Rowland v. Shell Oil Co.

• Decision Date: 28 March 1986
• Citation: 179 Cal.App.3d 399,224 Cal.Rptr. 547
• Court: California Court of Appeals Court of Appeals
• Parties: Guyla ROWLAND, David Rowland, a minor, and Sarah Rowland, a minor, By and Through their Guardian Ad Litem, Guyla Rowland; Linda Griggers, Lee Charles Griggers, a minor, and Nancy Jean Griggers, a minor, By and Through their Guardian Ad Litem, Linda Griggers, Plaintiffs and Appellants, v. SHELL OIL COMPANY, American Transfer Company, and Westoil Terminals, Defendants and Respondents. B013470.

Page 547

224 Cal.Rptr. 547

179 Cal.App.3d 399

Guyla ROWLAND, David Rowland, a minor, and Sarah Rowland, a minor, By and Through their Guardian Ad Litem, Guyla Rowland; Linda Griggers, Lee Charles Griggers, a minor, and Nancy Jean Griggers, a minor, By and Through their Guardian Ad Litem, Linda Griggers, Plaintiffs and Appellants, v. SHELL OIL COMPANY, American Transfer Company, and Westoil Terminals, Defendants and Respondents.

B013470.

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

March 28, 1986.

Review Denied July 24, 1986.

Agnew & Brusavich, Los Angeles by Jean Corey, Venice, for plaintiffs and appellants.

Meyers, Bianchi & McConnell by James S. Bianchi and Michael Schillaci, Los Angeles, for defendant and respondent Shell Oil Co.

Mommaerts & Rutledge by Charles Harris, Beverly Hills, for defendant and respondent American Transfer Co.

Hagenbaugh & Murphy by John J. Tary and Paul G. Szumiak, Los Angeles, for defendant and respondent Westoil Terminals.

GATES, Associate Justice.

Plaintiffs Guyla Rowland, David Rowland, Sarah Rowland, Linda Griggers, Lee Charles Griggers and Nancy Jean Griggers, the widows and minor children of decedents Richard Rowland and Porter Griggers, appeal from a summary judgment in favor of defendants Shell Oil Company, American Transfer Company and Westoil Terminals. They contend: "A. Where the conduct which results in injury is independent from the conduct which necessitated the fireman's presence at the scene, the fireman's rule does not apply. B. Because decedents did not knowingly and voluntarily confront the hazard that caused their deaths, the fireman's rule does not apply. C. Where a fireman's injuries are caused by conduct within the ambit of Civil Code § 1714.9, the fireman's rule does not apply. D. It is a question of fact whether [plaintiffs'] delayed discovery of all facts essential to their cause of action was justifiable and reasonable so as to prevent the running of the statute of limitations."

At approximately 10:30 p.m. on April 6, 1973, decedents Rowland and Griggers, acting within the course and scope of their employment as firemen for the City of Whittier, responded to a chemical spill that had occurred when a tanker truck operated by American Transfer Company jackknifed and overturned in the parking lot of a shopping center. Although this spill initially had been reported as one involving gasoline it became apparent immediately upon the Fire Department's arrival at the scene that such was not the case. In fact, the truck was transporting D-DR soil fumigant, a chemical containing dichloropropene. The truck had been loaded by Westoil Terminals and its contents had been manufactured by Shell Oil Company.

In October 1979 Rowland was diagnosed as having diffuse histiocytic lymphoma. He died from a complication of the tumour on October 3, 1980. Griggers also had been found to be suffering from a similar disorder on February 19, 1980, and he died several weeks after Rowland on December 31, 1980.

On April 26, 1982, plaintiffs filed the instant action. The trial court granted defendants' motion for summary judgment on March 12, 1985. It held defendants were entitled to judgment (1) against plaintiffs Linda Griggers and Guyla Rowland, the surviving spouses, for their failure to file their complaint within the period provided for in Code of Civil Procedure section 340, subdivision (3), and (2) against all plaintiffs by reason of the "fireman's rule."

Our highest court has "reiterated and confirmed the rationale underlying the fireman's rule, observing that it is based upon ... the traditional principle that 'one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby,' [citation]...." (Hubbard v. Boelt (1980) 28 Cal.3d 480, 484, 169 Cal.Rptr. 706, 620 P.2d 156.) Of course, no one, a fireman included, assumes every possible risk that may be encountered while engaged in the performance of his duties; only those which are known or can reasonably be anticipated. (Lipson v. Superior Court (1982) 31 Cal.3d 362, 371, 182 Cal.Rptr. 629, 644 P.2d 822.)

Where a person does no more than cause the peril in which a fireman is injured, it is immaterial whether that person acted negligently or in the course of an ultrahazardous activity. In either event, the assumption of risk principle underlying the fireman's rule applies. (Lipson v. Superior Court, supra, at p. 376, 182 Cal.Rptr. 629, 644 P.2d 822.) On the other hand, the rule is not intended to bar recovery for independent acts of misconduct which were not the occasion for the fireman's presence. (Lipson v. Superior Court, supra, at p. 369, 182 Cal.Rptr. 629, 644 P.2d 822.)

Thus, a defendant will not be shielded from liability if (1) he fails to warn firemen of a known, but hidden danger that exists on his premises separate and apart from that to which they responded (Bartholomew v. Klingler Co. (1975) 53 Cal.App.3d 975, 979, 126 Cal.Rptr. 191; Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 440-441, 218 Cal.Rptr. 256), or (2) affirmatively misrepresents the nature of a hazard (Lipson v. Superior Court, supra, at p. 370, 182 Cal.Rptr. 629, 644 P.2d 822) and such falsification causes their injuries.

In an attempt to bring the present action within the scope of these limitations, plaintiffs urge that "[t]he only reason the Fire Department was summoned and arrived at the scene was because a truck driver failed to properly handle his vehicle and tipped it over." This, they argue, was independent from defendants' "development and production of the chemical, their failure to warn of its hazardous nature, and their maintenance of an ultrahazardous activity...." ¹ Additionally, they claim that the principle of assumption of risk is not applicable since they were misled as to the nature of the danger to be confronted and "[i]n reliance on all of these failures to warn, ... did not take the necessary precautions to protect themselves from contact with the toxic chemical and as a result, suffered severe injuries."

Initially we note, as do defendants, that plaintiffs thus seek narrowly and artifically to isolate the occurrence which necessitated the presence of the Whittier Fire Department at the scene of the subject accident. In truth, the decedents were not summoned because a driver had negligently operated his vehicle but because that negligence had resulted in the spill of a substance whose hazardous potential was not known.

Treating with chemical spills is traditionally within the scope of a fireman's ordinary duties, and plaintiffs so concede. By their very nature such operations necessarily create the risk of injury, even death, from explosion, fire, contact with hazardous substances and inhalation of toxic vapors. Of course, the precise nature of the danger present on any given occasion may not be readily apparent but so long as it is of the type ordinarily associated with the handling of potentially dangerous chemicals, the fireman's rule will apply.

When the facts of our present case are considered in light of these principles, it is clear that decedents knew or should have known that exposure to D-DR, a substance unfamiliar to them, might prove deleterious to their health. That is, (1) the tanker itself carried no placards identifying the properties of the chemical, (2) the bill of lading listed it only as "D-DR soil fumigant," and further described it as "liquid agricultural insecticide, NOIBN, D-D soil fumigant," and (3) the driver had little information about the product and so advised decedents. Tragically, however, at the time of this incident it was the practice of the Whittier Fire Department to simply assume chemicals were nonhazardous in...