CALATAYUD III v. STATE (1997)

This is an appeal by the State of California and a California Highway Patrol (CHP) officer from a damages award for injuries suffered by a Pasadena police officer from the accidental discharge of a shotgun.   Appellants challenge the adequacy of the government tort claim, and argue that this action is barred by the firefighter's rule.   They also challenge the sufficiency of the evidence to establish lost future earnings, and claim the court erred in requiring the State to pay more than seven percent interest on the judgment.   We find the claim satisfied statutory requirements.   We agree that the firefighter's rule applies to these facts, but conclude that Civil Code section 1714.9 authorizes this action as an exception to the rule.   We find sufficient evidence of lost future earnings, but agree that the interest rate on the judgment against the State of California must be modified from ten percent to seven percent.   We modify the judgment in that respect, and affirm the judgment as modified.

FACTUAL AND PROCEDURAL SUMMARY

At approximately 2:00 a.m. on February 9, 1990, Pasadena police officer Eduardo Calatayud was called to the scene of a disturbance in a city parking structure south of Mercantile Alley in Pasadena.   CHP officers were already at the scene.   Officer Calatayud and his partner drove into Mercantile Alley where they saw 20 to 30 people milling around or running southbound on Fair Oaks.   Officer Calatayud looked into the parking structure where he saw 75 to 100 people “running every which way, getting into cars, screaming.”

Jimmy Ray Wilkes, a professional football player, was in Mercantile Alley, advancing toward the parking structure and yelling.   CHP Officer DeVille told him to stop, and when Mr. Wilkes continued moving, Officer DeVille grabbed Mr. Wilkes' shoulder and directed him back toward some police vehicles;  CHP Officer Byrd assisted.   The CHP officers, each with a shotgun in one hand, pushed Mr. Wilkes against the police car, trying to restrain him.   Officer Calatayud went to this area to assist the CHP officers in restraining Mr. Wilkes.   Officer Calatayud grabbed Mr. Wilkes' arm and began to apply a control hold.   During this struggle, Officer Byrd's shotgun went off, striking Officer Calatayud in the leg at very close range, and causing him serious injury.

Officer Calatayud and his wife, Tammy Lee Calatayud, filed a tort claim against the State of California and Officer Byrd for damages resulting from the shooting.   The claim was rejected, and he and his wife filed this action in superior court.   The City of Pasadena intervened to recover workers' compensation benefits it had paid to Officer Calatayud and his family.   The case was tried solely on a negligence theory.

The jury returned a verdict in favor of Officer and Mrs. Calatayud in the amount of $733,000, which included $275,000 in economic damages, $445,000 in non-economic damages, and $13,000 for loss of consortium.   The jury apportioned no fault to Officer Calatayud, 50 percent fault to Mr. Wilkes, 30 percent fault to Officer Byrd (and to the State of California for his conduct), and 20 percent fault to the State of California (for the conduct of Officer DeVille.)   The court gave credit for a $60,000 settlement by Mr. Wilkes, reducing the net award to $444,000, which was held to include the amount owed to the City of Pasadena for workers compensation reimbursement.   The State of California and Officer Byrd filed a timely appeal from the judgment.

DISCUSSION

I

Appellants assert that respondents tried this case on theories which were not included in the claim filed with the State Board of Control.   Government Code section 910 requires that a timely claim be filed with the Board of Control as a prerequisite to maintaining an action in tort against the State.   The timely claim in this case asserted:  “On 2/9/90 at approx. 2:00 a.m., Eduardo Calatayud responded to a call in Mercantile Alley behind Romeo's Bar at 26 E. Colorado Blvd.   Upon arriving Eduardo Calatayud became aware that California Highway Patrol Officers Michael Tederel Byrd (CHP # 9216) and Wilcox ¹ (CHP # 11608) were already at the scene.   Byrd and Wilcox each had a shotgun in hand.   Subsequently a suspect Jimmy Ray Wilkes appeared at the scene.   Byrd and Wilcox tried to detain Wilkes with one hand on Wilkes and one hand on their respective shotguns.   Eduardo Calatayud III attempted to lend assistance.   At that point, Byrd began striking Wilkes with the butt of his shotgun.   Byrd's finger was at all times inside the trigger cage.   Byrd's actions in utilizing the butt of his shotgun as a striking tool, and Byrd keeping his finger in the firing cage was negligent, against CHP policies and procedures, and proximately caused resultant injuries to Eduardo and Tammy Lee․”

Appellants argue this claim failed to put them on notice of the theory of liability presented at trial:  that Officers DeVille and Byrd engaged in negligent police tactics by taking out their shotguns in the first place, failing to hand off the shotguns, having the shotguns in proximity to the suspect, and failing to back off from the fray.

