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Calatayud v. State8/6/1998
uries." (Hubbard, supra, 28 Cal.3d at p. 488 (dis. opn. of Tobriner, J.).)
Justice Tobriner also objurgated the majority for "hav transformed the fireman's rule from a restrained doctrine that simply protects the average homeowner or citizen from potentially severe liability for mere acts of negligence in creating a situation as to which firemen and policemen are employed to respond, into a sweeping, across-the-board rule that forbids firemen and policemen from recovering any damages from persons who, with knowledge of a safety officer's presence on the scene, intentionally engage in wilful and wanton misconduct which results in serious injury to the officer." (Hubbard, supra, 28 Cal.3d at p. 487 (dis. opn. of Tobriner, J.).)
Adopting "the rationale expressed by Justice Tobriner in his dissent" (Assem. Com. on Finance, Insurance & Commerce, Analysis of Assem. Bill No. 2105 (1981-1982 Reg. Sess.) May 19, 1991, p. 3), the Legislature responded to Hubbard with legislation that ultimately amended Labor Code section 3852 to add the following provision: "(b) Notwithstanding statutory or decisional law to the contrary, any person who knows or should have known of the presence of a peace officer or firefighter is responsible not only for the results of the person's willful acts, but also for any injury occasioned to the peace officer or firefighter by the person's want of ordinary care or skill in the management of the person's property or person, which occurs after the person knows or should have known of the presence of the peace officer or firefighter, except to the extent that the comparative fault of the peace officer or firefighter contributes to the injury." (Stats. 1982, ch. 149, § 1, p. 492, enacted as urgency legislation Apr. 5, 1982.)
As noted, the decision in Hubbard provided the acknowledged impetus for this amendment, and the nexus sheds considerable light on whether the Legislature intended section 1714.9(a)(1) to impose liability for injuries caused by fellow officers jointly engaged in the discharge of public safety responsibilities. Even a superficial analysis suggests it did not. Most significantly, the facts in Hubbard represented the typical firefighter's rule case-an injured police officer foreclosed from bringing suit against a member of the public whose conduct precipitated the intervention and whose subsequent and independent negligence or recklessness caused injury . The legislative history addresses only this paradigm; the record is conspicuously silent regarding injuries caused by fellow officers. (See, e.g., Assem. Com. on Finance, Insurance & Commerce, Analysis of Assem. Bill No. 2105, supra; Assem. Off. of Research, Conference Com. Rep. on Assem. Bill No. 2105 (1981-1982 Reg. Sess.) as amended Sept. 14, 1981; Sen. Democratic Caucus, Analysis of Assem. Bill No. 2105 (1981-1982 Reg. Sess.); Sen. Republican Caucus, Analysis of Assem. Bill No. 2105 (1981-1982 Reg. Sess.) March 5, 1982.)
Equally telling is the choice to amend Labor Code section 3852, part of the Workers' Compensation Act. (Lab. Code, § 3600 et seq.) Section 3852 of the Labor Code allows an employee injured in the course of employment to bring an action against a third party tortfeasor notwithstanding a claim for workers' compensation; the employer can also sue to recover any benefits paid. As the Legislature understood the decision in Hubbard, the firefighter's rule barred such actions on the part of peace officers and firefighters regardless of the nature of the misconduct. (Assem. Com. on Finance, Insurance & Commerce, Analysis of Assem. Bill No. 2105, supra, at p. 3; see Walters, supra, 20 Cal.3d at pp. 209-210 (dis. opn. of Tobriner, J.).) " court decisions have held that
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