Neighbarger v. Irwin Industries, Inc., B065298

• Decision Date: 19 April 1993
• Docket Number: No. B065298,B065298
• Citation: 14 Cal.App.4th 1721,18 Cal.Rptr.2d 449
• Court: California Court of Appeals
• Parties: Previously published at 14 Cal.App.4th 1721, 19 Cal.App.4th 995, 24 Cal.App.4th 1258 14 Cal.App.4th 1721, 19 Cal.App.4th 995, 24 Cal.App.4th 1258 Craig NEIGHBARGER, et al., Plaintiffs and Appellants, v. IRWIN INDUSTRIES, INC., Defendant and Respondent.

Page 449

18 Cal.Rptr.2d 449

Previously published at 14 Cal.App.4th 1721, 19 Cal.App.4th 995, 24 Cal.App.4th 1258

14 Cal.App.4th 1721, 19 Cal.App.4th 995, 24 Cal.App.4th 1258

Craig NEIGHBARGER, et al., Plaintiffs and Appellants, v. IRWIN INDUSTRIES, INC., Defendant and Respondent.

No. B065298.

Court of Appeal, Second District, Division 7, California.

April 19, 1993.

Review Granted July 22, 1993.

[14 Cal.App.4th 997] [24 Cal.App.4th 1260] Preston Easley, San Pedro, for plaintiffs and appellants.

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

LILLIE, Presiding Justice.

Plaintiffs Craig Neighbarger, John Magana and Marilyn Magana appeal from summary judgment entered in favor of defendant Irwin Industries, Inc. (Irwin) in plaintiffs' action for personal injuries sustained in a fire at Powerine Oil Refinery. ¹ The issue on appeal is whether the trial court properly concluded that plaintiffs' action is barred by the fireman's rule, in modern usage denominated the firefighter's rule (Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 437, fn. 1, 218 Cal.Rptr. 256), or by the assumption of risk doctrine.

FACTS ²

On the day of the fire, Neighbarger and John Magana (Magana) were employees of Powerine Oil Company; Neighbarger, a fire safety supervisor, had received special training in hazardous materials, industrial fire fighting, and structural fire fighting specific to refineries; Magana, who had 17 years of experience in the refinery business, also had received training in emergency response to toxic and hazardous material spills and petroleum firefighting; the job duties of both Neighbarger and Magana included responding to emergencies at the Powerine refinery, belonging to and participating in the fire brigade, issuing "Hot Work Permits," and conducting safety orientations for refinery contractors, visitors and employees.

Powerine had contracted with Irwin to provide maintenance services for its refinery; Irwin had an office and supervisory personnel on the Powerine site for each shift and Irwin employees reported to Irwin each morning for a safety meeting and then their work assignments; the work procedure was for Powerine employees to hand Irwin employees a work request, take them to the site and leave.

On the day of the fire in question, Irwin employees George Short and Robert Brown, who were working together, finished four work orders provided by Powerine employee Bernard Rosemond. Short and Brown met again with Rosemond at the Irwin area and were provided with a work order to remove piping and install a blind flange on a valve. Short, a pipefitter, had knowledge of various methods of unplugging valves; Short and Brown were in the process of removing unwanted piping and placing a blind flange upon the end valve when they noticed the valve was plugged; Short used the pointed end of a spud wrench to probe the plugged material and a scraper to clean the flange part of the valve when the valve became unplugged and released a flammable liquid petroleum product. Using a sharp instrument to unplug a valve is a violation of industry safety standards.

Neighbarger, already in the vicinity and supervising work on a fluid catalytic converter unit, had his back to the accident site and was not wearing any protective firefighting equipment; Magana, also not wearing any firefighting equipment, was in the vicinity supervising the vacuuming of drains; Neighbarger heard a noise and turned to see what he initially thought was water vapor escaping from the valve; Neighbarger moved quickly toward the valve to attempt to close it; Magana saw Neighbarger and knew something was wrong, but did not know what the problem was; Magana heard the noise of the escaping liquid and instinctively reached up to try to close the valve; the liquid ignited and Short was on fire; both Magana and Neighbarger were burned in the fire.

