NEIGHBARGER v. IRWIN INDUSTRIES INC (1993)

Plaintiffs Craig Neighbarger, John Magana and Marilyn Magana appeal from summary judgment entered in favor of defendant Irwin Industries, Inc. (Irwin) in plaintiffs' action for personal injuries sustained in a fire at Powerine Oil Refinery.¹  The issue on appeal is whether the trial court properly concluded that plaintiffs' action is barred by the fireman's rule, in modern usage denominated the firefighter's rule (Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 437, fn. 1, 218 Cal.Rptr. 256), or by the assumption of risk doctrine.

FACTS 2

On the day of the fire, Neighbarger and John Magana (Magana) were employees of Powerine Oil Company;  Neighbarger, a fire safety supervisor, had received special training in hazardous materials, industrial fire fighting, and structural fire fighting specific to refineries;  Magana, who had 17 years of experience in the refinery business, also had received training in emergency response to toxic and hazardous material spills and petroleum firefighting;  the job duties of both Neighbarger and Magana included responding to emergencies at the Powerine refinery, belonging to and participating in the fire brigade, issuing “Hot Work Permits,” and conducting safety orientations for refinery contractors, visitors and employees.

Powerine had contracted with Irwin to provide maintenance services for its refinery;  Irwin had an office and supervisory personnel on the Powerine site for each shift and Irwin employees reported to Irwin each morning for a safety meeting and then their work assignments;  the work procedure was for Powerine employees to hand Irwin employees a work request, take them to the site and leave.

On the day of the fire in question, Irwin employees George Short and Robert Brown, who were working together, finished four work orders provided by Powerine employee Bernard Rosemond.   Short and Brown met again with Rosemond at the Irwin area and were provided with a work order to remove piping and install a blind flange on a valve.   Short, a pipefitter, had knowledge of various methods of unplugging valves;  Short and Brown were in the process of removing unwanted piping and placing a blind flange upon the end valve when they noticed the valve was plugged;  Short used the pointed end of a spud wrench to probe the plugged material and a scraper to clean the flange part of the valve when the valve became unplugged and released a flammable liquid petroleum product.   Using a sharp instrument to unplug a valve is a violation of industry safety standards.

Neighbarger, already in the vicinity and supervising work on a fluid catalytic converter unit, had his back to the accident site and was not wearing any protective firefighting equipment;  Magana, also not wearing any firefighting equipment, was in the vicinity supervising the vacuuming of drains;  Neighbarger heard a noise and turned to see what he initially thought was water vapor escaping from the valve; Neighbarger moved quickly toward the valve to attempt to close it;  Magana saw Neighbarger and knew something was wrong, but did not know what the problem was;  Magana heard the noise of the escaping liquid and instinctively reached up to try to close the valve;  the liquid ignited and Short was on fire;  both Magana and Neighbarger were burned in the fire.

Irwin moved for summary judgment on plaintiffs' complaint on two theories, only one of which, the firefighter's rule, is pertinent to this appeal.³  Defendant argued that plaintiffs “are professionals whose job duties require that they expressly assume the risk of a fire in a refinery and that it is part of their job to knowingly and voluntarily confront this type of hazard in order to both prevent and extinguish fires in the refinery,” thus barring their action under the firefighter's rule.   Plaintiffs argued in opposition to the summary judgment motion that the firefighter's rule is inapplicable because they were not public employees, they were not brought to the scene by the danger that occurred, they were not acting as firemen, they were not initially aware of the hazard involved and they were not confronting the type of risk for which they received compensation.

After oral argument, the court took the matter under submission;  later, the court rendered a judgment decreeing that “There is no triable issue of fact and judgment on Defendant's Motion for Summary Judgment is made in favor of Defendant․”   Plaintiffs filed timely notice of appeal from the judgment.

Appellants contend that the trial court erred in granting summary judgment in Irwin's favor based on the doctrines of the firefighter's rule and assumption of the risk because (1) appellants were not at the scene of the fire because of the fire, but were engaged in other work assignments;  (2) the firefighter's rule is inapplicable because appellants were not public employees;  (3) appellants, although safety supervisors, were not acting as firemen at the time they were injured;  and (4) appellants were acting as rescuers, and the “rescue rule” in Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 99 Cal.Rptr. 29, 491 P.2d 821, applies to defeat the assumption of the risk defense.

I

SUMMARY JUDGMENT PRINCIPLES

 Summary judgment is proper only if there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.  (Code Civ.Proc., § 437c, subd. (c).)  On review, we strictly construe the moving party's papers and liberally construe those of the opposing party to determine if they raise a triable issue of material fact.  (Howell v. State Farm Fire & Casualty Co. (1990) 218 Cal.App.3d 1446, 1448, 267 Cal.Rptr. 708.)   Our review is de novo.  (Saldana v. Globe–Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1515, 285 Cal.Rptr. 385.)

We apply the foregoing principles to the issues raised by appellants.

