SEIBERT SECURITY SERVICES, INC., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; JOHN MIGAILO et al., Real Parties in Interest.
No. E012097
Fourth Dist., Div. Two.
Aug. 3, 1993.
18 Cal. App. 4th 394
Borton, Petrini & Conron and Daniel L. Ferguson for Petitioner.
No appearance for Respondent.
Shale F. Krepack, Mark, Bolson, Kuntz & Serembe and Nadine E. Betsworth for Real Parties in Interest.
OPINION
DABNEY, Acting P. J.--Petitioner Seibert Security Services, Inc. (hereinafter Seibert), a defendant in the action below, seeks reversal of an order denying its motion for summary judgment and/or adjudication of issues. (
STATEMENT OF FACTS
The essential facts of the matter are not in dispute, leaving the issue to be resolved as essentially one of law.
At the time of his injury, Migailo was a police officer employed by intervener (and real party) the City of San Bernardino. He had brought an arrested suspect to the San Bernardino County Hospital for examination of possible injuries. While he was there, a mental patient, defendant Raymond Shyptycki, became abusive towards a Black security officer employed by Seibert, Thomas Grigsby, and a Black police officer. At the time, Shyptycki was restrained in a chair; Migailo asked that he be handcuffed for greater control, but Grigsby failed to do so. Shortly thereafter, Shyptycki stood up and grabbed for Grigsby‘s baton, and Migailo helped subdue him.
Shyptycki was then handcuffed and put in an isolation cell, but the handcuffs were taken off because he seemed “pretty pleasant” to another Seibert employee, Timothy Leggett, who believed it was only towards Black persons that Shyptycki reacted with verbal abuse and potential violence.
The trial court denied Seibert‘s motion on two grounds, set forth briefly in a written order: that triable issues remained as to whether Migailo‘s presence was “independent and unrelated to the conduct which proximately caused plaintiff‘s injuries,” and as to whether the conduct “proximately causing the injury occurred after the defendant. . . knew or should have known of the presence of the plaintiff, a peace officer . . . .”
I.
Procedural Issues
A.
Timeliness of the Petition
The petition was filed on January 6, 1993. As the minute order bore the notation that copies had been mailed to counsel on November 9, 1992, we requested briefing on the issue of timeliness.1 In response, Seibert filed declarations by counsel and counsel‘s secretary indicating that the notice of ruling had not been received either from the court or other counsel; it was further indicated that the court had directed plaintiff to prepare a formal order, which had similarly not been received. Although real parties attempted to cast doubt on these assertions by confirming mailing of notice and a copy of the formal ruling on December 7 (as to which the petition would also have been untimely), we deem it appropriate to resolve the conflict in favor of petitioner. It is true that adequate proof of mailing is presumptive evidence of receipt under
B.
Other Procedural Matters
We may also dispose of other minor procedural issues. The city argues that the factual issues presented for summary adjudication, as an alternative to summary judgment, were “compound,” or “far too broad and sweeping.” Insofar as the city appears to argue that a party may not ask the court to decide complex or dispositive issues, it is simply wrong. Insofar as it asserts that the issues presented involved disputed factual matters, we agree that a court cannot grant such a motion if a dispute is shown, but if the material facts are clear the application of legal principles to resolve the case is proper.2 (Pittleman v. Pearce (1992) 6 Cal.App.4th 1436, 1441 [8 Cal.Rptr.2d 359].) While we note on our own initiative that the issues may not all be framed in compliance with
Moot also is petitioner‘s objection that the court‘s order failed to specify the evidence demonstrating issues of fact, as required by
DISCUSSION
II.
The “Fireman‘s Rule”3
The “fireman‘s rule” “was born almost a century ago, earning nearly unanimous acceptance.” (Walters v. Sloan (1977) 20 Cal.3d 199, 202 [142
Cal.Rptr. 152, 571 P.2d 609].) Although recognizing that “[i]n recent years, the rule has been repeatedly attacked,” the Walters court solidly reaffirmed its continuing viability in this jurisdiction.4, 5 The rule applies equally to police officers injured in the course of their duties.6 (Ibid.; City of Redlands v. Sorensen (1985) 176 Cal.App.3d 202, 207 [221 Cal.Rptr. 728].)
