HUBBARD v. City of San Diego et al., Intervenors and Appellants.

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Court of Appeal, Fourth District, Division 1, California.

Johnny Dean HUBBARD, Plaintiff and Appellant, v. Robert James BOELT, Defendant and Respondent. City of San Diego et al., Intervenors and Appellants.

Civ. 18645.

Decided: February 19, 1980

Carlson & Thiessen and Robert T. Thiessen, San Diego, for plaintiff and appellant. John W. Witt, City Atty., and Thomas F. Calverley, Deputy City Atty., for intervenors and appellants. Wingert, Grebing, Anello & Chapin and Michael M. Anello, San Diego, for defendant and respondent.

A policeman working in the line of duty is barred by the so-called “fireman's rule” from recovering damages against the individual whose negligence caused the officer's exposure to danger. (Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609.) As we will explain, the factual basis and the policy considerations in Walters do not require its extension to preclude a police officer from recovery where defendant's conduct is in reckless disregard of the safety of others. We reverse defendant's summary judgment.

Factual and Procedural Background

The facts in support of the summary judgment are undisputed.

On February 28, 1977, at 8:30 p. m., Johnny Dean Hubbard, a San Diego Police Officer, was operating radar equipment from his police vehicle. Robert James Boelt came to his attention when the car Boelt was driving entered the radar beam at approximately 50 miles per hour in a posted 25 miles per hour zone. With both emergency lights and siren activated, Hubbard began pursuit. Boelt accelerated to get away. At one point in the chase, Boelt's speed was in excess of 100 miles per hour. Boelt passed a van on a blind curve and struck an oncoming vehicle, causing debris from the two automobiles to be scattered over the roadway. Hubbard was injured when he ran his car up a grass embankment to avoid the debris. In Hubbard's action for damages, Boelt's motion for summary judgment was granted. Hubbard appeals.

Discussion

The Walters court reaffirmed the fireman's rule on two bases assumption of the risk (“One who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby” (Id., at p. 204, 142 Cal.Rptr. at p. 155, 571 P.2d at p. 612)) and spreading the risk (“Firemen and policemen are paid for the work they perform including preparation for facing the hazards of their professions . . . When injury occurs, liberal compensation is provided.” (Id., at p. 205, 142 Cal.Rptr. at p. 155, 571 P.2d at p. 612; see also diss. opn. by Tobriner, J., at pp. 215-216).)

It is doubtful that Walters can be read “as a revival of the almost moribund doctrine of the assumption of the risk.” (Tort Law in California (1979) 67 Cal.L.Rev. No. 3, 497, 529.) Our Supreme Court has been described as having made a “sweeping reevaluation of tort law as a pro-plaintiff, pro-recovery system of compensation for injured victims” (The Death of Palsgraf: A Comment on the Current Status of the Duty Concept in California (1979) 16 San Diego L.Rev. 793, 797). It is hardly reasonable that after Li v. Yellow Cab Co (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, in which assumption of the risk was abolished as a complete defense (Id., at p. 829, 119 Cal.Rptr. 858, 532 P.2d 1226), that now it would be revitalized to embrace all conduct culpable as well as negligent. If assumption of the risk were so resurrected, the anomalous rule would be established by which all wrongdoers would be immunized from liability even those whose behavior consists of willful or reckless misconduct. The underpinning of Walters cannot rest on such a tenuous basis.

