Bartholomew v. Klingler Co.

• Decision Date: 22 December 1975
• Citation: 53 Cal.App.3d 975,126 Cal.Rptr. 191
• Court: California Court of Appeals Court of Appeals
• Parties: Bertram BARTHOLOMEW, Jr., Plaintiff and Appellant, v. The KLINGLER COMPANY, Defendant and Respondent. Civ. 46442.

Page 191

126 Cal.Rptr. 191

53 Cal.App.3d 975

Bertram BARTHOLOMEW, Jr., Plaintiff and Appellant, v. The KLINGLER COMPANY, Defendant and Respondent.

Civ. 46442.

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

Dec. 22, 1975.

Rehearing Denied Jan. 19, 1976.

Jefferson, Hopkins & Reed and Albert E. Hopkins, Los Angeles, for plaintiff and appellant.

Sweeney, Cozy & Diederich and Daniel B. Diederich, Torrance, for defendant and respondent.

HANSON, Associate Justice.

INTRODUCTION

Plaintiff Bertram Bartholomew, Jr., a police officer (hereinafter plaintiff), appeals from a dismissal following the granting of a motion for judgment on the pleadings in favor of defendant The Klingler Company, a landowner (hereinafter defendant). Plaintiff alleged that he sustained personal injuries when he fell through the ceiling in defendant's building while searching for possible intruders after responding to a silent burglar alarm.

THE PLEADINGS

Plaintiff Bartholomew in his 'First Amended Complaint for Personal Injuries' alleges in substance that on January 27, 1971, defendant Klingler was the owner and in possession of certain premises in Gardena, California, where it manufactured paper products; that he was a Deputy Sheriff for the County of Los Angeles who went to the premises in response to a warning from a silent burglar alarm system that defendant knew or should have known that he, a police officer, would enter upon the premises if the silent burglar alarm was activated; that when he arrived at the premises a servant or agent of defendant opened the door; that there was an inner office located within the premises which had an overhead ceiling; that on the outer wall of the office defendant maintained a ladder which led to the ceiling of the inner office; that stored on the ceiling of this office were many large boxes and a large, furnace-like structure where a person could conceal himself; that defendant's servant or agent knew or should have known of the defective condition of the ceiling which constituted a hidden danger since it would not support a person's weight; that he received no warning; that in the course of his search of the premises for possible intruders he ascended the ladder, stepped onto and fell through the ceiling of the inner office, thus injuring himself.

Plaintiff further alleges as second, third and fourth causes of action that defendant's failure to comply with certain statutory standards and safety devices constituted the proximate cause of his injuries.

Defendant's answer denies the allegations of the complaint and alleges as an affirmative defense that plaintiff's action is barred because the injuries occurred as he carried out his normal duties as a police officer.

The trial court granted defendant's motion for judgment on the pleadings on the basis that recovery was barred, as a matter of law, based upon analogy to the 'fireman's rule' enunciated in Scott v. E. L. Yeager Constr. Co., 12 Cal.App.3d 1190, 91 Cal.Rptr. 232, and Giorgi v. Pacific Gas & Elec. Co., 266 Cal.App.2d 355, 72 Cal.Rptr. 119.

Plaintiff appeals.

CONTENTIONS

On appeal plaintiff police officer contends that the court below erred in granting the judgment on the pleadings because the abolition of status as a determinant of the property owner's duty (Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561), the removal of the defense of assumption of risk (Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226), and the limitations inherent in the 'fireman's rule' militate against use of the 'fireman's rule' to bar his action.

Defendant-respondent argues that the 'fireman's rule' is applicable to the facts of the present case because, although there is no California authority directly in point, policemen and firemen are generally considered to constitute a special class with a Sui generis status. (Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 45 N.W.2d 549.)

Thus, the sole issue, broadly stated, is whether or not a police officer who comes on premises in the course of duty may recover from a landowner damages for personal injuries caused by a known but hidden danger of which the officer received no warning.

DISCUSSION

The trial court granted the judgment on the pleadings on the basis that recovery by plaintiff, a police officer, was barred as a matter of law by analogy with the 'fireman's rule.'

The 'fireman's rule,' as stated in Scott v. E. L. Yeager Constr. Co., supra, 12 Cal.App.3d, at pages 1198--1199 is, 91 Cal.Rptr. at page 238: '. . . that where the defendant's negligence, whether active or passive, creates an apparent risk, which is of the type usually dealt with by firemen, and which is the cause of the fireman's presence, and which is the direct cause of the fireman's injury, the defendant is not liable to the fireman.' (See also Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d at 359, 72 Cal.Rptr. 119.)

We conclude that the facts as alleged in the complaint remove the instant case from the limited ambit of the 'fireman's rule.' In addition, recent California Supreme Court decisions have undercut the rationale supporting the rule, which militate against extending the ambit of the rule to the case at bench.

The Scott and Giorgi cases are factually distinguishable from the case at bench. The 'fireman's rule' has not been applied in California to negligence other than that which started the fire. The court in Scott carefully pointed out the limitations to application of the rule when it said: 'We need not and do not deal with situations involving intentional or willful or wanton misconduct, Nor situations in which there is some hidden danger known to the defendant but not to the fireman, nor situations in which the fireman is injured as a result of some risk beyond those inevitably involved in firefighting. Neither do we deal with those situations in which the defendant's negligence occurred after the fireman arrived on the scene and materially enhanced the risk of harm or created a new risk of harm. None of those situations are presented by the case at bench.' (Italics added.) (Scott v. E. L. Yeager Constr. Co., supra, 12 Cal.App.3d at p. 1199, 91 Cal.Rptr. at p. 238.) The court in Giorgi, supra, applied the 'fireman's rule' only to a fireman involved in fighting a fire, and the cause of action was instituted against a party whose passive negligence caused that fire.

The complaint in the present case alleges that plaintiff police officer entered upon defendant's property in the line of his official duty, that a known concealed defect existed on the premises, and that defendant failed to warn him of the danger despite the opportunity to do so. The suggestion has been made by courts in other jurisdictions that the existence of such facts may establish liability.

'(W)e believe that the better rule by far is that landowners and occupants alike owe a duty to firemen to warn them of hidden perils where the landowner or occupant has knowledge of the peril and the opportunity to give warning.' (Shypulski v. Waldorf Paper Products Co., supra, 45 N.W.2d at p. 553.) The court in Beedenbender v. Midtown Properties, 4 A.D.2d 276, 164 N.Y.S.2d 276, at pages 280--281 (1957), stated: 'Whether they (policemen and firemen) have entered to rout a prowler or to fight a fire on the same or on the adjacent premises, whether they have been summoned by the owner or enter of their own volition, the duties owed them do not vary. The duties are two-fold. First, the owner is obliged to use reasonable care to keep in safe condition those parts of the premises which are utilized as the ordinary means of access for all persons entering thereon . . .. Second, if the owner knows of the presence on the...