NCJ Number
52207
Journal
California Law Review Volume: 66 Issue: 3 Dated: (MAY 1978) Pages: 585-609
Date Published
1978
Length
25 pages
Annotation
DUTIES OF POLICE OFFICERS AND FIREFIGHTERS IN THE CONDUCT OF RESCUE OPERATIONS ARE EXAMINED, AND CONSIDERATION IS GIVEN TO RISK DOCTRINE, LIABILITY OF OWNERS AND OCCUPANTS, AND RESCUE DOCTRINE.
Abstract
COURTS HAVE ATTEMPTED TO RESOLVE THE DUTY ISSUE BY STATING THAT EACH PERSON HAS THE RESPONSIBILITY TO USE REASONABLE CARE TO AVOID ACTS OR OMISSIONS THAT WOULD BE LIKELY TO INJURE ANOTHER PERSON. IN ASSESSING THE DUTIES OF POLICE OFFICERS AND FIREFIGHTERS, THE COURTS AVOID PARTICULARIZED FORMULATIONS. INSTEAD, THEY SEEK TO DETERMINE DUTIES THROUGH A DELICATE BALANCING OF SOCIAL POLICIES, JUDICIAL EFFICIENCY, LOSS DISTRIBUTION, PREVENTION OF FURTHER HARM, AND PUNISHMENT OF PAST WRONGS. ASSUMPTION OF RISK HAS COME TO EMBRACE THREE CATEGORIES OF NEGLIGENCE SITUATIONS: (1) A PLAINTIFF MAY CONSENT TO RELIEVE A DEFENDANT OF OBLIGATIONS ARISING FROM A KNOWN RISK TO THE PLAINTIFF; (2) A PLAINTIFF MAY ASSUME RISKS INCIDENTAL TO A RELATIONSHP WHEN HE OR SHE VOLUNTARILY ENTERS THAT RELATIONSHIP; AND (3) A PLAINTIFF MAY ASSUME RISKS BY VOLUNTARILY ENCOUNTERING A KNOWN AND EXISTING DANGER CREATED BY A DEFENDANT'S NEGLIGENCE. OWNERS AND OCCUPIERS OF REAL PROPERTY OWE LESS THAN A GENERAL DUTY OF REASONABLE CARE TO INDIVIDUALS WHO FALL UNDER THE TRADITIONAL CLASSIFICATIONS OF INVITEE, LICENSEE, AND TRESPASSER BECAUSE OF THE HISTORICALLY PRIVILEGED STATUS OF LANDOWNERS. THE TREND TOWARD ABOLITION OF TRADITIONAL CLASSIFICATIONS WILL LIKELY INCREASE LITIGATION INVOLVING POLICE OFFICERS AND FIREFIGHTERS. THE RESCUE DOCTRINE PROVIDES THAT A PERSON WHO NEGLIGENTLY CREATES PERSONAL DANGER IS LIABLE TO PERSONS WHO ARE INJURED IN AN ATTEMPT TO RESCUE THE PERSON OR PROPERTY FROM DANGER. UNDER THE 'FIREMAN'S RULE,' A PAID FIREMAN HAS NO CAUSE OF ACTION AGAINST ONE WHOSE PASSIVE NEGLIGENCE CAUSED THE FIRE IN WHICH HE WAS INJURED. THE SCOPE OF DUTIES ASSOCIATED WITH THE WORK OF POLICE AND FIREFIGHTERS CAN BE CLARIFIED THROUGH A MORE PRECISE APPLICATION OF SPECIAL DUTY DOCTRINES TO THE UNUSUAL RELATIONSHIP BETWEEN PROFESSIONAL RESCUERS AND PEOPLE THEY ASSIST AND THROUGH AN ANALYSIS OF THE INTERRELATIONSHIP AMONG SPECIAL DUTY DOCTRINES. A PROFESSIONAL RESCUERS RULE IS PROPOSED. IT PROVIDES THAT A PERSON IS NOT LIABLE TO PROFESSIONAL RESCUERS FOR INJURIES CAUSED TO THEM BY RISKS DEPENDENT ON THE SPECIFIC EMERGENCY OR PROBLEM ENCOUNTERED BY PROFESSIONAL RESCUERS UNLESS THE DEPENDENT RISK IS EXTRAORDINARY OR BLAMEWORTHY AND THAT A PERSON OWES A DUTY OF REASONABLE CARE TO PROFESSIONAL RESCUERS FOR INDEPENDENT RISKS THAT A PERSON CAUSES, UNLESS THE JURISDICTION GENERALLY IMPOSES NO DUTY ON ANY PERSON FOR THIS TYPE OF RISK OR INJURY. (DEP)