What is Occupational Assumption of Risk in Personal Injury Cases?

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When you’re injured your personal injury lawyerLinks to an external site. will talk about Assumption of Risk from your occupation.

"Occupational assumption of risk" a complete defense ("firefighter's rule"): The so-called "firefighter's rule"-- or "occupational assumption of the risk"--is also a species of "primary assumption of the risk": Defendants have no legal duty to protect plaintiffs from the very risk of harm they are employed to confront (i.e., risks inherent in plaintiff's occupation as a firefighter, police officer, paramedic, veterinarian or other professional); consequently, a cause of action based on injuries arising out of plaintiff's "normal" occupational risks is barred regardless whether the injury-provoking conduct was ordinary negligence, "reckless," or "willful or wanton." [Knight v. Jewett (1992) 3 Cal.4th 296, 309, 11 Cal.Rptr.2d 2, 10, fn. 5; see Calatayud v. State of Calif. (1998) 18 Cal.4th 1057, 1061-1063, 77 Cal.Rptr.2d 202, 204-206; Neighbarger v. Irwin Indus., Inc. (1994) 8 Cal.4th 532, 538, 34 Cal.Rptr.2d 630, 634]

Application limited to "on the job" injury: The "firefighter's rule" applies where plaintiff suffers injury in the course of work for which he or she "is employed and compensated." A plaintiff who encounters an "occupational hazard" in an "off-duty" setting does not automatically assume the risk of injury. Instead, plaintiff's responsibility for his or her own injury must be determined under a comparative negligence standard (i.e., "secondary" assumption of risk). [Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1400-1401, 14 Cal.Rptr.2d 679, 684-685--"occupational assumption of risk" no bar to dog handler's suit for bite wound suffered when she voluntarily rendered roadside aid to dog struck by car (¶3:241.14a)]

Comment: Nonetheless, it is doubtful the "for compensation" rule of Davis, supra, would eliminate an "occupational" assumption of the risk defense where plaintiff was "on duty," albeit in a "volunteer" capacity (e.g., volunteer firefighters responding to a fire in their normal "on duty" capacity).

Compare--peace officers: Off-duty peace officers may arrest lawbreakers at any time, and are entitled to workers' compensation benefits for injuries sustained in responding to suspected criminal activity even when off duty. [See Ca Labor § 3600.2(a)]

An off-duty officer injured in responding to a criminal situation as an officer (e.g., by drawing his or her service revolver and announcing he or she is an officer) cannot thereafter sue a third party whose alleged negligence facilitated the criminal activity. A member of the public, having already been taxed to provide the officer with workers' comp benefits, is "entitled to the benefit of the cost-spreading aspect of the public compensation system and should not have to pay again for injuries that are compensable in that system." [Hodges v. Yarian (1997) 53 Cal.App.4th 973, 981-982, 62 Cal.Rptr.2d 130, 134-135--"occupational assumption of risk" prevented off-duty officer injured while responding to burglary in his apartment building from suing owners for failure to provide adequate security; see Kelhi v. Fitzpatrick (1994) 25 Cal.App.4th 1149, 1158-1160, 31 Cal.Rptr.2d 182, 187- 188--"occupational assumption of risk" barred recovery by uniformed motorcycle officer injured while responding to roadway emergency during commute to work]

Application limited to risks inherent in job: Professionals do not assume every possible risk they may encounter on the job. There is no "occupational assumption of risk" defense where the injuries suffered were caused by hazards neither inherent nor reasonably incidental to plaintiff's occupation. [Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 20 Cal.Rptr.2d 148--firefighter did not assume risk of "slip and fall" on wet stairs while performing routine fire safety inspection ("secondary assumption of risk" principles applicable); Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1479, 255 Cal.Rptr. 755, 761-- "occupational assumption of risk" inapplicable to stunt driver injured when D changed stunt without advising P; see Neighbarger v. Irwin Indus., Inc., supra, 8 Cal.4th at 538, 34 Cal.Rptr.2d at 634; and further examples at ¶3:241.10 ff.]

