Petition — County of Santa Barbara v. Collins

upreme Court, U.

-EILED

MAY 1. 1980

IN THE SUPREME COURT OF THE DAB BAT RGAK, JR, CLERA_

October Term, 1979

sas ®9-1730

COUNTY OF SANTA BARBARA,

Petitioner

vs.

BRIAN J. COLLINS,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE

COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT

Peter J. Samuelson

P.O. Drawer 750

Santa Barbara, CA 93102

Telephone: (805) 966-9174

Fred P. Lynch

P.O. Drawer 1499

Santa Barbara, CA 93102

Telephone: (805) 963-1555

Counsel for Petitioner

J. GALLAGHER — Printed Briefs (714) 835-6522

TOPICAL INDEX

Page

visas incuncen MELEE Ce e

Oe SE I 5's vs x oa o-0.5 bs ow od vce ee 2

EEO OECD er hers 2

ey Se POI og 5. kiko hb ksi neko kee 2

(d) Constitutional Provision Involved ............... 3

eg i Lt ee ne omen 3

(f) Reasons For Granting The Writ.

1. A Substantial Federal Question Was Raised And

Passed Upon In The Highest State Court ......... 4

2. The Opinion Of The California Court Of Appeal

Is State Action Within The Meaning Of The

Fourtetnin Annan 2 o.oo 0k hw coe aban nds 5

3. The Petitioner Has Standing As An Employer Of

A Law Enforcement Officer To Present The

Consiintenet R000 5... ki eee 6

4. The Fireman’s Rule Denies The Petitioner Equal

Protection Of The Laws Under The Fourteenth

MO id os kis hg be Ra ee 7

RII 5 u's 45-0 ovate tom arc ee ee 11

pe ae ann RPS MENT sy rors eRALRES Vee be 12

re ete re 20

TABLE OF AUTHORITIES

Cases Page

Banks v. California

(1969) 395 U.S. 708, 89 S. Ct. 1901, 23 L. Ed. 2d 653....... 5

Barrows v. Jackson

(1953) 346 U.S. 249, 73 S. Ct. 1031, 76 L. Ed. 1586 ........ 6

Bode v. Barrett

(1953) 344 U.S. 583, 73 S.Ct. 468, 97 L. Ed. 517 ........... 7

Bridges v. California

(1941) 214 U.S. 252, 62 S. Ct. 190, 86 L. Ed. 192........... 6

Civil Rights Cases

(1883) 200 U.S. 3: 3-S. Ct 18, 37-L. Bd. 836-5. ri es 5

t

Cooper v. Aaron,

(1958) 358 U.S.1, 78 S. Ct 1399, 3 L. Ed. 2d 3. ............ 5

Hampton v. Mow Sun Wong,

(1976) 426 U.S. 88, 96 S. Ct. 1895, 48 L. Ed. 2d 495....... 10

Houseright v. Pacific Far East Line, Co.

(1964) 229 Cal. App. 2d. 259, 40 Cal. Rptr. 208 ............. .

