NOVICKE v. VON GROCERY COMPANY (1989)

Raymond Novicke appeals from two judgments of dismissal entered after the trial court sustained the motions of Vons Grocery Company (Vons) and Allen Q. Ricks for summary judgment.   At issue was whether Novicke, a private security guard who was injured by the alleged negligence of business invitee Ricks on Vons property, is precluded by the fireman's rule from recovering damages.   We conclude the trial court misinterpreted Krueger v. City of Anaheim (1982) 130 Cal.App.3d 166, 181 Cal.Rptr. 631 in applying the fireman's rule to the facts of this case.   We also decline to extend the fireman's rule to private security guards.   However, we find the broader concept of assumption of the risk is applicable here and serves as a complete defense to Novicke's complaint.   Accordingly, we affirm.

FACTS

On November 16, 1985, Novicke, an employee of Rodgers Police Patrol, Inc., was assigned to a Vons Value Center store in Escondido.   Novicke, a security guard for 45 years, had received more than 300 hours of training in his profession.   Vons was involved in a labor dispute with United Food and Commercial Union (Union) at the time, and active picketing at the store was under way.   Vons had retained Rodgers Police Patrol to provide security guards at the store.   The duties of the guards included maintaining order, controlling traffic and controlling ingress and egress to a roped-off parking area that had been designated for use by nonstriking employees.   Ricks drove his vehicle into the roped-off area.   Novicke ordered Ricks to stop his car and told him the area was off limits.   Ricks started to leave the area.   As Ricks moved his vehicle, it became entangled with the rope barrier and the rope flew up in the air.   The rope whipped across and caught Novicke on the ankle, causing him to fall to the pavement head first.   As a result of the injury, Novicke received worker's compensation benefits from November 17, 1985, through June 14, 1986, and his medical bills were paid by the State Compensation Insurance Fund.

Novicke filed a negligence complaint against Vons, Ricks and Union.   Each of these defendants moved separately for summary judgment on the basis that Novicke's complaint was barred by the fireman's rule.   On October 1, 1987, the trial court granted summary judgment in favor of Union based on the fireman's rule;  Novicke has not appealed this ruling.¹  On November 12, 1987, the trial court heard Vons's motion and granted summary judgment, stating:  “I believe that in this case, the firemans [sic ] rule is dispositive․  [T]he firemans [sic ] rule, in my opinion as I understand the case law, has been extended to include private security guards such as the plaintiff in this case;  that the rule applies to the fact patterns in this case and the court adopts the statement of undisputed facts.”   On December 14, 1987, the trial court heard Ricks's motion and granted summary judgment based on the fireman's rule.   The trial court stated:  “[W]hatever the policy considerations may be, Krueger v. City of Anaheim is dispositive of the issue of whether a security guard is within the purview of the fireman's rule, and as to the scope of this particular activity, it seems clear from the moving papers that control of ingress and egress to the roped area, the circumstances under which this particular incident occurred, were within the purview of the plaintiff's duties, and based upon those facts the motion for summary judgment will be granted.”   Novicke filed one notice of appeal, embracing the summary judgments in favor of Vons and Ricks.

DISCUSSION

I

Code of Civil Procedure section 437c, subdivision (c) provides, in part, that “[a] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Italics added.)   The California Supreme Court has stated that:

“The summary judgment procedure is drastic and should be used with caution so that it will not become a substitute for a full trial.   A summary judgment is proper only if the affidavits of the moving party would be sufficient to support a judgment in his favor and doubts as to the merits of the motion should be resolved in favor of the party opposing the motion.  [Citation.]”  (Becker v. IRM Corp. (1985) 38 Cal.3d 454, 458, 213 Cal.Rptr. 213, 698 P.2d 116.)

“[T]he purpose of a summary judgment ‘is to expedite litigation by avoiding needless trials'․”  (Burton v. Security Pacific Nat. Bank (1988) 197 Cal.App.3d 972, 976–977, 243 Cal.Rptr. 277.)   Therefore, “[i]f there are no triable issues, summary judgment is appropriate.”  (Id. at p. 977, 243 Cal.Rptr. 277.)   In reviewing an order granting summary judgment, “the appellate court has the duty to determine whether a triable issue of material fact exists.”  (Estate of Pitzer (1984) 155 Cal.App.3d 979, 986, 202 Cal.Rptr. 855.)

“Where a motion for summary judgment has been granted and there is a sufficient ground to support the judgment entered thereon, it will be upheld regardless of the grounds on which the trial court based its decision.”  (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 261(d), p. 268;  Snider v. Snider (1962) 200 Cal.App.2d 741, 746, 19 Cal.Rptr. 709;  Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211, 223 Cal.Rptr. 645.)

It is well established that:  “ ‘The fact that the action of the [trial] court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety․  [A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.’ ”  (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 267, 147 Cal.Rptr. 1.)   Thus, “[i]f the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion.' ”  (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 259, p. 266.)

