Opinion
C096270
01-22-2024
DAVID J. GORDON et al., Plaintiffs and Appellants, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. 34202000288688CUPAGDS
MESIWALA, J.
California Highway Patrol (CHP) Officer David Gordon was injured while directing traffic at the scene of a malfunctioning crossing gate owned and operated by defendant Union Pacific Railroad Company (Union Pacific). He and his wife Tinna Gordon (the Gordons) sued Union Pacific for negligence, premises liability, and loss of consortium. The trial court granted summary judgment in favor of Union Pacific on the ground that the Gordons' claims are barred by the firefighter's rule, a rule that limits the public's liability to peace officers.
On appeal, the Gordons contend an exception to the firefighter's rule applies when the defendant unreasonably increases the risks of injury beyond those inherent in the activity the firefighter is called upon to address (i.e., an "unreasonably increased the inherent risk exception"), and a triable issue of material fact exists that Union Pacific's negligence triggered such an exception. Alternatively, the Gordons contend the exception to the firefighter's rule articulated in Civil Code section 1714.9, subdivision (a)(1) applies to the undisputed facts. (All further undesignated section references are to the Civil Code.)
We need not determine whether an unreasonably increased the inherent risk exception is available under the firefighter rule. Assuming it is, the Gordons failed to show a triable issue that the exception applies. At best, the Gordons' evidence suggests that various conditions increased Officer Gordon's risk of contending with the emergency, not that Union Pacific created an undue risk of injury beyond the risks inevitably involved in directing traffic around a malfunctioning crossing arm. We also find no merit in the Gordons' improperly preserved section 1714.9 theory. The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On October 19, 2019, Officer Gordon was injured while directing traffic around a malfunctioning railroad crossing arm at the crossing located on State Route 99 just north of Live Oak Boulevard (Live Oak crossing or the crossing). The Gordons sued Union Pacific, alleging that Union Pacific failed to maintain and repair the crossing and thereby caused a collision that injured Officer Gordon.
Union Pacific filed a motion for summary judgment on the grounds that the Gordons' claims are barred by the firefighter's rule. In support of the motion, Union Pacific offered the following materials facts: (1) Officer Gordon was working in his official capacity as a CHP officer when he was injured; (2) Officer Gordon was at the scene of the incident responding to Union Pacific's malfunctioning railroad crossing warning devices; (3) the Gordons contend that Officer Gordon was injured as a result of Union Pacific's negligent maintenance of the railroad crossing; and (4) the Gordons have no evidence of any negligent act or omission on the part of Union Pacific occurring after Officer Gordon arrived at the scene.
In opposition, the Gordons argued that the firefighter's rule did not apply because Union Pacific unreasonably increased the risks to Officer Gordon beyond the risks inherent in the CHP activity he undertook. In support, the Gordons offered the additional material facts described below, which Union Pacific did not dispute.
State Route 99 is a rural highway that "carries a significant volume of traffic at fairly high speeds." Because of various physical features, Live Oak crossing is a "unique . . . crossing" that is "inherently more dangerous to traffic" and to "officers attempting to control traffic in the area." Union Pacific's personnel were aware of "a risk at [] Live Oak crossing due to the volume of traffic and high speed."
On October 19, 2019, Officer Gordon and his partner, CHP Officer Steve Klippel, were dispatched to the crossing due to a crossing gate that was stuck in the down position. Union Pacific sent an employee, Electronic Technician Inspector Damon Letcher, to address the malfunction. A sign warning drivers to prepare to stop was not activated until Letcher installed a shunt across the tracks. As Officer Gordon and Officer Klippel directed traffic around the malfunctioning gate, a car approached at a high rate of speed, attempted to go around the gate, lost control, and hit Officer Gordon (the accident). The accident occurred when it was dark and in an area that was not well lit.
Leading up to the accident, gate malfunctions at Live Oak crossing were a recurrent problem. The CHP generated at least nine incident reports of malfunctions at the crossing between December 2016 and the date of the accident, and CHP officers responded to at least seven of those reports. Officer Klippel had been to the crossing at least 12 times between October 2017 and the accident and was aware of multiple collisions occurring there. The gate had malfunctioned at least four times the month before the accident. Union Pacific's personnel were aware that drivers who frequented the area would become frustrated when the gate malfunctioned and would drive around it.
