DALE C. WALTERS, Plaintiff and Appellant, v. ROBERT M. SLOAN et al., Defendants and Respondents, 20 Cal. 3d 199

Opinion CLARK, J. Plaintiff appeals from judgment of dismissal entered after demurrer to the second amended complaint was sustained without leave to amend. The second amended complaint is summarized as follows: Robert and Madylon Sloan left their home in the charge of their 16-year-old daughter, Helen. Acting with their knowledge, and as their agent, Helen hosted a party attended by 200 people, many of whom were minors. She provided her guests, including a named minor, with alcoholic beverages. Marijuana and dangerous drugs were also available at the party.

Helen knew, or should have known, that those invited would become disruptive and a danger to others if they consumed the liquor and drugs in the quantities available. Disorder developed. Plaintiff, in the course of his duties as a police officer was sent to the Sloan residence. When plaintiff attempted to arrest the named minor and fictitiously named defendants for being drunk in public, they attacked him causing personal injury and property damage. The attack was a proximate result of Helen’s unlawful serving of alcoholic beverages.

Rejecting claims that the venerable fireman’s rule should be abolished, we reaffirm the rule and conclude that it precludes recovery in this case. The fireman’s rule provides that negligence in causing a fire furnishes no basis for liability to a professional fireman injured fighting the fire. Firemen, “whose occupation by its very nature exposes them to particular risks of harm, ‘ “cannot complain of negligence in the creation of the very occasion for [their] engagement.” ’ ” (Solgaard v. Guy F.

Atkinson Co. (1971) 6 Cal.3d 361, 369 [99 Cal.Rptr. 29, 491 P.2d 821].) While denominated the fireman’s rule, the rule is applicable to policemen as well. (Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355,357 [72 Cal.Rptr. 119].) The rule was born almost a century ago, earning nearly unanimous acceptance. (Gibson v. Leonard (1892) 143 Ill. 182 [32 N.E. 182, 184]; Woodruff v. Bowen (1893) 136 Ind. 431 [34 N.E. 1113, 1117]; Burroughs Adding Mach. Co. v. Fryar (1915) 132 Tenn. 612 [179 S.W. 127, 128]; Pincock v. McCoy (1929) 48 Idaho 227 [281 P. 371, 372]; Aldworth v. F. W.

Woolworth Co. (1936) 295 Mass. 344 [3 N.E.2d 1008, 1010]; Anderson v. Cinnamon (1955) 365 Mo. 304 [282 S.W.2d 445, 447]; Baxley v. Williams Construction Co. (1958) 98 Ga.App. 662 [106 S.E.2d 799, 805]; Roberts v. Rosenblatt (1959) 146 Conn. 110 [148 A.2d 142, 144]; Scheurer v.

Trustees of Open Bible Church (1963) 175 Ohio St. 163 [23 Ohio Ops.2d 453, 192 N.E.2d 38, 43]; see also Annot. 86 A.L.R.2d 1205, 1213; 35 Am.Jur.2d, Fires, § 45; 65 C.J.S., Negligence, § 63(110); 2 Harper & James, The Law of Torts (1956) § 27.14, p. 1501.) In recent years, the rule has been repeatedly attacked as being “behind the times,” based on outdated concepts of tort liability. However, the courts in this and other jurisdiction have answered the attacks, pointing out the rule is premised on sound public policy and is in accord with—if not compelled by—modern tort liability principles. (Solgaard v. Guy F.

Atkinson Co., supra, 6 Cal.3d 361, 369; Schrimscher v. Bryson (1976) 58 Cal.App.3d 660, 665-666 [130 Cal.Rptr. 125]; Scott v. E. L. Yeager Constr. Co. (1970) 12 Cal.App.3d 1190, 1194 et seq. [91 Cal.Rptr. 232]; Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355, 357 et seq.; Maltman v. Sauer (1975) 84 Wn.2d 975 [530 P.2d 254, 257]; Erickson v. Toledo, Peoria & Western Railroad (1974) 21 Ill.App.3d 546 [315 N.E.2d 912, 913]; Spencer v. B. P. John Furniture Corporation (1970) 255 Ore. 359 [467 P.2d 429, 431]; Horcher v.