Irwin moved for summary judgment on plaintiffs' complaint on two theories, only one of which, the firefighter's rule, is pertinent to this appeal. ³ Defendant argued that plaintiffs "are professionals whose job duties require that they expressly assume the risk of a fire in a refinery and that it is part of their job to knowingly and voluntarily confront this type of hazard in order to both prevent and extinguish fires in the refinery," thus barring their action under the firefighter's rule. Plaintiffs argued in opposition to the summary judgment motion that the firefighter's rule is inapplicable because they were not public employees, they were not brought to the scene by the danger that occurred, they were not acting as firemen, they were not initially aware of the hazard involved and they were not confronting the type of risk for which they received compensation.

After oral argument, the court took the matter under submission; later, the court rendered a judgment decreeing that "There is no triable issue of fact and judgment on Defendant's Motion for Summary Judgment is made in favor of Defendant...." Plaintiffs filed timely notice of appeal from the judgment.

Appellants contend that the trial court erred in granting summary judgment in Irwin's favor based on the doctrines of the firefighter's rule and assumption of the risk because (1) appellants were not at the scene of the fire because of the fire, but were engaged in other work assignments; (2) the firefighter's rule is inapplicable because appellants were not public employees; (3) appellants, although safety supervisors, were not acting as firemen at the time they were injured; and (4) appellants were acting as rescuers, and the "rescue rule" in Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 99 Cal.Rptr. 29, 491 P.2d 821, applies to defeat the assumption of the risk defense.

I SUMMARY JUDGMENT PRINCIPLES

Summary judgment is proper only if there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c).) On review, we strictly construe the moving party's papers and liberally construe those of the opposing party to determine if they raise a triable issue of material fact. (Howell v. State Farm Fire & Casualty Co. (1990) 218 Cal.App.3d 1446, 1448, 267 Cal.Rptr. 708.) Our review is de novo. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1515, 285 Cal.Rptr. 385.)

We apply the foregoing principles to the issues raised by appellants.

[14 Cal.App.4th 1000]

II THE FIREFIGHTER'S RULE

"The fireman's rule provides that negligence in causing a fire furnishes no basis for liability to a professional fireman injured fighting the 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.' " ' [Citation.] While denominated the fireman's rule, the rule is applicable to policemen as well." (Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609.)

"The fireman's rule is primarily based on the principle of law denominated assumption of risk. That principle holds that 'one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.' " (Lipson v. Superior Court (1982) 31 Cal.3d 362, 370, 182 Cal.Rptr. 629, 644 P.2d 822.) "As many other jurisdictions and legal commentators have recognized, a fireman does not assume every possible risk he may encounter while engaged in his occupation. [Citations.] A fireman assumes only those hazards which are known or can reasonably be anticipated at the site of the fire." (Id. at p. 371, 182 Cal.Rptr. 629, 644 P.2d 822.)

"The crucial question, therefore, is whether the assumption of the risk basis for the fireman's rule is properly characterized as just a variant of contributory negligence or 'true' assumption of the risk--a negation of the duty to exercise reasonable care on the part of the person responsible for the fire. There can be no question but that it is the latter. That is the teaching of the Walters opinion viewed in the light of the well-established principle of negligence law that the determination as to whether or not a duty to exercise reasonable care exists is essentially a question of public policy [citations]." (Baker v. Superior Court (1982) 129 Cal.App.3d 710, 720, 181 Cal.Rptr. 311.) The court in Baker concluded that "the type of assumption of the risk underlying the fireman's rule is that negating the duty of care, and that, as such, the principle is as viable today as ever it was." (Id. at p. 721, 181 Cal.Rptr. 311.)

Baker was cited with approval in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, wherein our Supreme Court, in dictum, addressed the issue of the firefighter's rule.

The court in Knight faced the question "of the proper application of the 'assumption of risk' doctrine in light of this court's adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226]...." (3 Cal.4th at pp. 299-300, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The court in Knight interpreted its prior Li decision as distinguishing between "(1) those instances in which the assumption of risk doctrine embodies a legal conclusion that there is 'no duty' on the part of the defendant to protect the plaintiff from a particular risk--the category of assumption of risk that the legal commentators generally refer to as 'primary assumption of risk'--and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty--what most commentators have termed 'secondary assumption of risk.' Properly interpreted, the relevant passage in Li provides that the category of assumption of risk cases that is not merged into the comparative negligence system and in which the plaintiff's recovery continues...