DONOHUE v. SAN FRANCISCO HOUSING AUTHORITY

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Court of Appeal, First District, Division 2, California.

Robert DONOHUE, Plaintiff and Appellant, v. SAN FRANCISCO HOUSING AUTHORITY et al., Defendants and Respondents.

No. A049317.

Decided: May 24, 1991

Thomas J. Brandi, Mylene L. Reuvekamp, James D. Downing, Bianco, Brandi & Jones, San Francisco, for plaintiff and appellant. Alexander, Millner & McGee, Gary T. Lafayette, Kevin M. Clarke, San Francisco, for defendants and respondents.

A San Francisco fire fighter was injured when he slipped on wet and slippery stairs during an unannounced fire safety inspection of a building owned by the San Francisco Housing Authority (SFHA).   He brought this action for negligence against SFHA. SFHA moved for summary judgment based on the twin defenses of the “fireman's rule” and traditional assumption of the risk. The trial court granted the motion and plaintiff appeals.1 We will decide that the fireman's rule does not apply to the facts here, but that the common law doctrine of assumption of the risk does. We will also determine that Civil Code section 1714.9 does not preclude application of the common law defense, since the claimed tortious conduct occurred prior to plaintiff's arrival on the premises. Accordingly we will affirm the judgment.

BACKGROUND

The facts are basically undisputed. Plaintiff Robert Donohue was employed as a firefighter with the San Francisco Fire Department from 1955 until his retirement in March of 1987. On March 26, 1986, in his capacity as battalion chief, plaintiff conducted a fire safety inspection of a low rise apartment building owned by SFHA. The building consists of three floors with a flight of concrete stairs leading from the third floor to a penthouse door, which opens out onto the roof.

Plaintiff noticed that the stairs were wet and, since he observed two or three men with a hose leaving the scene, concluded that they had just finished washing down the stairs.   As part of his inspection, plaintiff climbed the stairway to see if the penthouse door was locked, a condition not permitted by the fire code. Having inspected the building a number of times before, he knew the door had sometimes been left locked.

Plaintiff was wearing crepe-soled shoes issued by the fire department and was particularly cautious in traversing the stairway, knowing that the steps were wet and having observed puddles and mud. As he descended the stairs from the penthouse door, plaintiff slipped and fell on the landing above the third floor, breaking his arm. After the injury, plaintiff did not return to work and went on disability retirement.

The concrete steps did not have skid-resistant treads on them, despite the fact that several years earlier the SFHA safety committee had recommended that they be installed. In accordance with routine practice, the fire department did not give SFHA any advance notice of the inspection, although SFHA had general knowledge that its buildings were being inspected on a quarterly basis.

According to injury reports kept by the fire department, plaintiff had slipped on stairs (or in one instance a ladder) on five separate occasions prior to the accident, although all of the falls occurred under firefighting conditions.

APPEAL

IContinued Viability of Assumption of the Risk

 The basis for the motion for summary judgment was that plaintiff's recovery from SFHA was barred by either the “fireman's rule” or the doctrine of reasonable implied assumption of the risk. The trial court's order did not specify the ground for its decision; however, if the motion was good on any ground, thee judgment must be upheld on appeal. (Hatch v. Collins (1990) 225 Cal.App.3d 1104, 1113, 275 Cal.Rptr. 476.)

It has long been a tenet of the common law that one who reasonably and voluntarily encounters a known peril cannot recover for injuries caused by that danger. The doctrine, also known as “reasonable implied assumption of the risk,” arises by virtue of an “inferred agreement to relieve a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in encountering a known danger.” (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 102, 243 Cal.Rptr. 536, emphasis original.) Reasonable assumption of the risk provides the cornerstone of the “fireman's rule” which prevents firemen and policemen injured in the course of their duties from recovering from those whose negligence exposed them to the risk of such injury.  (Hubbard v. Boelt (1980) 28 Cal.3d 480, 484, 169 Cal.Rptr. 706, 620 P.2d 156; Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609;Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 360, 72 Cal.Rptr. 119.)The rationale is that one whose occupation by its very nature exposes him to particular risks of harm “cannot complain of negligence in the creation of the very occasion for his engagement.” (Hubbard v. Boelt, supra, 28 Cal.3d at p. 484, 169 Cal.Rptr.706,620 P.2d 156 , citing Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d at p. 359, 72 Cal.Rptr. 119, internal quotation marks omitted.)

