Neighbarger v. Irwin Industries, Inc., S033049

CourtUnited States State Supreme Court (California)
Writing for the CourtMOSK; Two years later; LUCAS
Citation34 Cal.Rptr.2d 630,882 P.2d 347,8 Cal.4th 532
Parties, 882 P.2d 347 Craig NEIGHBARGER et al., Plaintiffs and Appellants, v. IRWIN INDUSTRIES, INC., Defendant and Respondent
Docket NumberNo. S033049,S033049
Decision Date27 October 1994

Page 630

34 Cal.Rptr.2d 630
8 Cal.4th 532, 882 P.2d 347
Craig NEIGHBARGER et al., Plaintiffs and Appellants,
IRWIN INDUSTRIES, INC., Defendant and Respondent.
No. S033049.
Supreme Court of California
Oct. 27, 1994.

Page 632

[8 Cal.4th 534] [882 P.2d 349] Preston Easley and Scott Sayre, San Pedro, for plaintiffs and appellants.

Allan B. Weiss and James D. Turner, Long Beach, for defendant and respondent.

Fred J. Hiestand, Sacramento, as amicus curiae on behalf of defendant and respondent.

MOSK, Justice.

This case presents the question whether a private safety employee who has occasional fire fighting duties may state a cause of action against a third party, not the employer, for injuries caused by the third [8 Cal.4th 535] party's negligence in starting a fire. We conclude that a private safety employee may state such a cause of action, and that such a claim is not barred by the firefighter's rule or the doctrine of assumption of risk.


Plaintiffs Craig Neighbarger and John Magana were employees of Powerine Oil Company. Neighbarger was employed as a safety supervisor and had special training in industrial fire fighting. John Magana was a safety supervisor who also had training in emergency response to toxics spills and petroleum fire fighting. Both men's job duties included responding to emergencies at the Powerine refinery, belonging to and participating in the Powerine fire brigade, issuing "hot work permits," and conducting safety orientations for refinery contractors, visitors, and employees.

Irwin Industries provided maintenance services at the Powerine refinery under contract with Powerine. Powerine employees directed Irwin employees George Short and Robert Brown to remove piping and install a blind flange on a valve in an area of the Powerine refinery. Short and Brown noticed that the valve was plugged and Short, in violation of industry safety standards, used a sharp instrument to dislodge the blockage. The valve released a flammable petroleum product.

Neighbarger was supervising work nearby on a fluid catalytic "cracker" unit. He had his back to the accident site and was not wearing any protective fire fighting equipment. [882 P.2d 350] Magana was in the vicinity supervising the vacuuming of drains; he also was without protective clothing or equipment. Neighbarger heard a noise coming from the valve, and believing it might be caused by escaping water vapor, moved toward the valve in an attempt to close it. Magana also heard the noise of escaping liquid and saw Neighbarger moving toward the valve; he reached up to try to close the valve. The liquid petroleum product ignited and burned both Neighbarger and Magana.

After Neighbarger and Magana instituted their lawsuit seeking compensation for injuries they alleged were caused by the negligence of Irwin's employees, defendant Irwin moved for summary judgment on the grounds that Neighbarger and Irwin had assumed the risk of the injury and that their action was barred by the firefighter's rule. Plaintiffs countered that the firefighter's rule was inapplicable because they were not public employees, they were not called to the scene in response to the accident, they were not acting as firefighters, they were not initially aware of the hazard involved and they

Page 633

were not confronting the type of risk for which they received compensation. The trial court granted defendant's motion for summary judgment, and plaintiffs renewed their contentions in the Court of Appeal.

[8 Cal.4th 536] The majority in the Court of Appeal declared that a private safety employee assumes the risk of injury that occurs when the employee responds to emergencies on the job. Applying the plurality view of primary assumption of risk outlined in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight ), the majority found that defendant did not owe plaintiffs a duty of care, and affirmed the judgment of the trial court granting defendant's motion for summary judgment.

The dissent maintained that the majority had extended the firefighter's rule beyond theoretical underpinnings that limit the rule to public employees. The dissenter also declared that even if a privately employed firefighter assumes the risk of confronting negligently caused fires, there were triable issues of fact remaining in this case on the question whether private employees with marginal or tangential fire fighting duties, who were confronted with a fire in the course of unrelated duties, should be held to assume the risk of injury from such a fire.


