34 Cal. App. 5th 749
Cal. Ct. App. 5th2019Background
- Edward Harry, a long‑time site representative at the Sheats‑Goldstein House, fell from a cantilevered platform during a guided tour at an event and sustained serious spinal injuries.
- The property owner, James Goldstein, required renters to use two site representatives to escort visitors; site reps were hired by renters from a list Goldstein supplied.
- Harry’s duties included giving tours, warning visitors about hazards (including the unrailed platform), and protecting the house from damage; he had given 200+ tours and typically escorted visitors down to the platform and Turrell installation.
- Experts disagreed: plaintiff’s expert said the platform lacked guardrails, had poor lighting, and human escorts were inadequate; defendant’s expert said mandatory trained escorts were an adequate safety measure.
- At trial the court instructed the jury on CACI No. 473 (primary assumption of risk / “firefighter’s rule”); the special verdict first asked whether Harry’s injury arose from a risk inherent in his occupation and the jury answered yes, then found no unreasonable increase in risk and returned verdict for Goldstein.
- The Court of Appeal reversed, holding the firefighter’s rule did not apply and the instructional error was prejudicial because it prevented the jury from reaching comparative‑fault issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether primary assumption of risk (firefighter’s rule) barred Harry’s negligence/premises claims | Harry argued the doctrine did not apply because he was not hired to confront the hazard of falling; his role focused on protecting the house and giving tours, not to accept the occupational risk of falling from the platform | Goldstein argued Harry was hired to warn and keep guests from the platform edge, so he assumed the risk of the very hazard he was paid to confront | Reversed: firefighter’s rule did not apply; no evidence Harry was hired to manage the hazard that caused his injury and no public‑policy basis to extend the rule here |
Key Cases Cited
- Knight v. Jewett, 3 Cal.4th 296 (California Supreme Court) (explains primary vs. secondary assumption of risk principles)
- Neighbarger v. Irwin Industries, 8 Cal.4th 532 (California Supreme Court) (discusses limits of firefighter’s‑rule application and duty to workers in hazardous occupations)
- Gregory v. Cott, 59 Cal.4th 996 (California Supreme Court) (applies firefighter’s rule where employer contracted for someone to confront a danger and allocation of risk is appropriate)
- Priebe v. Nelson, 39 Cal.4th 1112 (California Supreme Court) (applies rule to bar claims by those hired to confront animal hazards)
- Rosenbloom v. Hanour Corp., 66 Cal.App.4th 1477 (Court of Appeal) (example of barring liability where plaintiff assumed risk he was hired to confront)
- Fazio v. Fairbanks Ranch Country Club, 233 Cal.App.4th 1053 (Court of Appeal) (applied primary assumption of risk to stage performers where the risk is inherent and unavoidable)