Baker v. Superior Court

• Decision Date: 11 March 1982
• Citation: 129 Cal.App.3d 710,181 Cal.Rptr. 311
• Court: California Court of Appeals Court of Appeals
• Parties: Zella D. BAKER, et al., Petitioners, v. SUPERIOR COURT of the State of California for the COUNTY OF ORANGE, Respondent. Helen LEACH, et al., Real Parties in Interest. Civ. 27414.

Page 311

181 Cal.Rptr. 311

129 Cal.App.3d 710

Zella D. BAKER, et al., Petitioners, v. SUPERIOR COURT of the State of California for the COUNTY OF ORANGE, Respondent.

Helen LEACH, et al., Real Parties in Interest.

Civ. 27414.

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

March 11, 1982.

Hearing Denied May 27, 1982.

Ron C. Gunsaulus, Inc., Santa Ana, Timothy P. Johnson, Los Angeles, and Ron C. Gunsaulus, Santa Ana, for petitioners.

Rosen, Rosen & Leavitt, Los Angeles, and Leonard Sacks, Northridge, for real parties in interest.

OPINION

KAUFMAN, Associate Justice.

Petitioners seek a writ of mandate to compel the respondent Orange County Superior Court to vacate its order denying their motion for summary judgment and to enter a new order granting the motion. The issue presented is whether the fireman's rule applies to bar recovery of damages for injuries sustained by paid-call firefighters in the course of fighting a fire.

The facts are not in dispute. On August 4, 1976, pursuant to a burn permit from the Department of Forestry an agricultural burn was commenced at the Baker Ranch in Orange County. During the course of the burn the fire went out of control and the Orange County Fire Department was called by the foreman of the Baker Ranch who was in charge of the agricultural burn.

Real parties in interest Helen Leach and Mary Park (hereafter collectively plaintiffs) were paid-call members of the Orange County Fire Department. As such if they were informed of a fire and elected to assist in fighting it they were paid the sum of $5 regardless of the length of time spent fighting the fire. They provided their own transportation to the scene of the fire and their own firefighting clothing.

Ms. Leach first volunteered to be a paid-call member of the Department on October 6, 1975. Prior to the date of the Baker Ranch fire she had received 27 hours of training and had assisted previously in suppressing a number of fires. Her regular employment was as a full-time cook for the Division of Forestry.

Ms. Park, a homemaker, first volunteered to be a paid-call member of the Department on October 6, 1975, and had received 16 hours of training before the date of the Baker Ranch fire. She too had assisted previously in suppressing a number of fires.

Both plaintiffs were notified of the Baker Ranch fire and elected to assist in fighting it. In the course of the fire both plaintiffs were riding in the back of a truck supplied by the Department. Apparently the flames were about to envelop the truck and it had started backing up to escape the flames when plaintiffs jumped to the ground and the truck rolled over them. Each suffered multiple injuries from being run over as well as burns from the fire. Neither plaintiff would have been at the fire or on the truck were they not paid-call members of the fire department.

Plaintiffs instituted this suit against the owners and various employees of Baker Ranch, seeking compensatory and punitive damages for their injuries, alleging that defendants were guilty of negligence; violations of unspecified statutes, ordinances and regulations; and wilful misconduct in setting the fire and failing to control it. Plaintiffs' respective husbands joined in the action seeking damages for loss of consortium. Defendants moved for summary judgment ¹ on the ground that liability on their part was foreclosed by the fireman's rule. The trial court denied defendants' motion and defendants petitioned this court for mandate. We issued an alternative writ and the matter is now before us for decision.

Under the so-called fireman's rule persons by whose negligence a fire exists are held not liable for injuries suffered by firemen in attempting to put out the fire. The vitality of the rule has only recently been reaffirmed and, indeed, broadened by two decisions of the California Supreme Court, 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. However, plaintiffs here do not deny the existence of the rule, rather they contend the rule is inapplicable to volunteer paid-call firefighters. They assert the rule is applicable only to full-time professional firefighters who are paid to assume the risk whereas they characterize themselves as "part-time amateurs who obviously did not receive the training received by professional firefighters."

