Donohue v. San Francisco Housing Authority

• Decision Date: 15 June 1993
• Docket Number: No. A049317,A049317
• Citation: Donohue v. San Francisco Housing Authority, 20 Cal.Rptr.2d 148, 16 Cal.App.4th 658 (Cal. App. 1993)
• Court: California Court of Appeals
• Parties: Robert DONOHUE, Plaintiff and Appellant, v. SAN FRANCISCO HOUSING AUTHORITY et al., Defendants and Respondents.

Page 148

20 Cal.Rptr.2d 148

16 Cal.App.4th 658

Robert DONOHUE, Plaintiff and Appellant, v. SAN FRANCISCO HOUSING AUTHORITY et al., Defendants and Respondents.

No. A049317.

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

June 15, 1993.

Review Denied Sept. 16, 1993.

Thomas J. Brandi, Mylene L. Reuvekamp, Bianco, Brandi & Jones, San Francisco, for plaintiff and appellant.

McGee, Lafayette, Willis & Greene, Gary T. Lafayette, Kevin M. Clarke, San Francisco, for defendants and respondents.

SMITH, Associate Justice.

Robert Donohue, a San Francisco firefighter, brought this action for personal injuries after he slipped and fell on wet, slick stairs during an unannounced fire safety inspection of a building owned by the San Francisco Housing Authority (SFHA). The California Supreme Court remanded this case for reconsideration in light of Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight ), after we had affirmed summary judgment in favor of SFHA by applying traditional common law principles regarding assumption of the risk. Upon reconsideration in light of Knight, we conclude that assumption of the risk no longer presents an absolute bar to plaintiff's recovery, but in this factual setting constitutes a mere variant of the doctrine of contributory negligence. We will therefore reverse the judgment of the lower court.

BACKGROUND

The facts are basically undisputed. Plaintiff Robert Donohue was employed as a firefighter with the San Francisco fire department from 1955 until his retirement in March of 1987. On March 26, 1986, in his capacity as battalion chief, plaintiff conducted a fire safety inspection of a low rise apartment building owned by SFHA. The building consists of three floors with a flight of concrete stairs leading from the third floor to a penthouse door, which opens out onto the roof.

Plaintiff noticed that the stairs were wet and, since he observed two or three men with a hose leaving the scene, concluded that they had just finished washing down the stairs. As part of his inspection, plaintiff climbed the stairway to see if the penthouse door was locked, a condition not permitted by the fire code. Having inspected the building a number of times before, he knew the door had sometimes been left locked.

Plaintiff was wearing crepe-soled shoes issued by the fire department and was particularly cautious in traversing the stairway, knowing that the steps were wet and having observed puddles and mud. As he descended the stairs from the penthouse door, plaintiff slipped and fell on the landing above the third floor, breaking his arm. After the injury, plaintiff did not return to work and went on disability retirement.

The concrete steps did not have skid-resistant treads on them, despite the fact that several years earlier the SFHA safety committee had recommended that they be installed. In accordance with routine practice, the fire department did not give SFHA any advance notice of the inspection, although SFHA had general knowledge that its buildings were being inspected on a quarterly basis.

According to injury reports kept by the fire department, plaintiff had multiple slip-and-fall accidents prior to the incident in question, although all of the accidents occurred under firefighting conditions.

Defendant moved for summary judgment based on the theory that plaintiff's recovery was barred by either the firefighter's rule or traditional common law assumption of the risk. The court granted summary judgment without specifying which ground formed the basis of its ruling.

APPEAL

I The Knight Opinion

In Knight, a three-judge plurality of the state Supreme Court (with a fourth, Justice Mosk, concurring in the result) effectively abolished the previous judicial categorization of assumption of the risk into "reasonable" and "unreasonable" forms for purposes of determining whether the defense is subsumed by comparative negligence as set forth in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (Li ). After analyzing Li and the authorities it cites, Knight declared that survival of the doctrine, in any given fact situation, should instead turn on the distinction between "primary" and "secondary" assumption of the risk. Primary assumption of the risk according to Knight refers to "those instances in which the assumption of the 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...." Secondary assumption involves "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 ... ." (Knight, supra, 3 Cal.4th 296, 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.) In the second instance, the plaintiff's conduct is simply equivalent to contributory negligence and not deemed an absolute bar to recovery.

Knight held that "the 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, supra, 3 Cal.4th 296, 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Finally, since the existence and scope of the defendant's duty in a given situation is a legal question, not a factual one, the applicability of the assumption of the risk doctrine is especially amenable to resolution by summary judgment motion. (Knight, supra, 3 Cal.4th 296, 313, 11 Cal.Rptr.2d 2, 834 P.2d 696.) With these principles in mind, we turn to the case at bar.

II Firefighter's Rule

SFHA continues to maintain that plaintiff is barred from recovery by application of the firefighter's rule, since his injury was incurred in the performance of his duties and the hazard of slipping and falling on wet stairs in particular was part and parcel of plaintiff's job as a firefighter.

Knight, supra, expressly declares that the firefighter's rule survives as an example of "primary" assumption of the risk. In footnote 5, the court states that 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." (3 Cal.4th 296, 309-310, 11 Cal.Rptr.2d 2, 834 P.2d 696, emphasis added.) Since Knight neither expanded nor restricted the scope of the rule, we must still determine its applicability here.

In our prior opinion in this case, we found that the firefighter's rule did not apply because it does not bar recovery for independent acts of misconduct which were not the cause of the plaintiff's presence on the scene. (Hubbard v. Boelt (1980) 28 Cal.3d 480, 486, 169 Cal.Rptr. 706, 620 P.2d 156; Rowland v. Shell Oil Co. (1986) 179 Cal.App.3d 399, 403, 224 Cal.Rptr. 547.) In order for defendant to invoke the defense, the negligence must create an obvious risk and be the cause of the fireman's presence. (Malo v. Willis (1981) 126 Cal.App.3d 543, 547, 178 Cal.Rptr. 774.) We adhere to that conclusion.

The fact that plaintiff was injured while in the regular course of his duties as a fireman and that the hazard was one normally encountered as part of his job, are not dispositive. The negligent conduct at issue was SFHA's failure to install non-slip adhesive treads on the stairs coupled with the improper maintenance practice of hosing down the stairs. Neither of these acts was the reason for plaintiff's presence. Plaintiff was not summoned to the scene to inspect the slipperiness of the stairs, he was there to inspect for fire code violations. Since the injuries were not caused by an act of negligence which prompted plaintiff's presence in the building, the firefighter's rule does not bar the present claim. (Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 440, 218 Cal.Rptr. 256.)

III Primary vs. Secondary Assumption of the Risk

After Knight, whether a plaintiff's cause of action is barred by assumption of the risk or is a mere variant of contributory negligence no longer turns on the reasonableness of the plaintiff's conduct or his subjective awareness of the nature and magnitude of the danger. (Knight, supra, 3 Cal.4th 296, 309, 312-313, 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Instead, the central question is whether, in light of the nature of the activity and relationship of the parties, the defendant breached a duty of care toward the plaintiff or had no duty to remedy the danger which the plaintiff confronted. If the former, the defense is subsumed by comparative negligence principles and the claim survives. If the latter, the defense presents an absolute bar to the claim. (Id., at pp. 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Again Knight provides direct guidance relevant to our situation. After acknowledging that an owner or occupier of land owes a general duty of care to eliminate dangerous conditions on his property (3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696 citing Rowland v. Christian (1968) 69 Cal.2d...