WALTERS v. SLOAN

Reset A A Font size: Print

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

Dale C. WALTERS, Plaintiff and Appellant, v. Robert M. SLOAN et al., Defendants and Respondents.

Civ. 12946.

Decided: June 30, 1975

Roy C. Zukerman, Fountain Valley, for plaintiff and appellant. Robert J. Smith, Justin, for defendants and respondents.

OPINION

Plaintiff Dale C. Walters appeals from a judgment of dismissal after the general demurrer of the defendants Sloan (Robert M., Madylon E. and their minor daughter, Helen Ann) to his second amended complaint was sustained without leave to amend. The Sloans were named defendants in the first four causes of action in the second amended complaint. The fifth and sixth causes of action were directed against Ira James Marlin and certain fictitiously named defendants, remain pending, and are unaffected by the judgment of dismissal.

Walters seeks to recover damages for personal injuries. The first two causes of action are based upon the statutory presumption of negligence or failure to use due care which arises from a violation of statute (Evid.Code § 669, subd. (a)).

The first cause of action is predicated upon an alleged violation by the Sloans of Business and Professions Code section 25658, subdivision (a), which reads:

‘Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor.’

After pleading the statute, Walters alleges that on May 12, 1972 he was a police officer for the City of Anaheim and was, in the course of his duties, dispatched to a residence on real property owned by the Sloans. The Sloans had entrusted full and complete control and possession of the real property and residence to Helen, their 16-year-old daughter, who was their agent and who, in doing the things alleged was acting within the scope of her authority as such agent.

It is further alleged that on May 12, 1972 Helen hostessed a party in the residence which was attended by Ira James Marlin and some 200 other persons. Helen Knew Marlin and the fictitiously named defendants were under the age of 21 years, but nevertheless negligently furnished Marlin and the others copious amounts of alcoholic beverages, knowing, or having reason to believe, that Marlin and the others would become intoxicated, thus constituting a substantial risk to the safety of others both on and off the premises.

Walters, in the course of performing his duties, went to the residence. Upon arrival, he observed on the public street fronting the premises, Marlin and others under the age of 21, in an extremely intoxicated and disorderly state. He attempted to place Marlin and the others under arrest for being drunk in public. Marlin and the other defendants, as a proximate result of Helen's unlawful disbursing of alcoholic beverages to them, attacked and injured Walters, causing damage to his person and property.

The second cause of action again alleges a violation of statute by the Sloans, this time Business and Professions Code section 25602 which reads:

‘Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.’

Walters pleads the statute and incorporates all the allegations in the first cause of action except those which directly related to conduct under Business and Professions Code section 25658, subdivision (a). In addition he alleges that Marlin, who was attending the party at Helen's invitation, was intoxicated by alcoholic beverages, drugs, or a combination thereof, and that Helen negligently furnished Marlin alcoholic beverages while he was so intoxicated, proximately causing Walters' injuries.

The third cause of action purports to state a cause of action in nuisance. Walters again incorporates all the allegations of the first cause of action. In addition the following facts are alleged.

Helen, for two hours prior to the injury to Walters, negligently permitted and encouraged Marlin and the other guests in the consumption of alcohol, smoking of marijuana, and use of dangerous drugs at the residence. These activities resulted in general harassment, disturbance and endangering of neighbors, guests and other persons. Helen knew, or should have known, that her conduct and the conduct of Marlin and the others created a substantial risk of injury to other persons on and off the premises.

In the fourth cause of action Walters incorporates all the allegations contained in the first, second and third causes of action. He then alleges that the Sloans negligently placed Helen in charge of the premises with knowledge that she was going to have a party attended by approximately 300 minors, without adult supervision. The Sloans knew, or should have known, that Helen and her guests, including Marlin, had a propensity for engaging in parties where guests became intoxicated and became careless and reckless. The conduct of the Sloans and the foreseeable conduct of Marlin created a substantial risk of harm to persons both on and off the premises. The proximate results of the Sloans' conduct were the injuries suffered by Walters.