Although originally often framed with reference to a landowner‘s premises liability, the rule is fundamentally based on public policy and the nature of the relationship between the firefighter or police officer and the public. (Walters v. Sloan, supra, 20 Cal.3d at pp. 202-203; see also Flowers v. Rock Creek Terrace (1987) 308 Md. 432 [520 A.2d 361, 367-368].) The rule is designed with the recognition that most fires (and perhaps most crimes) are due at least in part 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, occurences.” (Krauth v. Geller (1960) 31 N.J. 270 [157 A.2d 129, 130-31], quoted in Walters, supra, 20 Cal.3d at p. 205.) The undesirable consequences of a contrary rule have also been noted; the freedom from liability provided by the fireman‘s rule ” ‘permits individuals who require police or fire department assistance to summon aid without pausing to consider whether they will be held liable for consequences which, in most cases, are beyond their control.’ ” (Rishel v. Eastern Airlines, Inc. (Fla.Dist.Ct.App. 1985) 466 So.2d 1136, 1138, quoted in Fisher v. Farrell (Fla.Dist.Ct.App. 1991) 578 So.2d 407, 408-409.)
Finally, as also recognized and relied upon in Walters v. Sloan, supra, 20 Cal.3d 199, police officers and firefighters receive not only salaries calculated with considerations of the risks faced, but also special disability, retirement, and other benefits. (20 Cal.3d at p. 205.)
However, salutary as the rule is recognized to be, it is subject to a number of exceptions, at least some of which are contained in
The second express basis for the trial court‘s ruling was that Migailo‘s presence was unrelated to the negligence which caused his injury. This exception has been applied, for example, when a police officer, pursuing a suspect, is injured due to a dangerous condition on real property. (See Kocan v. Guarino (1980) 107 Cal.App.3d 291, 296 [165 Cal.Rptr. 712], in which the officer was injured when a fence collapsed.) In the same vein is the case of a firefighter who, while fighting a fire, falls through a defectively maintained roof. (See Bartholomew v. Klinger (1975) 53 Cal.App.3d 975, 978 [126 Cal.Rptr. 191].) The rationale of these cases is that, as to the suffering of such injuries, the firefighter or 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.
Real party the City of San Bernardino additionally raises a many-pronged but single-pointed argument to the effect that Seibert owed a special duty to plaintiff Migailo, which also negates the effect of the fireman‘s rule. As we find that no such duty was owed or breached, we need not determine whether, or to what extent, the existence of a “special relationship” between a defendant and a plaintiff might estop the defendant from relying on the fireman‘s rule.
A.
The Statutory Exception Inapplicable
The law now warns any person causing an incident which results in the summoning of a police officer, firefighter, or emergency medical care
Read literally, the statute appears to except the situation represented here from the operation of the fireman‘s rule. It is not disputed that Seibert personnel were aware of Migailo‘s presence (apparently at least one other officer, a Black officer, was also in the area at the time Shyptycki first became abusive towards Blacks). However, in our view such a construction leads to absurd results and is contrary to any reasonable policy of the law. In construing a statute, we are cautioned to avoid absurd results (In re Eric J. (1979) 25 Cal.3d 522, 537 [159 Cal.Rptr. 317, 601 P.2d 549]), and we find it easy to do so here.
Under the fireman‘s rule, for the sound policy reasons which we have listed above, a person‘s negligence cannot be used to impose tort liability if the officer or firefighter is injured in remedying the condition negligently caused. However, under the construction urged by real parties, every person would be under a new, special duty of care whenever the police officer or firefighter is “present” and the person knew or should have known of the presence. While such an exception can reasonably be applied to new conduct committed by such person after the officer has been summoned in the course of his duties9 (see e.g. Gibb v. Stetson, supra, 199 Cal.App.3d 1008; City of Redlands v. Sorensen, supra, 176 Cal.App.3d 202), it cannot be reasonably applied to conduct occurring while the officer is
A few examples will make the point clear. A person, standing on a city street corner, observes a police officer on foot patrol a few yards away. Feeling safe due to the officer‘s “presence,” the person allows a valuable camera to hang loosely from his arm, and a passing thief is thereby encouraged to grab at the camera. The officer observes this conduct, responds, confronts the thief, and is injured in a struggle. The victim was no doubt foolish-“negligent,” in the eyes of the law-to relax his vigilance and invite crime, but is he therefore liable in tort to the officer?