Jeffrey Mfg. Co. v. Blagg,

(4915) 236 U.S. 571, 35 S. Ct. 167, 59 L. Ed. 364........... 7

‘Jenkins v. Georgia,

(1974) 418 U.S. 153; 94 S. Ct. 2750, 41 L. Ed. 2d 642....... 4

Lamoreux v. San Diego & Arizona Eastern Railway Company

(2007) 46 Cal. SE GET, BET Pe DEL sient eaieenes ee 7

McAllister v. Cummings,

(1961) 191 Cal. App. 2d 1, 12 Cal. Rptr. 418 ............... 16

McDonald v. Board of Election Commissioners

(1969) 394 U.S. 802, 89 S. Ct. 1404, 22 L. Ed. 2d 739 ..... 10

New York Times Co. v. Sullivan

(1964) 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686....... 11

Raley v. Ohio

(1959) 360 U.S. 423, 79 S. Ct. 1257, 3 L. Ed. 2d 1344; ...... 4

Schrimscher v. Bryson

(1976) 58 Cal. App. 3d 660, 130 Cal. Rptr. 125 ............ 15

Scott v. City and County of San Francisco

(1949) 91 Cal. App. 2d 887, 206 Pac. 2d 45................. 8

Shelley v. Kraemer

(1948) 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 ............ 6

State Compensation Insurance Fund v. Williams

(1974) 38 Cal. App. 3d 218, 112 Cal. Rptr. 226 ............. 6

Stratton v. Stratton

(1915) 239 U.S. 55, 36 S. Ct. 26, 60 L. Ed. 142 ............. 5

Walters v. Sloan

(1977) 20 Cal. 3d 199, 142 Cal. Rptr.152...... 7,13,15,16,17,18

Witt v. Jackson

(1961) 57 Cal. 2d 57, 17 Cal. Rotr. 369 ............000:. 6, 16

Woodcock v. Fontana Scaffolding & Equipment Company

(1968) 68 Cal 3d°'453, 78 Cal. Rpt. B17 2. cc cvccsccsecvess 8

Statutes & Codes

Calif. Labor Code § §3850-3854 ............ ccc cece eee eee 6

See ae EO SE eee di0 oe 60s 0seus see ene ease eee oun 2

U.S. Constitution

NE cals écdlacn waee hha bile aeewaleeee 2, 3, 5

Texts

ul

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

No,

COUNTY OF SANTA BARBARA,

Petitioner

VS.

BRIAN J. COLLINS,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE

COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT

The petitioner, COUNTY OF SANTA BARBARA,

respectfully prays that a writ of certiorari issue to review

the judgment and opinion of the Court of Appeal of the

State of California, Second Appellate District, entered on

December 10, 1979.

OPINION BELOW

The opinion of the Court of Appeal of the State of

California, unreported, appears in the Appendix. The

Supreme Court of California denied a petition for hearing

and ordered that the opinion of the Court of Appeal,

certified for publication by that court, not be published.

The Order of the Supreme Court of California appears in

the Appendix.

JURISDICTION

The judgment of the Court of Appeal of the State of

California, Second Appellate District, was entered on

December 10, 1979. A timely petition for hearing in the

Supreme Court of California was denied on February 14,

1980, and this petition for certiorari was filed within 90

days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1257 (8).

QUESTION PRESENTED

Are California fire and law enforcement personnel

denied equal protection under the Fourteenth Amendment

by a judicial rule that forecloses them from recovering

damages in tort for personal injuries and death occurring

while on duty?

CONSTITUTIONAL PROVISION INVOLVED

AMENDMENT XIV

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”

STATEMENT OF THE CASE

On October 23, 1976. Ralph E. Ginter an employee of

the petitioner, was injured while on duty as a deputy

sheriff. His injuries were caused by the negligence of the

respondent in the operation of a motor vehicle. Deputy

Ginter and his partner were parked in a patrol vehicle

some 40 feet off the road to monitor traffic for possible

traffic violations. The respondent failed to negotiate a

curve and struck the parked vehicle in which the deputies

were sitting. The injured employee filed a personal injury

action in the Superior Court of California for the County of

Santa Barbara against the respondent. The petitioner

intervened in that action to recover workers’ compensation

benefits it had provided its employee. The underlying

personal injury action of the injured employee was settled

and the petitioner proceeded with its action to recover the

3

amount of the benefits it had provided. The respondent

moved for summary judgment on the ground that the

petitioner’s action was barred by the “fireman’s rule” and

this motion was granted and the action dismissed.

The dismissal was upheld by the Court of Appeal of

the State of California, Second Appellate District. That

court held, in short, that the fireman’s rule constituted a

reasonable classification of equal protection of firemen and

policemen as opposed to other persons damaged by

negligence. The Court did not discuss in depth the

constitutional issue, but concluded that the fireman’s rule

was “premised upon sound and reasonable public policy.”

See pp. 16-17 of the Appendix.

REASONS FOR GRANTING THE WRIT

A SUBSTANTIAL FEDERAL QUESTION WAS RAISED

AND PASSED UPON IN THE HIGHEST STATE

COURT

It is jurisdictional for this court that a federal

question be raised and passed upon in the highest court.

Raley v. Ohio, (1959) 360 U.S. 423, 79 S. Ct. 1257, 3 L.

