Lipson v. Superior Court

• Citation: 644 P.2d 822,182 Cal.Rptr. 629,31 Cal.3d 362
• Court: United States State Supreme Court (California)
• Decision Date: 17 May 1982
• Parties: , 644 P.2d 822 Melvin LIPSON et al., Petitioners, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent, John BERGER, Real Party in Interest. L.A. 31474

Page 629

182 Cal.Rptr. 629

31 Cal.3d 362, 644 P.2d 822

Melvin LIPSON et al., Petitioners, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent, John BERGER, Real Party in Interest.

L.A. 31474.

Supreme Court of California

May 17, 1982.

Johnson, Highman & Dillard and David R. Highman, Newport Beach, for petitioners.

No appearance for respondent.

Frank D. McAlpine and Kerrigan & McAlpine, San Diego, for real party in interest.

BIRD, Chief Justice.

This case presents questions concerning the parameters of the common law fireman's rule. The primary issue is whether the rule precludes a fireman, injured in the line of duty, from recovering damages from a party whose negligent or intentional misrepresentation of the nature of an emergency at a chemical manufacturing plant proximately caused the injury. Also at issue is whether the rule bars a fireman's strict liability claim for damages for injuries proximately caused by a party's maintenance of an ultrahazardous activity on the premises at which a fire, or other emergency, occurs.

I.

The facts, as alleged in the first amended complaint of real party, John Berger, are set forth below.

Petitioners own and operate a chemical manufacturing plant in Orange County, California. On January 17, 1979, while serving temporarily with the Orange County Fire Department, real party responded to a chemical boilover at petitioners' plant. In attempting to contain the boilover, which was caused by petitioners' negligence, real party suffered severe injury.

The first and third causes of action allege that real party's injury was proximately caused either by petitioners' negligent or intentional misrepresentation of the nature of the hazard presented by the boilover. Real party asserts that when he arrived at the plant, petitioners informed him that the boilover did not involve toxic chemicals or materials and that there would be no danger in attempting to contain the boilover. In fact, the boilover did involve toxic substances, and real party suffered injury because of his exposure to these toxic substances. This injury would not have been sustained, real party asserts, if petitioners had correctly informed him of the nature of the substances involved because he could and would have taken adequate measures to ensure his safety.

The second cause of action alleges that real party's injury was proximately caused by petitioners' maintenance of an ultrahazardous activity--the manufacture of dangerous and toxic chemicals--on the premises where the boilover occurred. ¹ Accordingly, he asserts that petitioners are strictly liable for his damages.

Petitioners moved for summary judgment, arguing that real party's causes of action were barred as a matter of law by the fireman's rule. In support of the motion, petitioners filed excerpts from real party's deposition which established his status as a fireman at the time he responded to the boilover.

In opposition, real party contended that his misrepresentation and strict liability claims did not fall within the limited scope of the fireman's rule as that rule has been applied in California. In the alternative, he argued that the fireman's rule is an anachronism that should be completely abandoned.

The trial court denied petitioners' motion for summary judgment. Petitioners then sought a peremptory writ of mandate to compel the trial court to grant the motion and to dismiss this action. The Court of Appeal issued an alternative writ, and after briefing and oral argument issued the peremptory writ requested. (See generally 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 89, pp. 3865-3866.) This court granted real party's petition for hearing.

II.

The first issue presented to this court by petitioners is whether the fireman's rule precludes real party from maintaining his negligent and intentional misrepresentation claims. Real party asserts that his claims are not barred by the fireman's rule since petitioners' misrepresentation was a subsequent act of misconduct, distinct from any act or omission by petitioners that may have caused the chemical boilover. According to real party, the fireman's rule only bars a firefighter from recovering for injuries resulting from a person's negligence or recklessness in causing the fire or other emergency which is the reason for the fireman's presence. Decisions of the California courts applying the fireman's rule demonstrate the correctness of this contention.

California first considered and adopted the fireman's rule in Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 72 Cal.Rptr. 119. There, a forest fire resulted in the deaths of four firemen and caused bodily injuries to two others. In a joint action, plaintiffs alleged that defendant's negligent maintenance of a pole and the wires thereon caused the blaze which resulted in the deaths and injuries. The Court of Appeal reversed the judgment for the plaintiffs holding that "a paid fireman has no cause of action against one whose passive negligence caused the fire in which he was injured." (Id., at p. 360, 72 Cal.Rptr. 119.)