The primary rationale for Walters is its spreading the risk argument. In effect, because policemen are always compensated for negligence where they are injured in the course of their duties, denial of additional recovery is justified. Whether we agree with that reasoning in a simple negligence case is irrelevant. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) A case, however, is not authority for propositions not considered (In re Tartar (1959) 52 Cal.2d 250, 258, 339 P.2d 553). Stare decisis does not require unquestioning and insensitive adherence to precedent.1 Reckless misconduct was not considered in Walters. In a footnote (20 Cal.3d at p. 202, fn. 2, 142 Cal.Rptr. at p. 154, fn. 2, 571 P.2d at p. 611, fn. 2), the court stated: “Other negligent conduct or willful misconduct may create liability to the injured fireman or policeman . . .” and referred to Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 360, 72 Cal.Rptr. 119, 123). In Giorgi, at that page, the court said: “We hold that a paid fireman has no cause of action against one whose passive negligence caused the fire in which he was injured. We do not deal with the arsonist or with one who prankishly or maliciously turns in a false alarm.” (See also, Scott v. E. L. Yeager Constr. Co. (1970) 12 Cal.App.3d 1190, 1199, 91 Cal.Rptr. 232, 238: “We need not and do not deal with situations involving intentional or willful or wanton misconduct, . . .” The Walters court makes clear it was not addressing a factual setting which constituted conduct other than simple negligence.

As established for the purpose of summary judgment, defendant tried to evade a pursuing traffic officer at a speed in excess of 100 miles per hour. At a minimum, it may be inferred his conduct was intentional insofar as the act of speeding. While at this stage of the proceedings there is no evidence of an intent to actually harm plaintiff, defendant intentionally did an act of “an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” (Prosser, Torts, p. 185, fn. omitted; Porter v. Hofman (1938) 12 Cal.2d 445, 447-449, 85 P.2d 447.) As Dean Prosser further notes, the actor's mental state is usually a conscious indifference or a willingness that the consequences follow. (Prosser, Torts, Supra, at p. 185.) Defendant's conduct in fleeing at high speeds manifestly demonstrates a reckless state of mind and might move some to even conclude the harm was substantially certain to follow. (See, generally, Id., at p. 32.) In contrast, Walters involved a fact situation in which the defendants unreasonably, though passively, permitted a dangerous condition to exist on their premises, that condition being the unlawful consumption of intoxicants by minors. Walters, a police officer, while performing his duty to quell a disturbance in defendant's home, met with physical violence.

When we balance the policy considerations underlying Walters against the benefits served where its application would immunize a defendant from willful, reckless and unlawful acts, we conclude plaintiff should not be deprived of his day in court. If the trier of fact concludes defendant's conduct was indeed in reckless or deliberate disregard of the safety of others or that defendant acted in wanton disregard of the possible results of his conduct, plaintiff should recover his damages.

We also note defendant violated Vehicle Code section 2800.1, which provides:

“Every person who, while operating a motor vehicle, hears a siren and sees at least one lighted lamp exhibiting a red light emanating from a vehicle which is distinctively marked and operated by a member of the California Highway Patrol or any peace officer of any sheriff's department or police department wearing a distinctive uniform and who, with the intent to evade the officer, willfully disregards such siren and light, and who flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor.”

This code section, in addition to being enacted for the benefit of the public generally, is also for the protection of the pursuing police officer. The Legislature, in Penal Code section 834a has expressed a similar public policy imposing a “duty” on a person to submit to any arrest, whether the arrest is lawful or unlawful. This statute should also be viewed as a measure to protect the police officer in the performance of his duty in apprehending wrongdoers. Again in contrast to the factual situation of Walters, there is here a violation of a statute giving rise to a presumption of negligence per se and whose purpose was to protect the police officers as a class.

For the reasons we have expressed and in light of defendant's conduct, we conclude Walters v. Sloan is not controlling.

Disposition

Judgment reversed.

I concur in the judgment and the well reasoned analysis by Justice Wiener but would submit these further bases for reversal of the grant of summary judgment.

I

If the facts before the trial court were that of “passive neglect” causing a condition or premise resulting in the fireman/policeman injuries when called to the scene, as in Giorgi v. Pacific Gas & Elec. Co., 266 Cal.App.2d 355, 357, 72 Cal.Rptr. 119, or Scott v. E. L. Yeager Constr. Co., 12 Cal.App.3d 1190, 1195, 91 Cal.Rptr. 232, or that of a host guilty of a wrong once removed by serving an alcoholic beverage to a minor who attacked a policeman called to quell the disturbance. (Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 429, 571 P.2d 609.) One could do naught but urge the Supreme Court to reexamine the “fireman's rule” in light of the reasons most perceptively stated by Justice Tobriner in his dissenting opinion in Walters v. Sloan, supra, with accompaniment of sotto voce mutterings about an illogical, anachronistic rule originating in a vastly different social order that had at best myopic, insensate views toward individual and social responsibility for tortious wrongs.