II

THE FIREFIGHTER'S RULE

“The fireman's rule provides that negligence in causing a fire furnishes no basis for liability to a professional fireman injured fighting the fire.   Firemen, ‘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.’ ” '  [Citation.]   While denominated the fireman's rule, the rule is applicable to policemen as well.”  (Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609.)

“The fireman's rule is primarily based on the principle of law denominated assumption of risk.   That principle holds that ‘one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.’ ”  (Lipson v. Superior Court (1982) 31 Cal.3d 362, 370, 182 Cal.Rptr. 629, 644 P.2d 822.)  “As many other jurisdictions and legal commentators have recognized, a fireman does not assume every possible risk he may encounter while engaged in his occupation.  [Citations.]   A fireman assumes only those hazards which are known or can reasonably be anticipated at the site of the fire.”  (Id. at p. 371, 182 Cal.Rptr. 629, 644 P.2d 822.)

“The crucial question, therefore, is whether the assumption of the risk basis for the fireman's rule is properly characterized as just a variant of contributory negligence or ‘true’ assumption of the risk—a negation of the duty to exercise reasonable care on the part of the person responsible for the fire.   There can be no question but that it is the latter.   That is the teaching of the Walters opinion viewed in the light of the well-established principle of negligence law that the determination as to whether or not a duty to exercise reasonable care exists is essentially a question of public policy [citations].”  (Baker v. Superior Court (1982) 129 Cal.App.3d 710, 720, 181 Cal.Rptr. 311.)   The court in Baker concluded that “the type of assumption of the risk underlying the fireman's rule is that negating the duty of care, and that, as such, the principle is as viable today as ever it was.”  (Id. at p. 721, 181 Cal.Rptr. 311.)

Baker was cited with approval in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, wherein our Supreme Court, in dictum, addressed the issue of the firefighter's rule.

The court in Knight faced the question “of the proper application of the ‘assumption of risk’ doctrine in light of this court's adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226]․”  (3 Cal.4th at pp. 299–300, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   The court in Knight interpreted its prior Li decision as distinguishing between “(1) those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk—the category of assumption of risk that the legal commentators generally refer to as ‘primary assumption of risk’—and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty—what most commentators have termed ‘secondary assumption of risk.’   Properly interpreted, the relevant passage in Li provides that the category of assumption of risk cases that is not merged into the comparative negligence system and in which the plaintiff's recovery continues to be completely barred involves those cases in which the defendant's conduct did not breach a legal duty of care to the plaintiff, i.e., ‘primary assumption of risk’ cases, whereas cases involving ‘secondary assumption of risk’ properly are merged into the comprehensive comparative fault system adopted in Li.”  (3 Cal.4th at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696, fns. omitted.)

“[T]he question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.”  (Knight v. Jewett, supra, 3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.) ⁴

“In addition to the sports setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the ‘firefighter's rule.’  [Citation.]   In its most classic form, the firefighter's rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire;  the rule provides that the person who started the fire is not liable under such circumstances.  [Citation.]   Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront.  [Citations.]   Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk.”  (Knight v. Jewett, supra, 3 Cal.4th 296, 309–310, fn. 5, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

According to Knight, the firefighter's rule is a subspecies of the “primary assumption of risk doctrine.”   Appellants claim in their opening brief that the trial court erred in granting summary judgment based on the doctrine of assumption of the risk, thus conceding that the issue was before the trial court.   The issue having been raised below, the issue of whether the judgment can be upheld on the primary assumption of risk doctrine is properly before us.

III

PRIMARY ASSUMPTION OF RISK

“[T]he question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.”  (Knight v. Jewett, supra, 3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

 Appellants claim that their status as private sector employees precludes application of the primary assumption of risk doctrine.   No authority has come to our attention limiting that doctrine in the employment context to public employees.   We also find no language in Knight suggesting such a limitation.   Appellants have not established that their status as private sector employees is of legal import under the primary assumption of risk doctrine.

Similarly without legal import are the facts that at the time of the fire, appellants were assigned to other tasks in the vicinity and were not functioning as firemen or as part of the fire brigade, and were not wearing fire fighting gear or carrying fire fighting equipment.   It is undisputed that appellants' duties included fighting fires in the refinery and they had experience and training in doing so.   It is undisputed that appellants were aware of the nature of the hazardous materials used in refineries and had received specialized training in responding to emergencies of hazardous material spills.   It is also undisputed on our record that the liquid petroleum product (claimed in appellants' brief to be naphtha) released by Short is of the type that is commonly found on refinery premises.   Thus, our record shows that Short was engaged in precisely the type of dangerous activity requiring the special safety services for which appellants were trained and paid.   We conclude that the nature of the defendant's activity which caused the fire was within the range of potential risk appellants were hired to confront;  they were trained to respond to such spills, and they were hired to encounter and combat that particular danger.

 Application of the primary assumption of risk doctrine “does not depend on the particular plaintiff's subjective knowledge or appreciation of the potential risk․  [¶]  Rather than being dependent on the knowledge or consent of the particular plaintiff, resolution of the question of the defendant's liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to protect the plaintiff against a particular risk of harm.”  (Knight v. Jewett, supra, 3 Cal.4th at pp. 316–317, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Thus, whether appellants were actually subjectively aware of the precise material involved in the spill at the time they responded to the emergency is of no legal significance.   Because appellants were hired to encounter and combat the type of fire which occurred, respondent, whose employee created the fire, owes no duty to appellants.