DISCUSSION

I.

We begin our consideration of the questions presented mindful of the rules which apply in an appeal from a judgment of dismissal entered after a general demurrer has been sustained without leave to amend. In this procedural posture, we must accept as true not only the facts expressly alleged in plaintiff's complaint (Endler v. Schutzbank, 68 Cal.2d 162, 165, 65 Cal.Rptr. 297, 436 P.2d 297), but also facts essential to a cause of action which the facts alleged supply by reasonable implication or inference (Harvey v. City of Holtville, 271 Cal.App.2d 816, 819, 76 Cal.Rptr. 795).

The causes of action predicated upon violation of the two sections of the Business and Professions Code (§ 25658, subd. (a)—furnishing alcohol to a minor and § 25602—furnishing alcohol to an intoxicated person) may be treated together.

Until 1971 California courts, following the common law rule, held that a person injured as the result of another's intoxication could not recover from the supplier of the alcoholic beverage because it was the consumption of the beverage, not the furnishing, which was the proximate cause of the injury (Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450; Lammers v. Pacific Electric Ry. Co., 186 Cal. 379, 199 P. 523; Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530; Hitson v. Dwyer, 61 Cal.App.2d 803, 143 P.2d 952).

In Vesely v. Sager (1971), 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, the California Supreme Court reexamined the common law rule of nonliability, found it ‘patently unsound,’ and overruled it (p. 157, 95 Cal.Rptr. 623, 486 P.2d 151). The court determined:

‘ . . . civil liability results when a vendor furnishes alcoholic beverages to a customer in violation of Business and Professions Code section 25602 [furnishing alcohol to an intoxicated person] and each of the conditions set forth in Evidence Code section 669, subdivision (a), is established.’ (p. 157, 95 Cal.Rptr. p. 625, 489 P.2d p. 153.)

The Evidence Code section referred to, in effect, provides that a presumption of negligence arises from the violation of a statute which was enacted to protect the class of persons of which the defendant is a member against the type of harm which the plaintiff suffered as a result of the violation of the statute.1

Vesely brought an action to recover damages for personal injuries sustained in an automobile accident. He sued both the driver of the car which collided with his automobile and Sager, who owned and operated the Buckhorn Lodge and who sold the defendant driver large quantities of alcoholic beverages, knowing the driver was becoming intoxicated. In reversing the judgment of dismissal entered after Sager's demurrer to the complaint was sustained without leave to amend, the Supreme Court enunciated the general rule stated above and then dealt with the question of proximate cause.

‘To the extent that the common law rule of nonliability is based on concepts of proximate cause, we are persuaded by the reasoning of the cases that have abandoned that rule. The decisions in those jurisdictions which have abandoned the common law rule invoke principles of proximate cause similar to those established in this state by cases dealing with matters other than the furnishing of alcoholic beverages. (Citations.) Under these principles an actor may be liable if his negligence is a substantial factor in causing an injury, and he is not relieved of liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct. (Citations.)’ (Vesely v. Sager, 5 Cal.3d 153, 163, 95 Cal.Rptr. 623, 630, 486 P.2d 151, 158.)

The court then addressed the substantial issue in such cases:

‘The central question in this case, therefore, is not one of proximate cause, but rather one of duty: Did defendant Sager owe a duty of care to plaintiff or to a class of persons of which he is a member?’ (p. 164, 95 Cal.Rptr. p. 631, 486 P.2d p. 159.)

Little difficulty in finding the requisite duty was encountered in Vesely:

‘In the instant case a duty of care is imposed upon defendant Sager by Business and Profession Code section 25602 . . .. This provision . . . was adopted for the purpose of protecting members of the general public from injuries to person and damage to property resulting from the excessive use of intoxicating liquor.’ (p. 165, 95 Cal.Rptr. p. 631, 486 P.2d p. 159.)

The court found the other requirements of Evidence Code section 669, subdivision (a), were apparent from the circumstances alleged in the complaint, and concluded:

‘From the facts alleged in the complaint it appears that plaintiff is within the class of persons for whose protection section 25602 was enacted and that the injuries he suffered resulted from an occurrence that the statute was designed to prevent. Accordingly, if these two elements are proved at trial, and if it is established that Sager violated section 25062 and that the violation proximately caused plaintiff's injuries, a presumption will arise that Sager was negligent in furnishing alcoholic beverages to [negligent driver]. (See Evid.Code, § 669.)’ (Vesely v. Sager, 5 Cal.3d 153, 165, 95 Cal.Rptr. 623, 631, 486 P.2d 151, 159.)

Because the issue was not presented by the facts alleged, the Vesely court specifically declined to decide ‘. . . whether a noncommercial furnisher of alcoholic beverages may be subject to civil liability section 25602 . . ..’ (p. 157, 95 Cal.Rptr. p. 625, 486 P.2d p. 153.)

The rule of liability of the supplier of alcoholic beverages in violation of section 25658, subdivision (a), [furnishing intoxicating beverages to a minor], was extended beyond the purely commercial setting in Brockett v. Kitchen Boyd Motor Co., 24 Cal.App.3d 87, 100 Cal.Rptr. 752. There a judgment of dismissal had been entered after the sustaining of a general demurrer to a complaint in a personal injury action against the employer of an allegedly intoxicated minor whose automobile collided with an automobile in which plaintiffs were riding. The complaint alleged that the minor's intoxication resulted from a Christmas party where the employer knowingly made available to the minor large quantities of intoxicating beverages knowing he would drive a vehicle on the public highway. The court concluded:

‘. . . any person, whether he is in the business of dispensing alcoholic beverages or not, who disregards the legislative mandate breaches a duty to anyone who is injured as a result of the minor's intoxication and for whose benefit the statute was enacted. If one wilfully disobeys the law and knowingly furnishes liquor to a minor with knowledge that the minor is going to drive a vehicle on the public highways, as alleged in this case, he must face the consequences. The law, as well as good sense, can demand no less.’ (Brockett v. Kitchen Boyd Motor Co., 24 Cal.App.3d 87, 93, 100 Cal.Rptr. 752, 756.)

However, the scope of the Brockett holding was expressly limited to:

‘. . . the facts as alleged in plaintiffs' complaint, that the minor's intoxication was induced by his employer as the result of a Christmas party where the employer did knowingly make available to the minor copious amounts of intoxicating beverage with knowledge that the minor was going to drive a vehicle upon the public highways.’ (Brockett v. Kitchen Boyd Motor Co., 24 Cal.App.3d 87, 94, 100 Cal.Rptr. 752, 756.)

Noting the limitations in both Vesely and Brockett, the Sloans urge us not to extend the rule of liability beyond the strict holding of those cases. They argue that section 25602, prohibiting the serving of alcoholic beverages to an intoxicated person, places a duty to injured third persons only upon the commercial vendor (Vesely); they contend that subdivision (a) of section 25658, prohibiting the serving of alcoholic beverages to minors, places a duty to injured third persons upon the supplier of intoxicating beverages only in the context of the quasi-commercial employer-employee relationship and only when the employer knows the under-age employee will operate a motor vehicle (Brockett).

While both the Vesely and Brockett holdings were correctly limited to the facts involved in the particular case before the court, nothing in either opinion suggests the rule of liability should not be extended to different factual situations under proper circumstances.

The proscriptions of the sections of the Business and Professions Code under consideration are not directed against commercial vendors only. In each instance, the section makes ‘every person’ who engages in the proscribed conduct guilty of a misdemeanor. As stated in Vesely (5 Cal.3d, p. 165, 95 Cal.Rptr. 623, 486 P.2d 151), and Brockett (24 Cal.App.3d p. 92, 100 Cal.Rptr. 752), the purpose of the sections is to promote the safety of the people of this state and to protect them from injuries resulting from intoxication. To the extent that the imposition of civil liability upon the violator helps to accomplish this purpose, it can only be effectively served by application to both commercial and noncommercial suppliers. With respect to the injured third persons which the sections seek to safeguard and protect, the end result is the same irrespective of whether the intoxicant was furnished by a commercial or a noncommercial supplier.