The trial court here, however, granted a summary judgment in a factual context of wrongs, civil and criminal, that can only be characterized as willful, in reckless disregard for the safety of others, resulting in injuries to a police officer. If the rule of Walters v. Sloan, supra, was extended to this fact matrix, it would give civil immunity to the 100-mile an hour speeder whose misconduct not only breached several Vehicle Code sections but also violated at least two Penal Code statutes and one Vehicle Code section whose underlying legislative purpose is the protection of police officers from the scofflaw. (Pen.Code, ss 148, 834a; Veh.Code, s 2800.1.)

The Supreme Court has on occasion tartly reminded us of a duty to refrain from stretching a rule beyond its basis in logic, reason and fact. Justice Wiener has wisely heeded that admonition in refusing to apply the “fireman's rule” here.

II

In Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355, 72 Cal.Rptr. 119, the court articulated a public policy underlying the fireman's rule as a desire of society to spread the loss to the public body the taxpayer ultimately rather than assign the responsibility to the negligent land occupier. The court deemed such a burden not fair or just. (Id., at pp. 359-360, 72 Cal.Rptr. 119.) This reasoning, superficially at least, appears consistent with a certain long-term trend in tort law to spread the risk over the broadest base. But if the concept is removed from its century-old fact and legal context and applied to the factual legal matrix of this case, the rule lacks even facial plausibility. It is difficult, if not impossible, to discern one good public policy reason why Police Officer Hubbard and the City of San Diego should carry the financial burden created by Boelt's willful, reckless, unlawful acts. Boelt does not appear in the role of the taxpayer who through his taxes has paid the salary, worker's compensation, etc. of the fireman/policeman called to his home to quell the fire/disturbance.

Society's absolute need to deter reckless and wanton injury as a matter of sound public policy outweighs any countervailing need to “spread the loss.” The “fireman's rule,” while, through employment of sophisms, is defensible where passive negligent conduct is to be balanced against an enlightened desire to allocate loss to the broadest base (Giorgi v. Pacific Gas & Elec. Co., supra, 226 Cal.App.2d at p. 360, 72 Cal.Rptr. 119), yet it cannot be defended here. Instead of spreading the loss from the policeman's injuries, the fireman's rule in reality requires the injured policeman personally to shoulder any loss beyond that covered by worker's compensation or other taxpayer-provided benefits. Extending the rule of Walters v. Sloan, supra, to Boelt's conduct would fly in the face of sound public policy favoring deterrence of lawbreakers by the threat or imposition of sanctions.

“(S)uch a strained application of the fireman's rule to the facts of the instant case renders all patrol officers, who are on duty but stopped well off of the highway in their patrol cars, ‘fair game’ for speeders and drunk drivers since, by application of the rule, they can escape personal civil liability for their tortious acts and merely pass the buck for the injuries and damage which they cause on to the tax-paying public.”

III

Nor does the fireman's rule apply where Negligence is predicated on a violation of statute whose purpose is the protection of police officers in performance of their duty.

Giorgi v. Pacific Gas & Elec. Co., supra, relied upon, quoted extensively from Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, adopting the fireman's rule for California. Krauth analyzed the law of several jurisdictions and concluded: “Thus it has been held that a fireman may recover if the injurious hazard was created in violation of statute or ordinance. (Citations.)” (Id., at p. 274, 157 A.2d at p. 131.)

