# Calatayud v. State of California

> California Supreme Court · August 6, 1998 · 77 Cal. Rptr. 2d 202

URL: https://www.frixlaw.com/law-library/cases/9548569

## Case

- **Full name:** EDUARDO CALATAYUD III Et Al., Plaintiffs and Respondents, v. THE STATE OF CALIFORNIA Et Al., Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** August 6, 1998
- **Citations:** 77 Cal. Rptr. 2d 202; 18 Cal. 4th 1057; 98 Daily Journal DAR 8527; 959 P.2d 360; 63 Cal. Comp. Cases 926; 98 Cal. Daily Op. Serv. 6187; 1998 Cal. LEXIS 4829
- **Precedential status:** Published
- **Opinion:** Dissent by Mosk
- **Judges:** Brown, Mosk
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9548569

## How later opinions describe it (automated extraction)

- applying the firefighter’s rule to bar suit between fellow police officers for negligently caused injuries, and stating that application of the rule in that case is consistent with the “public policy decision to meet the public’s obligation to its officers collectively through…

## Opinion text

MOSK, J., Dissenting.
As a matter of statutory construction, the majority stand on shaky ground indeed. They concede that the literal language of Civil Code section 1714.9, subdivision (a) (hereafter section 1714.9(a)) 1 applies to “any person,” without limitation, except as to the express exemption of employers provided in subdivision (d) of that section. No doubt there are some exceptional circumstances in which we ignore the literal language of a statute in order to give effect to its manifest legislative purpose, when there is a strong indication that a literal interpretation would be contrary to that purpose. (See, e.g., People v. Pieters (1991) 52 Cal.3d 894, 898 [ 276 *1073 Cal.Rptr. 918 , 802 P.2d 420 ].) But nothing about the context or legislative history of section 1714.9(a) convinces me that construing “any person” literally to include peace officers from other agencies is at odds with the basic purposes of the statute. On the contrary, it is quite consistent with that purpose.
As the majority rightly point out, section 1714.9(a) is substantially based on “ ‘the rationale expressed by Justice Tobriner in his dissent’ ” in Hubbard v. Boelt (1980) 28 Cal.3d 480, 487-493 [ 169 Cal.Rptr. 706 , 620 P.2d 156 ] (Hubbard). (Maj. opn., ante, at p. 1066.) In that case the majority held that a police officer injured in a high-speed chase of a reckless traffic offender was barred by the firefighter’s rule from suing that person. The dissent was not a narrow, fact-specific, opinion, but rather a broad and general attack on the Hubbard majority’s extension of the firefighter rule beyond its traditional narrow confines. As Justice Tobriner stated: “[T]he majority’s policy formulation in this case has fundamentally altered the limited nature of the traditional fireman’s rule, converting the rule into a broad doctrine prohibiting firemen and police officers—but no other employees—from recovering for injuries which they suffer at the hands of third persons in the course of their employment. This reasoning is not only inconsistent with the traditional limits of the fireman’s rule, but in addition squarely conflicts with the principles of Labor Code section 3852, which provides that ‘[t]he claim to the employee for [workers’] compensation does not effect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer.’ ” ( 28 Cal.3d at p. 491 (dis. opn. of Tobriner, J.), italics in Justice Tobriner’s opinion.)
As Justice Tobriner further stated: “[T]he policy basis for the traditional firemen’s rule rests on the notion that ordinary tax-paying members of the public hire firemen and police officers at least in part to deal with future dangers that may in the normal course of events result from the taxpayer’s own negligence, and that—by analogy to insurance, for example—it is unfair and unduly burdensome subsequently to require an unfortunate, if negligent, individual taxpayer to pay again for injuries sustained when such negligence in fact occurs.” (Hubbard, supra, 28 Cal.3d at p. 492 (dis. opn. of Tobriner, J.).) In order to confine the firefighter’s rule to boundaries commensurate with this original rationale, Justice Tobriner proposed three broad limitations on the rule: It should not prevent recovery when a person commits subsequent negligent acts after the police officer arrives on the scene, nor when a person intentionally or wantonly injures such officers, nor when a person violates a statute and the officer suffering the injury was one of the class of persons for whose protection the statute was adopted. (Id. at pp. 488-490.) Section 1714.9(a) incorporates each of these three limitations on the firefighter’s rule. *1074 The majority state, after reviewing the Hubbard dissent and related legislative history, that “we find no evidence the Legislature used the phrase ‘any person’ to encompass other jointly involved public safety members or to extend the scope of section 1714.9(a)(1) to injury caused by them. Viewed in context, the provision demonstrates singular concern with the prototypical case in which the firefighter’s rule is invoked to shield a defendant whose original misconduct occasioned an officer’s presence and whose subsequent misconduct caused injury.” (Maj. opn., ante, at p. 1068.) This statement is erroneous for two reasons.
