Stapper v. GMI Holdings, Inc., A085012

• Decision Date: 21 July 1999
• Docket Number: No. A085012,A085012
• Citation: 86 Cal.Rptr.2d 688,73 Cal.App.4th 787
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 5832, 1999 Daily Journal D.A.R. 7399 Melanie STAPPER, Plaintiff and Appellant, v. GMI HOLDINGS, INC., Defendant and Respondent.

Page 688

86 Cal.Rptr.2d 688

73 Cal.App.4th 787, 99 Cal. Daily Op. Serv. 5832,

1999 Daily Journal D.A.R. 7399

Melanie STAPPER, Plaintiff and Appellant, v. GMI HOLDINGS, INC., Defendant and Respondent.

No. A085012.

Court of Appeal, First District, Division 5, California.

July 21, 1999.

Scott H. Carr, Browne Greene, Greene, Broillet, Taylor, Wheeler & Panish, Santa Monica, Stuart B. Esner, Los Angeles, Andrew N. Chang, San Francisco, Esner & Chang, Terrence L. Butler, Beverly Hills, for plaintiff and appellant.

John R. Reese, Warren George, John S. Hoar, McCutchen, Doyle, Brown & Enersen, San Francisco, for defendant and respondent.

JONES, P.J.

Melanie Stapper brings this appeal from the trial court's grant of nonsuit on her claims against GMI Holdings, Inc., doing business as The Genie Company (Genie). The trial court concluded that "the Firefighter's Rule bars plaintiff's claims as a matter of law." We reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the trial court's request and prior to selection of a jury, Stapper made an offer of proof as to the evidence that she would present to "overcome the firefighter's rule." Stapper offered to prove facts in pertinent part as follows: On March 8, 1995, Melanie Stapper and two other firefighters from Unit 26 responded to the report of a fire at the home of Toby and Yvonne Lee. Upon arriving at the scene of the fire, Stapper and her colleagues entered the home's garage through an open garage door. At that point in time, the garage did not contain any smoke or flames. The firefighters extended a two-inch diameter firehose into the garage through the open garage door and "charged the line." When charged, the line becomes "rock solid with 120 P.S.I."

The firefighters opened a door in the garage that led to the house and determined that the house contained smoke and possibly flames. Through this door, the firefighters "played water inside the house, in the ceiling, in order to break what they anticipated might be a wall, or a smoke, or a gas area inside the house and also to cool it off. They played the water in for approximately a minute to two minutes.... Heat increased, but ... no flame came into the garage, [but] the smoke did come [into the garage] in a small degree." Eventually, heat and smoke forced Stapper and another firefighter to retreat to the garage door only to discover that it had come down and would not open. Stapper alleged that Mr. or Mrs. Lee had closed the door using a remote control device. The garage door could not be moved because "the garage door Genie device, in its installation, had a worm screw device that basically affixed down the door in a permanent condition." Other firefighters, who were outside the garage, opened the garage door but by then one firefighter had sustained fatal injuries and another firefighter, Stapper, had sustained injuries resulting in brain damage and blindness.

In her offer of proof, Stapper contended that the garage door opener was defectively designed. Stapper anticipated showing that "the limit switch is so located in its rail at the top of the garage, that with the kind of doors that we have in California this limit switch can be contacted in such a way that it will lock, although it's not intended to on anything above one and one-half inches, and here we had a hose of two inches or above." In other words, Stapper alleged that, contrary to its intended design, the garage door did not automatically reopen when it came in contact with the hose.

Stapper also argued that Genie had abandoned its initial defense that "the heat brought the door down and/or the heat kept the door from going up." However, Stapper additionally argued that even if Genie had not abandoned this defense, the facts would not support it. When the door came down, the garage did not contain flames, was not hot, and had only "a bit of smoke" in it. Lastly, Stapper stated that on one other occasion a person had died when the Genie garage door opener failed to operate during a fire.

The trial court granted nonsuit on Stapper's claims against Genie "because the risk of a malfunctioning garage door opener or anything else is reasonably associated with a fire."

II. DISCUSSION

Stapper contends that the trial court erred in finding that her claims were barred by the firefighter's rule. Because the trial court granted nonsuit, our review must resolve all conflicts in the evidence and draw all reasonable inferences in favor of Stapper. (See Bierbower v. FHP, Inc. (1999) 70 Cal.App.4th 1, 6, 82 Cal.Rptr.2d 393.)