Walters v. Sloan, supra, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, acknowledges this exception to the rule but held it not applicable because the statute violated was Not enacted to protect police officers. Said the Supreme Court (pp. 206-207, 142 Cal.Rptr. p. 156, 571 P.2d p. 613):

“Courts have given effect to legislative policies by application of the negligence per se doctrine as now codified in Evidence Code section 669. Under the doctrine, violation of a statute gives rise to a presumption of negligence in the absence of justification or excuse, Provided that the ‘person suffering . . . the injury . . . was one of the class of persons for whose protection the statute . . . was adopted.’ (Evid.Code, s 669, subd. (a)(4); Vesely v. Sager (1971) 5 Cal.3d 153, 164-165, 95 Cal.Rptr. 623, 486 P.2d 151 . . .; 4 Witkin, Summary of Cal.Law (8th ed. 1974) pp. 2810-2811.)

“Ordinarily, a criminal statute is enacted not to protect policemen from injury while investigating or terminating the prohibited conduct but rather to protect the public. Enforcement of any criminal statute causes policemen to confront persons violating the statute, thereby imposing a confrontation and risk to the officer where none existed before. An officer called to enforce a criminal statute is thus not one of the class of persons for whose protection the criminal statute is adopted.” (Italics added.)

Boelt was not only violating the Vehicle Code sections designed to protect the public but also Penal Code section 148 prohibiting “a delay, obstruction of the officer” when he caused the accident and Hubbard's injury. Further, he was violating Vehicle Code section 2800.1, providing:

“Every person who, while operating a motor vehicle, hears a siren and sees at least one lighted lamp exhibiting a red light emanating from a vehicle which is distinctively marked and operated by a member of the California Highway Patrol or any peace officer of any sheriff's department or police department wearing a distinctive uniform and who, with the intent to evade the officer, willfully disregards such siren and light, and who flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor.”

This code section patently was enacted for the protection of officers pursuing a culprit with light and siren going. Finally, the Legislature in Penal Code section 834a, has expressed a public policy to impose a “duty” on a citizen to submit to arrest. This statute can only be viewed as a measure to protect the police officer in performance of his duty to apprehend wrongdoers.

Thus, in contrast to the fact situation of Walters v. Sloan, here there are at least three statutes whose patent purpose was to protect the police officers as a class and the violation of which gave rise to a presumption of negligence per se.

IV

Walters v. Sloan, supra, 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 153, 571 P.2d 609, 610, emphasized the doctrine of assumption of risk in concluding police officers “ ‘whose occupation by its very nature exposes them to particular risks of harm, ” ‘cannot complain of negligence in the creation of the very occasion for (their) engagement.’ “ ‘ (Citation.)” While the “occasion” language could theoretically embrace conduct other than simple negligence, the Walters court repeatedly employed the word negligence in articulating their rule. (Walters v. Sloan, supra, at pp. 202, 204, 205, 142 Cal.Rptr. 429, 571 P.2d 609.) By removing this language from its factual context, the trial court sanctioned an anomalous rule immunizing reckless and willful wrongdoers from civil liability. The Supreme Court certainly did not intend by its assumption of risk language to abrogate longstanding tort concepts designed to curb more culpable conduct. (Id., at p. 202, fn. 2, 142 Cal.Rptr. 429, 571 P.2d 609.)

Moreover, this articulated rationale of Walters v. Sloan cannot be viewed in a vacuum. Its language is a reiteration of assumption of risk language applied narrowly in the earlier Supreme Court case of Solgaard v. Guy F. Atkinson Co., 6 Cal.3d 361, 99 Cal.Rptr. 29, 491 P.2d 821, where the court held a medical doctor, who previously contracted to render necessary emergency medical care to employees injured on the construction site, did not assume the risk he would slip and fall as a result of defendant's negligence while trying to render medical services. (Id., at p. 369, 99 Cal.Rptr. 29, 491 P.2d 821; cf. Maltman v. Sauer, 84 Wash.2d 975, 530 P.2d 254, 257-258.) A close scrutiny of the doctrine and the actual scope of Officer Hubbard's assumption of risk renders doubtful the conclusion that a police officer's work “by its very nature” contemplates Every risk including that of reckless or wanton fleeing of defendant in an automobile.