Both Vons and Ricks moved for summary judgment solely on the basis that the fireman's rule barred Novicke's complaint.   As outlined above, the facts concerning Novicke's employment as a private security guard are not in dispute.   In granting summary judgment, the trial court agreed with Vons's and Ricks's arguments that the fireman's rule had been extended to private security guards in Krueger v. City of Anaheim, supra, 130 Cal.App.3d 166, 181 Cal.Rptr. 631.   As explained below, this ruling was based on a misreading of Krueger.

II

In Krueger, supra, 130 Cal.App.3d 166, 181 Cal.Rptr. 631, a spectator at a California Angels baseball game left the stands and ran across the field.   As the spectator was climbing an outfield fence, he was apprehended by Anaheim Stadium security guards.   In the ensuing struggle, both the spectator and a guard were injured.   The spectator brought an action for his injuries.   The guard and the City of Anaheim seeking reimbursement for its workers' compensation payments, cross-complained for damages.   The guard dismissed his cross-complaint, and the trial court granted summary judgment in favor of the spectator on the city's cross-complaint.   The spectator's summary judgment motion was based on the theory that the fireman's rule prevents recovery for any of the guard's injuries.

This court reversed the summary judgment on the cross-complaint, ruling the fireman's rule was misapplied regarding the facts in the case.   (Krueger, supra, 130 Cal.App.3d at p. 168, 181 Cal.Rptr. 631.)   Acknowledging that under the fireman's rule an officer is held to assume ordinary risks arising from the occurrence which brought him to the scene, we held neither the assumption of risk doctrine nor the fireman's rule encompasses intentional torts directed against a fireman or officer while trying to perform his duties after he has been called to the scene.  (Id. at p. 172, 181 Cal.Rptr. 631.)   Any inference that the fireman's rule applies to security guards is dictum.   Moreover, Krueger is simply not on point with the case before us now.   In Krueger, the security guard was employed by the City of Anaheim;  here we have a security guard employed by a private firm which was in turn retained by another private firm (Vons).   Indeed, as Krueger notes:  “[H]owever, we have allegations of an intentional tort directed specifically against the public employee in the nature of an assault and battery․”  (Id. at p. 169, 181 Cal.Rptr. 631, italics added.)   The Krueger court then goes on to treat the assault and battery as if it were a violation of Penal Code section 241 (assault against a peace officer ), or Penal Code section 243 (battery on a peace officer ), or Penal Code section 148 (resisting an officer in the performance of his duties.)  (Krueger, supra, at p. 173, 181 Cal.Rptr. 631.)   Clearly, the Krueger court considered the Anaheim Stadium guard as a public employee if not a peace officer.²  Krueger simply does not stand for the proposition that the fireman's rule applies to private security guards, and the trial court's reliance on Krueger was erroneous.³

III

 None of the parties has supplied any case other than Krueger, supra, 130 Cal.App.3d 166, 181 Cal.Rptr. 631, as authority for the proposition that the fireman's rule applies to private security guards.   As we explained above, Krueger does not stand for that proposition.   Further, we have not found any reported California case nor any out-of-state authority that has applied the fireman's rule to private security guards.   After undertaking our own independent analysis of case law involving the fireman's rule, we remain unconvinced that an extension of the rule to private security guards is warranted, particularly under the facts presented here.

The fireman's rule ⁴ found its origin nearly one hundred years ago in Gibson v. Leonard (1892) 143 Ill. 182, 32 N.E. 182, overruled in Dini v. Naiditch (1960) 20 Ill.2d 406, 170 N.E.2d 881, 886.   Analyzing the issue of liability on the basis of the traditional status categories of entrants upon the property of another—invitee, licensee or trespasser—the Gibson court concluded a fireman was a licensee and, therefore, the property owner only owed him a duty to avoid inflicting willful, wanton or intentional injuries.   In more modern times, courts have become disenchanted with the traditional status categories (see e.g., Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, which abolished the status categories) and have moved away from fitting fire fighters into a specific category.⁵  In effect, modern courts have given fire fighters and other public safety officers a sui generis classification.   Consequently, the modern decisions applying the fireman's rule are not based on the concept of the status categories, but rather on the doctrine of assumption of risk and public policy.   The seminal case in this regard is Krauth v. Geller (1960) 31 N.J. 270, 157 A.2d 129.   In Krauth, a fire fighter was injured while fighting a fire in a house under construction.   In his lawsuit, the fire fighter alleged negligence for causing the fire.   The New Jersey Supreme Court affirmed a defense judgment, finding no duty owed to the fire fighter to refrain from negligently starting the fire.   The court held:

“The rationale of the prevailing rule is sometimes stated in terms of ‘assumption of risk,’ used doubtless in the so-called ‘primary’ sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty․  Stated affirmatively, what is meant is that it is the fireman's business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement.   In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid.   Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences.   Hence, for that risk, the fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in workmen's compensation benefits for the consequences of the inherent risks of the calling.”  (Id. 157 A.2d at pp. 130–131.)