Ed. 2d 1344; Jenkins v. Georgia, (1974) 418 U.S. 153;

94 S. Ct. 2750, 41 L. Ed. 2d 642.

In this case there has been a decision by the highest

state court even though it was an intermediate appellate

court. A timely petition for hearing in the California

Supreme Court was submitted and denied. In that context,

there has been a decision by the highest state court and

4

jurisdiction vests in this court. Stratton v. Stratton

(1915) 239 U.S. 55, 36 S. Ct. 26, 60 L. Ed. 142; Banks v.

California, (1969) 395 U.S. 708, 89 S. Ct. 1901, 23 L. Ed.

2d 653.

The opinion of the highest state court which is the

subject of this petition shows that the federal question was

raised and decided. See pp. 16-17 of the Appendix. While

the discussion of the constitutional issue was less than

adequate, it was clearly an issue before the Court and

decided by it in reaching its decision.

THE OPINION OF THE CALIFORNIA COURT OF

APPEAL IS STATE ACTION WITHIN THE MEAN-

ING OF THE FOURTEENTH AMENDMENT

It is more commonplace for this court to review state

statutes or local ordinances for constitutionality, or lack

thereof, as opposed to judicial decisions. It is well settled,

however, that a judgment of a state court is state action.

Cooper v. Aaron, (1958) 358 U.S. 1,78 S. Ct. 1399, 3 L.

Ed. 2d 3.

Since the Civil Rights Cases (1883) 109 U.S. 3,3S.

Ct. 18, 27 L. Ed. 835, the principle has become firmly

established in our constitutional law that the only action

inhibited by the Fourteenth Amendment is action of the

States. The Amendment provides no safeguards against

merely private conduct however wrongful or discriminatory.

This court has recognized that the action of state courts in

enforcing a substantive common law rule formulated by

those courts may result in the denial of constitutional

rights even though the judicial proceedings may have been

conducted with the highest standard of procedural due

process. Shelley v. Kraemer (1948) 334 U.S. 1, 68 S. Ct.

836, 92 L. Ed. 1101; Bridges v. California (1941) 214

U.S. 252; 62 S. Ct. 190, 86 L. Ed. 192; Barrows v.

Jackson (1953) 346 U.S. 249, 73 S. Ct. 1031, 76 L. Ed.

1586.

THE PETITIONER HAS STANDING AS AN EM-

PLOYER OF A LAW ENFORCEMENT OFFICER

TO PRESENT THE CONSTITUTIONAL ISSUE

The petitioner has provided workers’ compensation

benefits for its injured employee and under California

statutory law has a right to intervene in the plaintiff's case

against a tort-feasor defendant to recover the amount of

benefits provided. It may also maintain an independent

action against the tort-feasor. California Labor Code §

§ 3850-3854. The employer’s cause of action is created by

statute and unknown at common law. It is best thought of

as a statutory action for indemnity to recover from a third

person’s tort. State Compensation Insurance Fund v.

Williams (1974) 38 Cal. App. 3d 218, 112 Cal. Rptr. 226.

Defenses available to the tort-feasor as against the injured

employee plaintiff may be asserted against the employer.

Witt v. Jackson (1961) 57 Cal. 2d 57, 17 Cal. Rptr. 369.

In this case, the injured employee would be barred from

recovery by the fireman’s rule which also bars the petitioner.

For the purposes of the issue presented, the petitioner as

employer and the injured employee stand in the same

6

shoes. Since the petitioner is foreclosed to bring an action

because of an unconstitutional common law rule, it has

suffered a substantial injury and is within the class along

with its employees whose constitutional rights are infringed

upon. Barrows v. Jackson, supra; Bode v. Barrett

(1953) 344 U.S. 583, 73 S. Ct. 468, 97 L. Ed. 517;

Jeffrey Mfg. Co. v. Blagg (1915) 235 U.S. 571, 35 S.

Ct. 167, 59 L.Ed. 364.

THE FIREMAN’S RULE DENIES THE PETITIONER

EQUAL PROTECTION OF THE LAWS UNDER

THE FOURTEENTH AMENDMENT

The fireman’s rule provides that negligence in causing

a fire does not furnish a basis for liability to a professional

fireman injured or killed while fighting the fire. It has been

extended to policemen and precludes their recovery for

injuries sustained in the line of duty and caused by the

negligence of third parties. Walters v. Sloan (1977) 20

Cal. 3d 199, 142 Cal. Rptr. 152

A policeman or fireman should not be barred from

recovering damages for injuries sustained in the line of

duty as the result of another’s negligence simply because

the injuries arise out of a forseeable risk of his occupation.