Dean Prosser's discussion of the assumption of risk doctrine illuminates its inappropriateness in this factual context. After defining three basic classes of assumption of risk,1 Prosser states:

“In all three of these situations the plaintiff may be acting quite reasonably, and not be at all negligent in taking the chance, because the advantages of his conduct outweigh the risk. His decision may be the right one, and he may even act with unusual caution because he knows the danger he is to meet. If that is the case, the defense operates only to deny the defendant's negligence by denying the duty of care which would give rise to it; and the plaintiff does not recover only because as to him the defendant's conduct is not a legal wrong. On the other hand, and particularly in the second and third situations, the plaintiff's conduct in encountering a known risk may be in itself unreasonable because the danger is out of all proportion to the advantage which he is seeking to obtain.” (Prosser, Torts, supra, at pp. 440-441.)

It cannot be concluded on motion for summary judgment Hubbard acted Unreasonably when in the faithful exercise of his duty as a police officer he encountered the risk created by pursuing Boelt.

The policy underlying assumption of risk “refuses to permit one who manifests willingness that another shall continue in a course of conduct to complain of it later if he is hurt . . . .” (Rest. Torts 2d, s 496 C, com. (b).) It becomes evident this doctrine is inapposite here because Hubbard in no way manifested approval of Boelt's conduct for seeking to apprehend the fleeing wrongdoer.

Finally, the Restatement of Torts Second section 496 C declares the doctrine of assumption of risk for reckless conduct is inapplicable where to apply it would defeat public policy. Prosser takes the strong position that public policy seeks to discourage aggravated wrongs. This militates against a finding of assumption of risk where conduct is reckless or gross. (Prosser, Torts, Supra, at pp. 444-446.) The trial court's decision expanding Walters v. Sloan, supra, in effect encourages a suspect to flee from a police officer lawfully performing his duty and then if the officer is killed or injured in a chase, claim assumption of risk as a shield against civil liability. Civil immunity under these circumstances is a public policy disaster and cannot be reconciled with the public policy codified in section 834a, section 148 of the Penal Code and Vehicle Code section 2800.1.

V

Finally, the trial court's extension of the fireman rule beyond its original context is inconsistent with the broader developing tort concepts expanding liability (cf., Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897) and removing strict barriers to liability where the defendant's fault is greater. The Supreme Court reasoned in Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226:

“(T)he adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. (Citation.)” (Id., at p. 825, 119 Cal.Rptr. at p. 873, 532 P.2d at p. 1241.)

The finding of immunity by virtue of the “fireman's rule” in the instant case where Boelt's fault was so grave must be reconciled with the now accepted principle of apportioning responsibility on the basis of fault.

Nor can such expanded immunity be logically harmonized with the holding of Witt v. Jackson, 57 Cal.2d 57, 69, 17 Cal.Rptr. 369, 366 P.2d 641.

“ ‘An employee who sustains injury arising out of and in the course of his employment because of the negligence of a third party, not his employer, may bring a civil action for damages against such third party in the same manner as though his injury were not work-connected.’ (2 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation, ss 23.01, 23.02, pp. 23-2, 23-5; see e. g., Lab. Code, s 3852; . . .” (Walters v. Sloan, supra, 20 Cal.3d 199, 209, 142 Cal.Rptr. 152, 158, 571 P.2d 609, 615.)

Nor is it conformable to current equal protection concepts to increase the already anomalous disadvantage police and fire personnel suffer as compared to other victims of tortious conduct who are the beneficiaries of the “rescue doctrine.” (Walters v. Sloan, supra, at p. 210, 142 Cal.Rptr. 429, 571 P.2d 609; Solgaard v. Guy F. Atkinson Co., supra, 6 Cal.3d 361, 368, 369, 99 Cal.Rptr. 29, 491 P.2d 821; cf., Maltman v. Sauer, supra, 84 Wash.2d 975, 530 P.2d 254.)