 A government tort claim must contain the date, place, and other circumstances of the occurrence which gave rise to the claim being asserted, and the names of the public employees causing the injury to damage, if known.  (Gov.Code, § 910.)   The purpose of the claim filing requirement of the Tort Claims Act is to provide a public entity with sufficient information to enable it to adequately investigate claims and to settle them, when appropriate, without the expense of litigation.  (Wurts v. County of Fresno (1996) 44 Cal.App.4th 380, 386, 51 Cal.Rptr.2d 689.)

 Compliance with the claims provisions is mandatory, but sufficiency is tested by substantial rather than strict compliance.   (Johnson v. San Diego Unified School Dist. (1990) 217 Cal.App.3d 692, 697, 266 Cal.Rptr. 187.)  “ ‘Under this test, the court must ask whether sufficient information is disclosed on the face of the filed claims “to reasonably enable the public entity to make an adequate investigation of the merits of the claim to settle it without the expense of a lawsuit.” ’  [Citations.]   In appropriate cases, where the public entity has suffered no prejudice, substantial compliance will be found.  [Citations.]  ‘So long as the purposes of the claims statute are effectuated, its requirements should be given a liberal construction in order to permit full adjudication of the case on its merits.’  [Citations.]”  (Ibid.)

 This case is a good example of substantial compliance.   The claim clearly described the incident which is the basis of the claim and the civil action.   Officer Byrd, the CHP officer whose gun was fired, was correctly identified in the claim.   The fact that Officer DeVille was initially identified as Officer Wilcox did not prevent appellants from investigating the claim, since appellants were in the best position to know the correct information.   There is no significant variance between the conduct described in the claim and the theory of liability presented at trial.   In the claim, respondents stated that the officers tried to restrain Mr. Wilkes using one hand each while holding their respective shotguns with the other hand, that Officer Byrd mishandled his shotgun, and that Officer Calatayud was injured as a result.   At trial, respondents presented evidence to support these allegations.   They also presented evidence to establish the overarching theory that the manner in which the two CHP officers handled their guns-taking them out in the first place, failing to hand them off or put them away to prevent injury-were part of the breach of duty.   These are simply elaborations of the legal theory set out in the claim, arising out of the same basic set of facts.  (See Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 278, 29 Cal.Rptr.2d 398.)   Respondents' claim satisfies the substantial compliance test, and appellants were not prejudiced by the minimal variance between the claim and the theory presented at trial.

II

We turn to the more substantial questions presented by this appeal.   Appellants argue the action is barred by the doctrine of primary assumption of the risk, in the form of the firefighter's rule, and that Civil Code section 1714.9 ² does not authorize an exception to that rule when the person responsible for the injury to the peace officer is a peace officer employed by a different agency.

 “As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.”  (Knight v. Jewett (1992) 3 Cal.4th 296, 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   The firefighter's rule is an exception to that general duty.  “[A] special rule has emerged limiting the duty of care the public owes to firefighters and police officers.   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.  [Citations.]  [¶] The firefighter's rule, however, is hedged about with exceptions.   The firefighter does not assume every risk of his or her occupation.  [Citation.]   The 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.  [Citations.]  [¶] The firefighter's rule should not be viewed as a separate concept, but as 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.”  (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538, 34 Cal.Rptr.2d 630, 882 P.2d 347.)

 Our task is to consider whether the firefighter's rule applies in this case, and if so, whether the exception to the rule set out in section 1714.9 applies for conduct committed after Officer Calatayud arrived on the scene.   As we shall explain, we conclude that the firefighter's rule does apply under these facts, but that its protection is precluded by section 1714.9.   Hence liability was properly imposed on appellants for the conduct of the CHP officers.   But the result in this case would be the same even if we found the firefighter's rule inapplicable, since appellants would face liability under their general duty of due care, unexcused by the firefighter's rule.

