JOHNNY DEAN HUBBARD, Plaintiff and Appellant, v. ROBERT JAMES BOELT, Defendant and Respondent; CITY OF SAN DIEGO et al., Interveners and Appellants, 28 Cal. 3d 480

Opinion RICHARDSON, J. May a policeman injured during a high speed chase of a reckless traffic offender recover damages for his personal injury from that person? We conclude that such recovery is precluded by reason of the so-called “fireman’s rule,” which bars certain tort causes of action by firemen and policemen injured during the course of their hazardous occupations. (See Walters v. Sloan (1977) 20 Cal.3d 199, 202-207 [142 Cal.Rptr. 152, 571 P.2d 609].) The facts are not disputed.

On February 28, 1977, plaintiff Hubbard, an on-duty San Diego police officer, while parked at roadside, was operating speed detection equipment. Defendant Boelt’s vehicle registered a speed of 50 miles per hour, violating the 25-mile-per hour speed limit. Plaintiff immediately activated his emergency lights and siren and began pursuit. Defendant accelerated to avoid arrest, at one point his vehicle reaching a speed of 100 miles per hour. While passing another car on a blind curve, defendant collided with a third vehicle, causing debris to be scattered over the roadway.

Plaintiff approached the accident scene at a high rate of speed and was injured when he attempted to avoid the highway debris by driving his car upon a grass embankment. The entire chase occurred within a half mile in distance and less than one minute in time. Plaintiff sued defendant, alleging that defendant’s negligent and reckless operation of his motor vehicle proximately caused plaintiff’s injuries.

The City of San Diego intervened, supporting plaintiff’s action and asserting a separate claim against defendant for reimbursement of workers’ compensation and disability benefits (a claim not involved in the present appeal). The trial court dismissed plaintiff’s action after granting defendant’s motion for

summary judgment based upon the fireman’s rule. This appeal followed. As we recently stated, “The fireman’s rule provides that negligence in causing a fire furnishes no basis for liability to a professional fireman injured fighting the fire.” (Walters v. Sloan, supra, at p. 202.) The rule, which has been held equally applicable to policemen injured in the course of their duties, is based on the principle that it is the business of a fireman or policeman to deal with particular hazards, and that accordingly “‘he cannot complain of negligence in the creation of the very occasion for his engagement.’” (Giorgi v.

Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 359 [72 Cal.Rptr. 119]; see Walters at p. 202; Solgaard v. Guy F.

Atkinson Co. (1971) 6 Cal.3d 361, 369 [99 Cal.Rptr. 29, 491 P.2d 821].) In Walters, we reiterated and confirmed the rationale underlying the fireman’s rule, observing that it is based upon (1) the traditional principle that “one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby,” (p. 204), and (2) a public policy to preclude tort recovery by firemen or policemen who are presumably adequately compensated (in special salary, retirement, and disability benefits) for undertaking their hazardous work (pp. 204-206).

Plaintiff first argues that the fireman’s rule should be inapplicable to reckless conduct of the type herein alleged. Yet the foregoing principles and policy considerations seemingly would apply whether defendant’s conduct was reckless or merely negligent in nature: In both situations, the plaintiff voluntarily confronts a hazard for which he is specifically compensated. Moreover, it would be anomalous if recovery for injuries to firemen or policemen incurred in facing substantially identical risks were to depend solely upon the nature of defendant’s conduct in creating that risk.

Until recently, the courts had left open the question whether recovery might be permitted for reckless or wanton misconduct. (See Walters, at p. 202, fn. 2; Giorgi, at p. 360.) Then, in Holden v. Chunestudey (1980) 101 Cal.App.3d 959 [161 Cal.Rptr. 925], the court extended application of the fireman’s rule to bar recovery for injuries resulting from a defendant’s wilful or wanton misconduct. In Holden, a patrolman was summoned to the scene of a fatal accident apparently caused by defendant’s driving while intoxicated; the officer slipped and fell while climbing a hill near the accident scene.

Although plaintiff argued that defendant’s aggravated conduct justified an exception to the fireman’s rule, the court rejected the contention reciting several reasons for doing so: “The policy justifications for the fireman’s rule in negligence cases set forth in Walters require application of the rule to willful or wanton misconduct. [¶] Firemen and policemen fall within fundamental tort principles which prevent a person from recovering for injury due to a knowingly and voluntarily encountered hazard. [Citation.] This rationale applies to willful or wanton misconduct as well as to negligence. [If] Second, police officers.. .may not complain of willful or wanton misconduct for they are employed to deal with behavior made the subject of their duties, whether it arises as a result of someone’s careful behavior, negligence, or willful or wanton misconduct. [¶] Third, firemen and policemen receive special benefits and pay because of the dangers they encounter. [Citation.] The added compensation is not limited to injury from negligent conduct. [H] Last, Walters expressed concern that abolishing the fireman’s rule would burden the courts with litigation.

That concern would not be much mitigated by limiting the rule to negligence cases both because of the potential number of wanton or willful cases and because we can anticipate litigation plumbing the line between negligence and willful or wanton misconduct.” (Pp. 961-962.) For all the reasons described in Holden, we conclude that the fireman’s rule extends to both negligent and reckless conduct. We are not concerned with a claim for intentionally inflicted injuries to firemen or policemen.

Plaintiff next contends that the fireman’s rule is inapplicable because defendant allegedly violated various statutory provisions which were designed to protect persons in plaintiff’s class. A similar argument was made and rejected, however, in Walters wherein we made the following observation: “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.” (20 Cal.3d at p. 207.) Similarly, singly or in combination, none of the statutory provisions relied upon by plaintiff herein appears specially designed to protect policemen from traffic accidents of the kind in which plaintiff was injured. Vehicle Code

section 2800.1 makes it a misdemeanor wilfully to disregard an officer’s siren and red light and to flee or attempt to elude pursuit. Penal Code

section 148 proscribes wilful resistance, delay or obstruction of a police officer. Penal Code

section 834a forbids using force or a weapon to resist arrest. The first

section clearly was designed for the protection of the general public, to reduce the general traffic hazard resulting from pursuit at high speeds. The resistance/obstruction and force/weapon statutes may have been enacted to assist the officer in making arrests and performing other official functions but it is unlikely that these provisions were intended to protect the officer from injuries received from traffic accidents. Thus, we cannot conclude that enforcement of the fireman’s rule in the present case would be contrary to any public policy expressed in the statutory provisions cited by plaintiff.

Finally, plaintiff contends that the fireman’s rule should not apply to the present case, because his injuries were not caused by defendant’s original act of speeding, but by his subsequent act of accelerating to avoid capture, thus resisting arrest at high speeds. Plaintiff asserts that the fireman’s rule was not intended to bar recovery for independent acts of misconduct which were not the cause of the plaintiff’s presence at the accident scene. (See, e.g., Kocan v. Garino (1980) 107 Cal.App.3d 291, 295-296 [165 Cal.Rptr. 712].) We have confirmed the validity of this principle in the abstract.

As stated in Walters, supra, “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.” (20 Cal.3d at p. 202, fn. 2.) In the present case, however, no such independent act occurred. Plaintiff was injured while pursuing a speeding traffic violator, and in discharge of his official duty incurred the very risk which occasioned his presence at the accident scene. The judgment is affirmed.

Mosk, J., Clark, J., Manuel, J., and Newman, J., concurred.