Giorgi v. Pacific Gas & Elec. Co.

• Decision Date: 03 October 1968
• Citation: 72 Cal.Rptr. 119,266 Cal.App.2d 355
• Court: California Court of Appeals Court of Appeals
• Parties: Virginia M. GIORGI, an individual, and Robert Paul Giorgi, Lee Ann Giorgi, Stephen Howard Giorgi and Phillip Walsh Giorgi, minors, by Virginia M. Giorgi, their Guardian ad Litem, Plaintiffs and Respondents, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Defendant and Appellant. PEOPLE of the State of California, Plaintiff and Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Appellant. Geraldine A. ST. PIERRE, Cynthia Claire St. Pierre and Marie Elizabeth St.Pierre, their Guardian ad Litem, Plaintiffs and Respondents, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Appellant. Dorothy A. RASCH, Connie Morse, Craig Rasch, a minor, by Dorothy A. Rasch, hisGuardian ad Litem, Plaintiffs and Respondents, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Appellant. Kent N. STOEL, Plaintiff and Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Appellant. Nina E. FOLEY, James Edward Foley, a minor, by Nina E. Foley, his Guardian adLitem, Plaintiffs and Respondents, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Appellant. Roy E. CHAPIN, Plaintiff and Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Defendant and Appellant. Civ. 24726--24732.

Page 119

72 Cal.Rptr. 119

266 Cal.App.2d 355

Virginia M. GIORGI, an individual, and Robert Paul Giorgi, Lee Ann Giorgi, Stephen Howard Giorgi and Phillip Walsh Giorgi, minors, by Virginia M. Giorgi, their Guardian ad Litem, Plaintiffs and Respondents, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Defendant and Appellant.

PEOPLE of the State of California, Plaintiff and Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Appellant.

Geraldine A. ST. PIERRE, Cynthia Claire St. Pierre and Marie Elizabeth St.Pierre, their Guardian ad Litem, Plaintiffs and Respondents, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Appellant.

Dorothy A. RASCH, Connie Morse, Craig Rasch, a minor, by Dorothy A. Rasch, hisGuardian ad Litem, Plaintiffs and Respondents, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Appellant.

Kent N. STOEL, Plaintiff and Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Appellant.

Nina E. FOLEY, James Edward Foley, a minor, by Nina E. Foley, his Guardian adLitem, Plaintiffs and Respondents, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Appellant.

Roy E. CHAPIN, Plaintiff and Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Defendant and Appellant.

Civ. 24726--24732.

Court of Appeal, First District, Division 3, California.

Oct. 3, 1968.

Rehearing Denied Nov. 1, 1968.

Hearing Denied Nov. 27, 1968.

W. K. Stewart, Pacific Grove, for Virginia M. Giorgi and others.

R. H. Connett, Sacramento, for the People.

Howell, Elson & Grogan, Berkeley, for Geraldine A. St. Pierre and others.

Glickman & Nicholas, Beverly Hills, for Dorothy A. Rasch and others.

Howell, Elson & Grogan, Berkeley, for Kent N. Stoel.

Ben M. Kochman, Los Angeles, for Nina E. Foley and others.

Nichols, Williams, Morgan, Digardi & Brookman, Oakland, for Roy E. Chapin.

Richard H. Peterson and Richard A. Raftery, San Francisco, for appellant.

DRAPER, Presiding Justice.

Seven actions, four for wrongful death, two for bodily injury, and one by the state for fire suppression costs (Health & Saf.Code, § 13009) were consolidated for trial and appeal. All plaintiffs had judgment, and defendant appeals.

The actions arise out of a fire which occurred in the Sierra National Forest in Mariposa County. Both federal and state fire suppression personnel were summoned. All six individuals killed or injured in fighting the fire were federal employees, five in the forest service and one in the soil conservation service. All were required to fight forest fires as part of their duties, and were trained in such work.

Plaintiffs' theory accepted by the jury, is that defendant's negligent maintenance of a pole and the wires thereon caused the fire, and that this negligence renders defendant liable for the deaths and injuries which occurred when a sudden flare or turn of the fire, about half a mile from its point of origin and some 3 1/2 hours after its start, trapped the six men. Defendant, as to the these six individuals, contends that the 'fireman's rule' bars recovery.

In referring to such a rule, some refinement of terms is required. One rule deals with the liability of an occupier of land to police, firemen and other officers who enter upon premises under a privilege bestowed by their official duties, and are injured by defects in the premises. There are differing views upon the issue. (See Anno., 86 A.L.R.2d 1205--1207--8; Rest.Torts, § 345; Note (1961) 47 Cornell L.Q. 119, Prosser Business Visitors and Invitees (1942) 26 Minn.L.R. 573; Note (1937) 35 Mich.L.R. 1157.) These varying views however, turn in some degree upon the distinctions among invitee, licensee and trespasser, and can have no application in California since abandonment of those distinctions (Rowland v. Christian (1968) 69 A.C. 89, 70 Cal.Rptr. 97, 443 P.2d 561). In any event, that rule could not apply on the facts here since the injuries did not occur upon land occupied by defendant.

