did the Calatayud court, before reaching this conclusion the City of Oceanside court exhaustively considered the public policy considerations underlying the firefighter’s rule and the need to extend it to situations such as those we consider here. We agree with this analysis and need not repeat those considerations.

Application of Neighbarger to the Facts of this Case

This brings us back to the basic tests of Neighbarger: “[T]he doctrine of assumption of risk properly bars a plaintiff’s claim only when it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care” (Neighbarger, supra, 8 Cal.4th at p. 538), and “public policy precludes] recovery for those who are injured by the very hazard they have been employed to confront.” (Id. at p. 539.) Here, there was an attempt to apprehend a felon, an activity that poses danger not only to the officer but also to the public. Plaintiff and defendant shared the objective to effect an arrest under these dangerous conditions. The duty of care the officers owed to the public under these circumstances precludes their owing a duty of care to each other. The hazard posed by the police dog is inherent in the activity the public hired plaintiff to perform. Thus, primary assumption of risk bars the claim.

Immunity Under Government Code Section 821.6?

The trial court granted summary judgment based on a determination that defendants were immune from liability under Government Code section 821.6, which covers injuries caused by “instituting or prosecuting any judicial or administrative proceeding.” Although we are inclined to agree with plaintiff that this statute does not apply to these facts, we need not decide the issue in light of our affirmance under the doctrine of primary assumption of risk.

Disposition

The judgment is affirmed. The parties shall bear their own respective costs.

Sills, P. J., concurred.