Statutory exception--liability for independent acts of negligence: Ca Civil § 1714.9 draws upon the above common law limitation: The "firefighter's rule" does not bar recovery where injury is caused firefighters, police officers or emergency medical personnel by an act of misconduct independent of the misconduct that necessitated their presence at the scene. [Ca Civil § 1714.9; Boon v. Rivera (2000) 80 Cal.App.4th 1322, 1327-1328, 96 Cal.Rptr.2d 276, 279-280]

The underlying theory is that risks from independent acts of negligence (unrelated to the reasons for plaintiff's presence at the scene) are not knowingly assumed. [Lipson v. Super.Ct. (Berger) (1982) 31 Cal.3d 362, 370- 371, 182 Cal.Rptr. 629, 634-635]

Liability "per se" for intentional misconduct and arson: Apart from negligence liability, the firefighter's rule is clearly no bar to recovery where the conduct was intended to injure the officer, firefighter or emergency medical personnel (intentional torts as opposed to "willful or wanton misconduct"); or where the conduct causing the injury was arson (Ca Penal § 451). [Ca Civil § 1714.9(a)(3),(4)]

Liability for subsequent tortious acts: Ca Civil § 1714.9 also clarifies that the firefighter's rule does not bar recovery for injuries attributable to defendant's tortious conduct occurring after defendant knew or should have known of the firefighter's, peace officer's or emergency medical person's presence on the scene (i.e., independent negligence occurring after the incident that necessitated plaintiff's presence at the scene). [Ca Civil § 1714.9(a)(1); see Boon v. Rivera (2000) 80 Cal.App.4th 1322, 1327, 96 Cal.Rptr.2d 276, 279 (collecting cases); see also Hodges v. Yarian (1997) 53 Cal.App.4th 973, 985, 62 Cal.Rptr.2d 130, 137]

Limitation--no liability for officer injured by another officer: Ca Civil § 1714.9(a)(1) was not intended to impose liability for an injury negligently inflicted by another peace officer (or firefighter or emergency personnel) employed by a different entity (e.g., local police officer injured by highway patrol officer who assisted in subduing suspect).

Imposing such liability would lead to costly litigation at taxpayer expense, and would produce the anomaly that an injured officer could sue when the negligent officer was employed by another agency but would be barred by workers' compensation law from suing when the negligent officer was employed by the same agency. [Calatayud v. State of Calif. (1998) 18 Cal.4th 1057, 1063- 1072, 77 Cal.Rptr.2d 202, 206-212; Farnam v. State of Calif. (2000) 84 Cal.App.4th 1448, 1450-1455, 101 Cal.Rptr.2d 642, 644-647; see also City of Oceanside v. Super.Ct. (MacDonald) (2000) 81 Cal.App.4th 269, 280-283, 96 Cal.Rptr.2d 621, 629-631 (interpreting common law "independent acts" exception)--same rationale applied to bar suit by public lifeguard injured from negligent rescue acts performed by another lifeguard employed by other government entity]

[3:241.4c-241.4e] Reserved.

Liability for independent statutory violation: Similarly, the firefighter's rule does not bar recovery for injury caused by conduct that violates a statute, ordinance or regulation where the conduct was not the event that precipitated the firefighter's, peace officer's or emergency medical person's presence on the scene (i.e., violation was independent of incident that necessitated plaintiff's presence at the scene). [Ca Civil § 1714.9(a)(2) (amended Stats. 2001, Ch. 140)]

Comparative fault still applies: Even where negligence liability properly rests under Ca Civil § 1714.9, a damages award is still subject to reduction because of the comparative fault of the peace officer, firefighter or paramedic in causing the injury. [Ca Civil § 1714.9(b)]

Employer exempt: The employer of the injured police officer, firefighter or emergency medical service personnel is exempt from liability that otherwise might be imposed under Ca Civil § 1714.9. [Ca Civil § 1714.9(d)]