Appellants intimate that the assumption of risk doctrine does not apply because they were engaged in other tasks on the premises at the time of the accident and they responded without being “summoned” to the site of the fire.   We infer that appellants were not “summoned” to the site of the fire because they were already on duty in the vicinity, and pursuant to their responsibilities, responded to an obvious emergency while it was unfolding.   We acknowledge that the employment of firefighters by private businesses, who may continually maintain firefighting personnel on their premises, does not fit the paradigm of the publicly employed firefighter who is summoned to various locations.   However, appellants fail to provide any authority establishing that such a distinction carries any legal import under the primary assumption of the risk doctrine.   We infer from our record that the nature of the oil refinery business is such that appellants' employer, Powerine, deemed it desirable to maintain safety supervisors such as appellants on duty on the premises.   Such a fact is not logically related to the issue of whether Irwin's employee engaged in conduct causing harm which was within the realm of potential risk which appellants were hired to confront.

 Also without merit is appellants' argument that the rescue doctrine applies to defeat the doctrine of assumption of risk.   Appellants rely principally upon Solgaard v. Guy F. Atkinson Co., supra, 6 Cal.3d 361, 99 Cal.Rptr. 29, 491 P.2d 821.   In Solgaard, plaintiff medical doctor agreed to provide emergency medical care to employees injured at a construction site;  plaintiff was called from his home when two construction workers were trapped in a landslide;  while going down a steep slope to reach the trapped workers, plaintiff was injured.   The court concluded that plaintiff was entitled to the benefit of the rescue doctrine, “including an instruction to the jury that as a rescuer, plaintiff could recover on the basis of defendant's negligence to Parsons and Thorne [the trapped workers], if plaintiff's injury was a proximate result thereof, and if plaintiff acted neither rashly nor recklessly under the circumstances.”  (6 Cal.3d at p. 369, 99 Cal.Rptr. 29, 491 P.2d 821.)

The court in Solgaard also discussed the distinction between the rescue rule and the firefighter's rule:  “Defendant points out that plaintiff had previously agreed to provide necessary medical care and treatment to employees injured at the construction site and that by reason of that prior agreement plaintiff was not acting in the capacity of a stranger or gratuitous volunteer.   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.  [Citation.]  ․  [¶] It is not, however, a doctor's business to cope with steep, slippery embankments.   Plaintiff agreed only to furnish medical aid to injured employees;  he did not further agree to expose himself to risks and hazards not necessarily inherent in the performance of his services.”  (6 Cal.3d at p. 369, 99 Cal.Rptr. 29, 491 P.2d 821, internal quotation marks omitted.)

It is clear that Solgaard has no application to the instant case because appellants were not in the same situation as Solgaard, who, in rescuing the injured workers, exposed himself to risks and hazards not inherent in the performance of his services.   To the contrary, the risk confronted by appellants was “inherent in the performance of [their] services.”   We conclude that as a matter of law the rescue doctrine has no application to the instant case.

 In conclusion, we hold that under Baker and Knight, which provide the pertinent analytical framework for the issue on appeal, the primary assumption of the risk doctrine applies to bar appellants' action.   Thus, the trial court properly granted summary judgment in favor of Irwin.⁵

DISPOSITION

The judgment is affirmed.   Respondent is entitled to costs on appeal.

I respectfully dissent.

Under the rubric of “primary assumption of the risk,” the majority opinion extends “the firefighter's rule” exception far beyond the rather narrow boundaries previously established under California law.   Evidently construing the Supreme Court's decision in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 as a license to expand “the firefighter's rule” in many directions, the majority transforms this narrow exception into what appears to be an “emergency response” exception.   According to this newly coined exception, no one has a duty under traditional negligence law toward anyone whose employment, public or private, includes as part of the job description a responsibility to respond to an emergency situation of any type.   This is a construction of “primary assumption of the risk” which does not square with the California Supreme Court opinion in Jewett nor with the fundamental rationale of that concept as it has developed in American law.

In which directions does the majority expand the “firefighter's rule” (or at least what used to be the “firefighter's rule”)?   There are several.

One, for the first time in California law the majority opinion extends this exception to private not just public “fire fighters.”

Two, for the first time in California law the majority opinion defines “firefighters” to include people whose actual fire fighting duties are but a collateral and potentially minimal portion of their overall employment responsibilities.

Three, for the first time in California law the majority opinion expands this exception to include a firefighter's individual ad hoc response to an emergency to which he or she was not summoned in the capacity (or with the appropriate equipment of) a firefighter.

Four, for the first time in California law the majority opinion expands the exception to include a firefighter's ad hoc response to a situation which was not yet a fire and which he or she reasonably did not anticipate would become a fire.