A driver on a mountain road idly observes a fire truck (obviously containing firefighters, but not proceeding to a call) on the road immediately behind him. The driver carelessly flicks a lighted cigarette butt out the window, causing a brush fire. The fire truck immediately stops and the firefighters fight the fire; one is injured. Is the driver liable?
Finally-and we recognize that we are pressing the limits of the absurd-an overweight man at a doughnut shop notices emergency medical personnel drinking coffee at a table next to him. Ignoring his doctor‘s advice, he consumes three jelly doughnuts, and collapses from a heart attack. A member of the emergency team trips over a chair rushing to his aid, and is injured. Is the glutton liable?
In each of these hypothetical cases, the defendant was aware that a member of the protected class was present, and nevertheless committed negligent conduct which raised some risk that intervention would be necessary. Strictly speaking,
It is inequitable as to the defendants, because the same conduct, committed with the same likelihood that some police officer, firefighter, or emergency medical aid person would have to be summoned, would be immune from liability if no specific member of the protected class was present, or even if such a person was present, but was not reasonably known to be so (e.g., a plainclothes police officer). As long as conduct is merely negligent, and not wilful or malicious, there is no point in imposing liability on the defendant whose acts are likely to involve a specific police officer, while precluding liability on the defendant whose negligent acts require the summoning of an officer at random.
Accordingly, we hold that the trial court erred in relying upon
When Shyptycki again became violent, Migailo responded in accordance with his duty as a police officer. At this point, Migailo was “present,” and Seibert‘s employees were under a duty not to contribute to his peril by negligent conduct. However, no such additional conduct occurred.10 This exception to the fireman‘s rule does not apply.
B.
Misconduct Unrelated to the Officer‘s Presence
The second basis for the trial court‘s ruling is that a triable issue of material fact exists as to whether Seibert‘s employees committed an independent or unrelated act of negligence. By a similar analysis, we find as a matter of law that no such act occurred.
Real parties’ reliance upon Rose v. City of Los Angeles (1984) 159 Cal.App.3d 883 [206 Cal.Rptr. 49], is misplaced. In that case, plaintiff Rose, a reserve police officer, was shot by a fellow officer during the service of a
Even if we accept that the risk of error and confusion during the service of a warrant is not inherent in a policeman‘s job, Rose v. City of Los Angeles, supra, 159 Cal.App.3d 883 is readily distinguishable. In that case, plaintiff Rose was carrying out a specific law enforcement duty-assisting in serving a warrant-when the negligence of his fellow officer unacceptably increased the risk inherent in that duty and caused injury. Here, Migailo was performing one duty-completing paperwork relating to the injured suspect-when the alleged negligence of Seibert employees caused him to initiate a new and different law enforcement action and attempt to subdue Shyptycki. While the conduct of Seibert employees may have been “independent of and unrelated to” the conduct which originally brought plaintiff to the hospital, it is factually undisputed that it was the immediate cause of Migailo‘s presence in or near the holding cell in which Shyptycki was tussling with Seibert employee Leggett.
Once again, we conclude that any other result would be absurd. Following the examples given above, it can readily be seen that the careless pedestrian‘s slackening of his grip on his valuables would constitute an act “unrelated” to the circumstances which brought the police officer to the same corner. Similarly, the careless smoker‘s act is “unrelated” to whatever reasons caused the firefighters to be immediately behind him on the road. However, the fortuitous presence of such personnel cannot mean that any negligent conduct which creates a crisis to which such personnel react becomes actionable in tort; the same indefensible distinctions and inequities would result as we raised above. Unless the police officer or firefighter has come to a specific location to perform a specific immediate duty, and the defendant‘s unrelated negligent or intentional conduct increases the risks inherent in performing that duty (see, e.g., Kocan v. Guarino, supra, 107 Cal.App.3d 291; Bartholomew v. Klinger, supra, 53 Cal.App.3d 975), this exception is similarly inapplicable.