Scott v. E. L. Yeager Constr. Co. (1970) 12 Cal.App.3d 1190, 91 Cal.Rptr. 232, extended the application of the fireman's rule to prohibit a fireman from suing a person whose active negligence led to the fire that caused the fireman's injuries. The Court of Appeal restated the fireman's rule as follows: "[W]here the defendant's negligence, whether active or passive, creates an apparent risk, which is of the type usually dealt with by firemen, and which is the cause of the fireman's presence, and which is the direct cause of the fireman's injury, the defendant is not liable to the fireman." (Id., at p. 1199, 91 Cal.Rptr. 232.)

In Scott, a fireman responded to a call that a gas main had been ruptured. When the gas escaping from the main ignited, the fireman sustained severe burns. In the trial court, the fireman recovered judgment for his damages based on the negligence of defendant's employee in rupturing the gas main.

The Court of Appeal reversed the judgment. It held that plaintiff's claim was barred as a matter of law by the fireman's rule since defendant's only misconduct was the negligent creation of the very hazard to which the fireman responded in the course of his duty. In reaching this decision, the court in Scott emphasized the narrowness of its holding. "We ... do not deal with ... situations in which there is some hidden danger known to the defendant but not to the fireman, nor situations in which the fireman is injured as a result of some risk beyond those inevitably involved in firefighting. Neither do we deal with those situations in which the defendant's negligence occurred after the fireman arrived on the scene and materially enhanced the risk of harm or created a new risk of harm. None of those situations are presented by the case at bench." (Ibid.) The narrow fact situation in Scott involved a defendant whose negligence preceded and was responsible for a fireman's presence at the moment the gas escaping from the main ignited.

This court endorsed the fireman's rule in Walters v. Sloan (1977) 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609. There, the court stated that "negligence in causing a fire furnishes no basis for liability to a professional fireman injured fighting the fire." (Id., at p. 202, 142 Cal.Rptr. 152, 571 P.2d 609.) Since firefighting is an occupation which by its very nature exposes firemen to particular hazards, firemen cannot complain of negligent or reckless conduct which forms the basis for their being summoned. (Ibid.)

In Walters, a policeman was injured while attempting to arrest an intoxicated and disruptive minor at a party at defendants' residence. ² The police officer's complaint alleged that the injuries were proximately caused by defendants' negligence in furnishing alcoholic beverages to persons under the age of 21. Since "the same negligence occasioned summoning the police," this court found that the fireman's rule barred the police officer from maintaining his cause of action. (Id., at p. 207, 142 Cal.Rptr. 152, 571 P.2d 609.)

As in Scott, the court in Walters stressed the limited applicability of the fireman's rule. In Walters, this court explained that negligent or willful misconduct, other than that which created the occasion for the police officer's or the fireman's employment, "may create liability to the injured fireman or policeman. [Citations omitted.] Thus a police officer who while placing a ticket on an illegally parked car is struck by a speeding vehicle may maintain [an] action against the speeder but the rule bars recovery against the owner of the parked car for negligent parking." (Id., at p. 202, fn. 2, 142 Cal.Rptr. 152, 571 P.2d 609; see also id., at p. 203, fn. 3, 142 Cal.Rptr. 152, 571 P.2d 609.)

Again, in Hubbard v. Boelt (1980) 28 Cal.3d 480, 620 P.2d 156, this court distinguished between tortious conduct that creates the risk necessitating a peace officer's presence and subsequent acts of misconduct. Reaffirming the application of the fireman's rule in the former situation, Hubbard held that a police officer could not recover for injuries suffered during a high speed chase of a reckless traffic offender, since the police officer "incurred the very risk which occasioned his presence...." (Id., at p. 487, 620 P.2d 156.)

At the same time, this court emphasized the limited scope of the fireman's rule. The plaintiff had argued that summary judgment for the defendant should not be affirmed because "the fireman's rule was not intended to bar recovery for independent acts of misconduct which were not the cause of the plaintiff's presence at the accident scene. [Citation omitted.]" (Id., at p. 486, 620 P.2d 156.) This court responded that "[w]e have confirmed the validity of this principle in the abstract.... In the present case, however, no such independent act occurred." (Ibid.) ³

It is, thus, unmistakably clear...