In determining the issues presented here, we are not required to reach the broad question as to whether a host at a normal social gathering may be subjected to liability for furnishing alcoholic beverages to his guests. The facts alleged in this complaint go far beyond what is normal, usual, or generally acceptable in the social sphere. It requires no exercise of judgment, no expertise about alcoholic beverages, and no balancing of social and traditional niceties, conventions or compulsions to determine that furnishing large quantities of alcoholic beverages to a party of 200 unsupervised minors, some of whom were or became intoxicated, is totally impermissible. (Brockett v. Kitchen Boyd Motor Co., supra, Cal.App.3d 87, 93–94, 100 Cal.Rptr. 752.) Under the facts alleged, Walters can assert liability upon a violation of either or both code sections.

We are not persuaded by the argument that the duty imposed by the two Business and Professions Code sections under consideration runs only to persons injured in automobile collisions. It is true that motor vehicle collisions were involved in both Vesely and Brockett, and that the intoxicated driver presents a substantial danger to the general public. Common experience, however, indicates that the hazards arising from intoxication are by no means limited to the highway.

Whether conduct relating to injury results in liability is determined by the rules of proximate cause. When the likelihood that a third person may act in a particular manner is one of the hazards which make the original actor's conduct negligent, the subsequent conduct, even if intentionally tortious or criminal, does not prevent the original actor from being liable for the harm caused. (Rest.2d Torts, § 449; Vesely v. Sager, supra, 5 Cal.3d 153, 164, 95 Cal.Rptr. 623, 486 P.2d 151; Richardson v. Ham, 44 Cal.2d 772, 777, 285 P.2d 269.) If the Sloans' alleged action in furnishing alcoholic beverages to intoxicated minors was a substantial factor in causing Walters' injuries, they would not be relieved of liability by the intervening conduct of the intoxicated minors if that conduct was reasonably foreseeable. (Vesely, supra, p. 163, 95 Cal.Rptr. 623, 486 P.2d 151; see also Stewart v. Cox, 55 Cal.2d 857, 863–864; Richardson v. Ham, supra, 44 Cal.2d 772, 777, 285 P.2d 269.)

Belligerent conduct and assaults by intoxicated persons are not uncommon. Given the number of immature young people alleged to have been exposed, the misconduct here by the intoxicated minors was not so remote, as a matter of law, that it could not have been foreseen by the Sloans who are alleged to have furnished the intoxicating beverages to them. The facts alleged, if proved, are sufficient to establish a causal relationship between the Sloans' conduct and Walters' injuries. The question of its existence is one of fact and not of law.

The Sloans also contend that Walters cannot recover from them under the Business and Professions Code sections under consideration because the statutes were not designed to protect him (a policeman) from the particular kind of injuries he suffered. (Evid. Code § 669, subd. (a), ¶¶3, 4, as set forth in fn. 1.) The primary purpose of the Alcoholic Beverage Control Act, in which the statutes under consideration are found, is expressed in Business and Professions Code section 23001 which reads:

‘This divison is an exercise of the police powers of the State for the protection of the safety, welfare, health, peace, and morals of the people of the State, to eliminate the evils of unlicensed and unlawful manufacture, selling, and disposing of alcoholic beverages, and to promote temperance in the use and consumption of alcoholic beverages. It is hereby declared that the subject matter of this division involves in the highest degree the economic, social, and moral well-being and the safety of the State and of all its people. All provisions of this division shall be liberally construed for the accomplishment of these purposes.’

The protective purpose of the act is declared in general and broad terms and we are admonished to interpret those terms liberally. The entire implication arising from the use of such terms as the ‘people of the State’ and the ‘safety of the State and of all its people’ is that policemen are properly included within the protection of the statutory provisions.

II.