C.
The Effect of Seibert‘s Contractual Duty to Provide Security Services
Finally, we turn to the argument pressed primarily by the City of San Bernardino-that Seibert employees cannot claim the
As we have discussed above, the fireman‘s rule generally prevents a police officer from recovering in tort from a person whose negligence has caused a dangerous situation to which the officer responds. A rule of broader applicability is that no person owes a duty to another to rescue or assist another, if the first person has not created the peril in which the latter is placed. (Zepeda v. City of Los Angeles (1990) 223 Cal.App.3d 232, 235 [272 Cal.Rptr. 635].) A third, related rule of general import is that no person owes a duty to control another person, which duty would run to the benefit of third parties. Although it sometimes leads to distressing results, the same rules apply even to police officers who fail to prevent crime or assist victims. (See Williams v. State of California, 34 Cal.3d 18 [192 Cal.Rptr. 233, 664 P.2d 137], and Davidson v. City of Westminster, supra, 32 Cal.3d 197, cited in fn. 9, ante.)
One exception to the rule concerning control of third parties applies where the victim and the person who fails to act stand in a “special relationship,” or where the nonactor stands in such a relationship to the actual tortfeasor. (Davidson, supra, 32 Cal.3d at p. 203; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166].) Such a “special relationship” exists between a business establishment and customers or invitees; the establishment is under an affirmative duty to take reasonable precautions to protect its patrons from criminal conduct by third parties. (Lopez v. McDonald‘s (1987) 193 Cal.App.3d 495, 504 [238 Cal.Rptr. 436]; see also Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 123-124 [211 Cal.Rptr. 356, 695 P.2d 653, A.L.R.4th 1747].)
In Marois v. Royal Investigation & Patrol, Inc., supra, 162 Cal.App.3d at pages 199-200, the court held that a private security service under contract to carry out the landowner‘s duty to business invitees thereby
We accept that visitors to a medical facility are entitled to the protections of this “special relationship.” (See Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112.) Thus, we agree that, subject to the effect of facts not established on this record, Seibert and its employees presumably owed a duty of care to Migailo to prevent assaults by disturbed patients. However, that is not what occurred here.
If Migailo had been preoccupied with completing paperwork at a hospital counter when Shyptycki, negligently allowed to escape by Seibert employees, rushed upon him from behind and struck him on the head, we might agree that Seibert would be liable. In such a situation, Migailo would be similarly situated to any user of the property, and quite arguably entitled to rely upon Seibert‘s performance of the duty of care owed by the landowner. Such a case would be analytically very similar to that of the officer or firefighter who, while pursuing a thief or fighting a fire, is injured due to an unrelated dangerous condition on the property. (See Kocan v. Guarino, supra, 107 Cal.App.3d 291, Bartholomew v. Klinger, supra, 53 Cal.App.3d 975.)
But this case is significantly different. Seibert‘s employees, perhaps negligently, failed to restrain Shyptycki adequately, and as a result of this possible negligence he was able to violently assault Timothy Leggett. As a police officer, Migailo responded to the disturbance, presumably both to assist Leggett and to prevent Shyptycki‘s escape. At this point, Migailo was no longer the business invitee or visitor to whom the landowner owed a duty which had been delegated to Seibert; he was a police officer acting on behalf of the public, attempting to subdue a dangerously disturbed person. Thus, at the moment of his injury, plaintiff was no longer relying-or entitled to rely-upon the landowner‘s duty to protect him; instead, he was carrying out his own duty to protect the public.
