Farmer v. Union Oil Co.

Decision Date14 November 1977
Citation75 Cal.App.3d 42,141 Cal.Rptr. 848
PartiesBill FARMER et al., Plaintiffs and Appellants, v. UNION OIL COMPANY, Defendant and Respondent, California State Department of Conservation, etc., Intervenor and Appellant. Civ. 3253.
CourtCalifornia Court of Appeals Court of Appeals
Angelo L. Ferrari, Ferrari & Cole, Fresno, for plaintiffs and appellants
OPINION

FRANSON, Associate Justice.

We review the propriety of the trial court's order sustaining without leave to amend a general demurrer to appellants' complaint for personal injuries on the ground that appellants' action is barred by the "fireman's rule." This rule provides that a paid fireman has no cause of action against one whose negligence caused the fire in which he was injured. (Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 360, 72 Cal.Rptr. 119, 86 A.L.R.2d 1209; see Comment, An Examination of the California Fireman's Rule (1975) 6 Pacific L.J. 660; see also 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 491, pp. 2753-2755.) The basis of the rule is that an owner or possessor of property is deemed to owe no duty of care to avoid the special services of a fireman.

Appellants allege they were employed as firemen by the Mid-Valley Fire Department on June 13, 1975, when they were called to extinguish a fire involving a gasoline tank truck owned by respondent Union Oil Company. The complaint alleges that respondent, as the owner and operator of the truck, and defendant Valley Kenworth Corporation, as a repairer of the truck, were negligent in that they improperly secured a muffler to the header pipe of the truck, causing the muffler to come loose, thereby severing the fuel lines of the truck and causing the fire. It was alleged that the defendants' negligence was the proximate cause of the fire to which appellants were summoned and the proximate cause of the injuries sustained by appellants while fighting the fire.

A complaint in intervention was filed by State Compensation Insurance Fund alleging that it had provided $18,216.41 in worker's compensation benefits to appellants and that it would be obligated to pay additional benefits to appellants thereby entitling it to be subrogated to the rights of the appellants against the defendants.

Defendant Valley Kenworth Corporation filed a general demurrer to appellants' complaint and to the amended complaint in intervention asserting that appellants' causes of action for negligence were barred by the fireman's rule. Respondent Union Oil Company joined in the demurrer. The demurrer was sustained without leave to amend.

Appellants filed a timely appeal; 1 however, on June 12, 1977, the appeal was dismissed as to the defendant Valley Kenworth Corporation, leaving Union Oil Company as the remaining respondent in the appeal.

DISCUSSION

Appellants challenge the validity of the fireman's rule on two grounds: First, regardless of the Court of Appeal decisions in Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355, 72 Cal.Rptr. 119 and Scott v. E. L. Yeager Constr. Co. (1970) 12 Cal.App.3d 1190, 91 Cal.Rptr. 232 and the dicta of the Supreme Court in Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 99 Cal.Rptr. 29, 491 P.2d 821 upholding the rule, the rule must fall in the light of the Supreme Court's declaration in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 that under the mandate of Civil Code section 1714, 2 all persons are liable for injuries proximately caused to others by a failure to exercise reasonable care in the management of their property, absent statutory or strong policy reasons to the contrary. (Id., at p. 112, 70 Cal.Rptr. 97, 443 P.2d 561.) Appellants ask this court to declare the fireman's rule an anachronism for the reasons expressed in Rowland v. Christian, supra.

Second, assuming the fireman's rule is supportable on policy grounds even today, it nonetheless cannot be enforced against appellants because to do so would deprive them of the equal protection of the laws in that other public safety officers such as policemen and highway patrolmen are not subject to the fireman's rule. Appellants argue that policemen and other public safety officers are free to sue third parties in negligence for injuries incurred in the course of their official duties and that appellants must be accorded the same right.

For the reasons to be expressed, we hold that neither of appellants' contentions has merit.

It is well-established in California that a fireman has no cause of action against one whose negligence caused the fire in which he was injured. In Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355, 72 Cal.Rptr. 119, four firefighters were killed and two were injured in fighting a fire. All were federal employees trained in firefighting work and were required to fight forest fires as part of their duties. Plaintiffs' theory in their wrongful death and bodily injury actions was that the defendant utility's negligent maintenance of an electric power pole and wires caused the fire, and that this negligence rendered defendant liable for the deaths and injuries which occurred when a fire trapped the six men.

In reversing a judgment for the plaintiffs, the Giorgi court first observed that other jurisdictions were all but unanimous in denying an injured fireman recovery from one whose sole connection with the injury is that his negligence caused the fire. (266 Cal.App.2d at p. 357, 72 Cal.Rptr. 119.) The court quoted the Supreme Court of New Jersey as follows:

"(T)he 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. . . . (I)t is the fireman's business to deal with that very hazard 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 (1960) 31 N.J. 270, 157 A.2d 129, 130-131; id., 266 Cal.App.2d at pp. 359-360, 72 Cal.Rptr. at p. 122.)

The Giorgi court then made the following observations:

"We note that one policy consideration often referred to in modern tort law is the 'spreading of the risk.' But, . . . the reach of the tax collector is both broader and more persuasive than that of the premium taker. The employer here is the United States, with the broadest collection basis extant. Placing the risk upon the public body which employs the fireman, . . . thus would spread the risk over the broadest base.

"We note, too, the policy of efficient judicial administration. The great majority of fires doubtless are caused or contributed to by passive human negligence. Most fires of any consequence result in injury, happily many of them rather minor, to some firemen. Judicial determination of the cause of a fire, after its destruction has been wrought, presents difficult problems requiring lengthy trials." (Giorgi, supra, at p. 360, 72 Cal.Rptr. at p. 122.)

Giorgi rejected the two historical bases for the fireman's rule: assumption of the risk by the fireman and the traditional distinctions among land occupiers, that is, the limited duty of care owed to a licensee. Giorgi correctly stated that the defense of assumption of the risk in its strict sense was unavailable in California (see Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 32 Cal.Rptr. 193, 383 P.2d 777), and the distinctions among land occupiers had been repudiated in Rowland v. Christian, supra, 69 Cal.2d 108, 118-119, 70 Cal.Rptr. 97, 443 P.2d 561.

Giorgi concluded that a paid fireman has no cause of action against one whose passive negligence caused the fire in which he was injured. The court, however, expressly declined to deal with the arsonist or with one who deliberately turns in a false alarm. A petition for a hearing by the Supreme Court was denied in Giorgi.

In Scott v. E. L. Yeager Constr. Co., supra, 12 Cal.App.3d 1190, 91 Cal.Rptr. 232, plaintiff, employed by the state as chief of a voluntary fire department, recovered judgment against a contractor and a gas company for severe personal injuries. He had been burned by the ignition of gas escaping from the gas company's main which had been ruptured by the contractor's employee. The Court of Appeal reversed the judgment, noting that defendants' negligence had created the very hazard necessitating plaintiff's presence at the scene of the accident, the very hazard plaintiff was paid and trained to handle, and the very hazard which resulted in his injury.

Scott took cognizance of the fact that in Giorgi, supra, the court "unequivocally rested its decision upon the 'fireman's rule' and expressly recognized that the question had not previously been decided in California." (Scott, supra, at p. 1194, 91 Cal.Rptr. at p. 234). Scott then held that in view of the denial of the hearing by the California Supreme Court and in the absence of any contrary decision of that court, "we are constrained to follow the rule insofar...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT