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Calatayud v. State8/6/1998
an officer's presence and his subsequent misconduct caused injury." (Maj. opn., ante, at p. 14.) This statement is erroneous for two reasons.
First, such a narrow reading of section 1714.9(a) has no basis in justice Tobriner's Hubbard Dissent, and indeed turns that Dissent on its head. The whole thrust of the Dissent, as reviewed above, was to limit the firefighter's rule to its original "prototypical" situation -" `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.' " (28 Cal.3d at p. 492 (dis. opn. of Tobriner, J.); see also Walters v. Sloan (1977) 20 Cal.3d 199 [holding that a police officer's personal injury action against parents negligently allowing child's disorderly party leading to officer's injury is barred by the firefighter's rule].) Section 1714.9(a) scales the firefighter's rule back to that original prototypical situation. The injury of a police officer by officers from a different agency after the police officers have arrived on a crime scene is not within the class of injury covered by this prototypical situation, and there is no reason not to construe section 1714.9(a) literally to permit police thus injured to bring civil actions.
Second, the majority find it significant that they can locate "no evidence the Legislature used the phrase `any person' to encompass other jointly involved public safety members" (Maj. opn., ante, at p. 14). But why is it significant that the legislative history contains no evidence that police officers or firefighters would be included or excluded from the class of "any persons" under the statute, when the Legislature did not apparently consider any such occupational exemptions? Given the broad purpose and broad language of section 1714.9 (a), the natural inference to be drawn from the lack of any discussion in the legislative history of whether peace officers or other groups would be exempted from the class of "any persons" is that they would not be so exempted.
Moreover, the majority state that their holding is limited to "injury negligently caused by a fellow officer jointly engaged with the injured officer in the discharge of their public safety responsibilities." (Maj. opn., ante, at p. 20.) This is indeed a salutary limitation, and suggests that the majority cannot quite bring itself to conclude that a police officer intentionally injured by an officer from another agency is barred from bringing a lawsuit. But the implication of such limitation is that the term "any person" within section 1714.9(a) means one thing when a police officer is causing intentional injury to an officer from a different agency and another thing when the same officer is causing negligent injury. Such an illogical and inconsistent reading of the statute cannot be what the Legislature intended.
Nor do I agree with the majority that the language in 1714.9(a) "might arguably override certain statutory immunities presently conferred on public safety personnel and their employers." (Maj. opn., ante, at p. 16.) Section 1714.9(a) states that "notwithstanding statutory or decisional law to the contrary, any person is responsible . . . for any injury occasioned to that person by the want of ordinary care or skill in the management of the person's property or person, in any of the following situations . . . ." A key word for understanding the above passage is "responsible." "Responsible" does not necessarily mean liable, but rather that a person has a duty, in the common law sense, to refrain from injuring peace officers under the circumstances enumerated in the statute. Inde
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