The Sloans also contend that Walters' recovery is barred by the so-called ‘fireman's rule’ under any theory he has pleaded. Strictly speaking, that rule denies recovery by an injured fireman from one whose sole connection with the injury is that his negligence caused the fire. The rule is an old one, but it was first adopted in California in 1966 in Giorgi v, Pacific Gas & Elec. Co., 266 Cal.App.2d 355, 72 Cal.Rptr. 119. It was later approved and held applicable in Scott v. E. L. Yeager Constr. Co., 12 Cal.App.3d 1190, 91 Cal.Rptr. 232.2

Although no California court has yet considered the question of extending the ‘fireman's rule’ to policemen, persuasive logic, considerations of policy, as well as case authority from other jurisdictions, dictate that result.3

Like the fireman called to put out a fire, it is the business of a policeman summoned to quell a disturbance to deal with that very hazard. For that risk the policeman, like the fireman, receives appropriate compensation from the public, both in pay which contemplates the hazard and in workmen's compensation benefits which tend to insulate him from the consequences of the risk. In terms of duty, it may be said of the policeman, as well as the fireman, that no duty is owed to exercise care so as not to require the special services for which he is trained and paid. All the reasons advanced for applying the rule to firemen apply with equal force to policemen. (See Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355, 359–360, 72 Cal.Rptr. 119.)

The ‘fireman's rule’ is a court-declared rule of public policy, said to be based upon considerations of fairness, spreading the risk over the widest possible base, and the efficient administration of justice. (Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355, 359–360, 72 Cal.Rptr. 119; Scott v. E. L. Yeager Constr. Co., supra, 12 Cal.App.3d 1190, 1198, 91 Cal.Rptr. 232.) The rule is not without its critics (see Prosser, Law of Torts, 4th ed. pp. 397–398), and were the matter of adopting it as the policy of this state before us as a matter of first impression, this court might well decide against it. However, other courts of equal standing have accepted the rule, and the Supreme Court has acknowledged it with apparent approval. (See fn. 2.) Examination of the reasons stated for adopting the rule in California and the policy considerations which are said to underly it, leaves me unable to find a reasonable basis to say the rule should be applicable to firemen but not to policemen. I find myself unable to distinguish between two peas in a pod and unwilling to use one sauce for the goose and another for the gander. If the ‘fireman's rule’ is unsound it should be abrogated, and Justice Cologne, is his opinion, presents some logical reasons for its demise. In my view, however, neither the case at hand nor this court's posture on the judicial scale affords us this opportunity. Compelled by a respect for integrity, logic and consistency in the law, I conclude the rule, properly applied, may operate to bar recovery by an injured policeman from one whose sole connection with the injury is his negligence in creating the occasion for the policeman's presence.

From what has been said, it does not follow that Walters cannot recover from the Sloans on any of the causes of action he has pled. A court-declared rule of public policy cannot and should not prevail over a contrary statement of policy made by the Legislature. The ‘fireman's rule’ of nonliability should not be applied to those causes of action which Walters has based upon violation of statutes. As to those statutes, the Legislature has expressed a policy and purpose of protecting and promoting ‘the safety of the State and of all its people.’ (Bus. & Prof.Code § 23001.) To carve out policemen as a class and remove them from the protection of the statutes on the basis of a court-declared contrary policy would ignore the legislative mandate. (See Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 886–888.)

The third and fourth causes of action of the second amended complaint are based upon general allegations of negligence. As to them, the general demurrer was properly sustained because application of the ‘fireman's rule’ precludes recovery. That rule is not applicable to the first and second causes of action which are based upon alleged violations of specific statutes.

I would reverse the judgment with directions to overrule the demurrer as to the first and second causes of action only.

I concur with Mr. Justice Ault that the judgment sustaining the demurrer without leave to amend must be reversed. I would, however, direct the court below to overrule the general demurrer as to all causes of action. Mr. Justice Ault would extend the fireman's rule to a police officer, denying recovery for negligence or nuisance except where the defendant's acts are violative of a statute which the Legislature has designated as being enacted for the safety of the state and of all its people. I am satisfied an extension of the rule is not proper under the state of our law today.

