GINTER v. County of Santa Barbara, Intervener and Appellant.

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

Ralph E. GINTER, Plaintiff, v. Brian J. COLLINS, Defendant and Respondent, County of Santa Barbara, Intervener and Appellant.

Civ. No. 56689.

Decided: December 10, 1979

Fred P. Lynch, Samuelson & Oksner and Peter J. Samuelson, Santa Barbara, for intervener and appellant. Hoge, Fenton, Jones & Appel, Inc., and Raymond E. Mattison, San Luis Obispo, for defendant and respondent.

Plaintiff in intervention County of Santa Barbara appeals from an order of dismissal following the granting of a motion for summary judgment by the defendant and respondent Collins.   The complaint alleged that plaintiff was a passenger in a parked motor vehicle and that defendant negligently drove his motor vehicle, causing it to collide with the vehicle in which plaintiff was seated, thereby proximately causing injury and damage to the plaintiff.   The appellant county filed the complaint in intervention under the provisions of Labor Code section 3857 as the employer of the plaintiff and thus subrogated to his rights to the extent of its obligation to pay workers' compensation benefits to the plaintiff.

The basis for the motion for summary judgment, and its subsequent granting by the trial court, was the “fireman's rule.”   This principle precludes recovery by professional firemen and policemen for damage caused to them by the negligence of others in the creation of the very occasion for their engagement as firemen or police officers.  (Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609.)   Relying upon the Walters decision, the trial court concluded that the “fireman's rule” was applicable to the facts and granted the motion for summary judgment.   An order of dismissal was filed, and this appeal ensued.1

The appellant raises three issues on appeal:

1. A triable issue of fact exists, and therefore it was reversible error to grant the motion for summary judgment.

2. The trial court committed reversible error in applying the “fireman's rule” to the facts of the instant case.

3. The “fireman's rule” is contrary to general principles of tort law and is unconstitutional under the equal protection provisions of the California and United States Constitutions.

The plaintiff was employed by the County of Santa Barbara as a deputy sheriff.   It is undisputed that on the night of the accident he was on duty.   Initially, he and his partner were dispatched to the scene of a party due to a complaint of neighboring property owners concerning the party.   After investigation, it was determined that there was no basis for criminal citation.   Following the investigation, the plaintiff and his partner proceeded to another location where their vehicle was parked westbound, some 40 feet off the road to monitor traffic for possible vehicle violations.   One vehicle was stopped for erratic driving and to check for possible intoxication of the driver, but he was released.   The police vehicle returned to its original parked position and was at that location when a vehicle driven by the respondent failed to negotiate a turn and struck the police vehicle, injuring the plaintiff.   That driving was characterized by the plaintiff himself as “traveling at excessive speed” and “failing to execute a curve in the road.”   While there is evidence that the plaintiff and his partner positioned themselves to check guests departing the party in vehicles for intoxication, such evidence is not necessary to support the trial court's order of dismissal.   It is clear that their parked position was dictated by their intent to check driving conduct at that particular portion of the roadway for possible vehicular violations.

 In the appellate review following the granting of a summary judgment, the court must determine that no factual issues exist to be resolved in the trial court, and that the matter was disposed of correctly as a matter of law.  (Schrimscher v. Bryson, 58 Cal.App.3d 660, 663, 130 Cal.Rptr. 125.)   Contrary to appellant's contention, the instant record meets this test.   It is uncontradicted that the plaintiff was on duty and had placed himself in a parked position for vehicular surveillance.   The accident resulting in injury to the plaintiff was caused by the negligence of a person whose driving he had positioned himself to scrutinize.   While it is true that the plaintiff was not called to the scene, the trial court was correct in concluding that no fine distinctions are to be drawn in applying the public policy behind the rule.   Where a police officer has voluntarily positioned himself to survey moving vehicular violations, and he thereby exposes himself to harm from the very driving conduct he is seeking to monitor, the policy behind the rule compels the conclusion that he cannot seek tort recovery for that negligent driving.   He has voluntarily confronted the risk for compensation, and public policy requires that he look elsewhere to be compensated for any harm sustained in the fulfillment of his duties, i. e., workers' compensation benefits.  (Walters v. Sloan, 20 Cal.3d 199, 205, 142 Cal.Rptr. 152, 571 P.2d 609.)

