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

Dan PFAU, Plaintiff and Appellant, v. KIM'S HAPKIDO, Defendant and Respondent.

No. E021751.

Decided: August 11, 1999

Law Offices of John C. Knilans and John C. Knilans, Norco, for Plaintiff and Appellant. Stone & Hiles, Marc A. Legget, Beverly Hills, and Steven Moyer, Santa Monica, for Defendant and Respondent.


A plaintiff appeals from a summary judgment entered in favor of one of the defendants in a personal injury action.   Finding no error, we affirm.


In August of 1995, Kevin Griswold was teaching certain martial-arts techniques to police officers attending a continuing education course required by their employer.   Griswold asked Dan Pfau, one of the officers, to play the role of an aggressor attempting to take Griswold's handgun.   In the process of demonstrating a technique of defending against that attempt, Griswold allegedly injured Pfau's shoulder.

Pfau sued, inter alia, Griswold and Kim's Hapkido, the martial-arts studio which allegedly employed Griswold (hereinafter, the “studio”).   The studio successfully moved for summary judgment.   Pfau appeals.

The summary judgment in favor of the studio must be affirmed if the studio has demonstrated as a matter of law that one or more of the following statements are true:  (1) Griswold did not owe Pfau a duty of care.  (2) At the time of the injury, Griswold was not an employee or other agent of the studio.  (3) Assuming that Griswold was the studio's employee, he was not acting within the course and scope of that employment in conducting the class for the police officers.   Because the first statement is correct, we affirm the judgment without considering the other two.


 “We all have the duty to use due care to avoid injuring others.”  (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536, 34 Cal.Rptr.2d 630, 882 P.2d 347.)   But there are exceptions to that general rule, based either upon statute or public policy.  (Id., p. 537, 34 Cal.Rptr.2d 630, 882 P.2d 347.)   One of those exceptions is the public policy expressed in the doctrine of assumption of the risk.  (Ibid.;  Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1765, 53 Cal.Rptr.2d 713.)   It bars any recovery by a plaintiff “when it can be established that, because of the nature of the activity involved and the parties' relationship to the activity, the defendant owed the plaintiff no duty of care.”  (Neighbarger, p. 538, 34 Cal.Rptr.2d 630, 882 P.2d 347.)

The assumption of the risk doctrine has been applied both in actions involving injuries suffered in recreational activities and in those suffered in the course of employment.   Regardless of whether the injury here is characterized as arising out of a sport or out of Pfau's employment, the undisputed facts demonstrate that he assumed the risk of his injury.


 Assumption of the risk has most frequently been applied in the context of injuries suffered while learning or participating in sporting or other recreational activities or while observing those activities as a spectator.  (See, e.g., Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 [touch football], and cases collected at 6 Witkin, Summary of Cal. Law (9th ed., 1998 supp.)   Torts, §§ 1090C-1090D, pp. 227-235.)   In those circumstances, defendants generally have no duty to eliminate or otherwise protect plaintiffs against risks inherent in the sport itself, but generally do have a duty to use due care not to increase the risk to the plaintiff over and above those inherent in the sport.  (Knight, pp. 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   A “participant in an active sport breaches a legal duty of care to other participants-i.e., engages in conduct that properly may subject him or her to financial liability-only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.”  (Id., p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696, fn. omitted.)

 Contending that Pfau and Griswold were coparticipants in a sporting activity, and noting that Pfau has admitted that Griswold did not cause the alleged injury either intentionally or recklessly, the studio argues that Griswold owed no duty of care to Pfau.   Assuming arguendo that the first premise is correct, we agree with the conclusion.

 Pfau contends that the studio's analysis fails because he and Griswold were pupil and instructor, not coparticipants.   But that distinction does not make a difference.   A very similar case involving an injury suffered during judo training, Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 50 Cal.Rptr.2d 671, expressly rejects the contention that primary assumption of the risk does not apply when the defendant is an instructor.   A “defendant does not owe a duty of care to the plaintiff simply because one can be labeled an instructor and the other a student.”  (Id., p. 532, 50 Cal.Rptr.2d 671.)   This court subsequently adopted Bushnell 's analysis on that issue, quoting from that opinion at length.  (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1368-1372, 59 Cal.Rptr.2d 813.)   There is no duty unless the instructor, through either an intentional attempt to harm, recklessness, or other means, does something which increases the risk of injury beyond that inherent in the sport.  (Id., p. 1369, 59 Cal.Rptr.2d 813;  Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 482, 63 Cal.Rptr.2d 291, 936 P.2d 70;  Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939, 944, 80 Cal.Rptr.2d 638;  Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1117-1119, 75 Cal.Rptr.2d 801.)


 The fact that Pfau was required by his employer to attend the class at which the injury occurred does not remove it from the scope of primary assumption of the risk.   The existence of a duty of care is not dependent on either a particular plaintiff's subjective knowledge and appreciation of the risk or the plaintiff's consent to or voluntary acceptance of that risk.   (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 541, 34 Cal.Rptr.2d 630, 882 P.2d 347;  Knight v. Jewett, supra, 3 Cal.4th at p. 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Hence, although the current definition of the doctrine was established in a case involving an injury suffered during a voluntary recreational sporting contest (id., p. 300, 11 Cal.Rptr.2d 2, 834 P.2d 696 [social game of touch football] ), the same doctrine applies to claims against third-party tortfeasors for compensation for injuries suffered in the course of a plaintiff's employment, most frequently in cases described as involving the firefighter's rule (id., p. 309, fn. 5, 11 Cal.Rptr.2d 2, 834 P.2d 696).

 “Under the firefighter's rule, a member of the public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combat the fire is not injured thereby.   [Citations.]  Nor does a member of the public whose conduct precipitates the intervention of a police officer owe a duty of care to the officer with respect to the original negligence that caused the officer's intervention.”   (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 538, 34 Cal.Rptr.2d 630, 882 P.2d 347.)   The firefighter's rule is not a concept separate from assumption of the risk, but rather is “an example of the proper application of the doctrine of assumption of risk, that is, an illustration of when it is appropriate to find that the defendant owes no duty of care.”   (Ibid.)

There are at least four policy justifications for the firefighter's rule.   First, “as a matter of fairness, police officers and firefighters may not complain of the very negligence that makes their employment necessary.”   (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at pp. 539-540, 34 Cal.Rptr.2d 630, 882 P.2d 347.)   Second, they are employed by the public and receive special salary, disability, and retirement benefits to compensate them for confronting the dangers posed by that negligence.  (Id., pp. 540, 543-544, 34 Cal.Rptr.2d 630, 882 P.2d 347.)   Third, permitting recovery of damages by those public employees “would embroil the courts in relatively pointless litigation over rights of indemnification among the employer, the retirement system, and the defendants' insurer.”  (Id., p. 540, 34 Cal.Rptr.2d 630, 882 P.2d 347.)   And fourth, the firefighter's rule is also “ ‘based upon a public policy decision to meet the public's obligation to its officers collectively through tax-supported compensation rather than through individual tort recoveries.   This spreads the costs of injuries to public officers among the whole community, making the public in essence a self-insurer against those wrongs that any of its members may commit.’  [Citation.]”  (Calatayud v. State of California (1998) 18 Cal.4th 1057, 1062, 77 Cal.Rptr.2d 202, 959 P.2d 360.)

 Pfau is a police officer who is publicly employed and who was injured during the course of his employment.   Accordingly, the second, third and fourth policy justifications clearly apply here.   The question is with the first policy reason for the rule.   Because Pfau was injured in the course of a training exercise rather than while responding to a call for emergency assistance, arguably he is not complaining directly of the negligence which made his employment necessary, i.e., of negligent conduct by a member of the public which requires his intervention.

We reject such a narrow interpretation of the firefighter's rule.   There is no reason to limit the scope of the rule solely to injuries suffered while responding to calls for emergency assistance.   Before a person may respond effectively to those calls, he or she must be trained in what to do upon arriving at the scene of the emergency.   Therefore, training to respond to an emergency is no less a part of a public safety officer's employment than is responding to an emergency.   The risks arising out of both are risks that the officers are hired to face.1

For instance, to maintain the safety of both the officer and the public, an armed police officer has a duty to take reasonable steps to prevent his or her weapon from being taken by suspects or bystanders.   To prepare its police officers to most effectively perform that duty, the City of Alhambra was training its officers in “gun retention techniques” when Pfau allegedly received his injuries.   That training necessarily involved the demonstration of the application of physical force to foil a simulated attempt to disarm the instructor.   The officers were hired to meet the risk of injury which might be suffered in the course of such an attempt, whether in the training room or in the field.

 In short, we conclude that the firefighter's rule extends, not only to risks of injury while responding to emergency situations, but also to the risks of injury while training to respond to those emergencies.   Accordingly, Griswold did not owe Pfau a duty of care while training Pfau to respond to an attempt to disarm him.


