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Calatayud v. State8/6/1998
rn causes the death or injury of the fireman." (Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 357.) Although the doctrine first gained currency in American common law more than a century ago (see, e.g., Gibson v. Leonard (Ill. 1892) 32 N.E. 182, overruled on other grounds in Dini v. Naiditch (Ill. 1960) 170 N.E.2d 881, 886), it was not adopted in California until 1968. (Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355.) Subsequently, in Walters v. Sloan, supra, 20 Cal.3d 199 (Walters), this court not only gave its imprimatur but extended the rule to police officers. (Id. at p. 202.)
The undergirding legal principle of the rule is assumption of the risk, i.e., the "legal Conclusion that the person who starts a fire owes no duty of care to the firefighter who is called to respond to the fire. [Citations.]" (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 541 (Neighbarger); Knight v. Jewett (1992) 3 Cal.4th 296, 309-310, fn. 5; see Walters, supra, 20 Cal.3d at p. 204.) " `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.' " (Walters, supra, 20 Cal.3d at p. 205, quoting Krauth v. Geller (N.J. 1960) 157 A.2d 129, 131.)
The rule is equally grounded in considerations of public policy " `distilled from the relevant factors involved upon an inquiry into what is fair and just. . . . [ ] 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.' " (Walters, supra, 20 Cal.3d at p. 205; Neighbarger, supra, 8 Cal.4th at p. 539.) Moreover, "public safety employees receive special public compensation for confronting the dangers posed by the defendants' negligence." (Neighbarger, supra, 8 Cal.4th at p. 540.) "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 [including special statutory presumptions of industrial causation, special death benefits, optional paid leaves of absence, and fully paid disability benefits despite retirement]." (Walters, supra, 20 Cal.3d at p. 205; Hubbard v. Boelt (1980) 28 Cal.3d 480, 484 (Hubbard).)
"Thus, the fireman's rule is based upon a public policy decision to meet the public's obligation to its officers collectively through tax-supported compensation rather than through individual tort recoveries. This spreads the costs of injuries to public officers among the whole community, making the public in essence a self-insurer against those wrongs that any of its members may commit." (Comment, The Fireman's Rule: Defining Its Scope Using the Cost-Spreading Rationale (1983) 71 Cal. L.Rev. 218, 235-236, fns. omitted (Comment); see Walters, supra, 20 Cal.3d at pp. 205-206.) " he public, having secured the services of the firefighter by taxing itself, stands in the shoes of the person who hires a contractor to cure a dangerous condition. In effect, the public has purchased exoneration from the duty of care and should not have to pay twice, through taxation and through individual liability, for that service. [Citations.]" (Neighbarger, supra, 8 Cal.4th at pp. 542-543; see Walters, supra, 20 Cal.3d at pp. 204-206.) Accordingly, the rule functions as a cost-spreading mechanism "allow
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