"The undergirding legal principle of the [firefighter's] rule is assumption of the risk...." (Calatayud v. State of California (1998) 18 Cal.4th 1057, 1061, 77 Cal.Rptr.2d 202, 959 P.2d 360 (Calatayud ).) In Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, our Supreme Court adopted the phraseology "primary" assumption of the risk in order to differentiate true assumption of the risk from so-called "secondary" assumption of the risk, which no longer exists as a separate legal construct, having been merged into the comparative fault scheme. (Id. at pp. 308, 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Our use of the phrase "assumption of the risk" will refer exclusively to the notion of "primary" assumption of the risk.

When assumption of the risk applies, it operates to exonerate a defendant from the duty of care that would have otherwise been owed to the plaintiff. (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536, 34 Cal.Rptr.2d 630, 882 P.2d 347 (Neighbarger ).) The sole issue presented by this appeal is whether the firefighter's rule, which is an example of the proper application of the doctrine of assumption of the risk (id. at p. 538, 34 Cal.Rptr.2d 630, 882 P.2d 347), operates to bar liability by waiving any otherwise applicable duty of care owed by Genie to Stapper. We conclude that Stapper's claims against Genie are not barred by the firefighter's rule.

We are guided in part by our Supreme Court's narrow description of the firefighter's rule. "The firefighter's rule ... is hedged about with exceptions. The firefighter does not assume every risk of his or her occupation. [Citation.] The rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene. [Citations.]" (Neighbarger, supra, 8 Cal.4th at p. 538, 34 Cal.Rptr.2d 630, 882 P.2d 347.) If we follow this general description of the firefighter's rule, Stapper's suit may proceed because she alleges that the garage door's malfunction was independent of the fire, and not caused by the fire.

We do not rest our conclusion solely on this language, however. "Any exception to the general rule [of duty] must be based on statute or clear public policy. [Citation.]" (Neighbarger, supra, 8 Cal.4th at p. 537, 34 Cal.Rptr.2d 630, 882 P.2d 347.) In the case of individuals who negligently start a fire, public policy considerations have resulted in a waiver of the usual duty of care. ¹ (Id. at pp. 537-539, 34 Cal.Rptr.2d 630, 882 P.2d 347.) We look to those policy considerations to determine whether in this case Genie should be exonerated from its usual duty of care. (See, e.g., id. at p. 539, 34 Cal.Rptr.2d 630, 882 P.2d 347 [analyzing policy basis for firefighter's rule to determine whether it should apply when the safety employees are privately rather than publicly employed].)

One policy basis for the firefighter's rule is fairness. Our Supreme Court has explained that it is "unfair to permit a firefighter to sue for injuries caused by the negligence that made his or her employment necessary. [Citations.]" (Neighbarger, supra, 8 Cal.4th at pp. 541-542, 34 Cal.Rptr.2d 630, 882 P.2d 347.) "... [I]t is the fireman's business to deal with that very hazard [the fire] and hence, ... he cannot complain of negligence in the creation of the very occasion for his engagement. [Citations.]" (Calatayud, supra, 18 Cal.4th at p. 1062, 77 Cal.Rptr.2d 202, 959 P.2d 360.)

No similar consideration of fairness arises in this situation. Stapper does not complain of negligence in the creation of the fire, but rather seeks damages for acts that allegedly occurred independent of the fire. Genie's alleged negligence did not make Stapper's employment necessary nor was it the occasion for her presence at the Lee's home.

Our Supreme Court has also supported the firefighter's rule by explaining that the public has in essence insured itself from individual tort liability by providing tax-supported compensation. (Calatayud, supra, 18 Cal.4th at p. 1062, 77 Cal.Rptr.2d 202, 959 P.2d 360.) "This spreads the costs of injuries to public officers among the whole community, making the public in essence a self-insurer against those wrongs that any of its members may commit.' [Citations.] '... In effect, the public has purchased exoneration from the duty of care and should not have to pay twice, through taxation and through individual liability, for that service. [Citations.]' [Citations.] Accordingly, the rule functions as a cost-spreading mechanism 'allow[ing] the public to insure against the injuries that its officers will inevitably sustain in the performance of their duties.' [Citations.]" (Ibid.)

Finding that Genie is exonerated from any duty of care that it might owe Stapper does not further this policy consideration for two reasons. First, it cannot be said that injuries caused at least in part by independent acts of negligence are "inevitabl[e] ... in the performance of [a firefighter's] duties." (See Calatayud, supra, 18 Cal.4th at p. 1062, 77 Cal.Rptr.2d 202, 959 P.2d 360.) Second, while it may be reasonable for the public to insure itself from tort suits alleging negligence by its members in the creation of a fire, it is not reasonable for the public to insure a product manufacturer,...