Opinion
—This case presents the question whether a private safety employee who has occasional firefighting duties may state a cause of action against a third party, not the employer, for injuries caused by the third *535 party’s negligence in starting a fire. We conclude that a private safety employee may state such a cause of action, and that such a claim is not barred by the firefighter’s rule or the doctrine of assumption of risk.
Facts
Plaintiffs Craig Neighbarger and John Magana were employees of Powerine Oil Company. Neighbarger was employed as a safety supervisor and had special training in industrial firefighting. John Magana was a safety supervisor who also had training in emergency response to toxics spills and petroleum firefighting. Both men’s job duties included responding to emergencies at the Powerine refinery, belonging to and participating in the Powerine fire brigade, issuing “hot work permits," and conducting safety orientations for refinery contractors, visitors, and employees.
Irwin Industries, Inc., provided maintenance services at the Powerine refinery under contract with Powerine. Powerine employees directed Irwin employees George Short and Robert Brown to remove piping and install a blind flange on a valve in an area of the Powerine refinery. Short and Brown noticed that the valve was plugged and Short, in violation of industry safety standards, used a sharp instrument to dislodge the blockage. The valve released a flammable petroleum product.
Neighbarger was supervising work nearby on a fluid catalytic “cracker" unit. He had his back to the accident site and was not wearing any protective firefighting equipment. Magana was in the vicinity supervising the vacuuming of drains; he also was without protective clothing or equipment. Neighbarger heard a noise coming from the valve, and, believing it might be caused by escaping water vapor, moved toward the valve in an attempt to close it. Magana also heard the noise of escaping liquid and saw Neighbarger moving toward the valve; he reached up to try to close the valve. The liquid petroleum product ignited and burned both Neighbarger and Magana.
After Neighbarger and Magana instituted their lawsuit seeking compensation for injuries they alleged were caused by the negligence of ¿win’s employees, defendant Irwin moved for summary judgment on the grounds that Neighbarger and Irwin had assumed the risk of the injury and that their action was barred by the firefighter’s rule. Plaintiffs countered that the firefighter’s rule was inapplicable because they were not public employees, they were not called to the scene in response to the accident, they were not acting as firefighters, they were not initially aware of the hazard involved and they were not confronting the type of risk for which they received compensation. The trial court granted defendant’s motion for summary judgment, and plaintiffs renewed their contentions in the Court of Appeal.
*536
The majority in the Court of Appeal declared that a private safety employee assumes the risk of injury that occurs when the employee responds to emergencies on the job. Applying the plurality view of primary assumption of risk outlined in
Knight
v.
Jewett
(1992)
The dissent maintained that the majority had extended the firefighter’s rule beyond theoretical underpinnings that limit the rule to public employees. The dissenter also declared that even if a privately employed firefighter assumes the risk of confronting negligently caused fires, there were triable issues of fact remaining in this case on the question whether private employees with marginal or tangential firefighting duties, who were confronted with a fire in the course of unrelated duties, should be held to assume the risk of injury from such a fire.
Discussion
The central question to be answered in this case is whether defendant Irwin Industries and its employees owed a duty of care to plaintiffs.
We all have the duty to use due care to avoid injuring others.
(Knight, supra,
The duty to avoid injuring others normally extends to those engaged in hazardous work. Thus, for example, both publicly and privately employed highway workers, who face the obvious occupational hazard of working in the middle of traffic, may recover for injuries caused by a third party’s negligent driving. (See
Roddy
v.
American Smelting etc. Co.
(1939)
One also generally owes a duty of care to bystanders who attempt a rescue that becomes necessary due to one’s own negligence. Thus, although it is
*537
contributory negligence unreasonably to expose oneself to a risk created by the defendant’s negligence
(Li
v.
Yellow Cab Co.
(1975)
Under the general rule of duty, then, Irwin and its employees had a duty to avoid negligently injuring Powerine employees. Any exception to the general rule must be based on statute or clear public policy.
(Rowland
v.
Christian
(1968)
Defendant urges that it should be excused from the usual duty of care under the public policy expressed in the doctrine of assumption of risk and the so-called firefighter’s rule.