The central question to be answered in this case is whether defendant Irwin Industries and its employees owed a duty of care to plaintiffs.

We all have the duty to use due care to avoid injuring others. (Knight, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Civil Code section 1714, subdivision (a), provides that "[e]very one is responsible ... for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself."

The duty to avoid injuring others normally extends to those engaged in hazardous work. Thus, for example, both publicly and privately employed highway workers, who face the obvious occupational hazard of working in the middle of traffic, may recover for injuries caused by a third party's negligent driving. (See Roddy v. American Smelting etc. Co. (1939) 34 Cal.App.2d 457, 93 P.2d 841; Mecham v. Crump (1934) 137 Cal.App. 200, 30 P.2d 568.) 1

One also generally owes a duty of care to bystanders who attempt a rescue that becomes necessary due to one's own negligence. Thus, although it is [8 Cal.4th 537] contributory negligence unreasonably to expose oneself to a risk created by the defendant's negligence (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 824, 119 Cal.Rptr. 858, 532 P.2d 1226; Rest.2d Torts, § 466(a); 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1059, p. 457), a person is not contributorily negligent [882 P.2d 351] who, with due care, encounters the risk created by the defendant's negligence in order to perform a rescue necessitated by that negligence. (Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 368, 99 Cal.Rptr. 29, 491 P.2d 821; see also Rest.2d Torts, supra, § 472; Prosser & Keeton on Torts (5th ed. 1984) § 44, p. 307; § 48, p. 491; 6 Witkin, Summary of Cal. Law, supra, Torts, § 1061, pp. 459-461.)

Under the general rule of duty, then, Irwin and its employees had a duty to avoid negligently injuring Powerine employees. Any exception to the general rule must be based on statute or clear public policy. (Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561.)

Defendant urges that it should be excused from the usual duty of care under the public policy expressed in the doctrine of assumption of risk and the so-called firefighter's rule.

The doctrine of assumption of risk has been somewhat tangled, but we recently attempted

Page 634

to clarify it in Knight, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696. In that case we examined the claim of a plaintiff who sought compensation for injuries she suffered during a recreational touch-football game. We barred recovery, and the opinion explained that in recreational sports events a participant owes no duty of care to another participant to avoid careless conduct that frequently occurs during vigorous participation in the sport.

However, we disapproved earlier cases that applied the doctrine as a bar to liability on the basis of plaintiff's subjective, voluntary assumption of a known risk. We concluded that such situations had been subsumed by the doctrine of comparative negligence. (Knight, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The opinion rejected the theory that a plaintiff implicitly consents to undertake the risk of injury despite the defendant's duty of care, declaring that "[i]t may be accurate to suggest that an individual who voluntarily engages in a potentially dangerous activity ... 'consents to' or 'agrees to assume' the risks inherent in the activity ... itself.... But it is thoroughly unrealistic to suggest that, by engaging in a potentially dangerous activity ... an individual consents to (or agrees to excuse) a breach of duty by others that increases the risks inevitably posed by the activity ... itself, even where the participating individual is aware of the possibility that such misconduct may occur." (Id. at p. 311, 11 Cal.Rptr.2d 2, 834 P.2d 696.) We provided the example of driving a motor [8 Cal.4th 538] vehicle; we all realize that driving is a risky activity, and that we may be injured by the negligence of another driver, but we do not assume the risk of another's negligence when we choose to drive. (Id. at pp. 311-312, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

The opinion concluded that the doctrine of assumption of risk properly bars a plaintiff's claim only when it can be established that, because of the nature of the activity involved and the parties' relationship to the activity, the defendant owed the plaintiff no duty of care. (Knight, supra, 3 Cal.4th at pp. 313, 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

We have never held that the doctrine of assumption of risk relieves all persons of a duty of care to workers engaged in a hazardous occupation. Nonetheless, a special rule has emerged limiting the duty of care the public owes to firefighters and police officers. Under the firefighter's rule, a member of the public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combat the fire is not injured thereby. (Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609 (Walters ); see also 6 Witkin, Summary of Cal. Law, supra, Torts, § 739, p. 69; Levy et al., California Torts (1993) § 1.03[b], p. 1-29.) 2 Nor does a...

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