California first considered and adopted the fireman's rule in Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 72 Cal.Rptr. 119, which involved a forest fire in which four fire fighters were killed and two injured.   The plaintiffs alleged that defendant's negligent maintenance of a pole and wires caused the fire.   The Court of Appeal reversed the plaintiffs' judgment, holding that “a paid fireman has no cause of action against one whose passive negligence caused the fire in which he was injured.”  (Id. at p. 360, 72 Cal.Rptr. 119.)   In Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 99 Cal.Rptr. 29, 491 P.2d 821, our Supreme Court cited Giorgi with approval and thus gave its implicit imprimatur to the fireman's rule.   In Walters v. Sloan, supra, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, the Supreme Court explicitly approved the fireman's rule, stating it is premised on sound public policy and is in accord with modern tort liability principles:

“[T]he fireman's rule is based on a principle as fundamental to our law today as it was centuries ago.   The principle is not unique to landowner cases but is applicable to our entire system of justice—one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.”  (Id. at p. 204, 142 Cal.Rptr. 152, 571 P.2d 609.) 6

In addition to this traditional rationale for the fireman's rule, the Walters court supplied a second basis for the rule—a public policy to preclude tort recovery by fire fighters or police officers who are presumably adequately compensated (in special salary, retirement, and disability benefits) for undertaking their hazardous work.  (Id. at pp. 204–206, 142 Cal.Rptr. 152, 571 P.2d 609.)   In this regard, the Walters court said:

“A second reason underlying the fireman's rule does not have a significant historical background, but rather is a modern one of public policy, adopted by progressive courts and based on fundamental concepts of justice․

“ ‘․ Hence, for that risk, the fireman should receive appropriate compensation․’  (Krauth v. Geller, supra, 157 A.2d 129, 130–131.)

“California is not insensitive to its obligation to compensate public safety officers for hazards faced or for injuries received.   Firemen and policemen are paid for the work they perform including preparation for facing the hazards of their professions and dealing with perils when they arise.   When injury occurs, liberal compensation is provided.   In addition to the usual medical and disability benefits ordinarily provided all employees covered by the Workers' Compensation Act, firemen and policemen are provided special benefits.

“First, they receive special presumptions of industrial causation as to certain disabilities.  (Lab.Code, § 3212.)   Second, special death benefits apply to public safety officers if they are under the Public Employees Retirement System.  (Gov.Code, § 21363 et seq.)   Third, if under that system or the County Employees Retirement Law of 1937, they are entitled to an optional leave of absence for up to one year with full pay.  (Lab.Code, §§ 4800, 4850.)   Fourth, their permanent disability benefits are fully payable despite retirement, and are not reduced by disability pensions even when both are paid for the same injury.  (City of Palo Alto v. Industrial Acc. Com. (1965) 232 Cal.App.2d 305, 306 et seq. [42 Cal.Rptr. 822].)   While the employees of some cities are not under the Public Employees Retirement System and in certain circumstances their disability benefits are offset by disability pension payments (e.g., Symington v. City of Albany (1971) 5 Cal.3d 23 [95 Cal.Rptr. 206, 485 P.2d 270];  Lyons v. Workmen's Comp. Appeals Bd. (1975) 44 Cal.App.3d 1007 [119 Cal.Rptr. 159] ), it is apparent from the cases discussing the question that the special disability pensions and other benefits payable to firemen and policemen substantially exceed ordinary disability compensation benefits.  (Id.) [sic ]” (Id. at pp. 204–206, 142 Cal.Rptr. 152, 571 P.2d 609.) 7

Certainly, this second rationale for the fireman's rule does not apply to private security guards such as the $4–an–hour Novicke, who received none of the special compensation benefits outlined in Walters, supra, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609.   There is no statutory basis for enhanced compensation benefits for private security guards.  “The analogy between police and security guards is only superficially apparent.   Their legal powers, duties and benefits may vary greatly.”  (Wingard v. Safeway Stores, Inc., supra, 123 Cal.App.3d at p. 40, fn. 4, 176 Cal.Rptr. 320.) ⁸

The very nature of police work and fire fighting, and the relationship between police and fire fighters and society distinguish these safety officers from other employees—both in the public and private sectors.   It is self-evident that the maintenance of organized society requires the presence of fire fighters and police officers because of the protection they provide to the public.   Obviously, these public safety officers are employed for the benefit of society in general and for people involved in circumstances requiring their presence in particular.  “Fire fighters are present upon the premises, not because of any private duty owed the occupant, but because of the duty owed to the public as a whole.”  (Calvert v. Garvey Elevators, Inc. (1985) 236 Kan. 570, 576, 694 P.2d 433.) ⁹

We conclude the absence of any reported opinions in this state and others that extend the fireman's rule to private security guards is no coincidence.   The rule was never intended to include the private sector, and neither public policy nor modern tort principles dictates application of the rule to the private sector.   To the contrary, the public policy rationale for the rule convinces us that the fireman's rule should not be expanded beyond its traditional limited boundaries (see Hubbard v. Boelt (1980) 28 Cal.3d 480, 487, 169 Cal.Rptr. 706, 620 P.2d 156 (dis. opn. of Tobriner, J.)) to include private security guards.¹⁰