Plaintiff urges that both reasonable assumption of the risk and its offspring, the fireman's rule, have been subsumed by the adoption of comparative negligence. Fourteen years after the California Supreme Court decided Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, it has still not resolved this issue.2 Without rehashing the arguments for and against, we will simply record our concurrence with the overwhelming majority of cases holding that reasonable assumption of the risk remains a complete defense after Li. (Hacker v. City of Glendale (1991) 228 Cal.App.3d 1013, 1019, 279 Cal.Rptr. 371;Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 562, 260 Cal.Rptr. 1;Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477, 255 Cal.Rptr. 755;  King v. Magnolia Homeowners Assn. (1988) 205 Cal.App.3d 1312, 1315–1316, 253 Cal.Rptr. 140; Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 184, 229 Cal.Rptr. 612; Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 102 105, 243 Cal.Rptr. 536; Nelson v. Hall (1985) 165 Cal.App.3d 709, 714, 211 Cal.Rptr. 668;Baker v. Superior Court (1982) 129 Cal.App.3d 710, 719, 181 Cal.Rptr. 311.)

II

Applicability of the Fireman's Rule

SFHA urges that plaintiff was barred from bringing this action by the fireman's rule. It notes that he was injured in the normal course of performing his duties and that “the hazard of slipping and falling on stairs in general, and on wet stairs in particular, was part and parcel of [plaintiff's] job as a fire fighter.”

The fact that plaintiff was injured while in the regular course of his duties as a fireman and that the hazard was one normally encountered as part of his job are not dispositive as to the applicability of the rule, however.

 The fireman's rule does not bar recovery for independent acts of misconduct which were not the cause of the plaintiff's presence on the scene. (Hubbard v. Boelt, supra, 28 Cal.3d at p. 486, 169 Cal.Rptr. 706, 620 P.2d 156; Rowland v. Shell Oil Co. (1986) 179 Cal.App.3d 399, 403, 224 Cal.Rptr. 547.)The negligence, whether active or passive, must create an obvious risk and be the cause of the fireman's presence. (Malo v. Willis (1981) 126 Cal.App .3d 543, 547, 178 Cal.Rptr. 774.) Thus, in Malo, supra, an officer stopped two vehicles for speeding and pulled them to the side of the road. After all vehicles came to a full stop, defendant, who was driving one of the vehicles, mishandled the gear shift lever, causing him to rear-end the officer's patrol car. The court held the fireman's rule was inapplicable because the injury “did not result from the negligent act of speeding but from the entirely separate and independent act of driving an unfamiliar vehicle.” (126 Cal.App.3d at p. 548, 178 Cal.Rptr. 774 ; see also Spargur v. Park (1982) 128 Cal.App.3d 469, 471–473, 180 Cal.Rptr. 257 [motorcycle officer struck by car he stopped for speeding after it was pulled to the side of the road; triable issue of fact whether injury occurred in the continuation of the speeding violation or because of independent act].)

 Here the conduct which is claimed to confer liability on SFHA was the failure to install non-slip adhesive treads on the stairs coupled with the improper maintenance practice of hosing down the stairs. Neither of these acts, however, was the reason for plaintiff's presence. Plaintiff was not summoned to the scene to inspect the slipperiness of the stairs, he was there to look for fire code violations.

