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Holden v. Chunestudey

Court of Appeal of California, Third District
Feb 6, 1980
101 Cal.App.3d 959 (Cal. Ct. App. 1980)

Summary

In Holden, a patrolman was summoned to the scene of a fatal accident apparently caused by defendant's driving while intoxicated; the officer slipped and fell while climbing a hill near the accident scene.

Summary of this case from Hubbard v. Boelt

Opinion

Docket No. 18147.

February 6, 1980.

Appeal from Superior Court of Placer County, No. 48252, Keith F. Sparks, Judge.

COUNSEL

Burke Kessler, Bruce T.H. Burke and Hurd, Meyer Mitchell for Plaintiff and Appellant.

McCaslin Wells and Leon McCaslin for Defendant and Respondent.


OPINION


Plaintiff, Gary D. Holden, appeals from the summary judgment granted to defendant, Joseph E. Chunestudey, in plaintiff's personal injury action.

The issue on appeal is whether the fireman's rule, which under Walters v. Sloan (1977) 20 Cal.3d 199 [ 142 Cal.Rptr. 152, 571 P.2d 609] precludes recovery by a policeman for injuries proximately caused by the negligent conduct of someone within the scope of the policeman's investigational or other duties, extends to willful or wanton misconduct. We so hold.

I

For purposes of this appeal the relevant facts on review of the summary judgment are not in dispute. ( Hall v. C A Navarra Ranch, Inc. (1972) 24 Cal.App.3d 774, 779 [ 101 Cal.Rptr. 249].) Plaintiff was employed as a patrolman by the Auburn Police Department. While on duty early on the morning of May 21, 1976, he was called to investigate an accident in which a truck driven by defendant left the freeway and hit a tree, killing defendant's passenger, and came to rest on the bushy side of a hill. In negotiating the hill near the scene of the accident, plaintiff fell and injured his back and tailbone. Evidence produced on the motion for summary judgment, including the defendant's blood alcohol content, showed the defendant to be under the influence of intoxicating beverages. Plaintiff filed suit alleging that defendant's conduct was wanton and willful and proximately caused his injuries.

(1) For purposes of this appeal, we assume that the defendant's conduct was willful or wanton ( Taylor v. Superior Court (1979) 24 Cal.3d 890, 896-899 [ 157 Cal.Rptr. 693, 598 P.2d 854]) and that the conduct was the proximate cause of plaintiff's injuries.

II

In Walters v. Sloan, supra, 20 Cal.3d 199, the California Supreme Court applied the fireman's rule to police officers. "The fireman's rule provides that negligence in causing a fire furnishes no basis for liability to a professional fireman injured fighting the fire. Firemen, `whose occupation by its very nature exposes them to particular risks of harm, "`cannot complain of negligence in the creation of the very occasion for [their] engagement.'" [Citation.] While denominated the fireman's rule, the rule is applicable to policemen as well. [Citation.]" (Fn. omitted.) ( Id., at p. 202.) "[A policeman] has voluntarily confronted the risk for compensation, and public policy requires that he look elsewhere to be compensated for any harm sustained in the fulfillment of his duties. . . ." ( Ginter v. Collins (1979) 99 Cal.App.3d 537, 540 [160 Cal.Rptr. 399].)

The policy justifications for the fireman's rule in negligence cases set forth in Walters require application of the rule to willful or wanton misconduct.

Firemen and policemen fall within fundamental tort principles which prevent a person from recovering for injury due to a knowingly and voluntarily encountered hazard. ( Walters v. Sloan, supra, 20 Cal.3d at p. 204.) This rationale applies to willful or wanton misconduct as well as to negligence.

Second, police officers "`"`cannot complain of negligence in the creation of the very occasion for [their] engagement.'" [Citation.]'" ( Id., at p. 205.) Similarly, they may not complain of willful or wanton misconduct for they are employed to deal with behavior made the subject of their duties, whether it arises as a result of someone's careful behavior, negligence, or willful or wanton misconduct.

Third, firemen and policemen receive special benefits and pay because of the dangers they encounter. ( Id., at pp. 205-206.) The added compensation is not limited to injury from negligent conduct.

Last, Walters expressed concern that abolishing the fireman's rule would burden the courts with litigation. That concern would not be much mitigated by limiting the rule to negligence cases both because of the potential number of wanton or willful cases and because we can anticipate litigation plumbing the line between negligence and willful or wanton misconduct.

