Spargur v. Park

• Decision Date: 03 February 1982
• Citation: 128 Cal.App.3d 469,180 Cal.Rptr. 257
• Court: California Court of Appeals Court of Appeals
• Parties: Norman SPARGUR, Plaintiff and Appellant, v. Kurt Arthur PARK, et al., Defendant and Respondent. Civ. 61783.

Page 257

180 Cal.Rptr. 257

128 Cal.App.3d 469

Norman SPARGUR, Plaintiff and Appellant, v. Kurt Arthur PARK, et al., Defendant and Respondent.

Civ. 61783.

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

Feb. 3, 1982.

Rehearing Denied Feb. 18, 1982.

Hearing Denied April 1, 1982.

Edward I. Grant, Los Angeles, for plaintiff and appellant.

Krimen, Bjornsen & Klein, and Jeffrey A. Rosen, Los Angeles, for plaintiff in intervention, State Compensation Ins. Fund.

William T. Anderson, Los Angeles, for defendant and respondent.

BEACH, Associate Justice.

NATURE OF APPEAL:

Appeal by injured motorcycle officer from summary judgment in favor of defendant based on defense of fireman's rule. We reverse.

FACTS:

Appellant motorcycle officer while on duty stopped respondent for speeding. Appellant stopped in front of respondent's car. Respondent's car did not come to a full stop, but instead continued on until it struck appellant's motorcycle injuring him.

OUR DECISION:

The fireman's rule does not automatically bar recovery in such cases; there may be conditions under which a police officer may nonetheless recover against such tort-feasor even if the injury occurs in the course of the police officer's employment.

DISCUSSION:

The fireman's rule has recently been reviewed and its application to police officers reaffirmed. (Hubbard v. Boelt (1980) 28 Cal.3d 480, 169 Cal.Rptr. 706, 620 P.2d 156.) " 'The fireman's rule provides that negligence in causing a fire furnishes no basis for liability to a professional fireman injured fighting the fire.' (Walters v. Sloan, supra, [20 Cal.3d] at p. 202 [142 Cal.Rptr. 152, 571 P.2d 609].) The rule, which has been held equally applicable to policemen injured in the course of their duties, is based on the principle that it is the business of a fireman or policeman to deal with particular hazards, and that accordingly 'he cannot complain of negligence in the creation of the very occasion for his engagement.' " (Id. 28 Cal.3d at p. 484, 169 Cal.Rptr. 706, 620 P.2d 156.)

In the cases where the rule has been applied to bar recovery, the act of the defendant upon which the plaintiff's claim rested was an act which created the particular risk inherent in the employment. In such cases, however, the act was not the actual physical, direct and proximate cause of the injury to the plaintiff. In other words, the act of the defendant created the original danger or brought the police officer to the scene but there was not in addition thereto a separate, independent act by the same tort-feasor whereby the officer was injured. Thus the question remains: "May the officer recover for such separate and independent act of the same single tort-feasor?" The court in Hubbard v. Boelt, supra, recognizes the officer may so recover. The language is instructive. "Finally, plaintiff contends that the fireman's rule should not apply to the present case, because his injuries were not caused by defendant's original act of speeding, but by his subsequent act of accelerating to avoid capture, thus resisting arrest at high speeds. Plaintiff asserts 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. [Citation.] We have confirmed the validity of this principle in the abstract. As stated in Walters, supra, 'Thus a police officer who while placing a ticket on an illegally parked car is struck by a speeding vehicle may maintain action against the speeder but the rule bars recovery against the owner of the parked car for negligent parking.' [Citation.] In the present case, however, no such independent act occurred. Plaintiff was injured while pursuing a speeding traffic violator, and in discharge of his official duty incurred the very risk which occasioned his presence at the accident scene." (Hubbard v. Boelt, supra, 28 Cal.3d 480, 486-487, 169 Cal.Rptr. 706, 620 P.2d 156.)

The distinction between the original act of speeding and a subsequent act of negligence is important. In the cases applying the fireman's rule the accepted facts allowed no possibility of an independent tortious act by the defendant who created the original hazard. For example, in Hubbard, supra, the officer was still chasing the speedster. Hubbard simply continued the fireman's rule of Walters v. Sloan (1977) 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, and held that the rule applied also to the case of a wantonly reckless defendant as well as to a merely negligent driver.

So, too, in Ries v. Lee (1981) 115 Cal.App.3d 332, 171 Cal.Rptr. 296, the rule was applied to deny recovery where the officer was hurt during the chase. Similarly, in Holden v. Chunestudey (1980) 101 Cal.App.3d 959, 161 Cal.Rptr. 925, the police officer was denied recovery when he sustained injury from a fall near the scene of an automobile accident which he was investigating. The automobile accident occurred earlier as the result of a willful and wanton act by the defendant who was driving while intoxicated. The court there said "[f]or purposes of this appeal, we assume that the defendant's conduct was willful or wanton [Citation] and that the conduct was the proximate cause of plaintiff's injuries." (Id. at p. 961, 161 Cal.Rptr. 925.) But the court was not there confronted with the issue present here--the presence or absence of a separate, independent act. In Holden the defendant had no physical contact whatever with the injured plaintiff nor was there any subsequent or independent act by defendant resulting in injury to plaintiff. Thus, the assumption and the holding of Holden has to be limited as referring to the creation of the circumstance which brought the officer to the scene.

At bench respondent concedes that the speeding had ended; appellant was not then chasing but had in fact parked his motorcycle and respondent thereafter failed to stop. Under these circumstances it becomes a question of fact whether the officer was struck because of some continuation of the violation which brought him to the scene, i.e., speeding or because of some separate, independent act. ¹

We are considering here the grant of a summary judgment. We encourage the use of the summary judgment to eliminate useless litigation. On the other hand, use of the summary judgment procedure depends upon the presence of a sufficiently complete set of facts and no uncertainty in the facts material and critical to a decision. At bench, the facts upon which respondent relied were gathered primarily from appellant's answers to interrogatories. The answers, however, added nothing significant to the physical facts recited earlier in this opinion other than to admit that the officer was injured in the course of his employment. But such admission added nothing to the critical facts and left unresolved the question whether or not there was a further, separate or independent act of the defendant. The judgment thus appears to have been based on the premise that as a matter of law merely being "on duty" when injured bars a police officer from bringing an action therefor because of the fireman's rule. The decision is too broad. There remains an unresolved factual question. It is: Why did the car continue on after it had pulled off the freeway lane and was not speeding? The pleadings and answers to interrogatories on which respondent relied do not clearly state or show how plaintiff was hurt or that plaintiff was hurt solely by a particular act or conduct to which he voluntarily exposed himself as a risk inherent in his duty.

A fuller presentation of all the facts to the trial court, either at trial or upon renewed motion for summary judgment by respondent, may disclose that there truly is but one inseparable transaction or event. But the question of whether the fireman's rule applies or not cannot be resolved solely on the basis that injury occurred in the line of duty, i.e., scope of employment. Even if injury occurs in such employment while investigating a traffic offense, such circumstance does not make the injuring act or event an inseparable part of a single transaction. The inquiry which appears to us as the better one in determining a motion for summary judgment in such cases is whether the undisputed facts affirmatively foreclose the presence of an independent act.

At bench the record at present does not so foreclose the presence of the independent act or circumstance. Rather, the instant matter now presents a...