Terhell v. American Commonwealth Associates

• Decision Date: 24 September 1985
• Citation: 172 Cal.App.3d 434,218 Cal.Rptr. 256
• Court: California Court of Appeals Court of Appeals
• Parties: Jacque TERHELL, Plaintiff and Appellant, v. AMERICAN COMMONWEALTH ASSOCIATES et al., Defendants and Respondents. A023648.

Page 256

218 Cal.Rptr. 256

172 Cal.App.3d 434

Jacque TERHELL, Plaintiff and Appellant, v. AMERICAN COMMONWEALTH ASSOCIATES et al., Defendants and Respondents.

A023648.

Court of Appeal, First District, Division 3, California.

Sept. 24, 1985.

Thomas M. Carnes, Carnes and Aune, San Francisco, B.E. Bergesen, III, Berkeley, for plaintiff and appellant.

Michael J. Brady, Gail Y. Norton, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, for defendants and respondents.

BARRY-DEAL, Associate Justice.

Plaintiff Jacque Terhell appeals from a judgment of dismissal entered after the trial court sustained defendants' demurrer to his second complaint without leave to amend. The issue before us is whether it appeared on the face of appellant's complaint that his action was barred by the "firefighter's rule." ¹ We conclude that it did not; accordingly, we reverse.

PROCEDURAL HISTORY

Appellant filed a complaint for damages in Alameda County Superior Court on September 27, 1982, naming as defendants American Commonwealth Associates, a limited partnership, Partap Kapoor, a general partner therein, and Does. Respondents demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action. Specifically, they asserted that appellant's action was barred by the firefighter's rule.

The trial court sustained respondents' demurrer with leave to amend, but ultimately sustained a demurrer to a second amended complaint without leave to amend, stating only that the pleading "shows on its face that the action is barred by the 'Fire[fighter]'s Rule'." Judgment of dismissal was entered, and this timely appeal followed.

THE FACTS

Appellant's second amended complaint, filed April 7, 1983, alleged the following.

Respondent American Commonwealth Associates is a limited partnership, and respondent Partap Kapoor is a general partner. Respondents "constructed, owned, operated, maintained and controlled" a certain building in Berkeley which had a flat roof accessible from within the building. Respondents "negligently constructed, owned, operated, maintained and controlled said roof so as to create and permit an unguarded and concealed opening in the roof which was hazardous to anyone on the roof...." They "knew of the opening and its hazard, but failed to warn [appellant] or anyone else of its presence."

Respondents were in violation of the Uniform Building Code of the City of Berkeley, which required guardrails around certain openings in roofs. "... [A]s a proximate On about November 17, 1981, appellant, "while engaged in the course and scope of his employment as a fire[fighter], was on the roof of said building ... unaware of the concealed opening and fell through it, causing him serious injuries and damages...."

result thereof [appellant] fell through an unguarded opening in the roof of the aforesaid building causing injuries and damages...."

The complaint went on to specify certain injuries and expenses proximately resulting from the alleged negligence.

DISCUSSION

Standard of Review

"On appeal, the plaintiff bears the burden of demonstrating either that a demurrer was sustained erroneously or that sustaining a demurrer without leave to amend was an abuse of discretion. [Citation.] A trial court's ruling sustaining a demurrer is deemed erroneous where a plaintiff has stated a cause of action under any possible legal theory. [Citations.] In assessing the sufficiency of a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implication are deemed true. [Citations.]" (Pollack v. Lytle (1981) 120 Cal.App.3d 931, 939-940, 175 Cal.Rptr. 81.)

The Firefighter's Rule

The rule and its rationale have been stated in a number of ways, which may be accurately summarized as follows: A firefighter who is injured fighting a fire is barred from bringing a tort action against a person for causing the fire. (E.g., Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609.) This rule, now extended to police officers, is based upon "(1) the traditional principle that 'one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby [assumption of risk],' [citation], and (2) a public policy to preclude tort recovery by fire[fighters] or police ... [officers] who are presumably adequately compensated (in special salary, retirement, and disability benefits) for undertaking their hazardous work [citation]." (Hubbard v. Boelt (1980) 28 Cal.3d 480, 484, 169 Cal.Rptr. 706, 620 P.2d 156; see generally Comment, The Fire[fighter]'s Rule: Defining Its Scope using the Cost-Spreading Rationale (1983) 71 Cal.L.Rev. 218 [hereafter Comment ].)