The ‘Fireman's Rule,’ apparently applicable in California, denies recovery by a fireman as against one whose negligence causes or contributes to the fire which in turn causes the death or injury of the fireman (Giorgi v. Pacific Gas & Elec. Co., 266 Cal.App.2d 355, 357, 72 Cal.Rptr. 119; Scott v. E. L. Yeager Constr. Co., 12 Cal.App.3d 1190, 1194, 91 Cal.Rptr. 232). The rule is now generally recognized throughout the United States and had its origin as a result of the difficulty categorizing such public employees as invitees since they often entered under exigent circumstances but without the owner's consent.1 The modern approach to the soundness of the rule is found in Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, which states at pages 130 to 131:

‘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. [Citation.] 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. [Citations.]' (Emphasis added.)

The old rationale based on a land occupier reasoning or on assumption of risk are no longer used. California too has sought to follow the approach used in Krauth, supra, (Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355, 359, 72 Cal.Rptr. 119; Scott v. E. L. Yeager Constr. Co., supra, 12 Cal.App.3d 1190, 1195, 91 Cal.Rptr. 232). In light of Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 and Li v. Yellow Cab Co., 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.

In Scott v. E. L. Yeager Constr. Co., supra, 12 Cal.App.3d 1190, at page 1195, 91 Cal.Rptr. 232, at page 235, the court said, ‘the pertinent inquiry is . . . whether the negligently created risk which resulted in plaintiff's injury was the reason for his being at the scene in his professional capacity.’ I believe this does not sufficiently inquire into the basis for establishing public policy. The logical extension of this rule, if it must be accepted as the final test, would be to apply the rule to the policeman who is called to quiet a noisy party or arrest an escaped murderer, the city or district employee who is called to repair a broken water, gas or electric power line, the lifeguard who goes to rescue a drowning person, the garbage collector who is injured while picking up rubbish, the city ambulance driver who is injured racing to the scene of an accident, the dog catcher who is injured while trying to catch the animal—assuming in each case the particular risk was negligently created. (See Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355, 360, 72 Cal.Rptr. 119, where query is made as to just how far the rule will extend.) To extend so broadly the rule denying all these persons a cause of action for their injuries as suggested by Scott is a bold step which is not supported by reason or logic. Under the rescue doctrine we would not deny such persons a right of recovery if they were private citizens lawfully on the property (Solgaard v. Guy F. Atkinson Co., 6 Cal.3d 361, 368, 99 Cal.Rptr. 29, 491 P.2d 821; William Prosser, Law of Torts, 3d ed., 277). All government employees do not have the highly specialized training which a fireman receives; they may expect hazards but are not aware of the exact danger they face; and with very few exceptions they are not specially compensated for the risks above the pay which every employee may reasonably expect.

Giorgi, it is significant to note, applies the fireman's rule only to a fireman involved fighting a fire and the cause of action was ‘against one whose passive negligence caused the fire.’ The California cases have not made the rule applicable to negligence other than that which started the fire. It was only this limited application of the rule which the Supreme Court approved by way of dicta (Solgaard v. Guy F. Atkinson Co., supra, 6 Cal.3d 361, 369, 99 Cal.Rptr. 29, 491 P.2d 821). No other Supreme Court decision supports the rule or suggests any extension of it.

While the decision preceded any California case enunciating the fireman's rule and the fireman's rule was not expressly considered, the case of Bilyeu v. Standard Freight Lines, 182 Cal.App.2d 536, 6 Cal.Rptr. 65 (petition for hearing before the Supreme Court denied), is worthy of special note. In that case the defendant was the driver of a truck and negligently dropped two large rolls of steel upon the highway. The rolls were the size of barrels and were clearly a hazard to the highway user. The plaintiff was an on-duty highway patrolman who had stopped to direct traffic, clear the highway of hazards and generally take charge of the scene. As a result of trying to lift these rolls off the trafficked portion of the highway he strained his back, was hospitalized and later retired for disability reasons at 33 years of age. The plaintiff was allowed recovery and the judgment for him was upheld on appeal. The court held there was no assumption of risk or contributory negligence as a matter of law and his own acts did not bring him within the rule of Richards v. Stanley, 43 Cal.2d 60, 65, 271 P.2d 23.2 The policeman was allowed to recover his damages. The authority for recovery by policemen has been established.

