Krueger v. City of Anaheim

• Decision Date: 24 March 1982
• Citation: 181 Cal.Rptr. 631,130 Cal.App.3d 166
• Court: California Court of Appeals Court of Appeals
• Parties: Gregory KRUEGER, Plaintiff, Cross-Defendant and Respondent, v. CITY OF ANAHEIM, et al., Defendants, Cross-Complainants and Appellants. Civ. 24714.

Page 631

181 Cal.Rptr. 631

130 Cal.App.3d 166

Gregory KRUEGER, Plaintiff, Cross-Defendant and Respondent, v. CITY OF ANAHEIM, et al., Defendants, Cross-Complainants and Appellants.

Civ. 24714.

Court of Appeal, Fourth District, Division 1, California.

March 24, 1982.

Ruston & Nance, Tustin, William P. Hopkins, City Atty., and Louis L. Selby, Deputy City Atty., for defendants, cross-complainants and appellants.

Rigg & Dean and David A. Sprowl, Santa Ana, for plaintiff, cross-defendant and respondent.

COLOGNE, Associate Justice.

Gregory Krueger brought this action for injuries allegedly received during his encounter with stadium guards working for the City of Anaheim. The guard, William Rafter, and the city seeking reimbursement for its workers' compensation payments, cross-complained for damages. Rafter dismissed his action. Summary judgment was granted in favor of Krueger on the cross-complaint of the city and it appeals.

On April 27, 1979, while attending a California Angels baseball game in Anaheim Stadium, Krueger left the stands between innings and ran across the baseball field. He scaled one of the outfield fences and was in the process of climbing a second fence when he was apprehended by the stadium security guards. A struggle ensued. Krueger sustained a broken tibia and Rafter sustained a broken blood vessel in his leg. The city's cross-complaint alleges it is under a self-insured workers' compensation program for its employees and was obliged to pay for Rafter's medical treatment as a result of the "negligence, carelessness and unlawful conduct" of Krueger. In a second cause of action, it alleges Krueger assaulted and battered Rafter by pushing, kicking, striking and otherwise abusing him.

The motion by Krueger for summary dismissal of the cross-complaint was based on the theory the "fireman's rule" prevents recovery for any of Rafter's injuries. Because we believe the "fireman's rule" was misapplied regarding the facts alleged here, we reverse.

The fireman's rule provides that negligence in causing a fire furnishes no basis for liability to a professional fireman injured while fighting a fire. Firemen, "whose occupation by its very nature exposes them to particular risks of harm, ' "cannot complain of negligence in the creation of the very occasion for [their] engagement" ' " (Solgaard v. Guy F. Atkinson Co., 6 Cal.3d 361, 369, 99 Cal.Rptr. 29, 491 P.2d 821). While denominated the fireman's rule, the rule is applicable to policeman as well (Walters v. Sloan, 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609; Giorgi v. Pacific Gas & Elec. Co., 266 Cal.App.2d 355, 357, 72 Cal.Rptr. 119). The rule is not based on modern concepts of tort liability developed in Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, but rather, on the public policy principle that one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby (Walters v. Sloan, supra, 20 Cal.3d 199, 204-206, 142 Cal.Rptr. 152, 571 P.2d 609; Hubbard v. Boelt, 28 Cal.3d 480, 484, 169 Cal.Rptr. 706, 620 P.2d 156).

The conduct to which the rule speaks involves not only negligent but also willful and wanton misconduct giving rise to the presence of the fireman or policeman (Hubbard v. Boelt, supra, 28 Cal.3d 480, at p. 485, 169 Cal.Rptr. 706, 620 P.2d 156; Holden v. Chunestudey, 101 Cal.App.3d 959, 961-962, 161 Cal.Rptr. 925). Here, however, we have allegations of an intentional tort directed specifically against the public employee in the nature of an assault or battery, intended to interfere with or prevent the performance of such employees' general duties and occurring after the incident giving rise to the officer's presence at the scene. These factors distinguish the present case from those previously applying the fireman's rule.