The 'fireman's rule' here discussed, however, is that which negates liability to firemen by one whose negligence causes or contributes to the fire which in turn causes the death or injury of the fireman. This issue has not arisen in California. The only case cited by counsel (Pennebaker v. San Joaquin Light & Power Co., 158 Cal. 579, 112 P. 459, 31 L.R.A.,N.S., 1099) concerned death of a fireman who stepped upon a live wire in the burning building of a customer of defendant. Liability was asserted because defendant failed to cut off the electric current to that building. The reference to an occupier's duty to firemen (pp. 587--588, 112 P. 459) thus was wholly dictum and, moreover, does not deal with the rule we here consider.

Other jurisdictions are all but unanimous in denying recovery by an injured fireman from one whose sole connection with the injury is that his negligence caused the fire (e.g., Lunt v. Post Printing & Publishing Co. (1910) 48 Colo. 316, 332, 110 P. 203, 208, 30 L.R.A.,N.S., 60; Netherton v. Arends (1967) 81 Ill.App.2d 391, 225 N.E.2d 143; Buren v. Midwest Industries, Inc. (Ky.1964) 380 S.W.2d 96, 97; Aravanis v. Eisenberg (1965) 237 Md. 242, 206 A.2d 148, 153; Wax v. Cooperative Refinery Ass'n (1951) 154 Neb. 805, 808--809, 49 N.W.2d 707, 708--709; Sierra Pacific Power Co. v. Anderson (1961) 77 Nev. 68, 358 P.2d 892, 894; Clark v. Boston & M.R.R. (1917) 78 N.H. 428, 101 A. 795, 797, L.R.A.1918A; Krauth v. Geller (1960) 31 N.J. 270, 157 A.2d 129, 130--131; McGee v. Adams Paper & Twine Co. (1966) 26 A.D.2d 186, 271 N.Y.S.2d 698 aff'd 20 N.Y.2d 921, 286 N.Y.S.2d 274, 233 N.E.2d 289; Chesapeake & O. Ry. Co. v. Crouch (1968) 208 Va. 602, 159 S.E.2d 650, 653--654). Textwriters (2 Harper & Janes Torts (1956) 1503; Fleming, An Introduction to the Law of Torts (1967) p. 114) and annotators (86 A.L.R.2d p. 1208) recognize the broad acceptance of the rule. We find but one case (Houston Belt etc. Co. v. O'Leary (Tex.Civ.App., 1911) 136 S.W. 601) which, although perhaps distinguishable on its facts, arguably is to the contrary.

Plaintiffs seek to distinguish the case at bench on the ground that the cited decisions deal only with fires upon the occupier's land. The statement is inaccurate. A number of them (e.g., Chesapeake & O. Railway v. Crouch, supra, 159 S.E.2d 650; Clark v. Boston & M.R.R., supra, 101 A. 795) deal with fires which spread beyond the defendants' property, with the injury or death occurring on such separately owned land. In those instances where the fire remained on defendant's premises, there usually is discussion of the occupier's liability for defects in his premises. But the holdings of non-liability to firemen for negligent origination of the fire are not dicta. Rather, they deny the existence of a separate ground of liability, distinct from that of an occupier who maintains defective premises.

The case at bench cannot be distinguished upon the ground that the men here killed or injured were not paid firemen. Rather, their duties, for performance of which they were paid and had been trained, specifically included the fighting of fires. One was a fire crew foreman. Thus they do not fall within the ambit of those cases (Haverstick v. Southern Pac. Co., 1 Cal.App.2d 605, 37 P.2d 146 (also distinguishable because it turned upon code provisions not here applicable); Illinois Central R.R. v. Siler (1907) 229 Ill. 390, 82 N.E. 362, 15 L.R.A.,N.S., 819; St. Louis etc. R.R. Co. v. Ginn (Okl.1953) 264 P.2d 351) which permit recovery by an occupier acting in defense of his own property from a fire which, negligently caused, has spread to his land.

Thus, if the fireman's rule so widely followed elsewhere is to be applied in California, it would bar the recoveries of all individual plaintiffs here. The question remains, however, whether the rule, never either adopted or rejected in this state, should now be accepted as California doctrine.

The rule is old. Many of the decisions rest it upon assumption of the risk, a doctrine not applicable, in its strict sense, under the present California doctrine on that subject (see Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 32 Cal.Rptr. 193, 383 P.2d 777; Rogers v. Los Angeles Transit Line (1955) 45 Cal.2d 414, 289 P.2d 226). Many of the cases from other jurisdictions invoke the frequently criticized distinctions among trespasser, licensee and invitee, thus enveloping the discussions pertinent to our issue in a possible aura of outmoded antiquity. Few discuss the policy considerations which increasingly have become the determinant of tort liability in this and a number of other states. Hence our early reaction was that the fireman's rule was but an anachronism still extant only because of a somewhat myopic adherence to Stare decisis.

But further study reveals a number of contrary considerations. Seven of the sampling of decisions cited above were decided in the past eight years. A number of these adopted the rule for the first time in the jurisdiction involved.

One of these (Krauth v. Geller, supra, 31 N.J. 270, 157 A.2d 129) is by the Supreme Court of New Jersey, generally recognized as being entirely modern in its approach to tort law. Chief Justice Weintraub, writing for the court, stated 157 A.2d at page 130 that '(t)he...