McAllister v. Cummings, 191 Cal.App.2d 1, 12 Cal.Rptr. 418, and Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641, are not in conflict with the conclusions reached here.   Each of those cases dealt with the conduct of a negligent driver other than a person who was the object of the officer's attention.   In each instance the risk of such driving on the part of a third person was not a part of the “occasion for the officer's engagement” and was not one voluntarily confronted.  (See Walters v. Sloan, supra, 20 Cal.3d at p. 202, fn. 2, 142 Cal.Rptr. 152, 571 P.2d 609.)   No third person was involved in the instant case, and the trial court did not err in applying the “fireman's rule” to the complaint in intervention.

 Appellant argues that the “fireman's rule” created an unjustified exception to the general principle that an individual must exercise reasonable care under the circumstances, and, therefore, is in direct conflict with the constitutional guarantee of equal protection of the laws.   The reasonable classification of equal protection of firemen and policemen as opposed to other persons damaged by negligence was thoroughly considered in Walters by the Supreme Court;  it reaffirmed the “fireman's rule,” noting it was born nearly 100 years ago, earned nearly unanimous approval, and it placed its stamp of approval on the rationale and public policy supporting it.   While the court did not discuss the issue as a constitutional one, its statements and reasoning leave no doubt that it was declaring a concept consistent with other cases of basic tort doctrine and premised upon sound and reasonable public policy.   (Walters, supra, 20 Cal.3d at pp. 204, 205, 142 Cal.Rptr. 152, 571 P.2d 609.)   In the light of this, there is no merit to the constitutional challenge.

The order of dismissal is affirmed.   Respondent to recover costs on appeal.

I respectfully dissent.

If, hypothetically, defendant Brian J. Collins (hereinafter Collins) had struck and damaged a stationary inanimate speed limit sign owned by the County of Santa Barbara (hereinafter County), there is no doubt that the County could sue Collins for that damage.

If, hypothetically, the County's patrol car was parked off of the road and left unattended while the officers were having a coffee and donut break at a Winchell's stand and defendant Collins left the road and crashed into the patrol car, there is no doubt that the County could sue Collins for the damage to the unattended vehicle.

I have extreme difficulty applying the “fireman's rule” relieving Collins of civil liability to either Officer Ralph E. Ginter (hereinafter Ginter) or the County merely because Officer Ginter climbed into his patrol car legally parked 40 feet off the roadway and was watching the road for traffic violators when he, out of the blue, was clobbered by a motorist (Collins).

As pointed out in Walters v. Sloan (1977) 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, “the 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 it is applicable to our entire system of justice—one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.”  (20 Cal.3d at p. 204, 142 Cal.Rptr. at p. 155, 571 P.2d at p. 612.)

In my view the facts of the case at bench do not fall within the ambit of the underlying fundamental principle upon which the fireman's rule is based as described in Walters.   Officer Ginter was not engaged in the hazardous activity of being in hot pursuit of a speeding motorist at the time of the collision.   He was legally parked in a stationary position well off the travel portion of the roadway.   I cannot see how Officer Ginter was “voluntarily undertaking the hazard causing [the] injury” (ibid.) under those circumstances any more than any other motorist not engaged in law enforcement who may have parked his or her car at the same location 40 feet off of the highway.

In my opinion such 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.   I do not believe either California case law or the rationale behind the fireman's rule intended such a result.   Nor would application of the rule under the facts of the case at bench be in the best interest of sound public policy.

I would reverse the order of dismissal.



1.   The clerk's transcript does not reveal that a judgment was signed and entered.   However, the parties appear to have treated the order of dismissal as a judgment.  (Haumeder v. Lipsett, 90 Cal.App.2d 167, 202 P.2d 819.)

KAUFMANN,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

LILLIE, Acting P. J., concurs.

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