In Walters v. Sloan, supra, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, the court was presented with a personal injury action for negligence against parents who allegedly permitted their daughter to host a party where alcoholic beverages were consumed by minors. One of the guests became drunk and disorderly and the police were called. A struggle followed between the drunken minor and the policeman. The officer was injured. The court, applying the fireman's rule, said the policeman had no cause of action against the parents for their negligence which brought the officers to their house. The opinion, however, specifically left untouched the action by the policeman against the minor who intentionally struck the officer (20 Cal.3d at p. 202, fn. 1, 142 Cal.Rptr. 152, 571 P.2d 609). Hubbard v. Boelt, supra, 28 Cal.3d 480, 169 Cal.Rptr. 706, 620 P.2d 156, dealt with an officer chasing a speeding driver and injured when the officer lost control of his vehicle after hitting debris in the road. The court found the fireman's rule barred the officer from recovering from the speeder whose reckless conduct prompted the chase. The court was more pointed in making a distinction for intentional assaults. After stating the reasons why the fireman's rule extends to both negligent and reckless conduct, the court said "[w]e are not concerned with a claim for intentionally inflicted injuries to firemen or policemen" (28 Cal.3d 480, at p. 485, 169 Cal.Rptr. 706, 620 P.2d 156). The same disassociation was expressed by the court in Scott v. E. L. Yeager Constr. Co., 12 Cal.App.3d 1190, 1199, 91 Cal.Rptr. 232.

In Kocan v. Garino, 107 Cal.App.3d 291, 165 Cal.Rptr. 712, an officer chasing a felony suspect was injured by the collapse of a fence which the property owner defendant had allowed to fall into disrepair and remain in an unsafe condition. Rejecting application of the fireman's rule, the court noted:

"Respondent's [defendant's] negligence, if such there were, in no wise created the risk which was the cause of appellant's presence on the property nor could it have provided, within the ambit of the fireman's rule, any occasion for appellant's engagement at the time, which was instead a result of wholly independent factors not involving respondent." (107 Cal.App.3d at pp. 295-296, 165 Cal.Rptr. 712.)

It is thus readily apparent the case law intends a distinction between the kind of conduct which brings the fireman or policeman to the scene in the first instance and the injury suffered by the officer from independent causes which may follow. Walters v. Sloan, supra, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, recognizes this principle in the abstract, stating "[T]hus a police officer who while placing a ticket on an illegally parked car is struck by a speeding vehicle may maintain action against the speeder but the rule bars recovery against the owner of the parked car for negligent parking." (Walters v. Sloan, supra, 20 Cal.3d 199, 202, fn. 2, 142 Cal.Rptr. 152, 571 P.2d 609; Hubbard v. Boelt, supra, 28 Cal.3d 480 at p. 486, 169 Cal.Rptr. 706, 620 P.2d 156, citing this passage with favor.)

In Hubbard v. Boelt, supra, 28 Cal.3d 480, at page 486, 169 Cal.Rptr. 706, 620 P.2d 156, the court, quoting from Walters v. Sloan, supra, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, pointed out the enforcement of a criminal statute "causes policemen to confront persons violating the statute, thereby imposing a confrontation and risk to the officer where none existed before (20 Cal.3d at p. 207, 142 Cal.Rptr. 152, 571 P.2d 609)." This is not to suggest, however, the police officer must expect to be assaulted when he is called to the scene of a crime, and must accept without recourse the injuries intentionally visited upon him as he attempts to do his job. We find no reason for a public policy supporting the officer's assumption of that sort of intentional abuse directed specifically and independently at him. An assault of this nature is a separate and different criminal act arising after the offense which occasions the officer's presence, the disorderly conduct of running across the playing field and scaling fences during the course of a sports event (see, e.g., Pen.Code, §§ 241, 243, 245). ¹ It cannot be said such intentional conduct created the occasion for the officer's engagement (see Walters v. Sloan, supra, 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609). The assumption of risk which the officer must face based on the public policy circumscribed in Walters v. Sloan, supra, 20 Cal.3d 199, at pages 205 to 206, 142 Cal.Rptr. 152, 571 P.2d 609, was not intended to be so all inclusive as to encompass intentional torts directed against the fireman or officer while trying to perform his duties after he has been called to the scene of a law violator. To permit this would be to countenance unlimited violence directed at the policeman in the course of most routine duties. Certainly the policeman and his employer should have some private recourse for injuries so blatantly and criminally inflicted.

The reason underlying the fireman's rule is the fundamental...