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Calatayud v. State8/6/1998
purpose of the statute. To begin, the effect of section 1714.9(a)(1) is to reimpose a duty of ordinary care (see Civ. Code, § 1714), which would otherwise be abrogated by the firefighter's rule. (Neighbarger, supra, 8 Cal.4th at p. 538.) Public safety members, however, have a primary responsibility for the protection of the public they serve. (See, e.g., Gov. Code, § 26600 et seq. [sheriff]; Pen. Code, §§ 830 et seq., 836 [peace officers]; Veh. Code, § 2400 et seq. [highway patrol]; Williams v. State of California (1983) 34 Cal.3d 18, 29 (conc. & dis. opn. of Mosk, J.).) Sound policy mandates that the discharge of these duties takes precedence over avoiding injury to fellow officers, particularly when responding to a rapidly developing emergency or crisis. (Cf. Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 229; Ne Casek v. City of Los Angeles (1965) 233 Cal.App.2d 131, 136-137.)
If section 1714.9(a)(1) were extended to jointly engaged fellow officers, the potential for conflicting duties is substantial given the size of the class of possible defendants and the scope of liability. For example, the list of persons designated as "peace officers" lengthens regularly (see Pen. Code, §§ 830.3-830.65; Bus. & Prof. Code, § 7011.5); and peace officers have statewide authority to operate regardless of their original jurisdiction (Pen. Code, §§ 830.1, 830.2; see id., §§ 830.3-830.5). The reliance on mutual aid agreements further increases the likelihood of joint operations involving public safety officers employed by different agencies. (See Gov. Code, §§ 3311, 8550 et seq., 8597, 8598, 8615 et seq., 8630 et seq., 55632 et seq.; Pen. Code, § 830.65 [authorizing appointment of local police and sheriff personnel in the Campaign Against Marijuana Planting].) Moreover, the statute broadens the common law exception by eliminating the requirement that the injury result from subsequent independent acts of misconduct committed after the defendant becomes aware of the officer's presence. (See, e.g., Lipson v. Superior Court, supra, 31 Cal.3d at p. 369.) The expansive reach of the statute could seriously compromise public safety during joint operations if the threat of a lawsuit accompanied every failure to exercise due care in effecting an arrest, quelling a disturbance, extinguishing a fire, or handling any of the other functions public safety members routinely discharge. (Cf. Ne Casek v. City of Los Angeles, supra, 233 Cal.App.2d at pp. 136-137.) We decline to ascribe to the Legislature any intent to generate conflicting duties on the part of peace officers and firefighters or to undermine their primary commitment to the public's essential safety and protection for fear of personal liability for injury to fellow officers.
Because section 1714.9(a)(1) applies " otwithstanding statutory or decisional law to the contrary," imposing such liability might arguably override certain statutory immunities presently conferred on public safety personnel and their employers. (See, e.g., Gov. Code, § 850.4 [immunity for injury resulting from condition of firefighting equipment or facilities or for injury caused in fighting fires]; Veh. Code, § 17004.7 [immunity for injury or death caused during police pursuit under specified circumstances].) While individuals would be entitled to a defense and payment of any judgment (Gov. Code, § 825), their governmental employers would incur liability under circumstances in which they would otherwise enjoy protection from suit. (See Gov. Code, § 815.2, subd. (b).) As the Law Revision Commission commented with respect to immunity provided under Government Code section 850.4: "There are adequate incentives to careful maintenance of fire equipment without imposing tort lia
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