Appellant Edward Harry worked as a site representative during an event at a noted architectural residence owned by respondent James Goldstein. While giving a tour during the event.
Harry fell from a platform suspended over a hillside, sustaining serious injuries. Harry sued Goldstein and Ring the Alarm, LLC, the entity that hired him and hosted the party. Harry’s claims against Goldstein for negligence and premises liability proceeded to trial. At the close of evidence, Goldstein asserted a defense under the “firefighter’s rule,” a subset of the doctrine of primary assumption of risk.
The trial court agreed that the defense was applicable and instructed the jury accordingly.
As a general rule, persons are liable for injuries they cause others as a result of their failure to use due care. (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536; Knight v. Jewett (1992) 3 Cal.4th 296, 315.) The only exceptions to this rule are those created by statute or clear public policy. (Neighbarger, supra, 8 Cal.4th at p. 537.) The doctrine of primary assumption of risk is an exception to the general duty of care. (Gregory v. Cott (2014) 59 Cal.4th 996, 1001.)
“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” (Ibid.) Thus, “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.” (Neighbarger, supra, 8 Cal.4th at p. 538; see also Knight, supra, 3 Cal.4th at pp. 313, 314-315.) The duty to avoid injuring others “normally extends to those engaged in hazardous work.” (Neighbarger, supra, 8 Cal.4th at p. 536.)
“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.” (Id. at p. 538.) However, a variant of the primary assumption of risk doctrine developed in the context of claims arising from inherent occupational hazards, under the “firefighter’s rule.” (Gregory, supra, 59 Cal.4th at p. 1001; see also Neighbarger, supra, 8 Cal.4th at pp. 538–540.) 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.” (Neighbarger, supra, 8 Cal.4th at p. 538.) Similarly, a person whose conduct precipitates the intervention of a police officer owes no duty of care to the officer “with respect to the original negligence that caused the officer’s intervention.” (Ibid., citing Walters v. Sloan (1977) 20 Cal.3d 199.) “Whether a duty of care is owed in a particular context depends on considerations of public policy, viewed in light of the nature of the activity and the relationship of the parties to the activity.” (Gregory, supra, 59 Cal.4th at pp. 1001-1002, citing Neighbarger, supra, 8 Cal.4th at p. 541; see also Knight, supra, 3 Cal.4th at pp. 314–315.)
For example, in Gregory, the Supreme Court applied the rule to bar liability against a woman suffering from Alzheimer’s disease after she injured the home health care worker hired to care for her. (Gregory, supra, 59 Cal.4th at pp. 1000-1001.) The court found that the doctrine was properly applied “in favor of those who hire workers to handle a dangerous situation. . . . In effect, we have said it is unfair to charge the defendant with a duty of care to prevent injury to the plaintiff arising from the very condition or hazard the defendant has contracted with the plaintiff to remedy or confront.” (Id. at p. 1002.)
The court also noted that this rule “encourages the remediation of dangerous conditions, an important public policy. Those who hire workers to manage a hazardous situation are sheltered from liability for injuries that result from the risks that necessitated the employment.” (Ibid.) The Gregory court also considered the important public policy in “minimizing the institutionalization of the elderly and disabled,” a policy promoted by a rule allocating the risk of harm to the trained health care provider, rather than to the patients and their families. (Id. at pp. 1005, 1014-1015.)
Similar reasoning has led to application of the rule to bar claims by veterinarians, their assistants, and commercial kennel workers for injuries caused by animals entrusted to their care. (See Priebe v. Nelson (2006) 39 Cal.4th 1112, 1122.) On the other hand, in Neighbarger, supra, 8 Cal.4th at pp. 542-543, the Supreme Court declined to apply the rule to an action brought by safety supervisors at an oil company. There, the plaintiffs were injured by the actions of employees from an outside maintenance company. (Id. at p. 535.) The court concluded that primary assumption of risk did not apply, as there was no contractual relationship between the plaintiffs and the third party maintenance company. The third party had not “paid in any way to be relieved of the duty of care” toward the plaintiffs. (Id. at p. 543.) “Having no relationship with the employee, and not having contracted for his or her services, it would not be unfair to charge the third party with the usual duty of care” towards the plaintiffs. (Ibid.)
The firefighter’s rule is applicable where “the risk of injury . . . is inherent in the [plaintiff’s] occupation,” and the plaintiff is injured by the very hazard he was hired to confront. (Gregory, supra, 59 Cal.4th at p. 1006.)
The jury found in Goldstein’s favor. On appeal, Harry contends the trial court erred in determining that the firefighter’s rule applied. The California Court of Appeal agreed. The circumstances presented in this case do not fit under the primary assumption of risk doctrine, as Harry was not expressly hired to manage the hazardous condition that injured him. Nor do we find any public policy in favor of applying such a bar. As such, the court erred in instructing the jury on this issue and in including the defense as the first two questions on the special verdict. The jury’s findings for Goldstein on this defense, which barred all liability, compelled reversal and was remanded for a new trial.
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