Five, for the first time in California law the majority opinion expands this exception to include all employees who have responsibilities for responding to emergencies of any sort not merely fires or criminal activity.

While I have problems with each and every one of these expansions of the “firefighter's” exception, it is important to recognize this summary judgment should be reversed if even one of them is erroneous.   It also should be reversed if there is even a single triable issue as to any one of them.

I. NEITHER THE “FIREFIGHTER'S RULE” NOR “PRIMARY ASSUMPTION OF THE RISK” APPLIES TO PRIVATE “FIREFIGHTERS,” ESPECIALLY THOSE INJURED THROUGH THE NEGLIGENCE OF PERSONS OTHER THAN THEIR OWN EMPLOYERS.

The rationale for the “firefighter's rule” does not support extension of this rule to private employees, not even those employed for the specific purpose of fighting fires on the employer's premises.   Historically several reasons have been given for the “firefighter's exception” including the classification of firefighters as mere licensees rather than business invitees.  (See, e.g., Pennebaker v. San Joaquin etc. Co. (1910) 158 Cal 579, 587–588, 112 P. 459.)   The modern rationale, however, is founded principally on public policy.  “ ‘The question is ultimately one of public policy, and the answer must be distilled from the relevant factors involved upon an inquiry into what is fair and just․’ ”  (Walters v. Sloan (1977) 20 Cal.3d 199, 205, 142 Cal.Rptr. 152, 571 P.2d 609, quoting from Krauth v. Geller (1960) 31 N.J. 270, 157 A.2d 129, 130.)   Moreover, since under Jewett assumption of the risk is an absolute defense only when public policy dictates the class of which a defendant is a member should owe no duty to the class of which a plaintiff is a member the public policy grounds for the “firefighter's rule” are the ones which should control the scope of the rule in the future.

It is apparent the California Supreme Court intended to do more than announce a tautology in Jewett—the tautology that primary assumption of the risk means the defendant owes no duty to the plaintiff and the defendant owes no duty to the plaintiff when the plaintiff assumes the risk.   No, it is clear after Jewett the inquiry does not begin with the question whether the plaintiff assumed the risk, in this instance the question whether these two safety workers understood and reasonably or unreasonably confronted a dangerous situation.   Rather the inquiry begins—and ends—with a traditional full scale duty analysis, such as was fully developed in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.   If this multi-factor policy analysis yields the conclusion the class of which the defendant is a member should owe a duty of care to the class of which plaintiff is a member then primary assumption of the risk does not apply and defendant's liability is measured under comparative negligence principles.   The policy considerations supporting imposition of a duty of care on the defendant class in favor of the plaintiff class are balanced against the policy considerations supporting an elimination (or reduction) of that duty.   Only when the factors favoring elimination (or reduction) of the duty outweigh those supporting imposition of the duty is the duty of care eliminated (or reduced) as to the class of which defendant is a member.   And, only in that circumstance can it be said plaintiff has assumed the risk of injury in the primary sense.

This is the form of analysis the high court used itself in Jewett to determine whether primary assumption of the risk applied.   In that case, the parties were co-participants in a touch football game.   Most if not all participants in such competitive contact sports are aware there is a risk of injury through overexuberant play by other players.   But that subjective appreciation of risk was not the focal point of the Supreme Court's attention.   Rather the plurality opinion, at least, looked to the policy implications of imposing a duty of care on participants toward their coparticipants in these contests.   The high court decided public policy considerations militated against a duty of care, primarily because “vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct․  [E]ven when a participant's conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.”   (Knight v. Jewett, supra, 3 Cal.4th 296, 318–319, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Thus, the question whether the private “safety officers” in this case were subjectively aware of the dangers of their jobs and voluntarily remained in these positions is irrelevant to whether the defendant whose negligence caused release of the substance which erupted in a fireball owed a duty of care to these plaintiffs.   Instead the inquiry here as it was in Jewett properly focuses on the policy factors affecting imposition of a duty on the part of third parties responsible for a fire on another's property toward private safety workers the property owner employed to stop that fire.

We begin with recognition of the fact the defendant here owed a general duty of care to virtually anyone injured through any fire which might erupt because of his negligence.   That is, if this fire had injured a nearby neighbor, or someone passing in an automobile, or the president of the oil company which owned the refinery, or a general refinery worker, there would be no doubt the defendant responsible for causing the fireball and any ensuing fire would be liable in damages for those injuries.   Thus, what we are really asking here is whether there are countervailing policy reasons for excepting from the general duty of care a certain category of refinery employee, the category in which appellants fall.   While there is a real question whether appellants qualify as “firefighters” of any kind—an issue I will address later—for purposes of this initial analysis I will assume they are full-fledged private firefighters.

Perhaps the most important and persuasive public policy grounds for the “firefighter's rule” exception to the general rule of liability is that the cost of furnishing firefighters and compensating them for their injuries already has been spread to the public.   As the California Supreme Court observed:  “ ‘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 consequence of the inherent risks of the calling.  (Krauth v. Geller, supra, [31 N.J. 270] 157 A.2d 129, 130–131.)’