Guerin (1968) 94 Ill.App.2d 244 [236 N.E.2d 576, 578]; Chesapeake & Ohio Railway Company v. Crouch (1968) 208 Va. 602 [159 S.E.2d 650, 653]; McGee v. Adams Paper & Twine Co. (1966) 26 App.Div.2d 186 [271 N.Y.S.2d 698, 706]; Aravanis v. Eisenberg (1965) 237 Md. 242 [206 A.2d 148, 153]; Buren v. Midwest Industries, Inc. (Ky. 1964) 380 S.W.2d 96, 97-99; Jackson v. Velveray Corp. (1964) 82 N.J.Super. 469 [198 A.2d 115, 121]; Krauth v.

Geller (1960) 31 N.J. 270 [157 A.2d 129, 130-131].) The earliest cases developed the fireman’s rule within the context of landowner liability; the landowner was not liable for dangerous conditions known to the claimant. (E.g., Pauly v. King (1955) 44 Cal.2d 649, 653 [284 P.2d 487]; Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355, 358; Anderson v. Cinnamon, supra, 365 Mo. 304 [282 S.W.2d 445, 448].) The hazard being known, no duty existed to warn. Except for the youngest of children, all are held to knowledge of fire’s danger (Rest.2d Torts, § 496D, com. d; Courtell v.

McEachen (1959) 51 Cal.2d 448, 458 [334 P.2d 870]), and no one is more knowing than the fireman. While modernizing has brought the law of landowner liability into accord with current concepts of tort liability by eliminating formalistic categories—invitees, licensees, trespassers (see Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496])—the fireman’s rule is not based on such categorizations.

Under the old rule, all persons within its scope were denied recovery when injured while voluntarily confronting. a known peril with full realization of the risk. (See, e.g., Rest.2d Torts, supra, §§ 343A, 496A.) The changes wrought by Rowland do not relate to the fireman’s rule. Rather, 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 is applicable to our entire system of justice—one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.

We have consistently applied this concept in our recent pronouncements in other cases of basic tort doctrine. These include cases dealing with product liability (Luque v. McLean (1972) 8 Cal.3d 136, 145 [104 Cal.Rptr. 443, 501 P.2d 1163]), comparative fault (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 824-825 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393]), and employee negligence (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 500 et seq. [102 Cal.Rptr. 795, 498 P.2d 1043]; see Spencer v. G. A. MacDonald Constr. Co. (1976) 63 Cal.App.3d 836, 861-865 [134 Cal.Rptr. 78]).

The principle denying recovery to those voluntarily undertaking the hazard causing injury is fundamental in a number of doctrines, including nullification of the duty of care, satisfaction of the duty to warn because the hazard is known, contributory negligence, and assumption of risk, as well as in the fireman’s rule. (See Prosser, Torts (4th ed. 1971) p. 439 et seq.; Chesapeake and Ohio Railway Company v. Crouch, supra, 159 S.E.2d 650, 653.) It is unnecessaiy to attempt to separate the legal theories or to catalog their limitations.

The rule finds its clearest application in situations like that before us—a person who, fully aware of the hazard created by the defendant’s negligence, voluntarily confronts the risk for compensation. A second reason underlying the fireman’s rule does not have a significant historical background, but rather is a modern one of public policy, adopted by progressive courts and based on fundamental concepts of justice. As succinctly stated in Solgaard v. Guy F. Atkinson Co., supra, 6 Cal.3d 361, 369, firemen “ ‘ “cannot complain of negligence in the creation of the very occasion for [their] engagement.” ’ (Giorgi v.

Pacific Gas & Electric Co., 266 Cal.App.2d 355 . . . .)” Former Chief Justice Weintraub of the Supreme Court of New Jersey explained the principle. “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. . . . [H] [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.” (Krauth v. Geller, supra, 157 A.2d 129, 130-131.) California is not insensitive to its obligation to compensate public safety officers for hazards faced or for injuries received. Firemen and policemen are paid for the work they perform including preparation for facing the hazards of their professions and dealing with perils when they arise.

When injury occurs, liberal compensation is provided. In addition to the usual medical and disability benefits ordinarily provided all employees covered by the Workers’ Compensation Act, firemen and policemen are provided special benefits. First, they receive special presumptions of industrial causation as to certain disabilities. (Lab. Code, § 3212.) Second, special death benefits apply to public safety officers if they are under the Public Employees Retirement System. (Gov.

Code, § 21363 et seq.) Third, if under that system or the County Employees Retirement Law of 1937, they are entitled to an optional leave of absence for up to one year with full pay. (Lab. Code, §§ 4800, 4850.) Fourth, their permanent disability benefits are fully payable despite retirement, and are not reduced by disability pensions even when both are paid for the same injury. (City of Palo Alto v. Industrial Acc.

