Donohue v. San Francisco Housing Authority

• Decision Date: 24 May 1991
• Docket Number: No. A049317,A049317
• Citation: 1 Cal.App.4th 1231,281 Cal.Rptr. 446
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 230 Cal.App.3d 635, 1 Cal.App.4th 1231, 7 Cal.App.4th 1620 230 Cal.App.3d 635, 1 Cal.App.4th 1231, 7 Cal.App.4th 1620 Robert DONOHUE, Plaintiff and Appellant, v. SAN FRANCISCO HOUSING AUTHORITY et al., Defendants and Respondents.

Page 446

281 Cal.Rptr. 446

Previously published at 230 Cal.App.3d 635, 1 Cal.App.4th 1231, 7 Cal.App.4th 1620

230 Cal.App.3d 635, 1 Cal.App.4th 1231, 7 Cal.App.4th 1620

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.

May 24, 1991.

Review Granted Aug. 15, 1991.

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

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

SMITH, Associate Justice.

A San Francisco fire fighter was injured when he slipped on wet and slippery stairs during an unannounced fire safety inspection of a building owned by the San Francisco Housing Authority (SFHA). He brought this action for negligence against SFHA. SFHA moved for summary judgment based on the twin defenses of the "fireman's rule" and traditional assumption of the risk. The trial court granted the motion and plaintiff appeals. ¹ We will decide that the fireman's rule does not apply to the facts here, but that the common law doctrine of assumption of the risk does. We will also determine that Civil Code section 1714.9 does not preclude application of the common law defense, since the claimed tortious conduct occurred prior to plaintiff's arrival on the premises. Accordingly we will affirm the judgment.

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 slipped on stairs (or in one instance a ladder) on five separate occasions prior to the accident, although all of the falls occurred under firefighting conditions.

APPEAL

I Continued Viability of Assumption of the Risk

The basis for the motion for summary judgment was that plaintiff's recovery from SFHA was barred by either the "fireman's rule" or the doctrine of reasonable implied assumption of the risk. The trial court's order did not specify the ground for its decision; however, if the motion was good on any ground, thee judgment must be upheld on appeal. (Hatch v. Collins (1990) 225 Cal.App.3d 1104, 1113, 275 Cal.Rptr. 476.)

It has long been a tenet of the common law that one who reasonably and voluntarily encounters a known peril cannot recover for injuries caused by that danger. The doctrine, also known as "reasonable implied assumption of the risk," arises by virtue of an "inferred agreement to relieve a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in encountering a known danger." (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 102, 243 Cal.Rptr. 536, emphasis original.) Reasonable assumption of the risk provides the cornerstone of the "fireman's rule" which prevents firemen and policemen injured in the course of their duties from recovering from those whose negligence exposed them to the risk of such injury. (Hubbard v. Boelt (1980) 28 Cal.3d 480, 484, 169 Cal.Rptr. 706, 620 P.2d 156; Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609;Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 360, 72 Cal.Rptr. 119.) The rationale is that one whose occupation by its very nature exposes him to particular risks of harm "cannot complain of negligence in the creation of the very occasion for his engagement." ( Hubbard v. Boelt, supra, 28 Cal.3d at p. 484, 169 Cal.Rptr.706,620 P.2d 156 , citing Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d at p. 359, 72 Cal.Rptr. 119, internal quotation marks omitted.)

Plaintiff urges that both reasonable assumption of the risk and its offspring, the fireman's rule, have been subsumed by the adoption of comparative negligence. Fourteen years after the California Supreme Court decided Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 [7 Cal.App.4th 1626] P.2d 1226, it has still not resolved this issue. ² Without rehashing the arguments for and against, we will simply record our concurrence with the overwhelming majority of cases holding that reasonable assumption of the risk remains a complete defense after Li. (Hacker v. City of Glendale (1991) 228 Cal.App.3d 1013, 1019, 279 Cal.Rptr. 371;Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 562, 260 Cal.Rptr. 1;Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477, 255 Cal.Rptr. 755; King v. Magnolia Homeowners Assn. (1988) 205 Cal.App.3d 1312, 1315-1316, 253 Cal.Rptr. 140; Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 184, 229 Cal.Rptr. 612; Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 102 105, 243 Cal.Rptr. 536; Nelson v. Hall (1985) 165 Cal.App.3d 709, 714, 211 Cal.Rptr. 668;Baker v. Superior Court (1982) 129 Cal.App.3d 710, 719, 181 Cal.Rptr. 311.)

II Applicability of the Fireman's Rule

SFHA urges that plaintiff was barred from bringing this action by the fireman's rule. It notes that he was injured in the normal course of performing his duties and that "the hazard of slipping and falling on stairs in general, and on wet stairs in particular, was part and parcel of [plaintiff's] job as a fire fighter."

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 as to the applicability of the rule, however.

The fireman's rule 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, supra, 28 Cal.3d at p. 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.)The negligence, whether active or passive, 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.) Thus, in Malo, supra, an officer stopped two vehicles for speeding and pulled them to the side of the road. After all vehicles came to a full stop, defendant, who was driving one of the vehicles, mishandled the gear shift lever, causing him to rear-end the officer's patrol car. The court held the fireman's rule was inapplicable because the injury "did not result from the negligent act of speeding but from the entirely separate and independent act of driving an unfamiliar vehicle." (126 Cal.App.3d at p. 548, 178 Cal.Rptr. 774 ; see also Spargur v. Park (1982) 128 Cal.App.3d 469, 471-473, 180 Cal.Rptr. 257 [motorcycle officer struck by car he stopped for speeding after it was pulled to the side of the road; triable issue of fact whether injury occurred in the continuation of the speeding violation or because of independent act].)

Here the conduct which is claimed to confer liability on SFHA was the 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, however, 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 look for fire code violations.

This case is therefore governed by Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 218 Cal.Rptr. 256. A fire fighter was injured while performing his duties when he fell through an unguarded and concealed opening in the roof of defendant's building. In reversing a judgment after the sustaining of a demurrer without leave, the court noted that " 'in California, the fire[fighter]'s rule has never been construed as shielding a defendant from liability for acts of misconduct which are independent from those which necessitated the summoning of the fire [fighter]. [Citations.] The rule has only been applied to prohibit a fire [fighter] from recovering for injuries caused by the very misconduct which created the risk which necessitated his [or her] presence.' " (172 Cal.App.3d at p. 440, 218 Cal.Rptr. 256 , quoting Lipson v. Superior Court (1982) 31 Cal.3d 362, 369, 182 Cal.Rptr. 629, 644 P.2d 822, footnote in quoted text omitted, emphasis original.)

Since the injuries were not caused by an act of misconduct which prompted plaintiff's presence in the building, the fireman's rule does not bar the present claim.

III Traditional Assumption of...