This case is therefore governed by Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 218 Cal.Rptr. 256.   A fire fighter was injured while performing his duties when he fell through an unguarded and concealed opening in the roof of defendant's building. In reversing a judgment after the sustaining of a demurrer without leave, the court noted that “ ‘in California, the fire[fighter]'s rule has never been construed as shielding a defendant from liability for acts of misconduct which are independent from those which necessitated the summoning of the fire [fighter]. [Citations.] The rule has only been applied to prohibit a fire [fighter] from recovering for injuries caused by the very misconduct which created the risk which necessitated his [or her] presence.’ ”  (172 Cal.App.3d at p. 440, 218 Cal.Rptr. 256 , quoting Lipson v. Superior Court (1982) 31 Cal.3d 362, 369, 182 Cal.Rptr. 629, 644 P.2d 822, footnote in quoted text omitted, emphasis original.)

Since the injuries were not caused by an act of misconduct which prompted plaintiff's presence in the building, the fireman's rule does not bar the present claim.

III

Traditional Assumption of the Risk

While the fireman's rule does not apply to this fact situation, we must still resolve the question of whether recovery for the injuries sustained by plaintiff was barred by common law reasonable assumption of the risk.

 One who has knowledge and appreciation of a of a particular danger created by the defendant's negligence and voluntarily chooses to encounter it is said to have “assumed the risk” of the hazard. (See 6 Witkin, Summary of Cal.Law (9th ed.. 1988) Torts, § 1104, pp. 515 516; Prescott v. Ralphs Grocery Cooo. (1954) 42 Cal.2d 158, 161 162, 265 P.2d 904;King v. Magnolia Homeowners Assn., supra, 205 Cal.App.3d 1312, 1315, 253 Cal.Rptr. 140.)   Here, plaintiff encountered a familiar risk in climbing slick, wet concrete stairs. He therefore had knowledge of the risk and exposed himself to it.

Plaintiff urges that although he knew the stairs were wet, he did not appreciate the magnitude of the risk “created by the water coupled with the lack of appropriate safety measures.” This argument is misplaced. The risk was slipping and falling on wet and slippery stairs. Plaintiff's admitted caution was in response to that very risk. He had seen workmen with hoses leaving the area, causing him to form the impression that the stairs had just been watered down. He saw mud and puddles. Because of his observations, he was being especially cautious on this occasion. Plaintiff was no stranger to the building, having inspected it many times before. He also had been in other housing authority buildings with wet stairs and had been “particularly careful” when traversing them. Finally, he was wearing crepe-soled shoes issued to him by the fire department to further guard against the risk of slippage. On these facts, plaintiff cannot credibly claim he misapprehended the nature of the risk involved.

In Hacker v. City of Glendale, supra, 228 Cal.App.3d 1013, 279 Cal.Rptr. 371, the Court of Appeal disposed of an argument very similar to the one advanced by plaintiff. A tree trimmer was electrocuted while trimming a tree which traversed power lines.   It was established that the trimmer knew about the power lines and was aware of the danger of electrocution. However, in opposition to summary judgment plaintiffs submitted evidence that decedent was electrocuted not by touching a power line, but by touching a branch which had come into contact with the wire. Plaintiffs claimed this was a risk of which he was not aware.

In rejecting this contention, the court stated, “it is clear that decedent had knowledge of the very danger which caused his death, i.e., electrical wires. He met his death by electrocution, a risk of which he, as a professional tree trimmer, was well aware. The fact that he was electrocuted by coming into contact with a tree branch instead of the wire itself is immaterial.”  (Id., at p. 1021, 279 Cal.Rptr. 371.)

The facts at bar are even more compelling than in Hacker, because here the risk of slipping on wet concrete steps was the specific risk which plaintiff was guarding against at the time he fell (by being especially careful). The tree trimmer in Hacker arguably did not appreciate the nature of the risk because he did not know that touching a branch could kill him. While the result reached by the majority may be subject to debate (see dis. opn. of Johnson, J., 228 Cal.App.3d at pp. 1022 1039, 279 Cal.Rptr. 371), we agree with the Hacker court that as long as the nature of the risk is understood and voluntarily encountered, the fact plaintiff was not cognizant of the exact scientific cause of his injury does not create a triable issue of fact over an “unknown risk.”