Generally, a California employee who sustains injury

arising out of and in the course of his employment because

of the negligence of a third party tort-feasor, not his

employer, may bring an action for damages against the

tort-feasor, as though his injury were not work-connected.

His right against the negligent third party is precisely the

same as if the injury had occurred in a non-employment

situtation. Lamoreux v. San Diego & Arizona Eastern

Railway Company (1957) 48 Cal. 2d 617, 311 Pac. 2d 1.

Applying this general rule, the California courts have

allowed injured workers to bring tort actions against third

parties for virtually all negligently inflicted injuries. High-

way workers may recover for injuries sustained as a result

of a third party’s negligent driving. Scott v. City and

County of San Francisco (1949) 91 Cal. App. 2d 887,

206 Pac. 2d 45. A subcontractor’s employees may recover

for injuries on a construction job caused by the negligence

of the general contractor or the owner. Woodcock v.

Fontana Scaffolding & Equipment Company (1968)

69 Cal. 2d 453, 72 Cal. Rptr. 217. A mechanic may

recover for job-related injuries caused by negligence of a

customer of his agent. Houseright v. Pacific Far East

Line, Co. (1964) 229 Cal. App. 2d 259, 40 Cal. Rptr. 208.

Firemen and policemen have found it more difficult

than other employees to recover damages for negligently

inflicted injuries incurred in the line of duty. The most

probable explanation for this “second class” treatment

lies in early common law property doctrine which disting-

uished the duties owed by a landowner to “invitees” and to

“licensees”. See 2 Harper & James, The Law of Torts

(1956), pp 1501-1505. Whatever historical basis the rule

had, it has no application in modern day society, when

policemen and firemen are called to protect life and

property and may sustain injury or death in a factual

context bearing no relation to the historical “licensee”

label. Indeed, the instant case, where petitioner’s employ-

ee was injured while seated in a patrol car parked some

8

distance from the travelled portion of the roadway, cannot

be supported by the historical duty owed to a “licensee.”

As stated in a leading test: “All officers, inspectors,

as well as policemen and firemen, derive their right of

entry from law and not from either the consent or the

invitation of the occupier. The protection accorded to

such a visitor should therefore be prescribed by law to fit

the circumstances of the visit, and not governed blindly by

a false analogy to invitational consent.” 2 Harper & James,

supra, p. 1505.

Supporters of the rule argue that the fireman is paid

to put out fires and the policeman to make arrests. No tort

claim can be based upon damages caused by the very risk

that those individuals are paid to encounter and trained to

cope with. Under this analysis, an employee would routinely

be foreclosed from bringing a tort action whenever an injury

caused by a negligent tort-feasor could be characterized

as a normal, if not inherent, risk of employment. As has

been pointed out, California permits highway workers,

construction workers, and others whose employment has

significant risk of injury, to recover for job-related injury

caused by the negligence of a third party.

In support of this rule, it is argued that the rule

spreads the risk of the fireman’s or policeman’s injuries

from the negligent tort-feasor to the taxpaying public. In

fact, the injured fire or law enforcement officer cannot

recover tort damages from the public at large but is

precluded from recovering them at all. All other injured

workers are entitled to recover workers’ compensation

9

benefits as well as their additional tort damages from third

party tort-feasors. The rule in practice requires the

injured fireman or policeman to shoulder a loss which

other employees are not required to bear.

The petitioner, as the employer, ordinarily may

recover the amount of workers’ compensation benefits it

provides to its employees injured by the negligence of

third parties. The only exception is for benefits provided

to fire and law enforcement employees.

The spreading-the-risk rationale is specious since

liability insurance is readily available and utilized by those

either occupying or dealing with real and personal property.

There is no compelling merit to the argument that

applying ordinary priniciples of negligence to a tort-feasor

in this context will significantly reduce the prevalence of

insurance due to increased cost or even substantially

increase the cost.

