Lipson v. Superior Court

MOSK, J.

I concur in the conclusion of the majority on the facts alleged in this case, but cannot agree with the entire opinion. Unfortunately the majority do not rest after properly deciding this matter; they offer proposed solutions to several hypothetical cases and, in so doing, their rationale founders.

The instant case is relatively uncomplicated. Plaintiff alleges negligent or intentional misrepresentation of facts which, independently of the fire that brought the fireman to the premises, caused injury to plaintiff. Under these circumstances the fireman’s rule does not bar recovery. The basic theory was clearly declared for this court by Justice Clark in Walters v. Sloan (1977) 20 Cal.3d 199, 204 [142 Cal.Rptr. 152, 571 P.2d 609]: “one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.” If at trial this plaintiff can establish he was deceived by defendant, he did not “knowingly and voluntarily” confront the danger.

Up to that point, the majority opinion is sound. But for reasons which are not apparent to me, the majority then digress into a discussion of the nature of materials that may cause a fire or explosion. In one hypothetical (ante, p. 377), the opinion discusses a mythical gasoline tank explosion case in which there “is no evidence that negligence on the part of the defendant caused the explosion.” A negative implication follows that if there were negligence, the defendant should be liable. Such holding would violate the basis of the fireman’s rule, i.e., that firemen are engaged to fight all fires, regardless of origin. Indeed, it can be said that almost every fire results from someone’s active or passive negligence.

A second hypothetical discussed by the majority (ante, p. 377) is equally suspect. It purports to hold a defendant liable for “ultrahazardous activity” connected with a fire, even though the defendant did not misrepresent the nature of the materials on the premises, and, indeed, could have been an absentee owner living miles from the scene.

In any event, the hypothetical circumstances are not before us and are unnecessary to disposition of this case. I therefore dissociate myself from the results suggested in the dicta.

Richardson, J., and Reynoso, J., concurred.