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Court of Appeal:
‘Firefighter’s Rule’ Bars Third Party’s Liability to Officer
Car Rental Company Failing to Spot That Vehicle Was Taken Out by Man Using Phony ID Is Not Liable to Officer
Who Was in Cruiser Crashed Into Weeks Later by a Female Fleeing Felon in Possession of That Stolen Car
By a MetNews Staff Writer
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Pictured is the intersection where Pinole Police Sgt. Timothy Cauwels was injured when a woman who was fleeing from police after committing a burglary, crashed into his vehicle. The car rental company that rented an automobile to a man with phony identification is not liable to Cauwels, the Court of Appeal has held, based on the fire-fighter’s rule. |
The “firefighter’s rule” precludes liability on the part of a third party to a police sergeant who was injured while in his cruiser, which was in an intersection, and was crashed into by a stolen vehicle being driven by a fleeing felon, the First District Court of Appeal has declared.
It makes no difference that the plaintiff, Timothy Cauwels, was not involved in the pursuit of the suspect, Presiding Justice Therese M. Stewart of Div. Two said in an opinion filed Wednesday.
The opinion affirms a summary judgment in favor of defendant DTG Operations, Inc., doing business as Dollar Rent A Car (“DTG”), and others. Cauwels asserted liability on the part of DTG because its San Francisco office had rented a car to a man, whose actual identity is unknown, presenting false identification.
That vehicle was not returned and was reported stolen.
Getaway Vehicle
On April 6, 2011, one Java Taylor committed a theft at a Rite-Aid store in Hercules, a small city in Contra Costa County. Taylor was in possession of the stolen rental car and used it in speeding from the scene.
Cauwels, a member of the police force in Pinole, an even smaller city in Contra Costa, heard a police broadcast reporting that a suspected thief was being pursued by Hercules police on San Pablo Avenue, heading toward Pinole.
He went to San Pablo Avenue and Oak Ridge Road in Pinole, ready to join in the chase if the vehicle did enter the city. Seeing that traffic was clear, Cauwels pulled into the intersection, and Taylor, traveling at a high speed on the wrong side of the street, suddenly appeared in the scene and rammed into his car.
She had already hit one car in Hercules and two others in Pinole; this collision immobilized her vehicle and she was arrested.
Cauwels sued DTG and employees of the San Francisco office, reasoning that if it hadn’t been for their negligence in renting a Ford to a person without proper identification on Feb. 4, 2011, Taylor would not have been in possession of that stolen automobile two month later, and he would not have been injured.
Proximate Cause
On May 29, 2015, San Francisco Superior Court Judge Ernest H. Goldsmith (now retired) granted summary judgment in favor of DTG, ruling that any negligence on its part was not the proximate cause of the injury to Cauwels, reasoning:
“Even if Plaintiffs could establish that Defendants acted negligently by renting a car to an individual using a fake license, the facts preclude a finding of duty….[N]ot only did the accident occur in another county, several weeks after the rental, during a police chase not caused by a report of the vehicle theft, but the driver of the vehicle involved in the accident was different than the individual who rented the vehicle. If the Court were to find a duty existed here, it would be ‘perpetual and unlimited in scope.’ ”
However, on Aug. 21, 2015, Goldsmith ruled:
“Motion for Reconsideration is GRANTED and Motion for Summary Judgment is DENIED. The court finds that the information that was produced by Plaintiffs and the extensive deposition testimony that has been presented about the prior knowledge of criminality in this situation is quite persuasive and that it adds a dimension to the initial negligence of the clerk who handed over the keys to a criminal imposter.”
DTG sought a writ of mandate in the First District Court of Appeal. Div. Two summarily denied it on Nov. 2, 2015.
Firefighter’s Rule
On Aug. 31, 2016, San Francisco Superior Court Judge John Stewart granted summary judgment in favor of DTG based on the “fire-fighter’s rule.” He said at the hearing that whether Cauwels “was actively part of the pursuit or not, I don’t know if that makes any difference,” explaining:
“I think the critical question is why was he there.”
The reason he said, was for law enforcement purposes, but commented:
“I think that’s a question of first impression in the context of this Firefighter’s Rule. And you might as well find out now. I encourage you to take it up on appeal.”
