City of Sacramento v. Superior Court

• Decision Date: 30 April 1982
• Citation: 182 Cal.Rptr. 443,131 Cal.App.3d 395
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF SACRAMENTO, et al., Petitioners, v. The SUPERIOR COURT of the State of California In and For the COUNTY OF SACRAMENTO, Respondent, John D. GEORGE, Real Party in Interest. Civ. 20753.

Page 443

182 Cal.Rptr. 443

131 Cal.App.3d 395

CITY OF SACRAMENTO, et al., Petitioners, v. The SUPERIOR COURT of the State of California In and For the COUNTY OF SACRAMENTO, Respondent John D. GEORGE, Real Party in Interest.

Civ. 20753.

Court of Appeal, Third District, California.

April 30, 1982.

Memering & DeMers and Mark Hurst, for petitioners.

No appearance for respondent.

White & White and Eugene E. White, for real party in interest.

REYNOSO, Associate Justice. ^*

Petitioners City of Sacramento, Officer Kane, and Officer Lem, are defendants in a personal injury action brought by real party in interest John D. George. For convenience we will refer to the parties by their designations in the trial court. Defendants seek a peremptory writ of mandate directing the respondent superior court to vacate its order denying their motions for summary judgment, and to enter an order granting said motions. Defendants contend that they are immune from liability for negligence, that plaintiff is barred from recovery by the "fireman's rule," and that the officer defendants had no duty towards plaintiff, breached no duty, and did not cause plaintiff's injuries.

We hold that the officer defendants are immune from liability for negligence and we issue a peremptory writ of mandate on their behalf. We reject each of the contentions of the defendant City and deny its petition for a peremptory writ of mandate.

I

The factual framework of the underlying litigation is not in dispute. At about 11:20 p. m. on July 8, 1979, Sacramento City Police Officers Kane and Lem were standing outside of their patrol vehicle at the intersection of 10th Street and the K Street Mall. At that time they observed Carlos Michael Fajardo drive through a red light at that intersection. Kane and Lem entered their vehicle to pursue Fajardo, and somewhere between I and J Streets Kane claimed to have activated his red lights.

Fajardo had been drinking that night. When he passed through the intersection at 10th and K Streets he saw Officers Kane and Lem and rather stupidly decided to continue running red lights in the hopes of getting away. At about the time Fajardo reached the intersection of 10th and I Streets Officers Kane and Lem pulled out to give pursuit and Fajardo noticed them in his mirror. He nevertheless continued his course of action, running the red light at 10th and I Streets and attempting to run the red light at 10th and H Streets.

On the date in question plaintiff was a California Highway Patrol Officer. He was still on duty at 11:20 p. m. while driving down H Street. As he drove down H Street he was parallel to a car driven by Stanley Yarbrough in the center lane and a Continental Trailways bus in the far right-hand lane. The bus blocked his line of vision to the right. The bus stopped at the intersection of 10th and H Streets, and Yarbrough and plaintiff drove into the intersection. At that same time Fajardo was attempting to run the red light at that intersection and his vehicle glanced off Yarbrough's vehicle and struck plaintiff's patrol vehicle.

Plaintiff filed a personal injury suit against Fajardo, the City and Officers Kane and Lem. He alleges that Officers Kane and Lem were negligent in that they failed to activate their red lights and siren in their pursuit of Fajardo. The City, he claims, negligently entrusted a patrol vehicle to the officers, and failed to adequately train them as to the proper safety procedures for a vehicle chase.

II

The applicable law begins with the Vehicle Code. Section 17004 provides: "A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm or other emergency call." This section provides statutory immunity to Officers Kane and Lem under the circumstances of this case. (See Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 883, 148 Cal.Rptr. 361, 582 P.2d 952.) Accordingly they were entitled to the entry of summary judgment in their favor.

Defendant City of Sacramento argues that it is entitled to immunity from liability in the circumstances of this case under Government Code section 815.2, subdivision (b), which provides that a public entity employer is immune from liability for the acts or omissions of an employee who is immune from liability. This contention has been specifically rejected by the Supreme Court in Brummett v. County of Sacramento, supra. Vehicle Code section 17001 provides that a public entity is liable for the negligent or wrongful act or omission in the operation of a motor vehicle by an employee within the scope of his employment. The specific provision for public entity liability in Vehicle Code section 17001 overrides the general derivative immunity provided by Government Code section 815.2. (See Brummett v. County of Sacramento, supra, 21 Cal.3d at p. 885, 148 Cal.Rptr. 361, 582 P.2d 952.)