Fire fighters and police officers are different from other employees whose occupations may peripherally involve hazards.   Public safety officers are employed, specially trained,¹¹ and paid to confront dangerous situations for the protection of society.   To be sure, they enter their professions knowing their personal safety is at risk while on duty.   Further, because of the very nature of public safety work, it is virtually impossible to predict when they will be called into service.   Therefore, it is unreasonable to expect property owners and occupiers to ensure the safety of public safety officers or control their activities while on the premises.¹²  Consequently, injuries suffered by public safety officers while in the line of duty are compensable by special injury compensation and often benefits, which spreads the cost and risk to the public.   The foregoing simply does not apply to private security guards.¹³

IV

If the fireman's rule is only applicable to public safety officers, how should we deal with the lawsuits of plaintiffs who do not fit into this category?   More to the point, does the broader theory of assumption of the risk bar lawsuits such as Novicke's?   We conclude it does under the authority of Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536.

We begin our discussion with some recent history:

The advance of tort liability concepts into the realm of comparative negligence caused considerable doubt as to the survival of assumption of the risk as a tort defense, in any situation.   Some authorities contended that Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 eliminated assumption of the risk, except for express contractual assumption.   (See Schwartz, Comparative Negligence (2d ed. 1986) § 9.1, p. 156.)   This approach was approved in Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 169–170, 191 Cal.Rptr. 578, as follows:

“We interpret Li to mean that the separate defense of implied assumption of the risk is abolished under the comparative negligence law.   It is only when the plaintiff expressly agrees to assume the risk that the defendant is relieved of a duty of care toward the plaintiff, thus barring any recovery.   In our view, this is the only rational meaning to be given to the principles articulated in Li.   The Supreme Court recognized that implied assumption of risk if unreasonable could be fairly handled under the comparative negligence concept, i.e., the plaintiff's recovery would be reduced to the extent his own lack of reasonable care contributed to his injury.   If the plaintiff's conduct was entirely reasonable under all of the circumstances, we find no basis in reason or equity for barring his recovery.”

However, the position of the Segoviano court was contrary to that of Restatement of the Law, Torts 2d (1965) section 496 C, at pages 569–574, and a number of non-California authorities (see Prosser & Keeton, supra, § 68, pp. 497, 498).

A series of California cases, commencing with Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793, 202 Cal.Rptr. 900, also cast doubt on the Segoviano position.  Rudnick involved injury to a spectator at a baseball game at Anaheim Stadium.   One of the interposed defenses was assumption of the risk.   While concluding that summary judgment in favor of the defendant had been improvidently granted, the lead opinion in dictum affirmed the continued viability of an assumption of the risk defense, and questioned the reasoning of Segoviano.  (Id. at p. 800, fn. 4, 202 Cal.Rptr. 900.)

Injuries to a veterinary assistant gave rise to the next case of importance in the line—Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668.   Although the claim was based upon strict liability under the dog-bite statute, the court determined the defense of assumption of the risk to be applicable.   A veterinarian or his assistant is aware that dogs may bite during treatment.   Such person “has assumed this risk as part of his or her occupation.”   In such case “assumption of the risk is a complete defense․”  (Id. at p. 715, 211 Cal.Rptr. 668.)

The definitive statement of the law of “reasonable implied assumption of the risk” is contained in Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536.   The case involved a claim by a professional jockey, injured during a race as the result of the negligent riding of other jockeys who “crossed over” without sufficient clearance.   The court, in a comprehensive review of the subject, compared (a) express assumption of the risk, (b) unreasonable implied assumption of the risk, and (c) reasonable implied assumption of the risk.   The court in Ordway concluded the Li decision had merged only unreasonable implied assumption of the risk into the comparative negligence doctrine.   Rejecting Segoviano, the Ordway court held that reasonable implied assumption of the risk remained, after Li, a complete defense.  (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 102–105, 243 Cal.Rptr. 536.)

“Unreasonable” assumption of the risk is essentially negligence—the entering upon a risk situation under circumstances which would dissuade a reasonable person.   As such, it is best treated as negligence, subject to comparative principles.  “Reasonable” assumption of the risk, however, is the undertaking of a risk which a reasonable person would assume, with knowledge of all the circumstances.   The lucid example given in Ordway is that of the person injured by the vicious dog.   If the plaintiff foolishly attempts to pet a rabid dog in the veterinarian's waiting room he has perhaps knowingly assumed a risk, but his conduct is negligent.   The same veterinarian who approaches the animal for treatment also knows of the risk.   His assumption of the risk is, however, reasonable.   In the latter case it is deemed fair and just to preclude his recovery for injuries.  (See Ordway, supra, 198 Cal.App.3d at p. 106, 243 Cal.Rptr. 536.)