Petitioner is well aware that the Fourteenth Amend-

ment does not deny to States the power to treat different

classes of persons in different ways. McDonald v. Board

of Election Commissioners (1969) 394 U.S. 802, 89 S.

Ct. 1404, 22 L. Ed. 2d 739.

When “the interest at stake” is of great importance to

the individual, “[alny fair balancing” of that interest “as

opposed to what may be nothing more than a hypothetical

justification, requires rejection of the argument of admini-

strative convenience .. .” Hampton v. Mow Sun Wong

(1976) 426 U.S. 88, 115-16, 96 S. Ct. 1895, 48 L. Ed. 2d

495.

It must be recognized that the rule petitioner attacks

10

is common law and not a statute or ordinance. State

practice, while it may be state law, cannot supplant the

constitutional guarantees. This court in New York Times

Co. v. Sullivan (1964) 376 U.S. 254, 84 S. Ct. 710, 11 L.

Ed. 2d 686 showed no hesitation in subjecting common

law defamation rules to First Amendment scrutiny. The

nature of the right in this case directs an inquiry into

California’s scheme of common law remedies. The question

presented is whether state law which deprives fire and

law enforcement employees of a right belonging to all

other public employees meets the equal protection re-

quirements of the Fourteenth Amendment.

In the instant case, it is respectfully submitted that

the operation of the fireman’s rule denies equal protection

of the laws to a class of employees most deserving of fair

and reasonable treatment. Policemen and firemen should

not and must not be “second class” citizens in relation to

other public employees.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Court of Appeal of

the State of California.

Respectfully submitted,

PETER J. SAMUELSON

FRED P. LYNCH

Counsel for Petitioner

11

APPENDIX

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

RALPH E. GINTER 2 Civil No. 56689

Plaintiff (Super. Ct. No. SM 22362)

Vv

BRIAN J. COLLINS or

Defendant and a we 5

Respondent, oust . ¢\ Lt \919

COUNTY OF SANTA pec heat

BARBARA, ee

Intervener and cus 7

Appellant.

APPEAL from an order of the Superior Court of Santa

Barbara County. Robert L. Trapp, Judge. Affirmed.

Fred P. Lynch, Samuelson & Oksner and Peter J.

Samuelson, for Intervener and Appellant.

Hoge, Fenton, Jones & Appel, Inc., and Raymond E.

Mattison, for Defendant and Respondent.

12

Plaintiff in intervention County of Santa Barbara

appeals from an order of dismissal following the granting

of a motion for sum_aary judgment by the defendant and

respondent Collins. The complaint alleged that plaintiff

was a passenger in a parked motor vehicle and that defen-

dant negligently drove his motor vehicle, causing it to

collide with the vehicle in which plaintiff was seated,

thereby proximately causing injury and damage to the

plaintiff. The appellant county filed the complaint in

intervention under the provisions of Labor Code section

3857 as the employer of the plaintiff and thus subrogated

to his rights to the extent of its obligation to pay workers’

compensation benefits to the plaintiff.

The basis for the motion for summary judgment, and

its subsequent granting by the trial court, was the “fireman’s

rule.” This priniciple precludes recovery by professional

firemen and policemen for damage caused to them by the

negligence of others in the creation of the very occasion for

their engagement as firemen or police officers. (Walters

v. Sloan, 20 Cal. 3d 199.) Relying upon the Walters

decision, the trial court concluded that the “fireman’s

rule” was applicable to the facts and granted the motion

for summary judgment. An order of dismissal was filed,

and this appeal ensued.!

The appellant raises three issues on appeal:

1. A triable issue of fact exists, and therefore it was

reversible error to grant the motion for summary judgment.

1 The clerk’s transcript does not reveal that a judgment was signed

and entered. However, the parties appear to have treated the order of

dismissal as a judgment. (Haumeder v. Lipsett, 90 Cal. App. 2d 167.)

13

2. The trial court committed reversible error in

applying the “fireman’s rule” to the facts of the instant

case.

3. The “fireman’s rule” is contrary to general princ-

iples of tort law and is unconstitutional under the equal

protection provisions of the California and United States

Constitutions.