 The evidence presented at trial supports application of the firefighter's rule in this case.   Although Officer Calatayud was originally summoned to the general area of the incident because of a ruckus in the parking structure, the firefighter's rule is not literally limited to the circumstances which caused the initial summoning of the officer or firefighter to the scene.  (See Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394, 411, 22 Cal.Rptr.2d 514.)  “[T]he firefighter's rule prohibits a peace officer from recovering for injuries caused by the very negligence ‘which created the risk which necessitated his presence.’  [Citation.]”   (Kelhi v. Fitzpatrick (1994) 25 Cal.App.4th 1149, 1157, 31 Cal.Rptr.2d 182;  emphasis added.)   After Officer Calatayud arrived at the scene, he observed the CHP officers in the nearby alley, each with a shotgun in one hand, attempting to control Mr. Wilkes with the other hand.   He acted to assist them in subduing Mr. Wilkes and to give them the opportunity to back out or get rid of their shotguns.   The CHP officers did not back out or hand off their guns.   While Officer Calatayud was assisting the CHP officers, Officer Byrd's gun fired, injuring Officer Calatayud.

If credited, this evidence establishes that Officer Calatayud's immediate presence at the scene of the struggle with Mr. Wilkes was necessitated by Mr. Wilkes' resistance, and by the conduct of the CHP officers in attempting to subdue Mr. Wilkes while holding their shotguns.   The firefighter's rule is applicable under these facts.

 The more difficult question is whether this case falls within one of the exceptions to the firefighter's rule codified in section 1714.9.   That section provides, in pertinent part:  “(a) 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.”

Appellants ask us to decide, as a matter of law, that section 1714.9 does not apply if the peace officer or other public safety member is injured by a public safety member employed by another agency.   To do so would require us to rewrite the statute.

Section 1714.9 was enacted in response to the Supreme Court's holdings in Walters v. Sloan (1977) 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, and Hubbard v. Boelt (1980) 28 Cal.3d 480, 169 Cal.Rptr. 706, 620 P.2d 156.   In Walters, a police officer called to a disorderly party was injured while attempting to arrest one of the guests.   The court held that the firefighter's rule barred the officer's recovery.   In his dissent, Justice Tobriner expressed the view that the firefighter's rule was outmoded, and found no policy basis for its continuing application.  (20 Cal.3d at pp. 207-217, 142 Cal.Rptr. 152, 571 P.2d 609.)

In Hubbard, an officer observed the defendant driver speeding.   The officer activated his emergency lights and siren, and began pursuit.   Defendant accelerated to avoid arrest and collided with a third vehicle, causing debris to be scattered over the road.   The officer approached the scene at a high rate of speed, and was injured while attempting to avoid the highway debris.   Again the court held the firefighter's rule barred the officer's recovery.   Justice Tobriner again dissented, restating his view that the firefighter's rule “is inconsistent with California's fundamental statutory and common law tort principles which require all persons to exercise due care to avoid injury to others.”  (28 Cal.3d at p. 487, 169 Cal.Rptr. 706, 620 P.2d 156.)   Justice Tobriner particularly disagreed with the majority's application of the rule in that case because the officer's injury was not suffered in the normal course of stopping the defendant for speeding, but by defendant's additional and subsequent act of misconduct in accelerating to avoid arrest.   The dissent explains, “Past cases applying the fireman's rule make it clear that while a defendant may be shielded from liability for negligent acts committed prior to the fireman's or policeman's presence which cause or fail to prevent the fire or crime, the rule provides no shelter for a defendant who, after the officer arrives, commits subsequent negligent acts which cause the officer's injury.”   (Id. at p. 488, 169 Cal.Rptr. 706, 620 P.2d 156.)

In amending Labor Code section 3852, which later became section 1714.9,³ the Legislature adopted the rationale expressed in Justice Tobriner's dissents in Walters and Hubbard.  (See Gibb v. Stetson (1988) 199 Cal.App.3d 1008, 1014, 245 Cal.Rptr. 283;  Rep. of Assem. Finance, Insurance and Commerce Com. re AB 2105, May 19, 1981.)

With this background in mind, we begin our analysis with an examination of the language of the statute.  (See Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 268, 284 Cal.Rptr. 718, 814 P.2d 704.)   Section 1714.9 begins:  “Notwithstanding statutory or decisional law to the contrary, any person is responsible ․ for the results of that person's ․ acts causing injury to a peace officer, firefighter, or any emergency medical personnel employed by a public entity, ․” ⁴ (Emphasis added.)   The statute plainly describes two groups:  the protected group, consisting of peace officers, firefighters, and emergency medical personnel, and any person who causes injury to the protected personnel.

The focus of the statute is reflected in the Legislature's explanation for its adoption of the predecessor amendment to Labor Code section 3852 as an urgency measure:  “In order to secure the rights of policemen and firefighters ․ as soon as possible․”  (Stats.1982, ch. 149, § 2, p. 492.)   The Legislature was expressly concerned with the rights of injured members of the protected group to recover from “any person” for injury caused by that person.   Nothing in the language of the statute or its history suggests that the Legislature intended to limit the term “any person” to prevent imposition of liability on a particular class of persons responsible for causing injury to a member of the protected group.  (See U.S. v. Gonzales (1997) 520U.S. 1, ----, 117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 [where statute uses term “any” without limiting language, the term must be given its ordinary, expansive meaning].)