The doctrine of assumption of risk has been somewhat tangled, but we recently attempted to clarify it in
Knight, supra,
However, we disapproved earlier cases that applied the doctrine as a bar to liability on the basis of plaintiff’s subjective, voluntary assumption of a known risk. We concluded that such situations had been subsumed by the doctrine of comparative negligence.
(Knight, supra,
The opinion concluded that the doctrine of assumption of risk properly bars a plaintiff’s claim only when it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care. (Knight, supra, 3 Cal.4th at pp. 313, 314-315.)
We have never held that the doctrine of assumption of risk relieves all persons of a duty of care to workers engaged in a hazardous occupation. Nonetheless, a special rule has emerged limiting the duty of care the public owes to firefighters and police officers. Under the firefighter’s rule, a member of the public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combat the fire is not injured thereby.
(Walters
v.
Sloan
(1977)
The firefighter’s rule, however, is hedged about with exceptions. The firefighter does not assume every risk of his or her occupation.
(Lipson
v.
Superior Court
(1982)
The firefighter’s rule should not be viewed as a separate concept, but as an example of the proper application of the doctrine of assumption of risk, that is, an illustration of when it is appropriate to find that the defendant owes no duty of care. (See Knight, supra, 3 Cal.4th at pp. 308-309, fn. 5.) *539 Accordingly, we examine the case law establishing the rule to discover the policy basis for waiving the usual duty of care and to determine whether such a policy justifies exonerating defendants from their usual duty of care in the case of private safety employees.
An early application of the firefighter’s rule in California occurred in
Giorgi
v.
Pacific Gas & Elec. Co.
(1968)
Two years later, Justice Kaufman, writing for the Court of Appeal, explained, in the context of a case involving a firefighter’s claim for injuries caused by the explosion of a gas main, that the policy basis for the firefighter’s rule is fairness. It is the firefighter’s business to deal with the hazard of fire, the court held, and he or she cannot complain of the reason for his or her employment, whether it be fire or explosion that causes the injury.
(Scott
v.
E. L. Yeager Const. Co.
(1970)
We reiterated the policy concerns expressed in these two Court of Appeal opinions in
Walters, supra,
The second justification we offered in
Walters, supra,
Next, we pointed out that public safety employees receive special public compensation for confronting the dangers posed by the defendants’ negligence. (Walters, supra, 20 Cal.3d at pp. 205-206.) Finally, we feared that the abolition of the firefighter’s rule would embroil the courts in relatively pointless litigation over rights of indemnification among the employer, the retirement system, and the defendants’ insurer. (Id. at p. 206.)
In reviewing these policy considerations, we quoted at length from the thoughtful decision of the New Jersey Supreme Court: “ ‘The question is ultimately one of public policy, and the answer must be distilled from the relevant factors involved upon an inquiry into what is fair and just. . . . [*][] [I]t is the fireman’s business to deal with that very hazard [the fire] and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. Probably most fires are attributable to negligence, and in the final analysis the policy decision is 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. Hence, for that risk, the fireman should receive appropriate compensation from the public he serves both in pay which reflects the hazard and in workmen’s compensation benefits for the consequences of the inherent risks of the calling.’ ”
(Walters, supra,
We confirmed these policy bases for the firefighter’s rule in two subsequent cases. In
Hubbard
v.
Boelt, supra,
*541
In
Lipson
v.
Superior Court, supra,
Having examined the case law establishing the scope of the firefighter’s rule, we turn now to the question whether the rule, or the broader doctrine of assumption of risk, should apply to exonerate the defendant from a duty of care to privately employed safety workers.