The latest word on this subject, and concurrence with the position set forth in Ordway, is found in Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 255 Cal.Rptr. 755.   The plaintiff was a professional “stuntperson,” injured while performing a movie stunt.   Defendant contended that “a stuntperson, such as plaintiff, assumes the risk in exactly the same manner as firemen, policemen and veterinarians.”  (Id. at p. 1479, 255 Cal.Rptr. 755.)   The court denied this defense upon a finding that the stuntperson had been misled as to the extent of the risk to be assumed.   In the course of the opinion, however, the court dealt with the issue of reasonable implied assumption of the risk, and affirmed the viability of the defense.   Referring to the fireman's line of authority, and noting Segoviano 's contrary position, the Von Beltz court found the correct analysis to be that of Ordway.  (207 Cal.App.3d at p. 1477, 255 Cal.Rptr. 755.)

 We also accept the Ordway conclusions.   The doctrine of reasonable assumption of the risk is a logical allocation of risk among those who have impliedly agreed in advance.   Novicke was a professional security guard.   He was trained in the art of crowd and vehicle control.   His employer sent him to work for a supermarket then troubled with labor picketing.   Nonstrikers were being employed by the supermarket, and a special roped-off area was set aside for their parking.   Novicke's job was to separate partisans, keep the peace, and patrol the special parking area.   His undertaking, as a matter of law, must be assumed to imply exposure to the risk of personal and vehicular impact.   Like the veterinarian who must expect dog bites, the grandstander who knows of flying balls, and the stuntperson who knows the crash may injure, the security guard must expect—and must accept without civil recourse—the normal and also the unusual problems of an unruly and aggressive crowd.   This allocation of risk, resulting from true reasonable implied assumption of the risk, should be upheld.   Its reasonableness and justice derives from the knowing agreement of the parties.   It does not depend upon whether the risk-taker is a governmental worker or the employee of a private firm;  it does not depend upon the nature or amount of consideration received for assuming the risk.   So long as the risk is known and the bargain accepted, and so long as permitting such assumption of risk is not in violation of some essential public policy, it should be permitted and upheld as a defense.

This conclusion is particularly compelling in terms of the defendant Vons.   Beset by labor problems which require crowd control, the market's natural recourse is to the employment of professional security guards.   The very necessity for the employment is the danger inherent in the job, from which Vons wishes to be protected.   The private guard is willing, for a price, to accept this risk.   Surely it is in everyone's interests to accommodate such an arrangement.   To deny the defense of assumption of the risk in this situation is to undermine the reasonable assumptions of both parties.   Vons has paid a fee for guard service.   To now subject Vons to claims for the very danger against which it sought—and paid for—protection, is to subject it to double payment for the same service.

As to defendant Ricks, we reach the same conclusion.   Ricks falls into the category of persons whose conduct posed a danger Novicke should have anticipated.   Novicke's injury was within the ordinary expectations of a security guard directing traffic in a parking lot.   In Ordway, supra, 198 Cal.App.3d 98, 112, 243 Cal.Rptr. 536, the court noted, “Defendants' conduct, while perhaps negligent, was within the range to be anticipated by the other riders, or should have been.”   By taking the job as a security guard, Novicke knowingly and voluntarily assumed a risk and “is deemed to have agreed to reduce the defendant's duty of care.”  (Id. at p. 104, 243 Cal.Rptr. 536.)

DISPOSITION

Judgments affirmed.

Although I concur with the majority's discussion and resolution regarding the Fireman's Rule, I dissent from its analysis and holding in part IV which holds the injured plaintiff here, as a matter of law, assumed the risk that a negligent driver would strike a traffic barrier negligently erected and placed without adequate warning devices by Von's on its commercial parking lot.

I

Because I view the majority's perception of the assumption of risk doctrine to be fundamentally at odds with hornbook law, I unabashedly purloin materials from the premier compiler of California law, B.E. Witkin.   In Volume 6 of the Ninth Edition of his Summary of California Law, Mr. Witkin comprehensively and succinctly sets forth the scope of the doctrine and its decisional history in sections 1104 through 1113.

“[T]here is no assumption of risk without actual knowledge․

“․

“․ of the particular risk and appreciation of its magnitude.”  (Id. at pp. 518–519.)

Mr. Witkin's expression of this elemental requirement, completely lacking in this case, is supported by reference to 20 California decisions, Restatement Second of Torts, section 496D, Prosser and Keeton on Torts (5th ed. 1984) section 68, page 480, and 57A American Jurisprudence Second, Negligence, section 282, page 311.   It is not therefore a casual suggestion of what the law ought to be, or the author's interpretation of conflicting precedent.   It is a simple statement of blackletter law.

Mere general knowledge of a danger is insufficient to apply the doctrine.   The party to whom it is to be applied must have been aware of the precise injury-causing event;  it is not enough that one may have foreseen exposure to a general risk of harm.  (6 Witkin, Summary of Cal.Law (9th ed. 1988) § 1110, pp. 523–524.)   For instance, a jury could not infer from evidence a race car spectator was injured in a pit area bordering a straightaway by an out-of-control racer, that the injured person had actual knowledge of the particular danger, an appreciation of the risk involved and its magnitude.   The fact one can be presumed to be generally aware that such accidents occur does not permit a jury instruction on assumption of risk.  (Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 522–523, 105 Cal.Rptr. 904;  also see Carr v. Pacific Tel. Co. (1972) 26 Cal.App.3d 537, 103 Cal.Rptr. 120.)