Examples--occupational assumption of risk applied to bar recovery

Firefighters: As stated, firefighters injured while combating a fire in the course of duty generally have no cause of action against the person whose negligence started the fire. Firefighters receive special pay, disability and retirement benefits, all funded by tax dollars. "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." [Neighbarger v. Irwin Indus., Inc. (1994) 8 Cal.4th 532, 542-543, 34 Cal.Rptr.2d 630, 637-638; Lipson v. Super.Ct. (Berger) (1982) 31 Cal.3d 362, 182 Cal.Rptr. 629; Rowland v. Shell Oil Co. (1986) 179 Cal.App.3d 399, 224 Cal.Rptr. 547--firefighter's rule barred wrongful death recovery by families of firefighters killed from complications suffered in responding to chemical spill]

Peace officers: Nor do peace officers have a cause of action for injuries incurred in the normal course of their duties. [Seibert Security Services, Inc. v. Super.Ct. (Migailo) (1993) 18 Cal.App.4th 394, 22 Cal.Rptr.2d 514; Kelhi v. Fitzpatrick (1994) 25 Cal.App.4th 1149, 1158-1160, 31 Cal.Rptr.2d 182, 187-188; see Neighbarger v. Irwin Indus., Inc., supra, 8 Cal.4th at 539-540, 34 Cal.Rptr.2d at 635]

Veterinarians: The same principle applies to bar recovery by a veterinarian for dog-bite injuries sustained while treating the animal. That a dog (even if normally docile) might bite treating veterinarians is a known risk inherent in the occupation and, hence, a complete defense to an action against the dog's owner . . . notwithstanding that the dog owner would otherwise be strictly liable (Ca Civil § 3342--"dog-bite statute"). [Cohen v. McIntyre (1993) 16 Cal.App.4th 650, 20 Cal.Rptr.2d 143; Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668--no liability to veterinarian assistant who was holding dog on treatment table when it bit P; Willenberg v. Super.Ct. (Weule) (1986) 185 Cal.App.3d 185, 229 Cal.Rptr. 625--no liability to veterinarian attacked by dog sitting on examination table awaiting treatment; compare Prays v. Perryman (1989) 213 Cal.App.3d 1133, 262 Cal.Rptr. 180 (discussed at ¶3:241.14)]

Animal handlers: Similarly, other persons who handle animals as their job assume the risk of bites and injuries commonly associated with the animals.

Thus, an employee of a company that built and maintained shark tanks had no claim against the owner of a shark that bit the employee as he tried to remove it from a tank it had outgrown: "[N]o duty is owed to protect the shark handler from the very danger that he or she was employed to confront." [Rosenbloom v. Hanour Corp. (1998) 66 Cal.App.4th 1477, 1480-1481, 78 Cal.Rptr.2d 686, 688]

Mental health workers: Workers administering to patients known to have violent tendencies from mental afflictions (e.g., Alzheimer's disease) cannot sue the patient for injuries sustained during a violent outburst. The potential for such injury is an inherent part of the patients' care. [Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1765, 1770- 1771, 53 Cal.Rptr.2d 713, 716, 719--"Were we to reach a contrary conclusion, nurses working in an infectious disease unit could sue a patient for giving them tuberculosis"]

Lifeguards: Public lifeguards may not maintain an action for injury sustained in the normal course of rescuing persons from the water. Like firefighters, lifeguards are specially trained and employed to respond to an emergency or crisis situation in aid of members of the public. The only distinction is that firefighters typically respond to fires, while lifeguards respond to water-related emergencies--"a distinction without a difference." [City of Oceanside v. Super.Ct. (MacDonald) (2000) 81 Cal.App.4th 269, 279- 280, 96 Cal.Rptr.2d 621, 629 (discussed further at ¶3:241.4b)]

(e) Examples--occupational assumption of risk not applied to bar recovery

Firefighters encountering exceptional risks: Firefighters do not "assume the risk" of hazards unrelated to firefighting (see ¶3:241.2). [See Stapper v. GMI Holdings, Inc. (1999) 73 Cal.App.4th 787, 791-792, 86 Cal.Rptr.2d 688, 691-- firefighter did not assume risk that malfunctioning garage door opener would block her escape from fire]