First, such a narrow reading of section 1714.9(a) has no basis in Justice Tobriner’s Hubbard dissent, and indeed turns that dissent on its head. The whole thrust of the dissent, as reviewed above, was to limit the firefighter’s rule to its original “prototypical” situation—“ ‘that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences.’ ” ( 28 Cal.3d at p. 492 (dis. opn. of Tobriner, J.); see also Walters v. Sloan (1977) 20 Cal.3d 199 [ 142 Cal.Rptr. 152 , 571 P.2d 609 ] [holding that a police officer’s personal injury action against parents negligently allowing child’s disorderly party leading to officer’s injury is barred by the firefighter’s rule].) Section 1714.9(a) scales the firefighter’s rule back to that original prototypical situation. The injury of a police officer by officers from a different agency after the police officers have arrived on a crime scene is not within the class of injury covered by this prototypical situation, and there is no reason not to construe section 1714.9(a) literally to permit police thus injured to bring civil actions.
Second, the majority find it significant that they can locate “no evidence the Legislature used the phrase ‘any person’ to encompass other jointly involved public safety members” (maj. opn., ante, at p. 1068). But why is it significant that the legislative history contains no evidence that police officers or firefighters would be included or excluded from the class of “any persons” under the statute, when the Legislature did not apparently consider any such occupational exemptions? Given the broad purpose and broad language of section 1714.9(a), the natural inference to be drawn from the lack of any discussion in the legislative history of whether peace officers or other groups would be exempted from the class of “any persons” is that they would not be so exempted.
Moreover, the majority state that their holding is limited to “injury negligently caused by a fellow officer jointly engaged with the injured officer in the discharge of their public safety responsibilities.” (Maj. opn., *1075 ante, at p. 1060, fn. 3.) This is indeed a salutary limitation, and suggests that the majority cannot quite bring itself to conclude that a police officer intentionally injured by an officer from another agency is barred from bringing a lawsuit. But the implication of such limitation is that the term “any person” within section 1714.9(a) means one thing when a police officer is causing intentional injury to an officer from a different agency and another thing when the same officer is causing negligent injury. Such an illogical and inconsistent reading of the statute cannot be what the Legislature intended.
Nor do I agree with the majority that the language in 1714.9(a) “might arguably override certain statutory immunities presently conferred on public safety personnel and their employers.” (Maj. opn., ante, at p. 1069.) Section 1714.9(a) states that “[njotwithstanding statutory or decisional law to the contrary, any person is responsible ... for any injury occasioned to that person by the want of ordinary care or skill in the management of the person’s property or person, in any of the following situations . . . .” A key word for understanding the above passage is “responsible.” “Responsible” does not necessarily mean liable, but rather that a person has a duty, in the common law sense, to refrain from injuring peace officers under the circumstances enumerated in the statute. Indeed, section 1714, subdivision (a) states that “[ejvery one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill . . . .” (Italics added.) No one doubts that the universal proclamation of responsibilityin section 1714, subdivision (a) is subject to the various statutory immunities from liability. Neither in section 1714 nor in section 1714.9(a) is responsibility automatically equated with legal liability.