Even if an inference could be drawn in this case that both Von's negligent act and the motorist's careless driving could have been precisely known and accepted by the plaintiff-guard, it is a question of fact for a jury to decide whether he had actual knowledge of the particular danger.  (6 Witkin, Summary of Cal.Law, supra, § 1110, p. 523.)   However, there is not a scintilla of evidence in this record to support summary judgment based on a finding the guard was (or even could have been) aware that Von's had negligently installed and failed to adequately warn motorists of its temporary rope traffic barriers obstructing the normal course of customer parking traffic.   It is inconceivable that the requisite actual knowledge of the risk of harm from this act of Von's alleged negligence can be imputed as a matter of law to this plaintiff solely by virtue of his status as a contract security guard.   The same is true as to the offending motorist.   Although persons can be charged generally with knowing there is a risk of being struck by a negligently driven vehicle, even when sitting in their own residence or standing on a sidewalk, this plaintiff cannot be charged with actual knowledge as a matter of law, that Ricks was likely to drive his car without reasonable care so that it would strike a negligently placed temporary traffic barrier which lacked proper warning signs and devices, causing a cable to snap and create the risk of this injury.

II

Moreover, unlike the majority, I do not perceive any policy reason to equate the risk which caused the injury here to be one a person should reasonably be expected to bear without recourse merely because one is employed as a security guard.   That is, it is not the result of union violence, thrown objects, unruly disruptive crowds, and similar hazards to which security guard assignments generally, and this one specifically, relate.

Neither Von's nor the driver who drove into him introduced evidence at the summary judgment hearing to dispute Novicke's allegations the accident was solely caused because the driver, a Von's customer not involved in strike activities, negligently drove his vehicle while shopping at Von's so that it struck a rope traffic barrier which Von's negligently installed so that it was not reasonably observable to customer-motorists using the lot.   Neither defendant disputes there is a legitimate triable issue of fact as to whether either was negligent.

As to Ricks:  Although the undisputed facts show Ricks, the negligent driver, was attempting to maneuver his vehicle in Vons's temporarily-obstructed parking lot at the direction of the security guard he struck, the relationship between Ricks and the guard at that time was no different than had he negligently driven into a red-shirted, teen-age traffic monitor at Disneyland.   The relevant relationship for our review is precisely that as exists between all parking lot attendants and drivers who exit and enter the premises on which they are employed.

In Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536, the doctrine of reasonably implied assumption of risk is described as another way of stating the defendant's duty of care has been reduced in proportion to the hazards attendant to the event.  (Id. at p. 104, 243 Cal.Rptr. 536.)   Thus, those who impliedly assume a risk have impliedly agreed to reduce or eliminate any duty of care to themselves from a particular class of defendants.   In this case, such an assumption applies to the hazards of misconduct on the part of the strikers, a risk well-known and impliedly, if not expressly, assumed by the guard.   Thus, Von's should not be liable to the guard for any injuries he incurred from those risks, anymore than the sponsor of a football game in which a participant was injured in Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578, should have been.   However, it does not follow logically that one who merely directs traffic should be barred from recovering when injured by a negligent driver, whether that person is a security guard or not.   There is no policy reason to absolve negligent tortfeasors in that situation.¹  Nor is this a case like that in Ordway where the plaintiff's mere participation in the horse race was deemed to have relieved other jockeys from any duty to conform their conduct “to a standard that would exempt [plaintiff] from the risks inherent in a sport where large and swift animals bearing human cargo are locked in close proximity under great stress and excitement.”  (Id. at p. 109, 243 Cal.Rptr. 536.)   Nothing in this case suggests the injured guard intended to relieve Vons's customers from their ordinary duty to drive without negligence.

In Ordway, at page 106, 243 Cal.Rptr. 536, the court emphasizes the correctness of its conclusion that the doctrine of reasonable implied assumption of risk survives the Supreme Court's decision in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, by quoting from 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.”   However, the guard here is not shown to have voluntarily assumed a hazard that customers would drive their cars negligently so as to injure him while he was directing traffic in a parking lot.   The law permits us to assume the persons are going to conduct their affairs in a responsible manner, including operating their vehicles.

While we may accept that implied assumption of risk remains a viable doctrine in this state, it does not insulate Ricks from a duty of care toward Novicke in this case.   The victim's security guard status is irrelevant vis-a-vis the driver who injured him (once we have decided he is not subject to the Fireman's Rule).   The fact Novicke may be deemed to have assumed risks inherent in policing strike activities taking place at Von's should not insulate customers who are not engaged in the strike from liability for their negligence while driving on the parking lot for other purposes.   Again, there is no meaningful reason to differentiate between the situation in this case and that in which a drunken driver loses control at the Disneyland parking lot and runs over a teen-age traffic controller;  in neither instance is there any policy reason to imply the victims agreed to relieve the negligent drivers of their ordinary duty of care when accepting employment.   In fact, there is every policy reason not to do so.