Nor do they "assume the risk" the owner of a burning building will deceive them as to the nature of the hazard they are called to confront:

 hus, e.g., a firefighter injured when he fell through a concealed opening in a roof was not barred from suing on a violation of statute theory (statute required guardrails around certain openings in roofs). The action was not precluded by the firefighter's rule because the unguarded hole was not the cause of plaintiff's presence at the scene (burning building); it was an "independent act" outside the risk plaintiff knowingly encountered in responding to the fire. [Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 218 Cal.Rptr. 256 (also noting that decision did not establish liability, but merely allowed plaintiff to proceed with cause of action; liability, if any, would turn on ordinary principles of negligence (duty, breach, causation))]

Similarly, a firefighter could recover for injuries sustained on the job where owner (defendant) told him chemicals involved in a boilover were not toxic, when in fact they were. Defendant's deception was an "independent act" of negligence. [Lipson v. Super.Ct. (Berger), supra, 31 Cal.3d at 370-373, 182 Cal.Rptr. at 634-636; compare Rowland v. Shell Oil Co., supra, ¶3:241.7-- "independent act" exception did not apply because firefighters knew chemical spill they responded to was toxic, and truck driver who caused spill did not commit an "independent act of misconduct" in failing to handle his vehicle properly]

[3:241.10c-241.10d] Reserved.

 "Private" firefighters: The "firefighters rule" does not apply to private safety employees whose duties include occasional firefighting. A private safety employee may sue a third party (not the employer) for injuries sustained when responding to a fire-related emergency caused by the third party's negligence. [Neighbarger v. Irwin Indus., Inc. (1994) 8 Cal.4th 532, 534-535, 34 Cal.Rptr.2d 630, 632]

Reason: Private employees do not receive the special pay, disability and retirement benefits available to publicly-employed firefighters; nor has the third party paid the private employee through taxes or otherwise to be relieved of the duty of care (see ¶3:241.7). [Neighbarger v. Irwin Indus., Inc., supra, 8 Cal.4th at 542-543, 34 Cal.Rptr.2d at 637-638]

Peace officers encountering exceptional risks: Like firefighters, peace officers do not assume the risk of injuries from acts of misfeasance wholly independent of the incident to which they are responding or caused by tortious conduct occurring after the officer's presence on the scene. [Ca Civil § 1714.9; Boon v. Rivera (2000) 80 Cal.App.4th 1322, 1327, 96 Cal.Rptr.2d 276, 281]

Police Officer responded voluntarily to CHP request for assistance in pursuing reportedly stolen vehicle. Officer chased the fleeing vehicle with siren on and lights flashing; and at one point rammed the vehicle to prevent it from entering an area where children had been seen playing. Officer was injured as a result of the ramming and sued the driver of the fleeing car. Summary judgment applying firefighter's rule improper, because a triable issue of fact existed as to whether events leading to Officer's ramming of the vehicle constituted independent and separate acts of misconduct. [City of Redlands v. Sorenson (1985) 176 Cal.App.3d 202, 210-211, 221 Cal.Rptr. 728, 732]

While taking defendant into custody, court bailiff was injured when defendant "fell" on bailiff's leg. Summary judgment for defendant was improper because the conduct causing the injury occurred after defendant was aware of bailiff's presence. [Gibb v. Stetson (1988) 199 Cal.App.3d 1008, 1014-1015, 245 Cal.Rptr. 283, 286]

Police Officer suffered gunshot wounds when he responded to a 911 call at a residence where defendant had barricaded himself inside. The firefighter's rule did not bar Officer's right of recovery because, after Officer's arrival at the scene, defendant's wife misrepresented to Officer that defendant was not violent, lied about her knowledge of the type and number of guns in the house, and failed to disclose defendant had threatened to kill the first police officer who arrived at the residence. Had Officer known the truth, he would not have responded with nonlethal force.

"[T]he risk that someone at the scene will deceive the officer as to the nature of the violent tendencies of the person inside, is not an inherent risk of a police officer's job. An officer cannot reasonably be expected to anticipate such misconduct." [Boon v. Rivera, supra, 80 Cal.App.4th at 1330, 96 Cal.Rptr.2d at 281 (emphasis added)]

[3:241.11d-241.11e] Reserved.