Although revision of the rule to reflect modern tort concepts has been convincingly recommended (Note, Negligence Actions by Police Officers and Firefighters: A Need for a Professional Rescuers Rule (1978) 66 Cal.L.Rev. 585, 598-609), we consider ourselves bound by the policy considerations set forth in Walters and decline to undertake a revision of the rule; accordingly, we apply the principles enunciated in Walters to willful or wanton misconduct.

We do not deal in this case with intentional conduct and hence do not determine whether such conduct would permit a public safety officer to bring a cause of action for personal injuries occasioned thereby.

III

Plaintiff argues also that he made a prima facie showing of negligence against defendant and that there is no rule of law which would immunize defendant from liability to an injured rescuer.

Plaintiff relies upon Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361 [ 99 Cal.Rptr. 29, 491 P.2d 821], which allowed a doctor who had agreed to provide necessary medical care to employees injured at defendant's construction site to recover for back injuries received while rendering medical aid to two injured employees. The court refused to apply the fireman's rule, stating that although the doctor agreed to render medical aid, he did not agree to cope with steep, slippery embankments, which constituted a risk not inherent in the performance of his services. ( Id., at pp. 368-369.)

Plaintiff may not claim the benefit of the rescue doctrine. As one commentary has noted: "Most of the dangerous situations which police officers and firefighters are hired to remedy would be appropriate for the application of the rescue doctrine absent the professional status of the rescuer. . . . [¶] There is no need to offer the tort recovery as an incentive to encourage professional rescuers to rescue, since they are already contractually bound to do so. The extreme economic hardship of uncompensated injuries is also absent in rescues by professionals since the burden is widely distributed through compensation insurance. For these reasons, police officers and firefighters should have no cause of action based on the rescue doctrine." (Fn. omitted.) (Note, Negligence Actions by Police Officers and Firefighters: A Need for a Professional Rescuers Rule, supra, 66 Cal.L.Rev. at pp. 593-594.)

Since we are bound by the Supreme Court's affirmation of the fireman's rule, we decline to allow plaintiff to recover on the basis of the rescue doctrine, which is doctrinally inconsistent with the fireman's rule.

The judgment is affirmed.

Regan, Acting P.J., and Janes, J., concurred.

Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

A petition for a rehearing was denied March 4, 1980, and appellant's petition for a hearing by the Supreme Court was denied April 17, 1980.


Summaries of

Holden v. Chunestudey

Court of Appeal of California, Third District
Feb 6, 1980
101 Cal.App.3d 959 (Cal. Ct. App. 1980)

In Holden, a patrolman was summoned to the scene of a fatal accident apparently caused by defendant's driving while intoxicated; the officer slipped and fell while climbing a hill near the accident scene.

Summary of this case from Hubbard v. Boelt

In Holden, a police officer was injured when he climbed down a hill while investigating an accident that occurred when defendant's truck left the freeway and hit a tree.

Summary of this case from Hubbard v. Boelt

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.

Summary of this case from Spargur v. Park

In Holden v. Chunestudey (1980) 101 Cal.App.3d 959 [ 161 Cal.Rptr. 925], the rule was applied to prevent recovery to a police officer injured while investigating the scene of an accident caused by a drunken driver.

Summary of this case from Bay Area Rapid Transit v. Superior Court

In Holden, a patrolman was summoned to the scene of a fatal accident apparently caused by defendant's driving while intoxicated.

Summary of this case from Entwistle v. Draves
Case details for

Holden v. Chunestudey

Case Details

Full title:GARY D. HOLDEN, Plaintiff and Appellant, v. JOSEPH E. CHUNESTUDEY…

Court:Court of Appeal of California, Third District

Date published: Feb 6, 1980

Citations

101 Cal.App.3d 959 (Cal. Ct. App. 1980)
161 Cal. Rptr. 925

Citing Cases

Hubbard v. Boelt

(See Walters, at p. 202, fn. 2; Giorgi, at p. 360.) Then, in Holden v. Chunestudey (1980) 101 Cal.App.3d 959…

Lipson v. Superior Court

Hubbard found that the fireman's rule precludes liability for reckless as well as negligent conduct that…