“California is not insensitive to its obligation to compensate public safety officers for hazards faced or for injuries received.   Firemen and policemen are paid for the work they perform including preparation for facing the hazards of their professions and dealing with perils when they arise.   When injury occurs, liberal compensation is provided.   In addition to the usual medical and disability benefits ordinarily provided all employees covered by the Workers' Compensation Act, firemen and policemen are provided special benefits.”  (Walters v. Sloan, supra, 20 Cal.3d 199, 205, 142 Cal.Rptr. 152, 571 P.2d 609, italics added.)

Accordingly, those who negligently cause fires, along with the rest of the general public, already have paid their insurance premiums in the form of taxes for providing needed compensation to any firefighters injured through any citizens' negligence.  (Comment, The Fireman's Rule:  Defining Its Scope Using the Cost–Spreading Rationale (1983) 71 Cal.L.Rev. 218.)   A corollary of this proposition is that the general public would be less willing to pay those tax “premiums,” if they also were liable to those same firefighters in a private damage action should it turn out one of them negligently caused an injury-producing fire.

A second and related public policy basis for the “firefighter's rule” is the “much ado about nothing” argument.   Since the cost already is spread to the public through taxes, recognizing a duty of care would impose heavy transaction costs in the form of legal expenses for litigation which would make little if any difference in the real world.   This litigation would serve only to reallocate the compensation costs they first paid through taxes back to the public in a different form, that is, insurance premiums.   Justice Clark observed:  “[M]uch of the recovery which would result from abolition of the fireman's rule will finally be returned to those [tax-supported] agencies rather than to the injured public employee [because of the agencies' right to recover compensation payments made to the firefighter]․  [This] would burden our courts with litigation among the employer public agency, the retirement system, and the negligence insurer.   Whether the employee is ultimately compensated with money derived from taxes or from insurance, the public pays the bill.”  (Walters v. Sloan, supra, 20 Cal.3d at p. 206, 142 Cal.Rptr. 152, 571 P.2d 609, italics added.)

According to this argument to the degree taxes were lowered, insurance premiums would increase, but with the added expense of heavy litigation costs to make the shift from one to the other.¹

While California courts have not had occasion before to address the issue, other jurisdictions have recognized this public policy rationale only justifies the “firefighter's rule” for public firefighters and not those employed by private firms.   As a Michigan appellate court recently held:  “Application of the fireman's rule is limited by its very nature to public employees.   It is the public that hires, trains, and compensates firefighters [sic ] and police officers to confront danger.   Basic to the public policy rationale underlying the fireman's rule is the spreading to the public of the costs of employing safety officers and of compensating them for any injuries they may sustain in the course of their employment.  ‘Firefighters [sic ] are present upon the premises, not because of any private duty owed the occupant, but because of the duty owed to the public as a whole.’ ”  (Italics added.)”

(Kowalski v. Gratopp (1989) 177 Mich.App. 448, 442 N.W.2d 682, 683.

For this reason, the Michigan court refused to apply the “firefighter's rule” to a private paramedic responding to a call from the public fire department.  “It appears that plaintiff was not acting as a public employee, and the pleadings at least raise a question of fact as to plaintiff's employment status.   Therefore, we believe the trial court erred in applying the fireman's rule to defeat plaintiff's action.   If plaintiff was injured while merely furthering the private operation ․ there is no public policy reason to apply the fireman's rule to this case.”  (Ibid.)

Nor is there a “public policy reason to apply the fireman's rule (or primary assumption of the risk)” to the instant case.   Neither of the major public policy bases for the “firefighter's rule” applies to the two private “safety workers” who were injured in this case.   Not only were they not public employees, they were not even employees of a private fire fighting firm in the business of responding to fires on other people's property.   Instead they were employees whose many duties included a responsibility to fight fires on their own employers' property.   In this case, the tortfeasor was an employee of another company who was performing work on the property owned by the plaintiffs' employer.   In such a situation, the tortfeasor whose negligence allegedly caused the injury-producing fire did not pay any “premiums” in the form of taxes to provide compensation to the plaintiffs for taking these risks or for compensating their injuries.  (If anyone did, it was the plaintiffs' own employer who is not a party to this lawsuit.)   Moreover, since defendant company paid no such taxes society need not be concerned it or others in its class will become reluctant to continue paying taxes in the future because of being held liable to these private “safety officers” for the injuries they sustained in connection with a fire which defendant's vicarious negligence caused.

Furthermore, in this case imposition of a duty on the negligent employee (and his employer) will not result in fruitless, wasteful litigation.   Any litigation will not merely transform the public burden from one form to another—taxes to insurance premiums—as the Supreme Court predicts would happen if public firefighters were allowed to sue those whose negligence caused the fires which injured them.  (Walters v. Sloan, supra, 20 Cal.3d at p. 205, 142 Cal.Rptr. 152, 571 P.2d 609.)   Instead litigation by private firefighters will shift the financial cost of the private firefighters' injuries from the innocent firefighters and their employer (to the extent that employer compensated their injuries) and place that burden squarely on the employee (and his employer) whose negligence caused the injuries.   To the extent insurance premiums might be affected, the innocent employer's workers' compensation premiums would diminish and the guilty employer's negligence premiums would increase.