Defendants assert that plaintiffs by their own admission received special training in firefighting and, notwithstanding that they were to be only paid $5, having elected to engage in firefighting they assumed the known risks involved in firefighting to the same extent as the professional firefighters working beside them.

Both sides find support in the reasons for the rule, and we agree that that is the most likely source of a rational basis for decision.

Perhaps the best summary for our purposes is provided in Walters v. Sloan, supra, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609. The court stated: "The rule was born almost a century ago, earning nearly unanimous acceptance. [Citations.] [p] In recent years, the rule has been repeatedly attacked as being 'behind the times,' based on outdated concepts of tort liability. However, the courts in this and other jurisdiction[s] have answered the attacks, pointing out the rule is premised on sound public policy and is in accord with--if not compelled by--modern tort liability principles. [Citations.] ... [p] [T]he fireman's rule is based on a principle as fundamental to our law today as it was centuries ago. The principle is not unique to landowner cases but is applicable to our entire system of justice--one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby. We have consistently applied this concept in our recent pronouncements in other cases of basic tort doctrine. These include cases dealing with product liability (Luque v. McLean (1972) 8 Cal.3d 136, 145 [104 Cal.Rptr. 443, 501 P.2d 1163]), comparative fault (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 824-825 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393]), and employee negligence (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 500 et seq. [102 Cal.Rptr. 795, 498 P.2d 1043]); see Spencer v. G. A. MacDonald Constr. Co. (1976) 63 Cal.App.3d 836, 861-865 ).... [p] A second reason underlying the fireman's rule does not have a significant historical background, but rather is a modern one of public policy, adopted by progressive courts and based on fundamental concepts of justice. As succinctly stated in Solgaard v. Guy F. Atkinson Co. [ (1971) ] 6 Cal.3d 361, 369 [99 Cal.Rptr. 29, 491 P.2d 821], firemen ' " 'cannot complain of negligence in the creation of the very occasion for [their] engagement.' " (Giorgi v. Pacific Gas & Electric Co. [ (1968) ] 266 Cal.App.2d 355 ....' " (Walters v. Sloan, supra, 20 Cal.3d at pp. 202-205, 142 Cal.Rptr. 152, 571 P.2d 609; accord: Hubbard v. Boelt, supra, 28 Cal.3d at p. 484, 169 Cal.Rptr. 706, 620 P.2d 156.)

In further explication of the basis for the rule and its application in California, the court in Walters continued: "Former Chief Justice Weintraub of the Supreme Court of New Jersey explained the principle. '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.... [p] [I]t is the fireman's business to deal with that very hazard [the fire] and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences. Hence, for that risk, the fireman should receive appropriate compensation from the public he serves both in pay which reflects the hazard and in workmen's compensation benefits for the consequences of the inherent risks of the calling.' (Krauth v. Geller [ (N.J.1960) 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.

"First, they receive special presumptions of industrial causation as to certain disabilities. (Lab. Code, § 3212.) Second, special death benefits apply to public safety officers if they are under the Public Employees Retirement System. (Gov.Code, § 21363 et seq.) Third, if under that system or the County Employees Retirement Law of 1937, they are entitled to an optional leave of absence for up to one year with full pay. (Lab.Code, §§ 4800, 4850.) Fourth, their permanent disability benefits are fully payable despite retirement, and are not reduced by disability pensions even when both are paid for the same injury. (City of Palo Alto v. Industrial Acc. Com. (1965) 232 Cal.App.2d 305, 306 et seq. .) While the employees of some cities are not under the Public Employees Retirement System and in certain circumstances their disability benefits are offset by disability pension payments (e.g., Symington v. City of Albany (1971) 5...