Appellants direct us to subdivision (d) of section 1714.9, which provides:  “The liability imposed by this section shall not apply to an employer of a peace officer, firefighter, or emergency service personnel.”   According to appellants, harmonizing that provision with Government Code section 825, subdivision (a), which requires a public entity to defend and indemnify an employee acting in the course and scope of employment, “leads to the inescapable conclusion that the Legislature intended that Section 1714.9 cannot be applied to create liability against a public entity for the conduct of a peace officer, firefighter, or emergency personnel.”

Appellants' “inescapable conclusion” ignores the Legislature's designation of parties in section 1714.9.   As we have explained, the statute describes the protected group-peace officers, firefighters, and emergency medical personnel-who are injured in the performance of their duties by the intentional or negligent acts of others;  and the liable group-“any person” whose intentional or negligent act causes injury to one of the protected group under certain circumstances.   A third group is described in subdivisions (c) and (d)-“employers.”

Subdivision (c) provides:  “The employer of a firefighter, peace officer or emergency medical personnel may be subrogated to the rights granted by this section to the extent of the worker's compensation benefits ․ paid to the employee or the employee's dependents.”   The term “employer” in this subdivision obviously refers to the employer of the injured firefighter, peace officer, or emergency medical personnel, since that is the employer who will have paid workers' compensation benefits.

 Subdivision (d) also deals with the “employer of a peace officer, firefighter, or emergency services personnel.”   When a word or phrase has been given a particular meaning in one part of a law, it is to be given the same meaning in other parts of the law.  (Diachenko v. State of California (1981) 123 Cal.App.3d 932, 938, 177 Cal.Rptr. 164.)   In accordance with this principle, we read the term “employer of a peace officer, firefighter, or emergency services personnel” in subdivision (d) as meaning the same thing as it does in subdivision (c)-the employer of the injured peace officer, firefighter, or emergency services personnel.

Support for this interpretation is found in the legislative history of the predecessor statute, Labor Code section 3852, as amended by Assembly Bill 2105.   The May 8, 1981 report of the Finance, Insurance and Commerce Committee on A.B. 2105 expressed a need for clarification in the bill:  “It has been suggested by some public entities that the bill should be amended to make it clear that the employee safety officer is limited to workers' compensation against his employer and that the provisions of the bill not be construed to permit suit against the public entity.”

Following that suggestion, on May 27, 1981, A.B. 2105 was amended to provide:  “This subdivision is not applicable to an employer of a peace officer or firefighter.”   This is substantially the same provision as now contained in section 1714.9, subdivision (d).   It makes clear that the right of an injured peace officer or firefighter to recover against third parties for those injuries does not authorize the injured worker to sue his or her own employer in tort, in derogation of the Workers' Compensation Law.   It was not intended to immunize public entities from liability for the acts of their employees where those acts cause injury to peace officers, firefighters or medical personnel employed by another entity.

Nowhere in the language or legislative history of section 1714.9 and its predecessor, former Labor Code section 3852, do we find support for appellants' argument that section 1714.9 is inapplicable to situations where the injury to the peace officer or other safety worker was caused by a peace officer or safety worker from another agency.   When, in a statute designed to afford relief to injured peace officers, the Legislature states that “any person” whose conduct causes injury to a peace officer is responsible for the results of that conduct, we are not at liberty to interpret the statute to mean any person except another peace officer from a different agency.   Appellants are not exempt from the reach of section 1714.9 in this case.

III

 The next issue is whether the evidence supports application of section 1714.9 in this case.   The jury was instructed, without objection, that:  “A person is responsible for conduct that is a cause of injury to a peace officer when ․ [t]he conduct causing injury occurs after the person knows or should know of the presence of such peace officer and results from a failure of that person to exercise ordinary care or skill in the management of his person or property.”

