# Seibert Security Services, Inc. v. SUPERIOR COURT OF SAN BERNARDINO CTY. > California Court of Appeal · August 3, 1993 · 18 Cal. App. 4th 394 URL: https://www.frixlaw.com/law-library/cases/9745592 ## Case - **Full name:** SEIBERT SECURITY SERVICES, INC., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; JOHN MIGAILO Et Al., Real Parties in Interest - **Court:** California Court of Appeal - **Decided:** August 3, 1993 - **Citations:** 18 Cal. App. 4th 394; 22 Cal. Rptr. 2d 514; 93 Daily Journal DAR 11806; 58 Cal. Comp. Cases 690; 93 Cal. Daily Op. Serv. 6936; 1993 Cal. App. LEXIS 916 - **Precedential status:** Published - **Opinion:** Concurrence by Timlin - **Judges:** Dabney, Timlin - **Cited by:** 17 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/9745592 ## How later opinions describe it (automated extraction) - stating that the “police officer stands in the same posture as any citizen venturing onto the land of- another; his occupation compels him to face felons or fires, not rickety roofs or faulty fences” - stating that the "police officer stands in the same posture as any citizen venturing onto the land of another; his occupation compels him to face felons or fires, not rickety roofs or faulty fences" - noting that doctrine was historically known as "fireman's rule," with modern case law embracing gender-neutral term "firefighter's rule" ## Opinion text TIMLIN, J. I concur in the majority’s analysis and in the disposition, but feel compelled to comment on two aspects of the majority opinion with which I disagree. 1. Use of the Term “Fireman’s Rule” Footnote 3 attempts to justify the continued use of the gender specific word “fireman” in the descriptive title “fireman’s rule.” (Maj. opn., ante, p. *417 404.) I respectfully disagree with the continuation of such gender-specific language. In this age of avoiding sexual stereotyping in language, the use of that label is regressive. Consistent with this view are recent opinions—one from the California Supreme Court and two from intermediate appellate courts—which, in their discussion of the rule, use the term “firefighter.” (See Knight v. Jewett (1992) 3 Cal.4th 296, 309, 310, fn. 5 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ]; Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658 [ 20 Cal.Rptr.2d 148 ]; Hacker v. City of Glendale* (Cal.App.).) Further, as the majority recognizes, the Legislature also uses the gender-neutral term “firefighter” in Civil Code section 1714.9. In my view, the majority’s two rationales for continuing to use the term “fireman” simply make no sense. I address each of these rationales in turn. First, as to the problems of “unenlightened” electronic researchers: As noted above, the term “firefighter’s rule” is now often used in place of the term “fireman’s rule.” Thus, any researcher worth his or her salt should already be searching using both terms, or using an electronic search term such as “fire! pre/1 rule.” Second, as to the majority’s feeling that it is not obliged to “abandon a traditional term under the tyranny of political correctness”: The majority, without any indication of having given any thought to the substance behind the use of the phrase, “politically correct,” has simply tossed out this catchphrase in the apparent hope of appearing firm and principled by resisting any negative connotations conjured up by its use. But the amorphousness of “political correctness” causes its meaning to shift depending upon who is using it and the context within which it is used, and, in any event, it is merely a way of denominating what its user thinks is acceptable in a particular political climate. In other words, it is a phrase of opinion, not definition. It seems to me that the real issue here is not whether one opines that the term “firefighter” is currently acceptable, given the existing political and social climate, but rather, what purpose one believes is served by choosing to use that term rather than the term “fireman.” This issue, the real issue, is never actually addressed by the majority, although some allusion is made to it in the majority’s statement that “We look forward to the day when society’s acceptance of persons of both sexes in all occupations makes technically gender-specific terminology moot.” (Maj. opn., ante, p. 405.) *418 In making this last-noted comment, the majority finally touches upon the real issue presented by this disagreement over language—what is the purpose of using one word rather than another? In my opinion, the purpose of using non-gender-specific language is to accurately acknowledge that the activity being described is not the exclusive domain of either gender. Undeniably, fire suppression activities are performed by women and men alike, not by firemen only. Therefore, because our society now recognizes that firefighting tasks are performed by men and women, and because neither the “electronic researcher” nor the “politically correct” rationale constitutes a rational reason for continuing to use gender-specific language, I simply cannot understand the majority’s desire to cling to the outmoded and factually incorrect term “fireman” to describe the rule. 2. Dicta That the Firefighter’s Rule Falls Within the Primary Assumption of Risk Doctrine I do not join in the dicta recited in footnote 4 of the majority opinion which expresses “the belief’ that the firefighter’s rule falls within the primary assumption of risk doctrine as enunciated in Knight v. Jewett, supra, 3 Cal,4th 296. The majority also cites the opinion in Donohue v. San Francisco Housing Authority, supra, 16 Cal.App.4th 658 at page 405 to support this proposition. A review of Knight v. Jewett and Donohue v. San Francisco Housing Authority reveals, as the majority acknowledges, that the “firefighter’s rule” was mentioned in footnote 5 of Knight , 3 Cal.4th at pages 309-310, only as an example that primary assumption of risk is not the same as “reasonable implied assumption of risk.” In Donohue the court recognized the dicta in footnote 5 of Knight but opined: “Since Knight neither expanded nor restricted the scope of the [firefighter’s rule] we must still determine its applicability here.” ( 16 Cal.App.4th at p. 663 .) It did so and after concluding that the rule was not a bar to the instant claim, it then considered whether, under the circumstances of that case, the primary or secondary assumption of the risk applied. In contrast to Donohue v. San Francisco Housing Authority, supra, 16 Cal.App.4th 658 , here the applicability of the defenses of “primary assumption of risk” and “secondary assumption of risk” was not raised as an issue by any party to this original proceeding, and our resolution of the questions of law at issue in this case, particularly the meaning of the Civil Code *419 section 1714.9 exception and its application to the undisputed facts, does not require an analysis and application of those defenses. Thus, while I have no objection to the majority’s brief reference, in footnote 4, to the “firefighter’s rule” requiring further examination in light of Knight v. Jewett, supra, 3 Cal.4th 296 , I believe that footnote 4 unnecessarily engages in a limited examination and analysis of the rule based on “indications” from dicta in Knight . More importantly, it appears that the relationship of the “firefighter’s rule” to the concepts of “primary” and “secondary” assumptions of risk newly enunciated in Knight as underlying the law of assumption of risk in California, will be considered by the California Supreme Court in Neighbarger v. Irwin Industries, Inc. (S033049, review granted July 23, 1993). Assuredly, we can await the ruling in that case without expressing our “beliefs” on such an important issue. The petition of real parties in interest for review by the Supreme Court was denied October 28, 1993. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9745592. Public record. Not legal advice.