Both in his briefs and at oral argument, plaintiff repeatedly stresses that he was unaware the stairs lacked skid-resistant tread. We note that plaintiff failed to introduce competent evidence to support this assertion.3 Even if we were to assume the truth of this “fact,” however, it would be immaterial. Plaintiff knew the steps had just been watered down and had noticed the presence of mud and puddles.   That the steps lacked treading was obvious to anyone, and especially to one who had traversed them on numerous previous occasions.   Regardless of his professed ignorance, plaintiff must be charged with actual knowledge of this condition. (Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d at p. 161, 265 P.2d 904; see Prosser and Keeton On Torts (5th ed. 1984) § 11, pp. 487 488.)4

Plaintiff also maintains that the risk was not voluntarily assumed because climbing the steps was compelled by his job as a fireman. He cites Bilyeu v. Standard Freight Lines (1960) 182 Cal.App.2d 536, 6 Cal.Rptr. 65, in which a policeman was injured while removing heavy rolls of steel which defendant had negligently allowed to spill on the highway. Bilyeu held that the risk was not undertaken “voluntarily” because plaintiff had a legal and moral duty to clear the highway of obstructions.  (Id., at p. 544–545, 6 Cal.Rptr. 65.)

Bilyeu is a case which predated California's adoption of the fireman's rule. Since it appears to fulfill all of the requirements necessary for interposition of that defense, it is highly unlikely that Bilyeu would be decided the same way today.5 Moreover, plaintiff herein was not under compulsion to climb the stairs in the same way that Bilyeu was compelled to remove the steel rolls. Plaintiff was not confronting an emergency, he was making a routine inspection.   Having observed that the steps had recently been watered down, plaintiff could have asked that the steps be wiped, waited until the stairs had dried or simply come back on another occasion.

Thus, at least in the absence of statutory intervention, the doctrine of assumption of the risk is a complete defense to plaintiff's cause of action.

IV

Effect of Section 1714.9

 Enacted in 1982, section 1714.9, subdivision (a) of the Civil Code (section 1714.9) provides, in pertinent part: “Notwithstanding statutory or decisional law to the contrary, any person is responsible not only for the results of that person's willful acts causing injury to a peace officer, firefighter, or any emergency medical personnel employed by a public entity, but also for any injury occasioned to that person by the want of ordinary care or skill in the management of the person's property or person, in any of the following situations:  [¶] (1) Where the conduct causing the injury occurs after the person knows or should have known of the presence of the peace officer, firefighter, or emergency medical personnel.” (Emphasis added.)

Plaintiff contends that this statute allows him to pursue this lawsuit even if assumption of the risk would otherwise bar the claim, since it permits a cause of action to be maintained “  ‘notwithstanding statutory or decisional law to the contrary․’ ”

Section 1714.9 was enacted in response to the California Supreme Court's decision in Hubbard v. Boelt, supra, 28 Cal.3d 480, 169 Cal.Rptr. 706, 620 P.2d 156 (Hubbard), in which a policeman was injured in a high speed chase when defendant accelerated after the officer activated his siren. Hubbard denied recovery based on the fireman's rule. Justice Tobriner dissented, in part based on the fact that injury was caused by the defendant's additional and subsequent act of misconduct after being aware of the officer's presence. (Id., at p. 487, 169 Cal.Rptr. 706, 620 P.2d 156.) Four months after the decision in Hubbard, a bill was introduced into the Assembly which, with modifications, culminated in the enactment of section 1714.9. The Assembly committee report on the bill makes it clear that the statute was intended to adopt the reasoning of Justice Tobriner's dissent.  (See Gibb v. Stetson (1988) 199 Cal.App.3d 1008, 1014–1015, 245 Cal.Rptr. 283 (Gibb).)

