JERRY F. LENTHALL, Plaintiff and Appellant, v. GOMER LOUIS MAXWELL, Defendant and Respondent, 138 Cal. App. 3d 716

Opinion KINGSLEY, Acting P. J. Plaintiff appeals from a

summary judgment against him in an action for personal injuries. We affirm. Plaintiff is a police officer for the City of San Luis Obispo. In company with other officers of that city, he responded to an order to proceed to defendant’s home, because of a report that, at that address, “a 415 Family With Weapons, possibly shots fired, was in progress.” Arriving at the residence, he was shot and injured by defendant. The complaint, and plaintiff’s answers to a request for admissions, claim that the shooting was intentional. The trial court granted

summary judgment for defendant on the theory that plaintiff’s claim fell within.the so-called “fireman’s rule." We conclude that the decision was correct. The fireman’s rule began with a case holding that a fireman has no cause of action against a person who negligently started a fire, where the fireman was injured in attempting to put out the fire.

The rule has since been extended to cover police officers, and has been applied where the defendant’s action was “wanton and reckless.” In some cases applying the rule, an appellate court has remarked that the cases before them did not involve intentional acts directed against the fireman or policeman and that they were not deciding such a case. In Spargur v. Park (1982) 128 Cal.App.3d 469 [180 Cal.Rptr. 257], an officer had stopped a car for speeding. He parked his motorcycle in front of the car which, however, continued to proceed, striking and injuring the officer.

The court, in a two-to-one opinion, held that a

summary judgment was improper because it could not be determined from the record whether defendant’s car proceeded accidentally because of poor brakes or because of intentional failure to stop. The opinion seems to hold that the latter situation would not invoke the rule. In Hubbard v. Boelt (1980) 28 Cal.3d 480 [169 Cal.Rptr. 706, 620 P.2d 156], a police officer was injured when, in chasing a speeding car, he was injured while trying to avoid debris in the highway. The Supreme Court, sustaining a

summary judgment for defendant, distinguished a case where an officer, engaged in ticketing an illegally parked car, was struck and injured by another car which was speeding, said (at pp. 486-487): “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.” In Krueger v.

City of Anaheim (1982) 130 Cal.App.3d 166 [181 Cal.Rptr. 631], a police officer, acting as a security guard at a ball game, chased a man who ran across the playing field. A fight followed in which the officer was injured. The court held that the rule did not apply saying (at p. 172): “Here the guard, a security officer in the employ of the city, was called upon to prevent an interference with the ballgame then in progress. He was called upon to eject a fan who was running through the playing area.

The objective was not only to permit the game to continue but also to secure the safety of the public and the ball players using that area. The risk this guard would reasonably assume does not encompass the intentional battery which followed. Under those conditions, the officer and the city, which is required to provide him worker’s compensation and disability compensation, should not be barred by an assumption of risk doctrine or fireman’s rule but be able to recover the damages sustained.” In Shaw v.

Plunkett (1982) 135 Cal.App.3d 756 [185 Cal.Rptr. 571], a police officer was engaged in arresting a suspected prostitute. Defendant (her customer) intentionally drove his automobile into and injured the officer. The court refused to apply the rule, saying (at p. 760): “Here, it is apparent that the police officer’s injuries were not proximately caused by conduct which necessitated his presence in the parking lot of the motel. ...” Our reading of the cases cited to us leads us to conclude as follows:

(1) The rule does not apply to injuries inflicted by an independent actor not connected with the event bringing the officer to the place of injury; (2) the rule does not apply to injuries caused by conduct which the officer could not reasonably anticipate would occur by reason of his presence at the place of injury; (3) but that the rule does apply to injuries inflicted by a participant in the event bringing the officer to the place of injury and the act causing the injury is one which the officer should reasonably expect to occur while he was engaged in the duty bringing him to the place of injury.

As applied to the case before us, a police officer called to subdue a violent offense involving firearms, should reasonably anticipate that one of the persons whom he was called on to subdue might resist him by use of the firearms involved. The judgment is affirmed. Amerian, J., concurred.