The plaintiff was employed by the County of Santa

Barbara as a deputy sheriff. It is undisputed that on the

night of the accident he was on duty. Initially, he and his

partner were dispatched to the scene of a party due to a

complaint of neighboring property owners concerning the

party. After investigation, it was determined that there

was no basis for criminal citation. Following the invest-

igation, the plaintiff and his partner proceeded to another

location where their vehicle was parked westbound, some

40 feet off the road to monitor traffic for possible vehicle

violations. One vehicle was stopped for erratic driving and

to check for possible intoxication of the driver, but he was

released. The police vehicle returned to its original parked

position and was at that location when a vehicle driven by

the respondent failed to negotiate a turn and struck the

police vehicle, injuring the plaintiff. That driving was

characterized by the plaintiff himself as “traveling at

excessive speed” and “failing to execute a curve in the

road.” While there is evidence that the plaintiff and his

partner positioned themselves to check guests departing

the party in vehicles for intoxication, such evidence is not

necessary to support the trial court’s order of dismissal. It

14

is clear that their parked position was dictated b, :neir

intent to check driving conduct at that particular portion

of the roadway for possible vehicular violations.

In the appellate review following the granting of a

summary judgment, the court must determine that no

factual issues exist to be resolved in the trial court, and

that the matter was disposed of correctly as a matter of

law. (Schrimscher v. Bryson, 58 Cal. App. 3d 660, 663.)

Contrary to appellant’s contention, the instant record

meets this test. It is uncontradicted that the plaintiff was

on duty and had placed himself in a parked position for

vehicular surveillance. The accident resulting in injury to

the plaintiff was caused by the negligence of a person

whose driving he had positioned himself to scrutinize.

While it is true that the plaintiff was not called to the

scene, the trial court was correct in concluding that no fine

distinctions are to be drawn in applying the public policy

behind the rule. Where a police officer has voluntarily

positioned himself to survey moving vehicular violations,

and he thereby exposes himself to harm from the very

driving conduct he is seeking to monitor, the policy behind

the rule compels the conclusion that he cannot seek tort

recovery for that negligent driving. He 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, i.e.,

workers’ compensation benefits. (Walters v. Sloan 20

Cal. 3d 199, 205.)

15

McAllister v. Cummings, 191 Cal. App 2d 1 and

Witt v. Jackson, 57 Cal. 2d 57, are not in conflict with the

conclusions reached here. Each of those cases dealt with

the conduct of a negligent driver other than a person who

was the object of the officer’s attention. In each instance

the risk of such driving on the part of a third person was not

a part of the “occasion for the officer’s engagement” and

was not one voluntarily confronted. (See Walters v.

Sloan, supra, 20 Cal. 3d at p. 202, fn. 2.) No third person

was involved in the instant case, and the trial court did not

err in applying the “fireman’s rule” to the complaint in

intervention.

Appellant argues that the “fireman’s rule” created an

unjustified exception to the general principle that an

individual must exercise reasonable care under the cir-

cumstances, and, therefore, is in direct conflict with the

constitutional guarantee of equal protection of the laws.

The reasonable classification of equal protection of fire-

men and policemen as opposed to other persons damaged

by negligence was thoroughly considered in Walters by

the Supreme Court; it reaffirmed the “fireman’s rule,”

noting it was born nearly 100 years ago, earned nearly

unanimous approval, and it placed its stamp of approval

on the rationale and public policy supporting it. While the

court did not discuss the issue as a constitutional one, its

statements and reasoning leave no doubt that it was

declaring a concept consistent with other cases of basic

tort doctrine and premised upon sound and reasonable

16

public policy. (Walters, supra, 20 Cal. 3d at pp. 204,

205.) In the light of this, there is no merit to the

constitutional challenge.

The order of dismissal is affirmed. Respondent to

recover costs on appeal.

CERTIFIED FOR PUBLICATION

KAUFMANN, J*

I concur:

LILLIE, Acting P.J.

*Assigned by the Chairperson of the Judicial Council.

I respectfully dissent.

If, hypothetically, defendant Brian J. Collins (here-

inafter Collins) had struck and damaged a stationary

inanimate speed limit sign owned by the County of Santa

Barbara (hereinafter County), there is no doubt that the

County could sue Collins for that damage.