In other words, “any person,” including a police officer, has a duty not to harm a police officer under the circumstances enumerated in section 1714.9(a), but such persons will not invariably be held liable if the specific facts of the injury allow the tortfeasor to invoke a governmental immunity. This interpretation is consistent with the evident purpose of section 1714.9(a), which was to limit the application of the firefighter’s rule, and there is no indication in the legislative history that the section was concerned in any way with abolishing statutory immunities. On the contrary, as the language in Justice Tobriner’s dissent suggests, the purpose of section 1714.9(a) is to put a peace officer or firefighter in the same position as other employees, not to grant them a privileged position. (Hubbard, supra, 28 Cal.3d at p. 491 (dis. opn. of Tobriner, J.).) It would be illogical to construe the statute to grant such privilege. Therefore, consistent with our duty to harmonize statutes where possible (County of San Bernardino v. City of San *1076 Bernardino (1997) 15 Cal.4th 909, 933 [ 64 Cal.Rptr.2d 814 , 938 P.2d 876 ]), section 1714.9(a) should be construed to hold a person responsible, the firefighter’s rule notwithstanding, for injury to peace officers committed under certain enumerated circumstances, but also to permit the person to defend against a suit with whatever statutory immunities would be available to any other tortfeasor.
The other arguments made by the majority in support of their position are also unpersuasive. The majority state, ante, on page 1072: “Construing section 1714.9(a)(1) as extending to jointly engaged fellow officers would also create serious anomalies in the law because section 1714.9 preserves the exclusivity of the Workers’ Compensation Act. [Citation.] Thus, an injured officer would be allowed to sue when the negligent officer was employed by another agency .... We can discern no rational reason the Legislature would intend liability to depend solely on whether the plaintiff and defendant wore different badges and uniforms when the risk of injury is the same. Such a consequence is itself sufficiently absurd to defeat plaintiff’s construction of the statute.”
This statement does not withstand analysis. It is not the firefighter’s rule that prohibits a firefighter or police officer from suing his or her employer, but rather the Workers’ Compensation Act, via section 1714.9, subdivision (d), that imposes that limitation. If there is an “anomaly,” it is because that act creates numerous apparent anomalies, permitting an employee to sue a tortious third party but not to sue an equally tortious employer or fellow employee. These apparent anomalies are the result of the legislative balancing of various interests. The Legislature has chosen to limit the liability of employers, but not of third parties, for on-the-job injuries (Lab. Code, § 3852), balancing the efficiencies of the workers’ compensation system with the right of employees to seek judicial redress for personal injury. Such legislative balancing is not absurd, and therefore neither is a legislative scheme which permits a police officer to sue tortious third parties, including other government agencies, but not to sue his or her employer. In other words, the most reasonable assumption is that section 1714.9, subdivision (d) • incorporates general workers’ compensation principles into suits by police officers and firefighters, and that therefore police officers or other government employees cannot sue government employees employed by the same agency, but can sue government employees from other agencies to the extent permitted by the Workers’ Compensation Act.
Apart from questions of statutory construction, the majority make a number of policy arguments why its interpretation of section 1714.9(a) is sound. Aside from the fact that this court’s conception of sound public *1077 policy should not displace that of the Legislature, I find these policy arguments unconvincing.
The majority state: “Sound policy mandates that the discharge of [police officers’] duties [to protect the public] takes precedence over avoiding injury to fellow officers, particularly when responding to a rapidly developing emergency or crisis.” (Maj. opn., ante, at p. 1069.) That is no doubt the case, and police officers’ activity would be protected to some degree by governmental immunities of various types. Also, this sound policy mandate would shape the fact finder’s determination of whether a peace officer acted reasonably under the circumstances. But what happens when, as the jury apparently found in this case, the peace officer was negligent not in the sense that he failed to protect the other peace officer from harm, but rather that he failed to follow reasonable police procedures—that is, those designed to protect the public—in attempting to apprehend a suspect with one hand while holding a rifle with the other? In such cases, the interest in protecting the public and in allowing police officers to be fairly compensated through the tort system for their injuries are not in conflict. In other words, there is no reason to assume that enforcing a rule of compensation for injurious conduct by fellow police officers will be at odds with the goal of public safety. Moreover, given the strong moral and practical disincentives for police officers not to harm fellow police officers, it is highly doubtful that the abstract threat of (usually indemnifiable) liability will significantly further inhibit a police officer from acting vigorously and appropriately in an emergency situation.