There are exceptions to the firefighter's rule, established both by decisional law and by statute.   However, none apply here to create a duty of care.

 The “independent acts” exception is a creation of decisional law.   The firefighter's “rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene.”  (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 538, 34 Cal.Rptr.2d 630, 882 P.2d 347.)   But the exception is limited.  “Unless the police officer or firefighter has come to a specific location to perform a specific immediate duty, and the defendant's unrelated negligent or intentional conduct increases the risks inherent in performing that duty [citations], this exception is similarly inapplicable.”  (Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394, 411, 22 Cal.Rptr.2d 514.)

 That exception does not apply here.   Officer Pfau was summoned to the scene of his alleged injury, not to respond to an emergency, but to receive training.   Griswold's allegedly negligent conduct was part of that training, not independent from or subsequent to it.   Therefore, the conduct for which Pfau seeks to impose liability is the same conduct which caused him to be summoned to the scene.

 Pfau principally relies upon the statutory exception to the firefighter's rule found in Civil Code section 1714.9, subdivision (a), which provides in relevant 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.”

Civil Code section 1714.9 “broadens the common law exception [to the firefighter's rule] by eliminating the requirement that the injury result from subsequent independent acts of misconduct committed after the defendant becomes aware of the officer's presence.”  (Calatayud v. State of California, supra, 18 Cal.4th at pp. 1069, 77 Cal.Rptr.2d 202, 959 P.2d 360.)   If “[r]ead literally, the statute appears to except the situation represented here from the operation of the fireman's rule.”  (Seibert Security Services, Inc. v. Superior Court, supra, 18 Cal.App.4th at p. 408, 22 Cal.Rptr.2d 514.)   But as we explained (id., pp. 409-410, 22 Cal.Rptr.2d 514), construing that section to require the imposition of liability whenever a safety officer happens to be present “leads to absurd results and is contrary to any reasonable policy of the law” (ibid.;   and see Calatayud at pp. 1064-1072, 77 Cal.Rptr.2d 202, 959 P.2d 360 [refusing to read the section literally] ).

The same is true here.   As we explained in part B of this opinion, a public safety officer's risk of being injured while training for an emergency is no less a part of the officer's employment than the risk of being injured while responding to an actual emergency.   Therefore, there is no reason to exempt injuries suffered during training from the scope of the firefighter's rule.   But if applied literally, that is exactly what Civil Code section 1714.9 would do, because the section imposes liability if the tortfeasor has knowledge of the public safety officer's presence, and any person engaged in training a public safety officer in the skills necessary to cope with a particular type of emergency will obviously be aware that the student is a public safety officer.

To avoid that absurdity, the statute must be construed more narrowly, with an eye toward the evil which the legislation was intended to prevent.   In enacting Civil Code section 1714.9, the Legislature was motivated by a “singular concern with the prototypical case in which the firefighter's rule is invoked to shield a defendant whose original misconduct occasioned an officer's presence and whose subsequent acts caused injury.”  (Calatayud v. State of California, supra, 18 Cal.4th at pp. 1068, 77 Cal.Rptr.2d 202, 959 P.2d 360.)   It should not be broadly construed to apply when the officer's presence was occasioned, not by any criminal or tortious conduct or other emergency, but by his employer's order to attend job-related training.

For these reasons, Civil Code section 1714.9 does not apply in this circumstance.2


The judgment is affirmed.   Kim's Hapkido shall recover its costs on appeal.


1.   The distinction between practice and competition in the sports context is analogous.   In rejecting a plaintiff's argument that the doctrine of assumption of the risk did not bar her claim for compensation for injuries suffered when ice skating because she was merely practicing and not actually competing at the time of her injury, the court in Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 53 Cal.Rptr.2d 657 aptly stated:  “The distinction eludes logic.   Like rehearsals in drama, practice is essential to competitive athletic activity.   One assumes the risks inherent in an active sporting activity by participating in it, regardless of whether the participation is practice or formal competition․  Needless to say the distinction is unsupported by any valid authority.”  (Id., p. 1633, fn. 4, 53 Cal.Rptr.2d 657.)   Similarly, we reject any distinction between training and actual emergencies when measuring the scope of the firefighter's rule.

2.   Pfau has requested that we take judicial notice of voluminous documents concerning the legislative history of Civil Code section 1714.9 and its predecessor, former subdivision (b) of Labor Code section 3852.   That request is granted.


RAMIREZ, P.J., and GAUT, J., concur.

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Docket No: No. E021751.

Decided: August 11, 1999

Court: Court of Appeal, Fourth District, Division 2, California.

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