In Gibb, the court held that section 1714.9 applied to permit the maintenance of an action by a court bailiff who was injured when the defendant “went limp” while plaintiff was endeavoring to handcuff her in the hallway of a courtroom. The tortious conduct clearly occurred after defendant knew of plaintiff's presence on the scene and therefore the statute took precedence over the fireman's rule. In a footnote, Gibb observed that the doctrine of assumption of the risk would not provide a complete defense either, since section 1714.9 abrogates all “ ‘statutory or decisional law to the contrary.”'(Id., at p. 1016, fn. 5,245 Cal.Rptr. 283.)

We accept, for purposes of argument, Gibb's conclusion that a plaintiff who satisfies section 1714.9's requirements may not be precluded from recovery by assumption of the risk. However, we must still determine whether the statute applies to the present action, since the section comes into play only if the misconduct occurs after the defendant “knows or should have known” of the officer/firefighter's presence. (Section 1714.9, subd. (a)(2).)

It is undisputed that SFHA had no actual knowledge of plaintiff's presence prior to the accident on March 26. Plaintiff testified that he did not give SFHA any advance notice that he was coming. Plaintiff, however, asserts that constructive knowledge of his presence on the scene was established because SFHA knew that the fire department was making periodic quarterly inspections of its buildings, and in fact had received reports of these inspections. By plaintiff's reasoning, if a landowner perceives a reasonable probability that firefighters or police officers will, at some point in the future, arrive at his property, he is chargeable with constructive notice of their presence. We cannot agree.

“In engaging in statutory interpretation we are to accord words their usual, ordinary, and common sense meaning based on the language the Legislature used and the evident purpose for which the statute was adopted. [Citations.]”  (In re Rojas (1979) 23 Cal.3d 152, 155, 151 Cal.Rptr. 649, 588 P.2d 789.)   As noted earlier, the purpose of the statute was to permit a firefighter to recover for acts of misconduct which are committed after the defendant knows or should know that the he or she has arrived on the scene. The whole point of the section is to trigger a duty of due care once the defendant realizes that the potential plaintiff has begun discharging his official duties. Indeed, thee inability of property owners to constantly safeguard their premises against the risks encountered by emergency personnel is one of the reasons for the existence of the fireman's rule; and we may assume that the Legislature did not mean to create an exception that would threaten to swallow the rule. “Presence” must therefore be construed in its ordinary sense to mean actual presence, not “probable future presence” or “reasonably foreseeable” presence.

We realize that this construction is not without its problems when applied to a negligent property maintenance case. Here, plaintiff might have maintained his action if the maintenance men had hosed down the stairs after he had arrived at the building; yet, if he called and told them he would be there at 2 p.m. and they hosed down the stairs at 1:45 they would not be liable. Obviously, when it enacted the statute the Legislature did not envision the type of situation which we now confront.   Nevertheless, it is our duty to interpret, not rewrite the legislation.   The common sense meaning of the language and the clear expression of legislative intent must be respected. (See Lamberton v. Rhodes Jamieson (1988) 199 Cal.App.3d 748, 754, 245 Cal.Rptr. 162;Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 544, 249 Cal.Rptr. 5.)

Under the undisputed facts, SFHA's alleged acts of negligence took place before they knew or had reason to know of plaintiff's presence on the scene. The exception provided by section 1714.9 is inapplicable. The trial court properly granted summary judgment.

DISPOSITION

Judgment affirmed.

I concur in those portions of the majority opinion concluding that the claim in this case is not barred by the fireman's rule and that Civil Code section 1714.9 is inapplicable. I dissent from the portions determining that reasonable implied assumption of the risk remains a complete defense in California after Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858 , 532 P.2d 1226 and that the doctrine bars recovery in this case.