The duty of a security service employed to carry out the landowner‘s duty of care to visitors is no greater than that of the landowner itself. (Balard v. Bassman Event Security, Inc. (1989) 210 Cal.App.3d 243, 247 [258 Cal.Rptr. 343].) There is authority to the effect that, as a matter of policy, no tort liability attaches to a landowner or operator of a business, if a customer responds to an employee‘s urgent request for help in rebuffing
We do not quarrel with the proposition, under Marois v. Royal Investigation & Patrol, Inc., supra, 162 Cal.App.3d 193, that Seibert and its employees had a duty to protect visitors from foreseeable criminal assaults-nor that Shyptycki represented a clear danger to visitors. However, when Migailo became a police officer, he implicitly waived any duty of care owed to him by anyone, insofar as a breach of any such duty created a situation to which Migailo, as a police officer, had an obligation to respond. Migailo was entitled to expect Seibert employees to protect him from positive aggression, but when he reacted in his capacity as a police officer and deliberately encountered the danger represented by Shyptycki, he became subject to the greater social policy denying him a recovery in tort against those who caused the danger. (See Woods v. City of Warren (1992) 439 Mich. 186 [482 N.W.2d 696, 699], holding that a public entity‘s affirmative duty to maintain safe streets does not permit avoidance of the fireman‘s rule where a police officer, pursuing a suspect, is injured in an accident caused by icy roads.)
If Seibert employees had been aware that any injury to Migailo could lead to tort liability, it is possible that they might have been reluctant to call on him. Clearly, it is not in the public interest to discourage persons needing police assistance from calling for it. (See the quoted portion of Fisher v. Farrell, supra, 578 So.2d 407, at p. 406, ante.) It would place any security service-or any employee of a business enterprise which owes a duty to the public to prevent assaults on patrons-in a cruel quandary to say that if a police officer who is fortuitously on the premises is summoned for assistance, he can sue for his injuries; if he is not summoned and other patrons are
D.
Related Contentions
These conclusions permit us to dispose speedily of the city‘s numerous other related, and interrelated, contentions. The city argues that a jury should be permitted to determine whether Seibert committed “unrelated” or “independent” acts of negligence with respect to its hiring practices, training methods, and staffing decisions. However, any negligence in these areas was merely a factor in creating the basic risk. In a similar case, the Court of Appeals of the District of Columbia rejected an effort by a firefighter to recover due to the defendant‘s allegedly negligent hiring of an employee whose negligence compelled the firefighter‘s response, holding that the causative factors could not be separated. (Young v. Sherwin-Williams Co., Inc. (D.C. App. 1990) 569 A.2d 1173, 1179.) We agree that the fireman‘s rule cannot be subverted by the artificial isolation of specific factors, and find here that all of Seibert‘s allegedly negligent acts were inextricably involved in causing the danger of an unrestrained outburst by Shyptycki. Thus, no issue remained for submission to the jury.
Similarly, we reject the contention that the jury should have been allowed to determine what conduct brought Migailo to the scene within the meaning of
The city argues that because one Seibert employee apparently assisted in restraining Shyptycki, while another backed away from the struggle, some liability may be imposed. We see no legal basis for the contention. It is not argued that the Seibert employee who assisted Migailo did so in such an inept manner that Migailo was injured as a result of the counterproductive assistance (e.g., if the employee had accidentally seized Migailo‘s arm and prevented him from defending himself), and we do not
DISPOSITION
Let a peremptory writ of mandate issue, directing the superior court to vacate its order denying petitioner‘s motion for summary judgment, and to enter a new order granting said motion.
McKinster, J., concurred.
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.
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.)
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
The petition of real parties in interest for review by the Supreme Court was denied October 28, 1993.
Notes
It is true that in some cases it might be argued that a defendant breaches a duty of care owed generally to the public if he negligently commits acts which result in a dangerous fire or encourage the commission of a crime. However, to hold that in such a case the fireman‘s rule does not bar recovery would be to create inequitable distinctions, allowing recovery in one case but not in another, although the hazard encountered might be identical. We also observe that
We also note that Seibert‘s contractual duties are not conclusive as to the extent of any legal duty of care it owed to third parties; such duty would be measured by legal standards of reasonableness. (Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 196 at fn. 1 [208 Cal.Rptr. 384].)
The Forrand court focussed upon foreseeability, holding that a store clerk could not reasonably have foreseen the customer‘s extended pursuit of the criminal when she cried “Stop him!” In this case, Leggett‘s cries for help were probably intended to bring someone into close proximity with the violent Shyptycki, and injury to someone was certainly foreseeable. We find in this case, however, that a victim owes no duty to a police officer not to summon him for assistance.