As to Von's:  It is sued for negligently roping off an area of the parking lot normally open for customer use and not marking or “posting” the barrier to alert motorists to its presence.   It boggles the mind to apply the doctrine of assumption of risk solely to relieve Von's of its responsibility to maintain its premises properly and to post warnings of the dangerous condition it creates.   Had the guard been hit by a flying brick thrown by a disgruntled striker, or had Von's been sued vicariously only because it was on its premises the guard was injured by Ricks's negligent driving, then Von's should be out of the case.   In the first instance because of the doctrine of assumption of risk and in the second because there would be no causal relationship.   However, where Von's is sued for its separate acts of negligence, both commission and omission, there is no rational basis for summary judgment.

III

Finally, I believe the issue relating to assumption of risk has been improvidently addressed on this appeal.   The motion for summary judgment was based solely on the Fireman's Rule and neither party raised it on appeal.   Only at the unsolicited request of this court were the issues expanded to encompass assumption of risk.   The trial court never was asked to, and did not, rule on this issue and, more importantly, Novicke was never required to make an evidentiary showing to rebut the application of the doctrine so as to show a triable issue.   At the very least, I believe proper jurisprudential procedure requires Novicke be given an opportunity to meet summary judgment contentions at the trial court, guided by the procedural requirements of Code of Civil Procedure section 437c.

I would reverse the judgment.   Should either defendant convince a trial court it is entitled to summary judgment on any ground other than that litigated and ruled on by the trial court previously, that holding can be reviewed by this court on a full record.

FOOTNOTES

1.   While this fact is presented in the briefs of Vons's and Ricks's, neither party has raised the defense of collateral estoppel based on the finality of the judgment in favor of Union.

2.   It appears from the facts outlined in the Krueger opinion that the Anaheim Stadium guard was not a peace officer as defined by Chapter 4.5 of Title 3, Part 2 of the Penal Code.

3.   We note that one year before Krueger, the Court of Appeal (Third District) in Wingard v. Safeway Stores, Inc. (1981) 123 Cal.App.3d 37, 40, 176 Cal.Rptr. 320, criticized on other grounds in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 125, 211 Cal.Rptr. 356, 695 P.2d 653, expressly declined to resolve the case by extending the fireman's rule to private security guards.

4.   Although the rule originally arose in the context of fire fighters, the rule also applies to police officers.   Many of the cases discussing the rule involve injuries to police officers in the line of duty.   No state that has adopted the fireman's rule has declined to apply it to police officers.  (See Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609;  Berko v. Freda (1983) 93 N.J. 81, 86–87, 459 A.2d 663.)

5.   Fire fighters cannot be classified as invitees since they do not enter a property by invitation, but by public right, or “privilege conferred by legal authority․”  (Prosser and Keeton on Torts (5th ed. 1984), § 61, pp. 429–430.)   Nor do fire fighters neatly fit into the licensee category, which entails entry with the permission of the owner or occupant.

6.   Lipson v. Superior Court (1982) 31 Cal.3d 362, 371, 182 Cal.Rptr. 629, 644 P.2d 822 is in accord:  “A fireman assumes only those hazards which are known or can reasonably be anticipated at the site of the fire.”

7.   In Malo v. Willis (1981) 126 Cal.App.3d 543, 546, 178 Cal.Rptr. 774, the court offered the following characterization:  “[T]he fireman's rule is a particular application of the old but much diminished assumption of the risk doctrine, made more palatable by the existence of special compensation provisions for injured firefighters and police officers.”

8.   In Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 587, 156 Cal.Rptr. 198, 595 P.2d 975, our Supreme Court noted that the Private Investigator and Adjuster Act (PIAA) “is a comprehensive act which regulates the occupations of private investigator, private security guard and similar pursuits.   Its provisions reveal an intent of the Legislature to eliminate to the extent possible public confusion between private security guards and local law enforcement officers.   The PIAA provides that no person subject to its regulatory provisions may ‘use a title, or wear a uniform, or use an insignia, or use an identification card, or make any statement with the intent to give an impression that he is connected in any way with ․ any political subdivision of a state government.’   (Bus. & Prof.Code, § 7538, subd. (e).)”  In 1981, the Legislature renumbered the sections making up the PIAA, which now begins at Business and Professions Code section 7512 et seq. and is referred to as the Private Investigator Act in Business and Professions Code, section 7512.   (Stats.1981, ch. 1138, §§ 1–10, pp. 4488–4489.)   Former Business and Professions Code section 7538 is now section 7539.   In 1985, the Legislature amended Business and Professions Code section 7539 and stated, “By enacting this act, the Legislature intends that uniformed employees of a private patrol operator be clearly and readily distinguishable from regular law enforcement officers.”  (Stats.1985, ch. 850, § 3.)