Com. (1965) 232 Cal.App.2d 305, 306 et seq. [42 Cal.Rptr. 822].) While the employees of some cities are not under the Public Employees Retirement System and in certain circumstances their disability benefits are offset by disability pension payments (e.g., Symington v. City of Albany (1971) 5 Cal.3d 23 [95 Cal.Rptr. 206, 485 P.2d 270]; Lyons v. Workmen’s Comp.

Appeals Bd. (1975) 44 Cal.App.3d 1007 [119 Cal.Rptr. 159]), it is apparent from the cases discussing the question that the special disability pensions and other benefits payable to firemen and policemen substantially exceed ordinary disability compensation benefits. (Id.) Because public agencies pay death benefits and disability compensation to the injured fireman and policeman, it is apparent that under Witt v.

Jackson (1961) 57 Cal.2d 57, 69 et seq. [17 Cal.Rptr. 369, 366 P.2d 641], much of the recovery which would result from abolition of the fireman’s rule will finally be returned to those agencies rather than to the injured public employee. Recognizing the principle that an injured employee should not be entitled to double recovery, Witt held that where an employee or his survivors recover damages from a negligent third party, the employer, free from fault, is entitled to a lien against the recovery to the extent that it includes compensation benefits paid by the employer.

In addition to an employer’s lien, the Public Employees Retirement System may recover half of any survivor benefits paid by it. (Gov. Code, § 21450 et seq.; Board of Administration v. Kuppens (1975) 49 Cal.App.3d 758, 761 et seq. [122 Cal.Rptr. 856].) Additionally, abolition of the fireman’s rule would burden our courts with litigation among the employer public agency, the retirement system, and the negligence insurer. Whether the employee is ultimately compensated with money derived from taxes or from insurance, the public pays the bill.

It is asserted that the fireman’s rule should not apply where negligence is predicated on a violation of statute such as Business and Professions Code

section 25658, subdivision (a) (furnishing alcoholic beverages to persons under the age of 21), because the Legislature has established a public policy which courts should promote in negligence actions. Courts have given effect to legislative policies by application of the negligence per se doctrine as now codified in Evidence Code

section 669. Under the doctrine, violation of a statute gives rise to a presumption of negligence in the absence of justification or excuse, provided that the “person suffering . . . the injury . . . was one of the class of persons for whose protection the statute . . . was adopted.” (Evid. Code,.§ 669, subd. (a) (4); Vesely v. Sager (1971) 5 Cal.3d 153, 164-165 [95 Cal.Rptr. 623, 486 P.2d 151]; 4 Witkin,

Summary of Cal. Law (8th ed. 1974) pp. 2810-2811.) Ordinarily, a criminal statute is enacted not to protect policemen from injury while investigating or terminating the prohibited conduct but rather to protect the public. Enforcement of any criminal statute causes policemen to confront persons violating the statute, thereby imposing a confrontation and risk to the officer where none existed before. An officer called to enforce a criminal statute is thus not one of the class of persons for whose protection the criminal statute is adopted.

The negligence causing injury alleged against defendants Sloan is furnishing alcoholic beverages to persons under 21 resulting in their becoming drunk. The same negligence occasioned summoning the police. Based on sound legal theory and solid public policy, the fireman’s rule has served us well. We reaffirm it and conclude that it bars this action. The judgment is affirmed. Mosk, J., Richardson, J., Wright, J., and Sullivan, J., concurred. Causes of action directed against the named minor and fictitiously named defendants remain pending, unaffected by the judgment of dismissal as to the Sloan defendants.

Other negligent conduct or willful misconduct may create liability to the injured fireman or policeman. (See Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 360 [72 Cal.Rptr. 119]; 2 Harper & James, The Law of Torts (1956) pp. 1503-1505.) Thus a police officer who while placing a ticket on an illegally parked car is struck by a speeding vehicle may maintain action against the speeder but the rule bars recovery against the owner of the parked car for negligent parking: Bilyeu v.

Standard Freight Lines (1960) 182 Cal.App.2d 536 [6 Cal.Rptr. 65], assertedly to the contrary, did not discuss the fireman’s rule. Although in a number of cases policemen and firemen have been permitted recovery for negligence for injuries incurred while engaged in their duties as employees (e.g., Witt v. Jackson (1961) 57 Cal.2d 57, 69 [17 Cal.Rptr. 369, 366 P.2d 641]), the negligent act complained of in such cases did not create the occasion for the officer’s or fireman’s employment. Retired Chief Justice of California sitting under assignment by the Acting Chairperson of the Judicial Council.

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.