Scott v. E. L. Yeager Constr. Co.

• Decision Date: 23 November 1970
• Citation: 12 Cal.App.3d 1190,91 Cal.Rptr. 232
• Parties: Albert P. SCOTT, Plaintiff and Respondent, v. E. L. YEAGER CONSTRUCTION CO., Inc. and Southern California Gas Co., etc., Defendants and Appellants. Civ. 9666.
• Court: California Court of Appeals Court of Appeals

Page 232

91 Cal.Rptr. 232

12 Cal.App.3d 1190

Albert P. SCOTT, Plaintiff and Respondent, v. E. L. YEAGER CONSTRUCTION CO., Inc. and Southern California Gas Co., etc., Defendants and Appellants.

Civ. 9666.

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

Nov. 23, 1970.

[12 Cal.App.3d 1192] King & Mussell and William W. Shaw, San Bernardino, for defendant and appellant E. L. Yeager Construction Co., Inc.

Swarner, Fitzgerald & Dougherty, H. M. Dougherty, and Ray Lapica, Riverside, for defendant Southern California Gas Co.

Dillon, Moore, Boyd & Robinson, and Richard H. Robinson, Palm Springs, for plaintiff and respondent.

OPINION

KAUFMAN, Associate Justice.

In this personal injury action, plaintiff had a verdict and recovered judgment in the amount of $15,000 against defendants E. L. Yeager Construction Company (hereinafter Yeager) and Southern California Gas Company (hereinafter Gas Company). Defendants appeal.

Although the Gas Company contends that there is no evidence of its negligence and both defendants contend that plaintiff was contributorily negligent and assumed the risk as a matter of law, the controlling issue is presented by defendants' contention that plaintiff's recovery is barred by the 'fireman's rule.'

The Facts

Plaintiff was employed as chief of the Palm Desert Volunteer Fire Department by the State of California, Department of Conservation, Division of Forestry. He had special training in firefighting and was paid on the basis of the number of calls he actively participated in. On October 27, 1965 he was severely burned by the ignition of gas escaping from a gas main belonging to the Gas Company which had been ruptured by an employee of Yeager.

The county of Riverside had contracted with Yeager for the installation of curbs, gutters and street paving in the approximate area of the intersection of Frontage Road and Shadow Hills Drive in Palm Desert, an unincorporated area of Riverside County. Some years previously, the Gas Company had installed a six-inch high pressure gas line at or near the most southerly curb line of Frontage Road. The gas main was ruptured by an employee of Yeager, using a large skiploader to dig a trench or hole for the purpose of putting in posts at the end of Frontage Road on which aluminum barriers were to be constructed to indicate the end of the street. The original plan, cleared by the Gas Company, called for four postholes, but by agreement between the County and Yeager, the latter was allowed, without notice to the Gas Company, to substitute a type of barrier that had three postholes. As a result of this change, the most southerly posthole was relocated to a point directly on top of the existing gas line.

There is ample evidence that Gas Company employees marked the location of the gas main and informed Yeager's employees of its location and cautioned them to exercise care in their work near the main. The evidence is also ample that Yeager's employees were negligent in disregarding the information supplied by the Gas Company.

The gas line was punctured at about 10:45 a.m. on October 27, 1965. Gas Company employees arrived immediately and began to try to repair the break. Two alternatives were available. The gas could be cut off or an attempt could be made to repair the pipe by the installation of a 'Skinner' clamp. Such a clamp was already at the scene, a previous break had been successfully repaired in this manner, and the Gas Company employees decided to attempt the repair by installation of the clamp. There were some 1,400 meters on the line serving 5,000 to 7,000 people, and if the gas was shut off, there was considerable danger of explosion in each of the households served by the line. The Gas Company employees had been working about three hours and had the clamp on the line and were tightening the nuts to draw it tight when ignition occurred from an unknown source. The Gas Company had summoned an employee from Riverside with equipment to install pressure fittings to make permanent repairs. Although this employee had not yet arrived when ignition occurred, these fittings were not necessary to the work of making temporary repairs.

Plaintiff received a call in his capacity as chief of the Palm Desert Volunteer Fire Department over his portable radio receiver at 10:59 a.m. He reported to the scene, arriving there about 11:03 a.m. He saw the gas escaping and dust being blown into the air, with various Gas Company employees and several units of equipment and apparatus parked in the area. He conferred with George Andy Herrick, another member of the Palm Desert Volunteer Fire Department, who was on duty that day. After ascertaining the situation, they proceeded to clear the area of bystanders and make certain that no passerby stopped on the nearby highway. Plaintiff was aware that there was a power line carrying 33,000 volts close by the break.