As we have explained, the proper basis for the firefighter’s rule after
Knight, supra,
In
Walters, supra,
On the surface, the fairness element of the firefighter’s rule would seem to apply equally to public firefighters and private safety employees, as both are employed to confront and control hazards that may be created by the negligence of others. However, the firefighter’s rule was not intended to bar recovery for all hazards that are foreseeable in the employment context, but to eliminate the duty of care to a limited class of workers, the need for whose employment arises from certain inevitable risks that threaten the public welfare. An industrial safety supervisor faces a much broader range of risks, many of which we should be reluctant to regard as inevitably ripening into injury-causing accidents. Fire is inevitable, but industrial accidents, as a broader category, are not equally inevitable. Although we were prepared to admit that almost all fires can be traced to someone’s negligence, and that it is simply too burdensome to identify that negligence for the purpose of compensating those most likely to be injured by fire
(Walters, supra,
More generally, if we focus on the defendant and the question of the defendant’s duty toward plaintiff, we see that the third party defendant stands in a different relation to the private safety worker than members of the public stand to the public firefighter.
When the firefighter is publicly employed, the public, having secured the services of the firefighter by taxing itself, stands in the shoes of the person who hires a contractor to cure a dangerous condition. In effect, the public
*543
has purchased exoneration from the duty of care and should not have to pay twice, through taxation and through individual liability, for that service. (See
Kreski
v.
Modern Wholesale Elec. Supply, supra,
In
Walters, supra,
The final contrast between the public firefighter and the private safety employee is that the latter does not receive the special pay, disability and retirement benefits that a public safety officer receives. We relied on these special benefits as a justification for the firefighter’s rule in
Walters, supra,
It is true that in a case involving what were essentially volunteer firefighters, who were paid a meager $5 per call for their firefighting services, the Court of Appeal held that such firefighters were barred from recovery by the firefighter’s rule. The Court of Appeal pointed out that in
Walters, supra,
We believe that defendant misses the point of this decision. It was not the amount of public compensation that was determinative in
Baker
v.
Superior Court, supra,
As defendant notes, the firefighter’s rule, or more accurately, the doctrine of assumption of risk, has been held generally to exempt those who contract with veterinarians to treat their dogs from liability should the dog bite the
*545
veterinarian during treatment. (See
Cohen
v.
McIntyre
(1993)
To the extent this “veterinarian’s rule” is based on the veterinarian’s subjective acceptance of the foreseeable occupational hazard of dog bites, it may be on shaky ground after our decision in
Knight, supra,
In fact, one Court of Appeal opinion has pointed out that the “veterinarian’s rule” does not apply when the defendant dog owner has not contracted for the services of the plaintiff. In
Davis
v.
Gaschler
(1992)
The most substantial justifications for the firefighter’s rule are those based on the public nature of the service provided by firefighters and the relationship between the public and the public firefighter. Firefighting is essentially a government function, and the public has undertaken the financial burden of providing it without liability to individuals who need it. Because of the relationship between the public, the firefighter, and those who require the services of the firefighter, the individual’s usual duty of care towards the firefighter is replaced by the individual’s contribution to tax-supported compensation for the firefighter. This relationship is missing between a privately employed safety employee and a third party.
Thus we agree with the court in
Kowalski
v.
Gratopp
(1989)
*547
If we look closely at defendant’s activity and plaintiffs’ relationship to it, as
Knight, supra,
A court may grant summary judgment only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. (Code Civ. Proc., § 437c.) It was defendant’s burden to establish that no triable issue of facts remained
(Lipson
v.
Superior Court, supra,
Conclusion
The judgment of the Court of Appeal is reversed and the matter is remanded to the Court of Appeal with directions to reverse the order granting summary judgment.
Lucas, C. J., Kennard, J., Arabian, J., Baxter, J., George, J., and Werdegar, J., concurred.
Notes
An employee who is injured in the course of employment by the negligence of a third party, not the employer, may sue the third party for damages.
(Rodgers
v.
Workers’ Comp. Appeals Bd.
(1984)
The firefighter’s rule obviously is an exception to the rescue rule noted above. (See maj. opn.,
ante,
p. 537, see also
Solgaard
v.
Guy F. Atkinson Co., supra,
Of course, private employers are entitled to subrogation from tortfeasors for workers’ compensation benefits made necessary by the defendants’ negligence. (See Lab. Code, § 3852.)
We also reject the reasoning of the court in
Holland
v.
Crumb
(1994)