I can think of no other possible public policy reasons for absolving this tortfeasor of a duty of care toward private firefighters employed by the refinery.   After all, he clearly owes that duty to other refinery employees, neighbors, and the like.   In the absence of sound countervailing public policy reasons, the same policy factors which support a duty of care toward these other employees and third persons also favors a duty of care toward appellants.²

Furthermore, according to the rationale of Jewett since they are still owed a duty of care appellants have not assumed the risk in a primary sense.   If they were reckless in some way in their response to this emergency, that is an entirely different matter.   Their recklessness would be evaluated as it would for any other person who did what they did—as a “secondary assumption of the risk” to be factored into the comparative negligence equation along with respondent's breach, appellants' contributory negligence, and the like.

II. NEITHER THE “FIREFIGHTER'S RULE” NOR “PRIMARY ASSUMPTION OF THE RISK” DENIES RECOVERY TO PRIVATE EMPLOYEES WHOSE DUTIES ARE NOT PRIMARILY DEVOTED TO “FIREFIGHTING” (OR ITS EQUIVALENT).

Even were “the firefighter's rule” to include private firefighters, it does not apply to the type of employee whose injuries form the basis for this case.   Neither plaintiff Neighbarger nor Irwin were anything approaching full-time “firefighters.”   Instead, actual firefighting was at most a collateral duty.   Indeed there was no evidence before the trial judge as to their experiences in combating real fires.   As far as that record is concerned, it is entirely possible neither plaintiff had ever in their many years of employment at this refinery actually put out or attempted to put out a fire, or even seen someone else put out such a fire.

True, the record reflects both plaintiffs had attended some courses of unknown duration and intensity about fires and firefighting.   It further reflected they had received (and presumably read at some time) a handbook about refinery fires.   But this kind of sporadic, limited training hardly qualified these employees as “firefighters” nor was there any evidence in the record suggesting these employees were provided an enhanced level of workers' compensation benefits, disability pension benefits or the like in return for their firefighting responsibilities as are public firefighters in the State of California.   There was not even any evidence in the record they received some sort of “firefighters” bonus or other salary supplement in return for this risky responsibility.

If a few ad hoc training courses and distribution of a handbook are enough to place private employees under the “firefighter's rule” (or otherwise qualify them for the “primary assumption of the risk” liability exception) then virtually any employee of any concern could find himself or herself foreclosed from suing for injuries sustained while reacting in any way to a fire or other emergency which breaks out at their place of employment.   There are many work environments in which it may make sense for employers to train all or most of their employees to fight any fires or confront other emergencies which may occur.   Does such training place all these employees under the “firefighter's rule”?   I think not.   Yet where does one draw the line when employees are being trained to combat fires and the threat of fires at their own place of employment in contrast to being trained to work as firefighters responding to fires on other people's property.

III. NEITHER THE “FIREFIGHTER'S RULE” NOR “PRIMARY ASSUMPTION OF THE RISK” DENIES RECOVERY TO EMPLOYEES WHO ARE NOT SUMMONED TO A FIRE EMERGENCY AS FIREFIGHTERS BUT WHO RESPOND IN ANOTHER CAPACITY AND/OR RESPOND TO A SITUATION AT A TIME WHEN IT IS NOT A FIRE OR AN APPARENT FIRE EMERGENCY EVEN THOUGH IT LATER DEVELOPS INTO A FIRE.

Even if the “firefighter's rule” encompassed private as well as public employees and even if the plaintiffs were deemed “firefighters” for purposes of that rule, the “firefighter's rule” does not apply in the special circumstances of this case.   Nor does the “primary assumption of the risk” defense relieve the admittedly negligent tortfeasor of his duty to these plaintiffs.

I begin by considering what this situation was not.   Plaintiffs were not part of a fire brigade summoned to a fire already underway at this refinery with all their protective paraphernalia and firefighting equipment.   Quite the opposite, they were neither summoned nor was there a fire under way.   Instead they happened to be in the vicinity on other assignments when a nonfire incident occurred.   There is at least a triable issue they thought the substance escaping from the pipe was water.   As the nearest refinery employees to the leak they did what presumably all refinery employees were trained to do and would have done, that is, to shut down the valve.   Only after they had responded by doing what any employee would did the escaping substance turn out to be something other than water, that is, naphtha, and the escaping naphtha, in turn, ignite into a fire.

This scenario fails to qualify for the “firefighter's rule” (or the “primary assumption of the risk” exception) for several reasons.

First, that rule and that exception require the firefighters to have been “summoned” to a fire.  “[T]he firefighter's rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire;  the rule provides that the person who started the fire is not liable under such circumstances.  (Citations omitted.)”  (Knight v. Jewett, supra, 3 Cal.4th at p. 309, fn. 5, 11 Cal.Rptr.2d 2, 834 P.2d 696, italics added.)