The rationale for the rule as stated in Giorgi is strained when it is applied broadly to public employees and has been criticized by at least one writer (William Prosser, Law of Torts, 4th ed., 395–398). Prosser says the rule should be discarded in favor of the approach followed in Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, and Cameron v. Abatiell, 127 Vt. 111, 241 A.2d 310,3 namely that firemen, and by implication a policeman, would have an action against a landowner for failure to exercise reasonable care in the maintenance of his property resulting in the injury or death of the fireman (or policeman) rightfully on the premises, fighting the fire (or performing his police duty) at a place where he might reasonably be expected to be. Maintenance of a hazardous condition could violate the common law duty of due care the same way a violation of a safety regulation could be considered a per se violation of due care. The hazard which ensues and the fact men will be called to fight it may be reasonably foreseeable (Dini v. Naiditch, supra, 170 N.E.2d 881, 886).

Section 1714 of the California Civil Code provides:

‘Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.’

The language of this section says ‘everyone’ and leaves no room for a construction such as ‘everyone except government employees' engaging in activities connected with risks their jobs address. Nor can I find any other statute which denies government employees this right of recovery, or any binding ruling by a court affirming public policy which dictates an exception (other than that stated in Giorgi and Scott).

Before public policy is called upon to deny the public employee his cause of action for injuries or death,4 we should examine Rowland v. Christian, supra, 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 104, 443 P.2d 561, 568:

‘The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and . . . status as a trespasser, licensee, or invitee . . . is not determinative.’

That case suggests we compare (1) foreseeability of harm to plaintiff, (2) degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between defendant's conduct and the injury suffered, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost and prevalence of insurance for the risk involved.5

While there are hazards involved in law enforcement which a policeman accepts with his job, the hazards are not as well defined as are those of the fireman fighting fire, and he is not specifically trained to meet a hazard from a single source (fire is strictly a physical phenomenon understood by experts as to causation, characteristics and control) as is the fireman. The policeman is confronted with a myriad of possible situations ranging from simple investigation to apprehending dangerous criminals, and covering all gradations of conduct and reaction by humans (not even considering nonhuman risks such as animals, earthquakes or floods for which the policeman's services are sometimes called). People v. Wingo, 14 Cal.3d 169, 121 Cal.Rptr. 97, 534 P.2d 1001, pertinent here because it dealt with assaultive conduct, points out there is a broad spectrum of activity in this area representing great to slight danger to society. The same is true of the danger faced by the individual policeman in his daily dealing with the willful or intentional conduct of humans and its attendant unpredictability. Worth noting in this connection is the strong suggestion in the California fireman's rule cases that the rule will not apply where the defendant's conduct is intentional or amounts to willful misconduct (Scott v. E. L. Yeager Constr. Co., supra, 12 Cal.App.3d 1190, 1197–1198, 91 Cal.Rptr. 232; Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355, 360, 72 Cal.Rptr. 119). Is there less compensation for the traffic policeman who is not expected to confront a dangerous criminal than for the patrolman assigned to homicide or burglary? There is not. This difference in risk of being attacked has not been determined with appropriately higher salary given the officer facing greater danger. To lump all policemen into a single category of risk-facing is grossly unfair and improper.

Generally, government employees have worker's compensation, but so do most other employees. The few presumptions allowed firemen and policemen are of no great moment. No other compelling public policy requires policemen as a group to forego their claims for damage from the negligence of a tortfeasor. There is merit in spreading loss to the broad base of the taxpayers, and workers' compensation and disability benefits do this for his economic loss, but no compensation is spread for pain and suffering or loss of earnings beyond ordinary disability compensation if the injury is permanent. Is the tortfeasor to be freed of all responsibility in this regard? Many people now have homeowner's liability insurance and the loss to insurance carriers may be spread, often over larger groups than the taxpayers in some smaller cities such as Anaheim where these events occurred.