To refuse Hubbard the opportunity to obtain full recovery on the sole basis of his status as a police officer is to deny him legal rights enjoyed by every other class of automobile victim and give rise to a denial of equal protection equally blatant to that laid to rest in Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212; Cooper v. Bray, 21 Cal.3d 841, 148 Cal.Rptr. 148, 582 P.2d 604, and Monroe v. Monroe, 90 Cal.App.3d 388, 153 Cal.Rptr. 384.

With factual, legal differences so profound, I agree with Justice Wiener we are not bound by Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937. The application of the Walters v. Sloan rationale here would perpetrate the absurd and unjust result of insulating a willful and wanton wrongdoer from civil liability merely on the fortuitous circumstance that the victim wore a police uniform. To paraphrase Lord Goddard (Best v. Samuel Fox & Co. (1952) Appeal cases 716, 731): “ ‘English (California) law is free neither of some anomalities nor of everything illogical but this is no reason for extending them.’ ”

I concur in the reversal of the judgment of dismissal.

I must respectfully dissent.

It is not that I am unmoved by the equities favoring the rights of law enforcement personnel and firemen recovering for the injuries they are forced to suffer, it is merely I feel bound by my duty to observe the doctrine of Stare decisis, an important aspect of California law.

“Under the doctrine of Stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of Stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court. (People v. McGuire, 45 Cal. 56, 57-58; Latham v. Santa Clara County Hospital, 104 Cal.App.2d 336, 340, 231 P.2d 513 . . .; Globe Indemnity Co. v. Larkin, 62 Cal.App.2d 891, 894, 145 P.2d 633. . . .)” (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 323, 324, 369 P.2d 937, 939, 940.)

When this court had the opportunity to review a claim of a policeman seeking recovery for injuries received in the line of duty, vis a vis the fireman's rule, I wrote: “In light of Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 and Li v. Yellow Cab, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, we are compelled to discard the historical reasons for the rule and inquire only whether public policy requires us to apply the rule to a second category of government employees, namely policemen.” (Walters v. Sloan (Jun. 30, 1975) 4 Civ. No. 12946, formerly 49 Cal.App.3d 643, at p. 657, 122 Cal.Rptr. 623, at p. 631, hrg. granted 9/10/75.) There was no authority in California at that time for applying the rule to policemen and, unfettered by authority from a court of higher jurisdiction, we felt comfortable in holding a policeman should be given his cause of action subject to letting the principles of comparative negligence (Li v. Yellow Cab, supra ) balance the equities.

That case was taken over by the Supreme Court (Walters v. Sloan, supra, 20 Cal.3d 199, 142 Cal.Rptr. 429, 571 P.2d 609) which has resolved the issue. Policemen are included in the fireman's rule and we are not now accorded the luxury of determining the law in this area. We are bound by Stare decisis as to public policy in this area until the Supreme Court gives us further direction. The reasons for this public policy are spelled out succinctly:

“The principle denying recovery to those voluntarily undertaking the hazard causing injury is fundamental in a number of doctrines, including nullification of the duty of care, satisfaction of the duty to warn because the hazard is known, contributory negligence, and assumption of risk, as well as in the fireman's rule. (Citations.) . . . The rule finds its clearest application in situations like that before us a person who, fully aware of the hazard created by the defendant's negligence, voluntarily confronts the risk for compensation.

“A second reason underlying the fireman's rule . . . is a modern one of public policy, adopted by progressive courts and based on fundamental concepts of justice. . . . (F)iremen (policemen) ‘ ” ‘cannot complain of negligence in the creation of the very occasion for (their) engagement.’ “ . . . .' ” (Walters v. Sloan, supra, at pp. 204-205, 142 Cal.Rptr. at p. 155, 571 P.2d at p. 612.)