The majority cite the “costs-spreading rationale” as another reason for supporting its position, quoting language in Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 543 [ 34 Cal.Rptr.2d 630 , 882 P.2d 347 ]: “ ‘[T]o permit firefighters to bring actions for injury caused by responding to a fire would involve the parties in costly litigation over rights of subrogation without substantially benefiting the firefighter, who is compensated either by the retirement system or the workers’ compensation system.’ . . . Applying the firefighter’s rule thus ‘relieve[s] various public agencies of the burden of lawsuits over rights of subrogation that are pointless because the public fisc ultimately pays regardless of the outcome (Maj. opn., ante, at p. 1070.) The above quoted language is taken from a context in which we were concerned with demonstrating that the firefighter’s rule should not be extended to private firefighters. But, as used by the majority, this statement proves too much. It is an argument for the extension of the firefighter’s rule to bar all lawsuits by all public employees. The argument has no special force with respect to police officers suing other police officers. From a public employee’s standpoint, a private right of action is frequently advantageous because the tort system may compensate him to a greater extent than *1078 the disability or retirement system. The Legislature, having obviously considered this cost-spreading, efficiency argument as reason not to restrict the firefighter’s rule, nonetheless enacted section 1714.9(a) and allowed firefighters and peace officers to maintain private rights of action under the circumstances enumerated in the statute. It is not for us to question this legislative judgment.
The majority also contend that we should not consider “any person” to include fellow peace officers because such a construction would have an “adverse effect on the fisc.” (Maj. opn., ante, at p. 1071.) But is this really the case? California courts have long assumed that police officers could sue other police officers. (See Rose v. City of Los Angeles (1984) 159 Cal.App.3d 883 [ 206 Cal.Rptr. 49 ].) As far as I can discern, there has been no substantial impact on the public treasury as a result, and the majority demonstrate none beyond their bald assertion. There is indeed every reason to believe that, in light of the skill and training of our peace officers, such lawsuits are relatively rare events. It is therefore unsurprising that, as the majority point out, many public agencies supported the passage of section 1714.9(a): A public agency would have far more to gain, in terms of recovering workers’ compensation costs through subrogation of an injured officer’s personal injury award, as is permitted by section 1714.9, subdivision (c), than it would have to lose in the rare event that one of its officers injured an officer from another agency.
In short, the language and purpose of section 1714.9(a) lead me to conclude that “any person” should be taken literally, and that there is no implied exemption for peace officers or any other occupational classification. In the final analysis, the real policy question is this: Do the benefits of permitting a police officer to sue an officer from a different agency who has injured him—including the benefits that accrue directly to the police officer—outweigh the harm such suits may cause, financially and otherwise, sufficient to create an exemption from liability under section 1714.9(a)? This is a question that the Legislature is far better equipped than this court to address, for it is better able to measure the magnitude of the various harms and benefits. Our task is simply to give effect to the language and purpose of the statute, and that should lead us to affirm the Court of Appeal’s holding that plaintiff in this case has a right of action against the State of California and a California Highway Patrol officer. The Legislature can easily amend the statute if its own public policy assessment so dictates.
All statutory references are to the Civil Code unless otherwise indicated.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9548569. Public record. Not legal advice.