Use of the rule to bar causes of action has been strictly limited. It "was not intended to bar recovery for independent acts of misconduct which were not the cause of the plaintiff's presence at the ... scene. (See, e.g., Kocan v. Garino (1980) 107 Cal.App.3d 291, 295-296 ....)" (Hubbard v. Boelt, supra, 28 Cal.3d at p. 486, 169 Cal.Rptr. 706.) The rule "has not been applied in California to negligence other than that which started the fire." (Bartholomew v. Klingler Co. (1975) 53 Cal.App.3d 975, 979, 126 Cal.Rptr. 191.) "Thus, for example, although a landowner incurs no liability simply for negligently starting a fire, such a defendant has generally been held liable if, after a fire[fighter] arrives, the owner negligently fails to advise the fire[fighter] of some special danger on the property which ultimately causes the officer's injury. [Citations.]" (Hubbard v. Boelt, supra, 28 Cal.3d at pp. 487, 488, 169 Cal.Rptr. 706 (dis. opn. of Tobriner, J.).)

Decisions Applying the Rule

In Walters v. Sloan, supra, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, defendants permitted their 16-year-old daughter to host a party where she provided alcohol and drugs to minors. When disorder developed, plaintiff police officer responded to the scene, where he was injured while attempting to arrest one of the guests. (Id., at pp. 201-202, 142 Cal.Rptr. 152, 571 P.2d 609.) The court stated, "It is unnecessary to attempt to separate the legal theories [of the firefighter's rule] or to catalog their limitations. The rule finds its clearest application in situations like that before us--a person who, fully aware of the hazard created by the defendant's negligence voluntarily confronts the risk for compensation." (Id., at p. 204, 142 Cal.Rptr. 152, 571 P.2d 609.) The fact that defendants' negligence constituted a statutory violation did not change this result, since the negligence of serving alcohol to minors was the same negligence which occasioned the summoning of the officer. (Id., at pp. 206-207, 142 Cal.Rptr. 152, 571 P.2d 609.) The court affirmed a judgment of dismissal after sustaining of a demurrer without leave to amend. (Id., at pp. 201, 207, 142 Cal.Rptr. 152, 571 P.2d 609.)

Similarly, the court affirmed dismissal after granting defendant's motion for summary judgment in Hubbard v. Boelt, supra, 28 Cal.3d 480, 169 Cal.Rptr. 706, 620 P.2d 156, where plaintiff police officer was injured during a high speed chase of defendant, who was a reckless traffic offender.

Decisions Refusing to Apply the Rule

Lipson v. Superior Court (1982) 31 Cal.3d 362, 182 Cal.Rptr. 629, 644 P.2d 822, our Supreme Court's most recent decision on the firefighter's rule, provides an extreme example of facts outside the rule. There plaintiff firefighter alleged that he responded to a chemical boilover at defendants' plant. When he arrived, defendants informed him that the boilover did not involve toxic chemicals or materials and that there would be no danger in attempting to contain it. These were intentional or negligent misrepresentations; the boilover did involve toxic substances, and plaintiff was injured from exposure to them. (Id., at p. 365, 182 Cal.Rptr. 629, 644 P.2d 822.) The court upheld the trial court's denial of defendants' motion for summary judgment. (Id., at pp. 366, 379, 182 Cal.Rptr. 629, 644 P.2d 822.)

The essence of the ruling was a reaffirmation of these basic principles: "... [T]he fire[fighter]'s rule only bars a firefighter from recovering for injuries resulting from a person's negligence or recklessness in causing the fire or other emergency which is the reason for the fire[fighter]'s presence." (Id., at p. 366, 182 Cal.Rptr. 629, 644 P.2d 822.) It does " '... not deal with ... situations in which there is some hidden danger known to the defendant but not to the fire[fighter], nor situations in which the fire[fighter] is injured as a result of some risk beyond those inevitably involved in firefighting. Neither [does it] deal with those situations in which the defendant's negligence occurred after the fire[fighter] arrived on the scene and materially enhanced the risk of harm or created a new risk of harm....' " (Id., at p. 367, 182 Cal.Rptr. 629, 644 P.2d 822, quoting Scott v. E.L. Yeager Constr. Co. (1970) 12 Cal.App.3d 1190, 91 Cal.Rptr. 232 [firefighter responded to ruptured gas main, gas ignited, recovery for injury based on defendant's negligence in rupturing gas main reversed].)

The Lipson court further defined the limits of the rule: "It is ... unmistakably clear that in California, the fire[fighter]'s rule has never been construed as shielding a defendant from liability for acts of misconduct which are independent from those which necessitated the summoning of the fire[fighter]. (Kocan v. Garino (1980) 107 Cal.App.3d 291 ...; Bartholomew v. Klinger Co. (1975) 53 Cal.App.3d 975, 979 ....) The rule has only been applied to prohibit a fire[fighter] from recovering for injuries caused by the very misconduct which created the risk which necessitated his [or her] presence.4" In its footnote 4 at this point, the court stated, in part: "A review of the California court decisions which have applied the fire[fighter]'s rule finds no exceptions to this statement...." (Lipson v. Superior...