In my dissent in an earlier opinion recently superseded by a grant of review, and therefore no longer citable (see rules 976(d) and 977(a), Cal.Rules of Court), I explained why I do not believe the defense of reasonable implied assumption of risk remains viable after the adoption of comparative negligence:  “The California Supreme Court has neither in Li v. Yellow Cab, [supra,] 13 Cal.3d 804[119 Cal.Rptr. 858, 532 P.2d 1226] nor elsewhere specifically decided whether a defendant who has breached his duty of care toward the plaintiff may nonetheless raise as a complete defense the fact that the plaintiff reasonably but voluntarily encountered that risk. The tenor of the court's subsequent opinion in Daly v. General Motor Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 is, if anything, inconsistent with that idea.

“Except where there is an express agreement, the doctrine of assumption of risk is simply a confusing way of stating certain no-duty rules or, where there has been a breach of duty toward plaintiff, simply one kind of contributory or comparative negligence.   I believe the doctrine should be abolished.   As stated in one of the most authoritative treatises on the law of torts, ‘t]he doctrine of assumption of risk, however it is analyzed and defined, is in most of its aspects a defendant's doctrine that restricts liability and so cuts down the compensation of accident victims. It is a heritage of the extreme individualism of the early industrial revolution.   But quite aside from any questions of policy or of substance, the concept of assuming the risk is purely duplicative of other more widely understood concepts, such as scope of duty or contributory negligence.   The one exception is to be found, perhaps, in those cases where there is an actual agreement. Moreover, the expression has come to stand for two or three distinct notions that are not at all the same, though they often overlap in the sense that they are applicable to the same situation.’ (4 Harper, James & Gray, The Law of Torts (2d ed. 1986) § 21.8, p. 259, fn. omitted;  accord, Bohlen, Voluntary Assumption of Risk, 20 Harv.L.Rev. 14; Green, Assumed Risk as a Defense, 22 La.L.Rev. 77 (1961); Keeton, Assumption of Risk and the Landowner, 22 La.L.Rev. 108 (1961);  but see, Prosser and Keeton, The Law of Torts (5th ed. 1984), §  68.)․  Confusion of this sort is one of the reasons that, as the courts of other states are increasingly coming to realize, ‘the term “assumption of risk” is so apt to create mist that it is better banished from the scene.’ (McGrath v. American Cyanimid Co. (1963) 41 N.J. 272, 276, 196 A.2d 238, reaffg. Meistrich v. Casino Arena Attractions, Inc. (1959) 31 N.J. 44, 155 A.2d 90; see also Salinas v. Vierstra (1985) 107 Idaho 984, 695 P.2d 369; Rutter v. Northeastern Beaver Cty., etc. (1981) 496 Pa. 590, 437 A.2d 1198;  McWilliams v. Parham (1967) 269 N.C. 162, 152 S.E.2d 117; Parker v. Redden (Ky. 1967) 421 S.W.2d 586; Felgner v. Anderson (1965) 375 Mich. 23, 133 N.W.2d 1, 36[136];  Bolduc v. Crain (1962) 104 N.H. 163, 181 A.2d 641.)”

The present case illustrates the problems entailed in the use of summary judgment on the basis of the absolute defense of reasonable implied assumption of risk.

The defense of reasonable implied assumption of risk requires that plaintiff know of both the nature and the magnitude of the risk involved. It is not enough that he may have foreseen a general risk of harm. (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 1110, pp. 523 524.) The requirement that the plaintiff appreciate the magnitude of the risk was not clearly satisfied in this case. Although plaintiff admits he knew the stairs were wet, his opposition to the motion for summary judgment emphasized that he “did not know ․ that the stairs on which he fell lacked any type of tread, finish, or non-skid strips to prevent falls.”   Prior to the hearing on the motion, plaintiff filed a “Separate Statement of Undisputed Material Facts in Opposition to the Motion for Summary Judgment” asserting, inter alia, that “Robert Donohue was unaware of the absence of any tread, finish, or non-skid strip on the stairs.” In support of this assertion, plaintiff referred to portions of his deposition in which he stated that the only things he noticed about the condition of the stairs was that they were wet and unclean. Defendant never disputed plaintiff's statement of undisputed material facts. Moreover, in his memorandum of points and authorities in opposition to the motion for summary judgment plaintiff again emphasized his unawareness that the surface of the stairs had not been given a non-skid finish, as defendant's Safety Committee had earlier specifically recommended.