Union Pacific does not become aware of a gate malfunction unless notified by a third party. In response to such notification, Union Pacific usually dispatches a single technician and does not send any personnel with traffic control training or personnel to help with traffic control. It typically takes several hours for a technician to arrive and make the needed repairs, longer if the malfunction occurs after hours or if parts must be obtained.
One of Union Pacific's employees told Officer Gordon and Officer Klippel they should bounce the crossing arm gate up and down if it gets stuck because this could cause the arm to return to an upright position. When the arm malfunctioned, Officer Gordon and Officer Klippel would attempt to bounce the gate up and down. One of Union Pacific's employees told the officers that the gate would sometimes malfunction because of a break in one of the railroad rails, so the officers would walk the rails trying to locate the break while they waited for one of Union Pacific's employees to arrive. These actions are not within the normal scope of Officer Gordon and Officer Klippel's duties.
The Gordons also offered two additional facts to which Union Pacific objected: (1) the physical features of the crossing combined with increased traffic moving at high rates of speed, a repeatedly malfunctioning crossing arm, Union Pacific's policy of not notifying CHP of arm malfunctions, and the lack of operational warning indicators to motorists creates an unreasonable risk to drivers, pedestrians, and responding traffic officers; and (2) the experts opine that a recurring malfunctioning crossing arm at this specific location unreasonably increases the inherent danger to first responders who have to direct traffic around the malfunctioning arm. Union Pacific failed to file its objections as a separate document as required by California Rules of Court, rule 3.1354.
At oral argument in the trial court, after the court issued a tentative decision granting Union Pacific's motion, the Gordons argued for the first time that the exception to the firefighter's rule articulated in section 1714.9, subdivision (a)(1) applied. After taking the matter under submission, the court declined to rule on Union Pacific's improperly filed objections, granted the motion on the ground that "the increased risk exception does not apply to the firefighter's rule," and entered judgment in favor of Union Pacific. The Gordons filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
A trial court may grant a motion for summary judgment "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) To meet its burden, a moving defendant must show either that one or more elements of the plaintiff's causes of action cannot be established or that there is a complete defense to the plaintiff's case. (Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant meets this initial burden, the burden then shifts to the plaintiff to show that at least one factual issue exists that is both material and triable. (Code Civ. Proc., § 437c, subd. (p)(2) .)
In reviewing a trial court's decision on a motion for summary judgment, we apply a de novo standard, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. (Code Civ. Proc., § 437c, subd. (c); Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65.) We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 639-640.) "Although we review the trial court's decision de novo, we do not ignore [that] decision. Instead, that decision is presumed to be correct, and [plaintiffs] have the burden of affirmatively establishing reversible error." (LaBarbera v. Security National Ins. Co. (2022) 86 Cal.App.5th 1329, 1339.) "We will affirm an order granting summary judgment . . . if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court's stated reasons." (Securitas Security Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 120 (Securitas Security).)
II. Firefighter's Rule
The firefighter's rule is a variant of the primary assumption of risk doctrine. (Gregory v. Cott (2014) 59 Cal.4th 996, 1001 (Gregory).) It "precludes firefighters and police officers from suing members of the public for the conduct that makes their employment necessary." (Ibid.) Under the rule, there is no duty to protect these individuals from the very risk of harm they are employed to confront, and a claim for an injury arising out of such risks is barred. (Calatayud v. State of California (1998) 18 Cal.4th 1057, 1061-1063 (Calatayud).)
The firefighter's rule developed as part of the common law until 1982 when the Legislature enacted section 1714.9. (Calatayad, supra, 18 Cal.4th at p. 1063.) That section codifies four exceptions to the firefighter's rule and specifies that its provisions do not change or modify the common law independent cause exception set forth in Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658. (§ 1714.9, subds. (a), (e).) The Gordons contend there is an additional common law exception that applies when the defendant's actions have unreasonably increased the risks of injury beyond those inherent in the activity, i.e., an unreasonably increased the inherent risk exception to the firefighter's rule. Alternatively, the Gordons seek to apply the exception described in section 1714.9, subdivision (a)(1). The Gordons contend they presented triable issues of fact regarding whether these exceptions apply. We address each asserted exception separately.