Evidence of the precise actions leading to Officer Calatayud's injury was heavily disputed.   The jury apparently credited the testimony of Officer Calatayud, who stated that in assisting the CHP officers, he was almost flush against Mr. Wilkes' body, while trying to get a restraint hold on him.  “[A]t that point, just as I start to apply a control hold on the subject, Mr. Wilkes, and my face is [real] close to Mr. Wilkes, the butt of a shotgun passed my face about three times real quick․”   Fearful that he would be hit in the head with the shotgun, Officer Calatayud “jerked back, still hanging onto [Mr. Wilkes'] arm.   I immediately jerked back and looked to see where it was coming from.”   At that point, he saw Officer Byrd with his shotgun up in a “strike position.”  “Officer Byrd had his right hand on the wooden stock or the wooden slide of the shotgun closest to the end of the barrel, and he had his left hand along the wood stock at the bottom or the butt of the shotgun in the handgrip area right next to the trigger.”   The barrel of the shotgun was over Officer Byrd's shoulder, and the butt end was facing out away from Officer Byrd's body, a little above waist height.   As Officer Calatayud turned “to find out what the heck was going on, [Officer Byrd] made a sweeping strike towards Mr. Wilkes.”   As the sweeping motion ended, the shotgun was approximately horizontal to the ground, at about hip level.   At that moment, it discharged, injuring Officer Calatayud.

On cross-examination, Officer Calatayud acknowledged that when he observed the CHP officers with their shotguns in their right hands, he concluded that they needed help.   He assessed the situation to be dangerous and getting out of control because the suspect was not subdued, shotguns were involved, and there was a danger the suspect would wrestle one of the shotguns away from the officer who held it and use it against one of the CHP officers or against him.   Officer Calatayud acted to assist in subduing Mr. Wilkes, giving the CHP officers an opportunity to back out or get rid of their shotguns.   He did not ask the CHP officers to step back, but he was standing next to them, in uniform, and in plain sight.   He did not offer to take their shotguns from them;  instead he gave them the opportunity to back out with their own shotguns.   Officer Calatayud “suspected they were going to back out with their shotguns and appropriately do what they had to do with them.   That was not a place for shotguns.   And I was giving them that opportunity.”

Officer Calatayud only had a partial control hold on Mr. Wilkes at that point.   Prior to the three jabs which caused Officer Calatayud to jerk back, Mr. Wilkes could have grabbed the shotgun, and was strong enough to break free from the CHP officers who were only holding him with one hand each.

Respondents also produced a police tactics and use of force expert, Elmer Pellegrino.   According to Mr. Pellegrino, Officer Byrd was negligent in having a shotgun in one hand while trying to handle Mr. Wilkes with the other.   After the two CHP officers pushed Mr. Wilkes over the hood of the patrol car, one of the officers should have handed his shotgun to his partner.   Then he could have moved in with two free hands, and controlled the suspect with the assistance of Officer Calatayud.   He did not disapprove of the CHP officers' actions up to the time they started to handle Mr. Wilkes on the hood of the car with their loaded shotguns in their hands.   But “[w]here the whole thing went sideways is when they had him across the hood of the car, that they attempted to control him with loaded shotguns as opposed to using their hands.”   It was Mr. Pellegrino's opinion that Officer Byrd was at fault because there was “no need for those officers to be in [ ] close proximity to the suspect with a hot shotgun in their hands.”   According to Mr. Pellegrino, “Whether he swung at him or whether he did not swing at him has no bearing on it.   It was negligence in handling the firearm because he had a shotgun in close proximity to a suspect who the officers were attempting to control and he had an unintentional discharge of that firearm that resulted in the leg wound to Officer Calatayud.”

This evidence, credited by the jury, establishes that Officers Byrd and DeVille were negligent, that their negligence caused injury to Officer Calatayud, and that their negligent conduct occurred after they knew or should have known of the presence of Officer Calatayud.   This factual determination, supported by ample evidence, establishes appellants' liability under section 1714.9.

IV-V **

DISPOSITION

The judgment is modified to provide for postjudgment interest against the State of California at the rate of seven percent, and in all other respects, the judgment is affirmed.

FOOTNOTES

1.   The first amended complaint also referred to the second CHP officer as “Wilcox.”   The first amended complaint was amended at trial to replace the name “Wilcox” with the name “DeVille.”   Appellants did not object to this amendment.

2.   All statutory references are to the Civil Code unless otherwise noted.

3.   These exceptions were originally amended into Labor Code section 3852, but were subsequently amended and moved to Civil Code section 1714.9 in 1982.  (Stats 1982, ch. 258, pp. 836-837, § 1.)

4.   Its predecessor statute, Labor Code section 3852, also provided that “any person” is responsible for injury to a peace officer or firefighter.

FOOTNOTE.   See footnote *, ante.

EPSTEIN, Acting Presiding Justice.

HASTINGS, and BARON, JJ., concur.