Were the policeman summoned to the residence to apprehend a known killer whose presence was negligently induced, he would be at the scene to cope with a known danger which he might have expected, as the fireman does. In that case, however, the standard of care for his own safety would vary with the circumstances and his training and experience (Maltman v. Sauer, 84 Wash.2d 975, 530 P.2d 254), and would be reflected in any award by way of comparative negligence (see Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226). The complaint here alleges, on the other hand, the ‘plaintiff . . . while acting within the course . . . of his duties as said police officer, was dispatched to the premises . . . where said party was being held, for the purpose of maintaining order and caring for those persons who were so intoxicated that they were unable to care for themselves.’ While a fight could ensue with any police activity, he was not called specifically to stop a going battle but to provide order at a noisy party and care for intoxicated persons unable to care for themselves. The injury he received may be a common hazard of the profession but not a known or expected hazard when he entered the scene under those circumstances. The standard of care is substantially different.

It is unnecessary to consider the duty of care and the break in the chain of causation often associated with cases such as this where an intervening intentional act of a third person causes the injury (Richards v. Stanley, supra, 43 Cal.2d 60, 271 P.2d 23), since there is an allegation that the parents, personally, or through Helen as their agent, knew or should have known, that the guests in their house had a propensity to get intoxicated and would engage in the conduct as alleged. This creates a special relationship which takes the case from the application of Richards (see also Ellis v. D'Angelo, 116 Cal.App.2d 310, 317, 253 P.2d 675; Rest.2d Torts, §§ 314–320).

The guidelines the court must use in defining public policy compel the conclusion the fireman's rule should not include policemen generally and a cause of action was stated for the policeman's claim. The fireman's rule not being applicable to policemen under the facts as alleged, the plaintiff states a cause of action in the second amended complaint for negligence as well as for nuisance and the trial court is directed to overrule the general demurrer as to the first four causes of action.

FOOTNOTES

1.  Evidence Code section 669, subdivision (a), reads:‘The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. . . .’

2.  Although found inapplicable to the facts involved in the case, the rule was acknowledged by the Supreme Court in Solgaard v. Guy F. Atkinson Co., 6 Cal.3d 361, where at page 369, 99 Cal.Rptr. 29, at page 33, 491 P.2d 821, at page 825, the court stated: ‘It is true that persons such as firefighters, 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.” (Giorgi v. Pacific Gas & Elec. Co., 266 Cal.App.2d 355, 359, (72 Cal.Rptr. 119.)’

3.  Those jurisdictions which have adopted the ‘fireman's rule’ have uniformly made it applicable to policemen when called upon to do so. We have been cited to no case, and we have found none, in which a court which has adopted the rule has failed to extend it to cover policemen under proper circumstances. (See 86 A.L.R.2d 1205.)

1.  The courts found no difficulty finding an invitation extended to the public employees such as building inspectors, tax collectors, garbage collectors or meter readers since they ‘conferred a pecuniary benefit’ or were necessary to conduct the business. The distinctions are criticized by William Prosser, Law of Torts, 3d ed., 405–406, who suggests putting out a fire has pecuniary benefit to the owner.

2.  The Richards case stands for the proposition that in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another.

3.  Cf. Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148; Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, 192 N.E.2d 38; Rogers v. Cato Oil & Grease Co. (Okla.), 396 P.2d 1000.

4.  It is interesting to notice the Legislature has provided government entities may recover from a tortfeasor for damages they are obliged to pay to the employee (Govt. Code §§ 21450–21455, 31820–31822; see also Lab. Code § 3850 et seq., particularly § 3852, permitting recovery by public employee and entity against third party tortfeasor, and see Witt v. Jackson, 57, 69, 17 Cal.Rptr. 369, 366 P.2d 641).

5.  Rowland v. Christian, supra, 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.

AULT, Associate Justice.

Copied to clipboard