Plaintiff stayed on the scene an hour to an hour and a half and then returned to the fire station. Work on the repair of the pipe was going on at that time. After an hour at the station, Scott returned between 1:40 and 1:45 p.m. when he was called back by Herrick to re-start a stalled fire truck with jumper cables. It was parked a hundred feet from the gas main break.

After getting the fire engine started, plaintiff walked over to the site of the ruptured gas line to find out how much longer it would be until repair would be completed. The work was nearly finished. As he walked away, he heard something or someone call and turned around. As he turned around he noticed that the gas was igniting and immediately headed for the ground. The ignition started some 40 to 50 feet in the air, to the northeast of the ruptured pipe. It was about 2:10 p.m. He suffered burns on his face, limbs and body and was taken by ambulance to Valley Memorial Hospital in Indio where he remained for treatment for six days and was then transferred to Beverly Glen Hospital in Los Angeles for further treatment for 22 days.

The 'Fireman's Rule'

Defendants contend that plaintiff's recovery is barred as a matter of law by the so-called 'fireman's rule.' They rely upon the case of Giorgi v. Pacific Gas & Elec. Co., 266 Cal.App.2d 355, 72 Cal.Rptr. 119 in which this rule was adopted and applied for the first time in California. The court there held that '* * * a paid fireman has no cause of action against one whose passive negligence caused the fire in which he was injured.' ¹ (266 Cal.App.2d at p. 360, 72 Cal.Rptr. at p. 123.)

A petition for hearing in the California Supreme Court was denied in Giorgi November 27, 1968. In view of the fact that the court in Giorgi unequivocably rested its decision upon the 'fireman's rule' and expressly recognized that the question had not previously been decided in California (266 Cal.App.2d at p. 357, 72 Cal.Rptr. 119), and in view of the denial of hearing by the California Supreme Court and the absence of any Supreme Court decision to the contrary, we are constrained to follow the rule insofar as it is applicable to the case at bench. (Fuller v. Standard Stations, Inc., 250 Cal.App.2d 687, 692--693, 58 Cal.Rptr. 792; In re Estate of Brissel, 218 Cal.App.2d 841, 844, 32 Cal.Rptr 458; Housing Authority v. Peters, 120 Cal.App.2d 615, 616, 261 P.2d 561; cf. DiGenova v. State Board of Education, 57 Cal.2d 167, 178, 18 Cal.Rptr. 369, 367 P.2d 865; Cole v. Rush, 45 Cal.2d 345, 350--351, 289 P.2d 450.) Plaintiff urges, however, that the rule does not apply to the facts of the case at bench for several reasons.

A. Injury did not occur on defendants' property.

Plaintiff contends that the 'fireman's rule' is limited to cases where the fireman is injured on property belonging to or occupied by the negligent actor and that it is not applicable where the fireman is injured while on the property of another in the course of protecting the other's property. There is little doubt that the rule originated in the land occupier cases. (Cf. 2 Harper & James, The Law of Torts (1956) 1501--1505; Annot. 86 A.L.R.2d 1209--1221.) It is true, also, that many of the cases referred to by the court in Giorgi were land occupier cases (266 Cal.App.2d at pp. 357--358, 72 Cal.Rptr. 119). The court in Giorgi, however, recognized that California has abandoned the distinctions in the duties owed by a land occupier to invitees, licensees and trespassers. (266 Cal.App.2d at p. 357, 72 Cal.Rptr. 119 (citing Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561).) The rule of nonliability announced in Giorgi has modern bases (266 Cal.App.2d at pp. 359--360, 72 Cal.Rptr. 119), and is not limited to injuries suffered by firemen on land belonging to or occupied by the defendant. In Giorgi the firemen were injured, some fatally, fighting a fire in the Sierra National Forest, which did not belong to and was not occupied by the defendant Pacific Gas & Electric Company. Nevertheless, the rule was announced and applied, and the very contention now made by plaintiff was there made and rejected. (Giorgi v. Pacific Gas & Elec. Co., Supra, 266 Cal.App.2d 355, 358, 72 Cal.Rptr. 119.)

B. Fire v. Explosion.

Plaintiff next contends that the 'fireman's rule' is not applicable because he was injured by an explosion rather than a fire. In the first place, the record discloses that plaintiff was burned as a result of the ignition of the gas in mid-air. It is probable, therefore, that the incident is properly termed a fire rather than an explosion. (Cf. New Hampshire Fire Insurance Co. v. Rupard, 187 Ky. 671 (220 S.W. 538, 543).)

More importantly, the resolution of the significant policy considerations underlying the 'fireman's rule' should not be made to depend on a technicality such as the distinction between a fire and an explosion. One of the bases most often articulated in the cases supporting the rule is one predicated on a concept of fairness. '(I)t is the fireman's business to deal with that very hazard and hence, * * * he...