III. Unreasonably Increased the Inherent Risk Exception
As applied to workplace settings, the assumption of the risk doctrine is sometimes referred to as "occupational assumption of the risk." (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1119.) The bar against recovery in the occupational context first developed as the firefighter's rule. (Gregory, supra, 59 Cal.4th at p. 1001.) The Gordons rely on the link between these doctrines, claiming that any exception to the assumption of risk doctrine should apply to the firefighter's rule. In particular, they cite the exception that applies under the assumption of risk doctrine when the defendant has unreasonably increased the risks of injury beyond the risks inherent in the activity. (See id. at p. 1010.) They insist this exception must apply to the firefighter's rule based on the Supreme Court's discussion in Gregory and because a jury instruction on occupational assumption of risk indicates that a plaintiff may recover if the plaintiff proves that the defendant "unreasonably increased the risks" to the plaintiff over and above those inherent in the occupation and gives firefighting as an example of the occupation. Assuming without deciding that this exception is available under the firefighter's rule, we hold the Gordons did not present a triable issue that the exception applies in this case. As will be shown below, the parties had an adequate opportunity to address this issue in the trial court. (Securitas Security, supra, 197 Cal.App.4th at p. 120.)
The undisputed facts show that Officer Gordon responded to a malfunctioning crossing arm and was injured in the process of directing traffic around the arm. In opposition to Union Pacific's motion for summary judgment, the Gordons offered facts specific to the conditions at Live Oak Crossing. To connect those conditions to Officer Gordon's risk, the Gordons also offered the following fact: "[t]he combination of the curved road, sight distance restrictions, poor illumination, the inoperative Extinguishable Message Sign, increased traffic moving at a high speed, in conjunction with the repeatedly malfunctioning crossing arm, the Railroad's policy of never notifying CHP that the mechanism was malfunctioning, and lack of operational warning indicators to motorists creates an unreasonable risk to drivers, pedestrians, and responding traffic officers." This asserted fact suggests, at most, a general increased risk to everyone at the scene of Live Oak Crossing when the crossing arm malfunctions, but it does not suggest that Union Pacific exposed Officer Gordon to a risk beyond that involved in the normal pursuit of his duties. (See Hubbard v. Boelt (1980) 28 Cal.3d 480, 484 ["[I]t is the business of a fireman or policeman to deal with particular hazards"], superseded by § 1714.9 on other grounds as stated in Catalayud, supra, 18 Cal.4th at pp. 1065-1068; Hamilton v. Martinelli & Associates (2003) 110 Cal.App.4th 1012, 1024 [declaration offered by the plaintiff that the defendant" 'unnecessarily increase[d] the risk of harm'" to persons like the plaintiff failed to "address whether risk of physical injury to [the] plaintiff [was] rooted in the 'very occasion' of [the plaintiff's] employment"].)
The Gordons' other attempt to establish a triable issue that Union Pacific unreasonably increased Officer Gordon's inherent risk also fails. Specifically, the Gordons presented the following as an additional material fact: "[t]he experts opine that a recurring malfunctioning crossing arm at this specific location unreasonably increases the inherent danger to first responders who have to direct traffic around the malfunctioning arm." In support, the Gordons cited excerpts from the deposition of Garrett Brooks, Manager of Signal Maintenance for Union Pacific. But those excerpts do not stand for the asserted material fact. In the deposition, the Gordons' counsel asked Mr. Brooks, "While you have been on site have you noticed that traffic sometimes becomes impatient and [goes] around the crossing guards while they are down?" Mr. Brooks answered, "Absolutely[,] yes." The Gordons' counsel then asked, "From a practical standpoint, the longer the guards are down the more people risk going around them; is that fair?" And Mr. Brooks answered, "I think that would be fair." Later in the same deposition, the Gordons' counsel queried, "The longer the gates are down the more often you see people going around those gates to get down the road. That is fair[,] right?" Mr. Brooks replied, "That is fair." The Gordons' counsel followed up, "And the longer the gates are down the more dangerous to the public in maneuvering around those gates[,] right?" Mr. Brooks answered, "I assume so." And finally, the Gordons' counsel inquired, "And the more often the gates malfunction over any given time makes it more dangerous for the public; true? . . . Common sense[,] right?" Mr. Brooks replied, "Yeah."