III

Alternatively, defendants contend that plaintiff is barred from recovery for personal injury due to negligence because at the time of the accident he was a Highway Patrol Officer on duty. Defendant thus argues that the so-called "fireman's rule" precludes recovery.

The fireman's rule, which applies equally to police officers, finds its underpinnings in two principles. First, a person who, fully aware of the hazard created by the defendant's negligence, voluntarily confronts the risk for compensation should not be allowed to recover for injuries due to the particular risk involved; and second, firemen and police officers receive appropriate compensation from the public which reflects the risk inherent in their work. (Walters v. Sloan (1977) 20 Cal.3d 199, 204-205, 142 Cal.Rptr. 152, 571 P.2d 609.) In short, since it is the police officer's business to deal with the hazard which occasioned his injury: " '... he cannot complain of negligence in the creation of the very occasion for his engagement.' " (Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 359, 72 Cal.Rptr. 119.)

The policy reasons for the fireman's rule do not apply where an injury occurs due to negligence which is unrelated to the fireman or police officer's performance of his duties. This was recognized in Walters v. Sloan, supra, 20 Cal.3d at page 202, footnote 2, 142 Cal.Rptr. 152, 571 P.2d 609, in which the Supreme Court said: "Other negligent conduct or willful misconduct may create liability to the injured fireman or policeman. [Citations omitted.] Thus a police officer who, while placing a ticket on an illegally parked car is struck by a speeding vehicle may maintain an action against the speeder but the rule bars recovery against the owner of the parked car for negligent parking." This dictum was reiterated in Hubbard v. Boelt (1980) 28 Cal.3d 480, at page 486, 169 Cal.Rptr. 706, 620 P.2d 156. In Kocan v. Garino (1980) 107 Cal.App.3d 291, at pages 295-296, 165 Cal.Rptr. 712, the Court of Appeal held that a policeman injured by a defective condition in the defendant's back yard during a chase of a suspect was not barred by the fireman's rule from bringing an action against the homeowner. The police officer's engagement at the time of the injury was due to factors wholly independent of the homeowner's asserted negligence. In Hubbard v. Boelt, supra, the Supreme Court noted, without disapproval, the holding in Kocan v. Garino. (28 Cal.3d at p. 486, 169 Cal.Rptr. 706, 620 P.2d 156.)

The decisional law we have discussed leads us to the conclusion that, under the circumstances of this case, plaintiff is not barred from maintaining his action against defendants by the fireman's rule. His presence at the intersection in which the accident occurred was fortuitous and wholly independent of any conduct of Officers Kane and Lem and the suspect Fajardo. Although plaintiff was still on duty at the time of the accident, there was insufficient connection between the performance of his duties and the cause of his injuries to preclude recovery under the fireman's rule. We thus reject defendants' contention that the fireman's rule is applicable.

IV

In order for damage to be compensable under a negligence theory there must be: (1) a legal duty to use due car; (2) a breach of such legal duty; and (3) the breach as the proximate or legal cause of the resulting injury. (4 Witkin, Summary of Cal.Law (8th ed. 1974), Torts, § 488, p. 2749.) Defendants launch a wholesale defense--that they had no legal duty towards plaintiff, that they breached no duty, and that even if they could be considered negligent, their negligence was not the proximate cause of plaintiff's injuries.

Plaintiff bases his claim of negligence upon the asserted failure of Officers Kane and Lem to activate their red lights and/or siren. It is sufficient for our purposes to note that there has been shown conflicting evidence, and hence a factual question, as to whether the officers activated their red lights and siren, and if so at which point. We must therefore consider whether the failure to do so may result in liability under the circumstances presented here.

Vehicle Code section 21055 exempts authorized emergency vehicles from certain specified rules of the road under certain circumstances. A police vehicle is exempt from these rules of the road if it is being driven in response to an emergency call, while engaged in rescue operations, or is in the immediate pursuit of an actual or suspected violator of the law. The exemption under such circumstances applies "(b) If the driver of the vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to other drivers and pedestrians." (Veh.Code, § 21055, subd. (b).) A siren is not to be...