Cauwels’s Argument
Cauwels did appeal, arguing:
“This pursuit was wholly independent from any reports of the vehicle being stolen and was related to a theft that was committed by the driver at a Rite Aid. City of Pinole Police Sergeant Timothy Cauwels…was controlling traffic at a nearby intersection, and was not directly involved in the pursuit. When Cauwels moved into the intersection, the criminal driver broadsided him at a high speed, causing serious injuries. DTG moved for summary judgment on the Firefighter’s Rule and the trial court granted summary judgment.
“Generally, the Firefighter’s Rule precludes a first responder (police officer, firefighter, or emergency personnel) from suing a defendant for causing the very situation that the first responder is paid to respond to. The rule is considered an application of the assumption of the risk doctrine. The rule does not apply (and defendants are liable) to independent acts of negligence, that is, acts that did not necessitate the first responder’s presence.”
Stewart’s Opinion
Presiding Justice Stewart agreed with Judge Stewart’s analysis, though apparently rejecting his notion that the issue was one of first impression. The opinion was not certified for publication.
The presiding justice wrote:
“Although originally limited to cases involving firefighters, using the name ‘firefighter’s rule’ is somewhat of a misnomer because the doctrine of nonliability now applies to police officers and certain other occupations….Consequently, a claim for an injury arising out of a routine, occupational risk is barred regardless of the source of the injury-provoking conduct….
“The firefighter’s rule applies here. Cauwels was on-duty when he attempted to protect motorists in the area from a high-speed police pursuit that was en route.”
The sergeant, from his vehicle, was able to emit a signal causing a red light to turn green.
Stewart said that a felon fleeing from police was the reason for his presence at the intersection and risk presented was one normally associated with his work.
As she sized it up:
“[I]t is undisputed that Cauwels heard over his police radio that a pursuit was headed in his direction. It is further undisputed that Cauwels was attempting to trail the pursuit while it was in Pinole so as to guard against potential accidents involving vehicles not taking part in the pursuit but might encounter it….Cauwels’s presence at the intersection was not due to mere fortuity, it was the result of deliberate action on his part performing duties related to the ongoing pursuit.”
Respondeat Superior
The trial judge, rejecting Cauwels’s contention that the inapplicability of the firefighter’s rule to Taylor means that it cannot be invoked by DTG, said:
“While the Court agrees that exceptions to the Firefighter’s Rule would likely apply to Java Taylor were she to assert the Firefighter’s Rule, there is no authority for the proposition that DTG stands in the shoes of Taylor such that her actions render the Firefighter’s Rule inapplicable to DTG.”
In his opening brief, Cauwels argued:
“There is sound public policy to find vicarious liability here. Rental companies put many vehicles on the road. Thus, the license-check policy stated in Vehicle Code sections 14604 and 14608 helps to prevent tortious conduct. Further, the criminal drivers are unlikely to be able to provide compensation to victims; thus, finding liability gives greater assurance of compensation for the victim. Finally, as the rental companies ultimately profit from the rental of vehicles, vicarious liability ensures that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.”
The presiding justice set forth that the Vehicle Code sections requiring rental car companies to check identification “were enacted to protect the public from the dangers posed by unlicensed drivers…not from the inherent dangers of renting cars to criminals,” adding:
“We are not persuaded by Cauwels’s argument that imposing vicarious liability in this context is consistent with public policy considerations.”
She said that case law cited by Cauwels “in no way supports imposition of vicarious liability on the part of a rental car company for the acts of a person not its employee and, indeed, not even the person to whom it rented the car.”
Imposition of Costs
Cauwels also complained of the judgment assessing the full amount of costs against both him and the city. Noting that trial courts have the power to apportion costs among losing parties, he argued in his opening brief:
“The City of Pinole Police Department was a party to this action since the commencement of the action in 2013 and filed a Complaint in Intervention. In light of the complex and contested legal disputes present in this case, it is patently unfair to require only the Cauwels to be responsible in satisfying the costs award of $27,451.00.
Stewart responded:
“Here, the claims of the City related to subrogation benefits to Cauwels under its worker’s compensation program—not a discrete theory. That the City had separate counsel does not alter the plaintiffs’ joint theory of liability.
“Cauwels, therefore, has not shown that the trial court abused its discretion by holding him jointly and severally liable for DTG’s costs instead of apportioning the costs equally.”
Justice Douglas P. Miller concurred in Stewart’s opinion. Justice James Richman said, “I concur in the result,” but did not indicate where he parts company with Stewart.
The case is Cauwels v. Johnson, A154493.
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