The question whether a plaintiff appreciated the magnitude of a risk to which he exposes himself presents a question of fact ill-suited to resolution on motion for summary judgment. “Actual knowledge of the risk and appreciation of its magnitude are subjective requisites, rarely susceptible of proof by direct evidence. Ordinarily, these elements of the defense can only be established by circumstantial evidence, by proof of facts from which their existence is implied. When such proof is relied upon, it is for the jury to determine whether the required inferences should or should not, be drawn.” (Sperling v. Hatch (1970) 10 Cal.App.3d 54, 62, 88 Cal.Rptr. 704.) Thus, even prior to Li, it has been judicially acknowledged that “[t]he issue of assumption of the risk is a question of fact for jury determination in all but the clearest cases.”  (Ibid., citing Prosser, Law of Torts (3d ed.) pp. 433 454.)

The majority says “plaintiff cannot credibly claim he misapprehended the nature of the risk involved” (maj. opn. at p. 450), because of the obviousness of the danger and plaintiff's experience. In other words, my colleagues believe plaintiff could not reasonably have exposed himself to such a conspicuous risk. However, whether plaintiff acted reasonably or unreasonably also presents a factual question.

Moreover, summary judgment on the basis of an absolute defense would be improper even if plaintiff did act unreasonably. As pointed out in the dissent in Hacker v. City of Glendale (1991) 228 Cal.App.3d 1013, 279 Cal.Rptr. 371, which seems to me more persuasive than the majority opinion in that case, “there is a general consensus implied assumption of risk is absorbed into the concept of comparative negligence ‘when it appears in its unreasonable form.’ (Prosser & Keeton, Torts, (5th ed. 1984) at p. 497, italics added.) Indeed, the California Supreme Court adopted this principle in the very opinion in which it substituted comparative negligence for contributory negligence in this state. (Li v. Yellow Cab Co. [1975] 13 Cal.3d 804, [119 Cal.Rptr. 858, 532 P.2d 1226]․) As our high court observed in a later opinion, ‘ [W]hen a plaintiff's voluntary encounter with a known risk is also unreasonable, his conduct is in reality a form of contributory negligence ․ [t]o the extent ․ that [t]he burden of plaintiff's loss is divided between the parties in proportion to the fault attributable to each of them.’  (Lipson v. Superior Court (1982) 31 Cal.3d 362, 375 376, fn. 8 [182 Cal.Rptr. 629, 644 P.2d 822] ․;Daly v. General Motors Corp. (1978) 20 Cal.3d 725 [144 Cal.Rptr. 380, 575 P.2d 1162․)  [¶] Put another way, ‘[i]n those situations in which a plaintiff acts unreasonably in encountering a specific risk, the claim of assumption of risk is merged into the system of assessing liability according to fault.’ (Paula v. Gagnon (1978) 81 Cal.App.3d 680, 685 [146 Cal.Rptr. 702]․, italics added.)  Thus, if decedent in the present action is found to have unreasonably assumed the risk, California's comparative fault system as set forth in Li will serve only to reduce appellant's damages, not bar them altogether.  (Paula v. Gagnon, supra, at p. 685 [146 Cal.Rptr. 702], [italics in original].)” (Hacker v. City of Glendale, supra, 228 Cal.App.3d at p. 1031, 279 Cal.Rptr. 371, dis. opn. of Johnson, J.)

Although, for the foregoing reasons, plaintiff should not have been deprived of a trial even if his encounter with the risks of which he was aware may be thought unreasonable, it must be kept in mind that this case was disposed of at trial on the theory of reasonable, not unreasonable, assumption of risk, and the parties have presented the case to this court also on that theory.