Distinguishing the facts of Walters v. Sloan, supra, is not enough; we must also find reasons for a different public policy under these special circumstances. The majority would distinguish the type of crime that called the policeman to his duty saying Walters was prompted by the passive negligence of the defendant while here the defendant committed a violation of law involving willful, reckless and unlawful acts. While the earlier cases speak of “passive negligence” (see Giorgi v. Pacific Gas & Elec. Co., 266 Cal.App.2d 355, 72 Cal.Rptr. 119), the later cases, and specifically Walters v. Sloan, supra, do not attempt to draw these fine lines authorizing the public employee's action but, rather, look to see only whether the negligent act complained of created the occasion for the officer's employment and presence at the scene (Walters v. Sloan, supra, 20 Cal.3d 199, 202-203, 142 Cal.Rptr. 429, 571 P.2d 609, and particularly see p. 203, fn. 3, 142 Cal.Rptr. 429, 571 P.2d 609). One appellate court said intentional or willful or wanton misconduct torts may provide a basis for recovery (see Scott v. E. L. Yeager Constr. Co., 12 Cal.App.3d 1190, 1197, 91 Cal.Rptr. 232), but this reference certainly meant where the acts are directed to the officer himself because, generally speaking, every criminal act involving a risk of harm to others is intentional and willful and, if such a broad exception were intended, it would have to include all acts calling for police help and there would be no reason for the rule.1 I do not believe the Supreme Court intended to go that far.

This officer was hired to apprehend law violators, he was prompted to chase Boelt because Boelt was speeding in violation of the law, in the course of Hubbard's employment and in his attempt to apprehend this law violator Hubbard received injuries for which he was entitled to receiver worker's compensation and other benefits provided at government expense. Hubbard knew and assumed the risk of a high-speed chase in order to carry out what he (and we) perceived to be his duty as an officer. Hubbard cannot complain of this activity on Boelt's part creating the very occasion for Hubbard's engagement (Walters v. Sloan, supra, 20 Cal.3d 199, 205, 142 Cal.Rptr. 429, 571 P.2d 609). If we are bound by Walters, as indeed I feel we are, we must deny Hubbard any cause of action (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

I am constrained to affirm the trial court.

FOOTNOTES

1.  “ ‘I know of no phase of our law so misunderstood as our system of precedent. The basic false conception is that a precedent or the precedents will in fact . . . simply dictate the decision in the current case. . . .Now the truth is this: only in times of stagnation or decay does an appellate system even faintly resemble such a picture of detailed dictation by the precedents, and even in times of stagnation . . . movement and change still creep up on the blind side of the stagnators.' “ K. Llewellyn, The Common Law Tradition: Deciding Appeals 62-63 (1960). Justice Holmes said it more succinctly: ” ‘To rest upon a formula is a slumber that, prolonged, means death.’ “ O. W. Holmes, Ideals and Doubts, in Collected Legal Papers 306 (1920). (Horvitz, Justice Tobriner's Tort Decisions: A Reaffirmation of the Common Law Process (1977-78) 29 Hastings L.J. 167, fn. 1.)

1.  Plaintiff may be said to have assumed the risk where he (1) in advance consents to relieve defendant of an obligation of precautionary conduct or (2) voluntarily enters a relationship knowing defendant will not exercise reasonable care and public policy does not provide to the contrary. (Prosser, Torts (4th ed. 1971), s 68, pp. 440, 442-445.) The third type occurs where plaintiff proceeds in the face of an existing negligently caused risk and may, if unreasonable, amount to contributory negligence. (Prosser, Torts, supra, at p. 440; see also Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.)

1.  The majority opinion makes much of footnote 2 of Walters v. Sloan, supra, 20 Cal.3d 199 on page 202, 142 Cal.Rptr. on page 154, 571 P.2d on page 611 “(o)ther negligent or willful misconduct may create liability to the injured fireman or policeman,” but the cited authority and example are cases where the injury is occasioned by negligence not occasioned by the person prompting the fireman's or policeman's presence at the scene; namely, the ambulance driver who is injured by the negligence of a third person while on his way to an accident, or the officer hit by a passing motorist while issuing a ticket to the operator of a parked car.

WIENER, Associate Justice.