Shaw v. Plunkett

• Court: California Court of Appeals
• Writing for the Court: GRODIN
• Citation: Shaw v. Plunkett, 185 Cal.Rptr. 571, 135 Cal.App.3d 756 (Cal. App. 1982)
• Decision Date: 15 September 1982
• Parties: Eric Joseph SHAW, Plaintiff and Appellant, v. Terrence PLUNKETT et al., Defendants and Respondents. Civ. 49161.

Page 571

185 Cal.Rptr. 571

135 Cal.App.3d 756

Eric Joseph SHAW, Plaintiff and Appellant, v. Terrence PLUNKETT et al., Defendants and Respondents.

Civ. 49161.

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

Sept. 15, 1982.

W. David Walker, Hurd, Meyer & Mitchell, Oakland, for plaintiff and appellant.

Eliot R. Hudson, Kincaid, Gianunzio, Caudle & Hubert, Oakland, for defendants and respondents.

GRODIN, Presiding Justice.

A police officer, in the process of arresting a prostitute in the parking lot of a motel, is struck and injured by an automobile driven by the prostitute's customer. The police officer sues, alleging in the alternative that the customer was guilty of negligence and intentional misconduct. Is he barred from recovery by the "fireman's rule" because the accident occurred in the line of duty? The trial court thought so, and granted summary judgment for the defendant. Aided by subsequently decided authority, we conclude the trial court was wrong.

Plaintiff is a police officer with the Oakland Police Department. At the time of the accident he was assigned to the vice squad, and under orders to arrest prostitutes in the MacArthur Boulevard area of Oakland. In the early morning hours of August 26, 1978, he and his partner, both in plain clothes and in an unmarked patrol car, observed the activities of a suspected prostitute in the area of a motel, and moved in to arrest her. She was sitting in a vehicle which was parked at the motel. Plaintiff removed her from that vehicle, and placed her in the patrol car.

The driver of the vehicle in which the prostitute was sitting was Terrence Plunkett. At the time the officers approached, he was outside of the car, at the motel office. As plaintiff was placing the suspect in the patrol car, he heard an engine start and tires squeal. He turned around to see Plunkett's vehicle coming toward him. He attempted to get out of the way by diving over the Plunkett vehicle, but in the process his knee was struck. There was some subsequent maneuvering of the vehicle back and forth before Plunkett was finally arrested.

Discussion

The fireman's rule was first applied in California to preclude recovery by firefighters for injuries sustained in fighting a fire which they claimed was the product of defendant's passive negligence. (Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 360, 72 Cal.Rptr. 119.) In Scott v. E. L. Yeager Constr. Co. (1970) 12 Cal.App.3d 1190, 91 Cal.Rptr. 232, the rule was held applicable to a situation in which the defendant's active negligence caused the fire. In Walters v. Sloan (1977) 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, the Supreme Court endorsed the rule and approved its application to a policeman who was injured while attempting to arrest an intoxicated and disruptive minor at a party at defendant's residence. And in Hubbard v. Boelt (1980) 28 Cal.3d 480, 169 Cal.Rptr. 706, 620 P.2d 156, the Supreme Court held that a police officer could not recover for injuries suffered during a high speed chase of a reckless offender. While upholding the application of the fireman's rule to that case, the court in Hubbard confirmed the principle, also established in prior cases, that "the fireman's rule was not intended to bar recovery for independent acts of misconduct which were not the cause of the plaintiff's presence at the accident scene." (Id., at p. 486, 169 Cal.Rptr. 706, 620 P.2d 156.)

In three cases decided after Hubbard, and after the court's judgment in this matter, the Court of Appeal applied the limitation which Hubbard confirmed. In Malo v. Willis (1981) 126 Cal.App.3d 543, 178 Cal.Rptr. 774, a highway patrolman was injured when a car which he had pulled over for speeding struck his vehicle from behind. Apparently, the driver was not accustomed to driving a car with manual transmission and had pressed on the clutch pedal instead of the brake pedal. Holding that defendant had not established a complete defense under the fireman's rule, and that the denial of his summary judgment motion was proper, the court reasoned: "An officer who decides to cite a speeding motorist voluntarily chooses to encounter the risks normally associated with that activity. Officer Malo's injury, however, was not caused by a risk typical of the activity of apprehending speeders. The risk did not result from the negligent act of speeding but from the entirely separate and independent act of driving an unfamiliar vehicle. The risk created by this separate act of negligence was not apparent to Malo nor was it a reason for Malo's presence at the accident scene." (Id., at p. 548, 178 Cal.Rptr. 774.)

Spargur v. Park (1982) 128 Cal.App.3d 469, 180 Cal.Rptr. 257 involved a similar situation: a motorcycle officer stopped the defendant for speeding, pulled over in front of the defendant's car, and was hit from the rear. In holding that summary judgment for the defendant on the basis of the fireman's rule was improper, the court reasoned that the defendant in effect occupied a dual role, as the...