There is a good reason for this requirement.   If summoned, they can come in their protective regalia with proper firefighting equipment, minimizing the risk of injury and maximizing the chances for a successful response.   If they merely respond as a friend, neighbor, or passerby with their bare hands or the minimal protective gear and equipment any friend, neighbor or passerby might bring they run risks beyond those envisioned by the “firefighter's rule” (or “primary assumption of the risk”) exclusion from liability.   Thus, a professional firefighter, even a public one, who joined in with his neighbors in manning a garden hose at the behest of another neighbor whose house was burning down, should not be subject to the “firefighter's rule” were he or she injured in the attempt.

Second, the rule envisions the firefighters are performing in their “firefighter” role, not in some other capacity when they are injured.   For instance, firefighters who happened to be dancing at a “Firefighters Ball” when the dance hall was engulfed in flames should not be foreclosed from suing the dance hall owners for any burns they suffered in the blaze merely because they happened to be members of the fire department.   They do not wear some sort of “firefighter's rule” badge which prevents them from recovering for any and all fire-caused injuries they may sustain.   The rule only prevents recovery when they are actively fighting fires in their capacity as firefighters.

Nor, presumably, would the “firefighter's rule” apply if those trapped “firefighters” had to combat the blaze as a means of saving their own lives and escaping from the dance hall just as ordinary citizens would in a similar situation.   Although they would be fighting a fire, it would not be in their capacity as public firefighters but as citizens trying to save their own skins.   On the other hand, the engine company which was summoned to fight the fire at the “Firefighters Ball” would be subject to the “firefighter's rule” if they sought to recover for damages they suffered during the conflagration.   So would any of the partying firefighters who decided to join in the fire suppression effort after their escape from the hall.

Third, the “firefighter's rule” assumes the fire which injures the firefighter is a fire they were fighting, not some incidental explosion which occurs when they were doing something entirely different.   Assume a firefighter is at a neighbor's home helping the neighbor close a water valve.   It turns out this valve actually was a mislabeled gas valve which somehow catches fire and burns the firefighter when he twists it the wrong way.   The “firefighter's rule” presumably would not bar that firefighter from recovering for these injuries, even if it would were he or she to be part of the team summoned to fight the fire caused by their negligent mislabeling.

If the “firefighter's rule” is expanded beyond public firefighters to include private employees whose employers assign them “firefighting” as one of many duties, it frequently will prove difficult to determine in which capacity they are serving when they are injured.   True, some cases will be clear.   The fire will have started.   The sirens will blare, “summoning” those with firefighting responsibilities to fight the fire.   These employees will rush to the “firehouse,” gather their special firefighting apparatus and put on their protective clothing.   Then they will speed to the site in their fire truck or its equivalent and fight the fire in their capacity as firefighters, thereby confronting a risk of the dimension they agreed to when they signed on as firefighters.

According to one version of the evidence, at least, the plaintiffs here merely reacted in ad hoc manner as any other employee might to an emergency which happened to occur as they were walking by.   That emergency did not appear to be a fire but some escaping “water.”   They were no more equipped than any other employee to solve that emergency, which appeared only to require closing a valve.   They had no reason, nor the time, to go back for their firefighting gear.   Their firefighting training was not even relevant to the task at hand.   So they were not responding in their capacity as firefighters, but in one of their many other capacities as responsible employees of the refinery.   The fire—actually the fireball—which injured them was not one they were fighting but one which exploded when they were handling what they perceived to be an emergency of an entirely different nature and degree.

Even had fire rather than water started escaping from the line at the time plaintiffs walked by, their response would not necessarily have been as firefighters nor would it have been within the parameters of the risk the “primary assumption of the risk” rationale is intended to embrace.   In this circumstance they would not have been “summoned” to fight a fire with the professional tools—and protective gear—of the firefighting trade.   Instead the fire would have “summoned” itself to them.   Like the firefighters caught at the “Firefighters Ball,” they would be fighting the fire with their bare hands in order to save their lives just as any other employee might who had a fire erupt as they passed by.

IV. SUMMARY

I would reverse the summary judgment in this case.   I would not expand the “firefighter's rule” beyond professional firefighters (and police officers) paid by the public.   This is the only category of individuals involved in fighting fires (or criminal activity) for which public policy justifies relieving those whose negligence caused the fires from a duty to compensate anyone injured in combating those fires (or crimes).   After Jewett, the notion firefighters subjectively but reasonably “assume the risk” of injury and death by confronting a particular fire is just another consideration to be factored into the comparative negligence equation.   It is the public policy factors not the firefighters' actual or assumed subjective attitudes which are critical to a determination whether “primary assumption of the risk” applies and eliminates the “fire causers” duty toward them.   As discussed earlier, those public policy considerations, in turn, only support the “firefighters” exception (or primary assumption of the risk) when it is applied to public not private firefighters.

But if private firefighters were to be brought under the rule, it should be confined to the category of private firefighters who are employed by private firefighting organizations which, like the public fire departments, respond to fires on other people's property and not those firefighters who are merely hired to put out fires on their own employer's property.   At the most, public policy considerations support elimination of the duty of care the private firefighters' own employers owe them.   These factors in no sense can be stretched to eliminate the duty of care third persons, such as respondent, owe those firefighters.