For the foregoing reasons, I would reverse the judgment.

FOOTNOTES

1.  The notice of appeal improperly appeals from a nonappealable minute order granting a motion for summary judgment. In the interests of justice and to avoid unnecessary delay, we will treat the appeal as taken from the subsequently-entered judgment. (Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 731, fn. 1, 274 Cal.Rptr. 14;  Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 493, fn. 3, 220 Cal.Rptr. 818, 709 P.2d 837.)

2.  The high court will apparently decide the question in the near future. (Ford v. Gouin, 227 Cal.App.3d 1175, 266 Cal.Rptr. 870, review granted (1990) ––– Cal.3d ––––, 269 Cal.Rptr. 720, 791 P.2d 2 90.)

3.  Plaintiff's separate statement of undisputed material facts declared “Robert Donohue was unaware of the absence of any tread, finish, or non-skid strip on the stairs.” However, plaintiff filed no declaration in opposition to the summary judgment motion and nowhere in the deposition transcript does he state that he was unaware of the lack of treading.Statements of material facts must be accompanied by a reference to supporting evidence.(Code Civ.Proc., § 437c, subd. (b); Blackman v. Burrows (1987) 193 Cal.App.3d 889, 895, 238 Cal.Rptr. 642.)   Opposing parties are subject to the same requirement as moving parties to produce competent evidence to support their showing. (Overland Plumbing, Inc. v. Transamerica Ins. Co. (1981) 119 Cal.App.3d 476, 483 –484, 174 Cal.Rptr. 1.) Equivocal evidence will not suffice. (See Ahrens v. Superior Court (1988) 197 Cal.App.3d 1134, 1152, 243 Cal.Rptr. 420.)   The only evidence which plaintiff cited in support of his “undisputed fact” was the following excerpt: “Q. Had you noticed anything regarding the condition of the stairs?[¶] A. ․ 7 Generally, they were, say, on a scale of one to ten, they were a five as far as cleanliness was concerned, but that's all I notice [sic] was just the cleanliness.” (Emphasis added.)The above testimony, given in response to a question about the “condition” of the stairs, is not competent evidence that plaintiff was unaware of the lack of treading. Consequently, it must be disregarded. (Hoover Community Hotel Development Corp. v. Thomson (1985) 167 Cal.App.3d 1130, 1136, 213 Cal.Rptr. 750.)

4.  Plaintiff had encountered the same hazard many times while performing his duties as a firefighter. In fact, of his five previous slip-and-fall accidents on the job, four occurred while ascending or descending stairs, and one specifically involved wet steps. “ [A] plaintiff who has confronted a dangerous situation over a substantial length of time will be taken to have discovered it and to understand the normal, ordinary risks involved in that situation․”  (Prosser and Keeton On Torts, op. cit. supra, §  11, p. 488.)

5.  Witkin's use of Bilyeu for the proposition that assumption of the risk does not apply where “plaintiff is under a duty to act and cannot avoid the risk” (6 Witkin, op. cit. supra, § 1105, p. 517) is unfortunate. While there are situations in which the risk is not truly voluntarily assumed, for example where an individual acts under duress or in response to an emergency, one of the fundamental precepts of the fireman's rule is that policemen and firemen are “presumably adequately compensated (in special salary, retirement, and disability benefits) for undertaking their hazardous work” and therefore cannot recover for negligent creation of the danger which they are paid to encounter. (Hubbard v. Boelt, supra, 28 Cal.3d 480, 484, 169 Cal.Rptr. 706, 620 P.2d 156; see also Walters v. Sloan, supra, 20 Cal.3d 199, 205, 142 Cal.Rptr. 152, 571 P.2d 609.) Emergency or not, they are not acting “involuntarily” when performing their duties.

SMITH, Associate Justice.

PETERSON, J., concurs.