17

If, hypothetically, the County’s patrol car was parked

off of the road and left unattended while the officers were

having a coffee and donut break at a Winchell’s stand and

defendant Collins left the road and crashed into the patrol

car, there is no doubt that the County could sue Collins for

the damage to the unattended vehicle.

I have extreme difficulty applying the “fireman’s

rule” relieving Collins of civil liability to either Officer

Ralph E. Ginter (hereinafter Ginter) or the County merely

because Officer Ginter climbed into his patrol car legally

parked 40 feet off of the roadway and was watching the

road for traffic violators when he, out of the blue, was

clobbered by a motorist (Collins).

As pointed out in Walters v. Sloan (1977) 20 Cal. 3d

199, “the fireman’s rule is based on a principle as

fundamental to our law today as it was centuries ago. The

principle is not unique to landowner cases but it is

applicable to our entire system of justice — one who has

knowingly and voluntarily confronted a hazard cannot

recover for injuries sustained thereby.” (20 Cal. 3d at p.

204.)

In my view the facts of the case at bench do not fall

within the ambit of the underlying fundamental principle

upon which the fireman’s rule is based as described in

Walters. Officer Ginter was not engaged in the hazardous

activity of being in hot pursuit of a speeding motorist at the

18

time of the collision. He was legally parked in a stationary

position well off the travel portion of the roadway. I cannot

see how Officer Ginter was “voluntarily undertaking the

hazard causing [the] injury” (ibid.) under those circum-

stances any more than any other motorist not engaged in

law enforcement who may have parked his or her car at the

same location 40 feet off of the highway.

In my opinion such a strained application of the

fireman’s rule to the facts of the instant case renders all

patrol officers, who are on duty but stopped well off of the

highway in their patrol cars, “fair game” for speeders and

drunk drivers since, by application of the rule, they can

escape personal civil liability for their tortious acts and

merely pass the buck for the injuries and damage which

they cause on to the tax-paying public. I do not believe

either California case law or the rationale behind the

fireman’s rule intended such a result. Nor would applica-

tion of the rule under the facts of the case at bench be in

the best interest of sound public policy.

I would reverse the order of dismissal.

HANSON J.

19

Orde

r

March, 7, =

ORDER DENYING HEARING

AFTER JUDGMENT BY THE COURT OF APPEAL

2d Distric, Division 1, Civil No. 56689

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

IN BANK

GINTER, Plaintiff

V. oo

COLLINS, Defendant and Respondent; gn ~”

oe > soe? rd

COUNTY OF SANTA BARBARA, op gosh

Intervenor and Appellant. qey™ P

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Petition of Intervenor and Appellant for hearing DENIED.

Tobriner, J., and Clark, J., are of the opinion that the

petition should be granted.

The Reporter of Decisions is directed not to publish

in the Official Reports the opinion in the above entitled

cause filed December 10, 1979, and appears at 99 Cal.

App. 3d 537. (Cal. Const., Art., VI, section 14; Rule 976,

Cal. Rules of Court.)

Bird

Chief Justice

20

PROOF OF SERVICE

STATE OF CALIFORNIA )

Ss

COUNTY OF RIVERSIDE )

I am a citizen of the United States and a resident of the

County aforesaid; I am over the age of eighteen years and

not a party to the within entitled action; my business

address is 610 North Bush, Santa Ana, California 92701.

On April 28, 1980, I served the within PETITION FOR

WRIT OF CERTIORARI on the interested parties in said

action, by placing a true copy in each of 4 sealed envelopes

with postage thereon fully prepaid, in the United States

mail at Santa Ana, California, addressed as follows:

Raymond E. Mattison, Esq. California Supreme Court

Hoge, Fenton, Jones, & 3580 Wilshire Blvd.,

Appel, Inc. Room 213

1043 Pacific Street Los Angeles, California

San Luis Obispo, California 90010

93401

Clerk, Court of Appeal Clerk of the Superior Court

2nd Appellate District County of Santa Barbara

3580 Wilshire Blvd., 3rd Floor Anapamu and Anacapa Streets

Los Angeles, CA 90010 Santa Barbara, CA 93101

I certify under penalty of perjury that the foregoing is

true and correct.

EXECUTED on April 28, 1980, at Santa Ana, California.

JACK GALLAGHER