Malo v. Willis

• Decision Date: 07 December 1981
• Parties: Michael John MALO, Plaintiff and Respondent, v. Ray Eugene WILLIS, Defendant and Appellant. STATE of California, etc., Plaintiff and Respondent, v. Ray Eugene WILLIS, Defendant and Appellant. 4 Civ. 25024.
• Court: California Court of Appeals Court of Appeals

Page 774

178 Cal.Rptr. 774

126 Cal.App.3d 543

Michael John MALO, Plaintiff and Respondent, v. Ray Eugene WILLIS, Defendant and Appellant.

STATE of California, etc., Plaintiff and Respondent, v. Ray Eugene WILLIS, Defendant and Appellant.

4 Civ. 25024.

Court of Appeal, Fourth District, Division 2, California.

Dec. 7, 1981.

Hearing Denied Feb. 17, 1982.

MacLachlan, Burford & Arias and Clifford R. Cunningham, San Bernardino, for defendant and appellant

Robinson, Robinson, Pike, Hahn & Philipson and John D. Rowell, Los Angeles, for plaintiff and respondent Michael John Malo.

Vonk, Krimen & Hershenson, Los Angeles, and Douglas Cramoline, Los Angeles, for plaintiff and respondent State of Cal., Dept. of Highway Patrol.

THE COURT.

OPINION

PER CURIAM.

The issue presented by this appeal is whether a California Highway Patrolman's personal injury action is barred by the fireman's rule. After the motion of defendant Ray Eugene Willis for summary judgment was granted, plaintiffs Michael John Malo and the State of California moved for reconsideration. The trial court granted reconsideration, vacated a judgment entered while the reconsideration motion was pending, and denied the summary judgment motion. Defendant appeals.

Defendant's moving papers included the deposition testimony of plaintiff Malo, from which the following factual statement is derived.

On November 4, 1976, Malo was employed as an officer of the California Highway Patrol. At 4:50 p. m., while on active duty in a marked patrol car, Malo was proceeding southbound on Interstate 15 just north of Baker when he decided to stop two automobiles for exceeding the speed limit. He pulled alongside one vehicle, driven by defendant Willis, turned his red lights on, and motioned for Willis to pull over. Malo then moved up behind the second vehicle and motioned to its driver to pull over also. All three vehicles moved off the roadway onto the paved shoulder, with Officer Malo's patrol car between the other two vehicles. Malo had stopped the patrol car, turned off the ignition key, and set the emergency brake when his vehicle was struck from behind by the vehicle driven by defendant Willis. The Willis vehicle was traveling about 10 miles per hour at the point of impact and neither vehicle was significantly damaged. Willis told Malo he was not accustomed to driving a car with a manual transmission and had pressed on the clutch pedal instead of the brake pedal.

Malo apparently suffered a serious "whiplash" injury as a result of the collision, for which he received workers' compensation benefits from plaintiff State of California. Malo filed a personal injury action against Willis and the state filed a separate action against Willis to recover the cost of benefits paid to Malo. ¹ After the two actions were consolidated, defendant Willis moved for summary judgment, arguing that the actions were barred by the fireman's rule. The trial court initially agreed and granted the motion. Plaintiff Malo filed a motion to reconsider the ruling (Code Civ.Proc., § 1008) and to vacate the judgment on grounds of excusable neglect (Code Civ.Proc., § 473). In fact, the judgment was not signed or entered until the day after the notice of motion was filed. The state subsequently joined in the motion to vacate the judgment. Stating that further consideration of the relevant case law had persuaded him that the earlier ruling was erroneous, the trial judge granted the motion to reconsider, vacated the judgment, and denied the motion for summary judgment. ²

On this appeal, defendant contends that the court's initial ruling granting summary judgment was correct because plaintiffs' action is barred by the fireman's rule.

The fireman's rule is a special rule of tort law providing "that negligence in causing a fire furnishes no basis for liability to a professional fireman injured fighting the fire." (Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609.) In California, the rule has been extended to include actions by firefighters injured while engaged in other hazardous activities common to their employment (see Scott v. E. L. Yeager Constr. Co. (1970) 12 Cal.App.3d 1190, 1195, 91 Cal.Rptr. 232), and also to actions by police officers to recover damages for personal injuries received in the course of performing their duties (see Walters v. Sloan, supra, at p. 202, 142 Cal.Rptr. 152, 571 P.2d 609).

As explained by our Supreme Court, the fireman's rule is a particular application of the old but much diminished assumption of the risk doctrine, made more palatable by the existence of special compensation provisions for injured firefighters and police officers. In its most recent pronouncement, the court stated that the fireman's rule "is based upon (1) the traditional principle that 'one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby,' (citation), and (2) a public policy to preclude tort recovery by firemen or policemen who are presumably adequately compensated (in special salary, retirement, and disability benefits) for undertaking their hazardous work (citation)." (Hubbard v. Boelt (1980) 28 Cal.3d 480, 484, 169 Cal.Rptr. 706, 620 P.2d 156.)

When the rule is sought to be applied to situations other than the prototypal one of firefighting, difficulties are encountered in defining its scope. In a case where it was contended that a firefighter was injured by an explosion rather than a fire, we proposed the following definition of the fireman's rule in terms which provide a litmus test for its application: "... we are persuaded that a proper statement of the rule is that where 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." (Scott v. E. L. Yeager Constr. Co., supra, 12 Cal.App.3d 1190, 1198-1199, 91 Cal.Rptr. 232.)

The requirement that the risk be "of the type usually dealt with by firemen," which we may call the special or typical risk requirement, is inherent in the public policy rationale limiting application of the rule to professional fire and crime fighters. The rule exists because of the peculiar nature of the risks encountered by and the special training given to these public employees. There would be no point in applying the rule to injuries resulting from risks faced in common by all members of the public, or a significant percentage thereof, as to which no special training had been received. Opinions of our Supreme Court contain several references to the typical or special risk requirement. (E. g., Hubbard v. Boelt, supra, 28 Cal.3d 480, 484, 169 Cal.Rptr. 706, 620 P.2d 156 ("... it is the business of a fireman or policeman to deal with particular hazards" and "a hazard for which he is specifically compensated"); Walters v. Sloan, supra, 20 Cal.3d 199, 205, 142 Cal.Rptr. 152, 571 P.2d 609 ("special services for which he is trained and paid" and "hazards of their professions").)

The...