And, even if the rule were to extend to firefighters employed to fight fires on their own employer's property, it should only apply to those who are employed exclusively in that capacity and not those for whom firefighting is merely a collateral responsibility.   As the “firefighter's rule” exception expands beyond the traditional public fire department the public policy supporting it quickly dissipates.   By the time it reaches employees of the type represented by the plaintiffs involved in this case nothing whatsoever remains to support the exception.

Finally, irrespective of their status, there is a triable issue whether these employees were engaged in tasks to which the “firefighters rule” or any other variety of “primary assumption of the risk” appropriately applies.   At the time this “fire ball” suddenly erupted and caused their injuries they were performing another function which was part of their overall job description, closing a valve to stop what evidence suggests they believed was some escaping water.   They were no more fighting a fire than if they had been standing there watching some other employee closing that valve as part of his or her job when the explosion occurred.   Their mere status as part-time private “firefighters” is no reason to automatically eliminate the tortfeasor's duty toward them when it is other responsibilities not their firefighting duties which unexpectedly put them in harms way.

For any and all of these reasons I would reverse the summary judgment in this matter.

FOOTNOTES

1.   Marilyn Magana sued for loss of consortium due to John Magana's injuries.

2.   The factual background is gleaned from those portions of defendant's separate statement of undisputed facts which plaintiffs agreed were undisputed, as well as from plaintiffs' statements of facts in their separate statements and in their memorandum of points and authorities in opposition to the summary judgment motion.

3.   Irwin's motion for summary judgment was also based on the ground that Short was a special employee of Powerine and thus Irwin, as the general employer, was relieved of liability for the special employee's negligence.   It is unclear on our record upon which ground the trial court granted summary judgment.   However, neither appellants nor respondent discusses the special employment issue or attempt to justify the granting of the summary judgment motion on this ground.   Thus, we also do not discuss this issue, deeming Irwin's silence to be a concession that the summary judgment cannot be upheld on this ground.

4.   Knight involved a plaintiff injured in an informal game of touch football.   The court concluded “that 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․  [¶]  Therefore, we conclude that defendant's conduct in the course of the touch football game did not breach any legal duty of care owed to plaintiff.   Accordingly, this case falls within the primary assumption of risk doctrine, and thus the trial court properly granted summary judgment in favor of defendant.”  (3 Cal.4th at pp. 320–321, 11 Cal.Rptr.2d 2, 834 P.2d 696, fn. omitted.)

5.   We do not deem it necessary to address the arguments in the dissent pertaining to the firefighter's rule because the basis of our decision is not the firefighter's rule but the primary assumption of risk doctrine.   Although we believe that Knight raises the question of the parameters of the firefighter's rule, it is not necessary for us to address this issue here.

1.   Some might quarrel with this policy analysis.   From the public firefighters' perspective, at least, this litigation would not be a wash, at least to the extent it resulted in damage awards from tortfeasors (and their insurers) larger than the compensation payments and pensions they received out of public tax revenues.   Also, to the extent those who cause the most fires are different from those who bear the higher tax burden such litigation would tend to shift the overall cost of fires in the direction of those who cause those fires (or those who purchase the products or engage in the activities which involve a high risk of fire).   But in any event this public policy factor has been accepted by the California Supreme Court as a reason for continuing the firefighter's rule in this state and must be considered in setting the boundaries of that rule.

2.   As this discussion suggests, there might be a public policy reason for relieving the private firefighter's own employer of a duty of care toward its firefighters.   Analogizing to the policy supporting the public “firefighter's rule,” that private employer has paid the private firefighter to confront that particular risk (and to pay for compensating their injuries) in the same sense the taxpaying public does so for public firefighters.   It is even arguable there is a public policy reason for relieving those who subscribe to a private firefighting service from a duty of care toward the firefighting service's paid firefighters.   In this instance, the rationale would be that the price those subscribers paid to the firefighting service included the cost of compensating the service's employees for their risk and for their injuries.This public policy reason would not extend, however, to a tortfeasor other than the firefighters' own employer or a subscriber to that employer's firefighting service (assuming it operated one).   It certainly has no application to a tortfeasor like respondent who did not pay these private firefighters in any sense to confront the risk or to compensate them for any injuries they sustained as a result of the risk.   To analogize to the pickup football game in Jewett, the primary assumption of the risk applies only to those who agreed to participate in the game.   They are deemed to have absolved each other of a duty of care toward one another.   However, an interloper who suddenly charged onto the field in the middle of the game and tackled one of the participants would owe a duty of care toward that participant.   The fact the participants are deemed to have absolved each other of a duty of care does not mean they have surrendered their right to a duty of care from third parties not involved in the game.   Similarly, even assuming private firefighters were deemed to have absolved their employers of a duty of care does not mean they have absolved other persons of that duty of care.

LILLIE, Presiding Justice.

FRED WOODS, J., concurs.