9.   Courts in other jurisdictions have expressed support of the fireman's rule by noting that it serves the beneficial public policy of “spreading the risk” of a fire fighter's or police officer's injuries to all taxpayers and avoids imposing an unreasonable burden on a single negligent tortfeasor.  “The [fireman's] rule developed from the notion that taxpayers employ firemen and policemen, at least in part, to deal with future damages that may result from the taxpayers' own negligence.   To allow actions by policemen and firemen against negligent taxpayers would subject them to multiple penalties for the protection.”  (Steelman v. Lind (1981) 97 Nev. 425, 427, 634 P.2d 666.)  “[S]ince government entities employ and train firefighters and policemen, at least in part, to deal with those hazards that may result from the actions or inaction of an uncircumspect citizenry, it offends public policy to say that a citizen invites private liability merely because he happens to create a need for those public services.”  (Pottebaum v. Hinds (Iowa 1984) 347 N.W.2d 642, 645.)  “[W]e hold that, as a matter of public policy, firemen and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance.   This public policy is based on a relationship between firemen and policemen and the public that calls on these safety officers specifically to confront certain hazards on behalf of the public.”  (Flowers v. Rock Creek Terrace (1987) 308 Md. 432, 447, 520 A.2d 361.)We agree with the Michigan Supreme Court, which said in Kreski v. Modern Wholesale Elec. Supply (1987) 429 Mich. 347, 365, 415 N.W.2d 178, 186:  “The policy arguments for adopting a fireman's rule stem from the nature of the service provided by fire fighters and police officers, as well as the relationship between these safety officers and the public they are employed to protect.”

10.   In Baker v. Superior Court (1982) 129 Cal.App.3d 710, 181 Cal.Rptr. 311, the Court of Appeal held the fireman's rule applied to two paid-call fire fighters.   We conclude, however, Baker does not compel application of the rule to private security guards because (1) it is readily distinguishable on the facts from this case and (2) the Baker court noted the special compensation rationale is partly applicable to the paid-call fire fighters.   The paid-call fire fighters were members of the Orange County Fire Department, who when informed of a fire could elect to assist in fighting it.   If they did so, they were paid $5 regardless of the length of time spent fighting the fire.   They provided their own transportation to the scene of the fire and their own firefighting clothing.   One of the paid-call fire fighters had received 27 hours of training and the other had received 16 hours of training before the Baker Ranch fire.   Both had previously assisted in suppressing a number of fires.  (Id. at p. 712, 181 Cal.Rtpr. 311.)   The Baker court based its holding on the fact that the fireman's rule is premised on the “negation of the duty to exercise reasonable care on the part of the person responsible for the fire.”  (Id. at p. 720, 181 Cal.Rptr. 311.)   Quoting Walters, supra, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, the Baker court said “ ‘[t]he question is ultimately one of public policy․  In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid.’ ”  (Id. at p. 721, 181 Cal.Rptr. 311.)   The court said this assumption-of-the-risk basis for the fireman's rule set forth in Walters was fully applicable to the paid-call fire fighters.   The Baker court said the secondary basis for the rule—involving the special compensation given to fire fighters and police officers—was partly applicable to the paid-call fire fighters.   The court pointed out that while the volunteer fire fighters were not entitled to certain benefits provided to full-time publicly employed fire fighters, they were entitled to the same special presumptions of industrial causation as full-time fire fighters (Lab.Code, § 3212) and to receive temporary and permanent disability benefits at the maximum rate regardless of their actual earnings (Lab.Code, § 4458) and to all reasonably necessary medical treatment (Lab.Code, § 4600).

11.   Vons' argument that Novicke received extensive training in law enforcement subjects and therefore his job was analogous to that of a police officer's is not persuasive.

12.   Fire fighters and police officers often arrive at unpredictable times and may enter portions of premises not open to the public.   (Prosser & Keeton, supra, § 61, p. 431.)   Generally, the occasion for their presence is an emergency.  (Ibid.)  While it is true that situations arise in which the need for fire fighters or police officers are predictable, their appearance at a specific time or place is not.   Thus, it is an unreasonable burden on landowners to require them to prepare their premises for the arrival of police officers or fire fighters.  “A person who climbs in through a basement window in search of a fire or a thief does not expect any assurance that he will not find a bulldog in the cellar, and he is trained to be on guard for any such general dangers inherent in the profession.”  (Prosser & Keeton, supra, § 61, p. 432, fn. omitted.)

13.   We are aware that Novicke received worker's compensation benefits for his injuries, but these benefits, which are available to most workers, cannot be used to include him within the fireman's rule.

1.   In Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668, the owner of a dog was absolved from liability to a bitten veterinarian under the doctrine of assumption of risk.   However, that decision does not suggest that the dog could not have been liable if it were independently suable.   In this case, Ricks is the legal equivalent of that dog vis-a-vis Novicke.

TODD, Associate Justice.

FROEHLICH, J., concurs.