These excerpts do not create a triable issue of fact that Union Pacific unreasonably increased the risk to Officer Gordon on October 19, 2019, beyond the inherent risk inevitably involved in responding to a malfunctioning railroad crossing arm. Instead, the line of questioning and Mr. Brooks' answers suggest an increased risk to the general public, not an increase beyond the "risks normally associated" with a CHP officer's response to such an incident. (Lipson v. Superior Court (1982) 31 Cal.3d 362, 370.) The risks inherent in CHP officer work "are confined to those which cause the officer to respond." (Terry v. Garcia (2003) 109 Cal.App.4th 245, 252.) The Gordons' evidence does not establish that Officer Gordon responded to risks other than those that caused him to respond initially. As Union Pacific argued in reply to the Gordon's opposition, "The additional facts [the Gordons] present[ed] relate only to the alleged negligence which caused Officer Gordon to be called to the scene of the malfunctioning crossing in the first place."
Although Union Pacific forfeited its evidentiary objections to this fact (Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 192-193), this argument properly preserved its claim that the Gordons' fact did not stand for the proposition the Gordons asserted.
The fact that Officer Gordon would attempt to bounce the malfunctioning crossing arm gate up and down and walk the rails to locate a break in one of the railroad rails does not alter this conclusion. While the Gordons' proffered the additional fact that these actions are not within the scope of Officer Gordon's duties, the Gordons do not allege that Officer Gordon was injured as a result of performing these actions.
In sum, the Gordons failed to establish a triable issue of material fact that Officer Gordon was injured because Union Pacific unreasonably increased the risks beyond those inherent in the task he assumed. (Code Civ. Proc. § 437c subd. (b)(3).)
B. Section 1714.9, Subdivision (a)(1)
The Gordons alternatively seek to apply the exception set forth in section 1714.9, subdivision (a)(1). But because the Gordons did not present this contention in the trial court until oral argument, it was not properly preserved for our review. (See JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178 ["Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider"].)
Even on our discretionary review, this contention lacks merit. (See Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 699-700.) Section 1714.9, subdivision (a)(1) "permits recovery against a defendant . . . for injuries caused by [the defendant's] willful or negligent acts, committed after [the defendant] knew or should have known of the officer's [or firefighter's] presence." (Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 480, italics added (Yamaguchi).) For example, although a property owner does not incur liability for negligently starting a fire, the owner" 'has generally been held liable if, after a [firefighter] arrives, the owner negligently fails to advise the [firefighter] of some special danger on the property which ultimately causes the officer's injury. [Citations.]'" (Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 439.)
The Gordons raise a new argument in their reply brief that section 1714.9, subdivision (a) provides a separate exception for "willful acts" causing injury to a peace officer even when those acts occur before the officer is present. This untimely argument has been forfeited and lacks merit. (Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010) 191 Cal.App.4th 435, 476 [forfeiture]; Calatayud, supra, 18 Cal.4th at pp. 1065-1066 [setting forth history and text of original exception first articulated in Labor Code section 3852, subdivision (b) and now encapsulated in section 1714.9, subdivision (a)(1)]; Yamaguchi, supra, 106 Cal.App.4th at p. 480 [section 1714.9, subdivision (a)(1) covers willful acts committed after or while an officer is responding].)
The Gordons argue this exception applies because Union Pacific "clearly knew that when its equipment malfunctioned, police officers almost always responded to deal with the dangerous situation that failure created. Therefore, each time [Union Pacific] failed to correct the problem, it knew, or should have known, that officers would respond and be put at risk." The Gordons' theory is different from what section 1714.9, subdivision (a)(1) describes in terms of timing. The exception has been interpreted to apply "only to conduct committed after the officer responds to a call for assistance, or while he is in the performance of his duties with respect to a specific incident, and such conduct increases the risk of injury to the officer." (Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394, 410.) The Gordons claim this exception should not be limited to the specific incident at hand; instead, according to the Gordons, we should look back at incidents leading up to the one where injury occurs. So here, we would not be considering conduct that occurred after Officer Gordon and Officer Klippel arrived on scene on October 19, 2019, but rather conduct that occurred before they even had a reason to respond on October 19, 2019. We conclude this is not a scenario covered by section 1714.9, subdivision (a)(1).
As Seibert held, the exception "does not require [people] to be especially vigilant or careful whenever they happen to observe the near presence of a member of the class covered by the statute." (Seibert Security Services, Inc. v. Superior Court, supra, 18 Cal.App.4th at p. 410.) We similarly conclude that the exception does not require such vigilance simply because a person is aware that firefighters or peace officers are likely to respond if the person is negligent.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Union Pacific. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: EARL, P. J., RENNER, J.