Compare: Hospital security guard attacked by mental patient called for help from on-duty Officer who happened to be present on an unrelated matter. Officer could not recover under Ca Civil § 1714.9 for resulting injury. Negligence of security service (guard's employer) in having unshackled a violent patient arose before Officer acted in the line of duty . . . and was not independent of the incident to which Officer was responding. [Seibert Security Services, Inc. v. Super.Ct. (Migailo) (1993) 18 Cal.App.4th 394, 410- 411, 22 Cal.Rptr.2d 514, 521-522]

Police Officer shot by psychotic man after responding to reports of gunfire could not sue the perpetrator's psychiatrist under Ca Civil § 1714.9 for negligently treating him or failing to warn police of his homicidal tendencies. Psychiatrist's acts arose before Officer arrived at the scene. Also, the perpetrator had expressed homicidal desires only toward his employer, and causation between the psychiatrist's acts and Officer's injuries was too attenuated to impose liability. [Tilley v. Schulte (1999) 70 Cal.App.4th 79, 83-86, 82 Cal.Rptr.2d 497, 500-501]

] Private security guard injured in slip-and-fall: A private security guard employed by an independent security service does not assume the risk of injury from standing water or slippery floors simply because the guard's duties include reporting safety hazards. There is nothing about the guard's job duties to justify an expectation that defendant's normal duty of care in maintaining the premises would be negated or relaxed. [Marquez v. Mainframe (1996) 42 Cal.App.4th 881, 887-888, 50 Cal.Rptr.2d 34, 38]

Veterinarians, assistants and dog groomers encountering exceptional risks

Unknown risks: In applying the firefighter's rule to veterinarians and their assistants (¶3:241.9), a court of appeal stated the defense "extends only to the danger which the injured person has knowingly assumed; i.e., the danger the dog will bite while being treated." [Nelson v. Hall, supra, 165 Cal.App.3d at 715, 211 Cal.Rptr. at 673, fn. 4 (emphasis in original)]

Thus, dog owners who purposefully or negligently conceal from a veterinarian their dog's known particular vicious propensities are not relieved of liability, because this exposes the injured person to an unknown risk. [Nelson v. Hall, supra (dictum)]

Similarly, even assuming arguendo that the defense otherwise applies to dog groomers, an owner is not relieved of liability to a dog groomer bitten before taking control of the animal from the owner. Until plaintiff commences grooming the dog, he or she has not knowingly assumed any risk of dog-provoked injury. [Prays v. Perryman (1989) 213 Cal.App.3d 1133, 1137, 262 Cal.Rptr. 180, 182]

"When defendant brought a growling dog into her shop, plaintiff was not required, to avoid assuming the risk of bloodshed, either to summarily banish the customer or to take flight." [Prays v. Perryman, supra--trial court erred in ruling, as a matter of law, groomer assumed risk of dog bite while dog was still being held on leash by owner and groomer was still deciding whether it would be safe to proceed]

Injury suffered outside employment relationship: Again, the firefighter's rule is limited to injury suffered while plaintiff is performing work in an employment relationship (¶3:241.1). Thus, a dog handler/breeder was not barred from recovering for a dog bite sustained while voluntarily rendering roadside assistance to a dog struck by a car. The handler was not acting in a professional capacity, but merely as a "good samaritan." [Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 14 Cal.Rptr.2d 679, 684-685]

[3:241.14b-241.14c] Reserved.

Tow truck operators: "Occupational assumption of the risk" does not apply to a tow truck operator injured by a third party while rescuing the defendant's stranded vehicle. In analyzing the motorist's potential liability, the proper focus is not on the plaintiff's awareness or acceptance of the risk. Rather, the proper focus is on the motorist's relationship and duty of care toward the tow truck operator. Ordinarily, a motorist does not owe a duty toward a tow truck operator summoned to rescue his or her vehicle; thus, the "assumption of the risk" doctrine does not even come into play. [Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 782-784, 38 Cal.Rptr.2d 291, 297-298-- intoxicated motorist taken into custody by police owed no duty to tow truck operator struck by third party while removing motorist's vehicle; Dyer v. Super.Ct. (Hasou) (1997) 56 Cal.App.4th 61, 71-73, 65 Cal.Rptr.2d 85, 91-92 (same, except motorist not intoxicated but instead suffered mechanical breakdown)]

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