McCLOSKY, J. I respectfully dissent.
The majority, by its opinion today, extends the “fireman’s rule” to bar recovery by a police officer or a firefighter who is injured or damaged by the intentional act of a participant in the event which brought the police officer or firefighter to the place of his injury. No California case has ever extended the “fireman’s rule” to bar recovery against such intentional tortfeasor and I can see no reason in law or public policy for doing so.
Up until today in California, assumption of risk, where not recklessly entered into, or carried out, has not been a defense to the tort of intentionally inflicting injuries on another. To the contrary, our state has even recognized that “[wjhen a person’s lawful employment requires that he work in a dangerous location or place that involves unusual possibilities of injury, or requires that in the line of his duty he take risks which ordinarily a reasonably prudent person would avoid, the necessities of such a situation, insofar as they limit the caution that he can take for his own safety, lessen the amount of caution required of him by law in the exercise of ordinary care. ” (See BAJI (6th ed. 1977) No. 3.40; Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225 [282 P.2d 69]; McDonald v. City of Oakland (1967) 255 Cal.App.2d 816 [63 Cal.Rptr. 593]; and Young v. Aro Corp. (1973) 36 Cal.App.3d 240 [111 Cal.Rptr. 535].)
[720]The genesis of the “fireman’s rule” was that it was but a part of the assumption of risk defense to a negligence cause of action based on the knowing and “voluntary assumption of that risk” by firefighters. Of course, the “voluntary” aspect of that assumption was almost always a myth. It is rather a requirement of employment by any firefighter who wants to be continued in that employment, and is but a manifestation of the legal and moral duty of such employment.
The court’s language in Bilyeu v. Standard Freight Lines (1960) 182 Cal.App.2d 536 [272 P.2d 789], is instructive. In that case, a California Highway Patrol officer sued for injuries he sustained to his back while pushing heavy rolls of coiled steel off the travelled portion of a highway. This steel had fallen from a truck when its trailer upset due to its driver’s negligence and constituted a danger to persons in vehicles on the highway. The defendant-driver and defendant-employer contended that the officer had assumed the risk and had been guilty of contributory negligence as a matter of law. The Bilyeu court concluded to the contrary stating: “The risk of injury involved under the evidence in this case was that incident to pushing and pulling a heavy object. The defense of assumption of risk ‘is available when there has been a voluntary acceptance of a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk.’ (Prescott v. Ralphs Grocery Co., 42 Cal.2d 158,161-162 [265 P.2d 904].) The evidence justifies the conclusion that the plaintiff did not voluntarily accept the risk in question. He was under an obligation to clear the highway of obstructions. His choice, being dictated by a legal and moral duty, was not voluntary within the requirements of the doctrine. (Ching Yee v. Dy Foon, 143 Cal.App.2d 129, 138 [299 P.2d 668].)” (Id., atpp. 544-545.)
The Bilyeu court rejected the defendants’ claim of the officer’s contributory negligence stating: “His work imposed upon him the obligation of clearing the highway in order to protect motorists using it from injury. The amount of care required of an ordinarily prudent person under such circumstances might well be less than that required of a person not acting under the demands of his work. [Citations.]” (Id., at p. 545.) It stated the general rule of the rescue doctrine that, “ ‘where the negligence of a defendant has imperiled human life, a person who takes such steps as are reasonably necessary to rescue or protect those imperiled is not contributorily negligent in voluntarily leaving a place of safety and incurring danger if he does not act with a recklessness which would not be warranted, under the circumstances, in the judgment of a prudent man.’ (Petersen v. Lang Transp. Co., 32 Cal.App.2d 462, 467 [90 P.2d 94]; Henshaw v. Belyea, 220 Cal. 458, 468 [31 P.2d 348].)”
Fifteen years after Bilyeu, in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], our Supreme Court abol[721]ished the defense of assumption of risk to the extent that it is merely a variant of the former doctrine of contributory negligence, subsuming it under the general process of assessing liability in proportion to negligence. The Li court states at pages 824-825 that “[a]s for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. ‘To simplify greatly, it has been observed . . . that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence, plaintiffs conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence .... Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory negligence, but rather a reduction of defendant’s duty of care.’ (Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 245-246 [53 Cal.Rptr. 545, 418 P.2d 153]; see also Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 368-369 [104 Cal.Rptr. 566]; see generally, 4 Witkin, Summary of Cal. Law, Torts, § 723, pp. 3013-3014; 2 Harper & James, The Law of Torts, supra, § 21.1, pp. 1162-1168; cf. Prosser, Torts, supra, § 68, pp. 439-441.) We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. (See generally, Schwartz, supra, ch. 9, pp. 153-175.)” (Italics in original.)
In Daly v. General Motors Corp. (1978) 20 Cal.3d 725 [144 Cal.Rptr. 380, 575 P.2d 1162], Justice Richardson, writing for a majority of the Supreme Court, applied the same principles of comparative negligence, including assumption of risk insofar as it is no more than a variant of contributory negligence, to strict liability cases. (Id., at p. 734.) Yet, inexplicably our Supreme Court has seen fit, not only to preserve the “fireman’s rule,” but to extend its bar to police officers (see Walters v. Sloan (1977) 20 Cal.3d 199 [142 Cal.Rptr. 152, 571 P.2d 609]), and in Hubbard v. Boelt (1980) 28 Cal.3d 480, 485 [169 Cal.Rptr. 706, 620 P.2d 156], to bar recovery by a police officer or firefighter from a tortfeasor whose reckless, wilful or wanton conduct is a proximate cause of bringing such officer or firefighter to the place of his injury.
The Hubbard majority opinion, however, made it clear that in enunciating that rule, it was “not concerned with a claim for intentionally inflicted injuries to firemen or policemen.” (Italics added.) (Hubbard v. Boelt, supra, at p. 485.)
The case at bench concerns such intentionally inflicted injuries. We, of course, are bound by the rule in Hubbard (see Auto Equity Sales, Inc. v. [722]Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937]). We are not, however, bound to, nor should we extend the “fireman’s rule” beyond its. present limits to benefit tortfeasors who intentionally inflict injury on police officers or firefighters.
Yet, that is the anomalous result of what the majority does by its opinion today. It bars recovery against a tortfeasor whose conduct was a proximate cause of bringing the police officer plaintiff to the scene where that same tortfeasor then intentionally shot and injured the officer. At the same time this “development” leaves intact the existing right of a police officer or a firefighter who is “knowingly and voluntarily” encountering the same danger of being shot at the same scene, to recover from a passing motorist whose simple negligence causes his car to strike and injure such police officer or firefighter.
This disparate result is sometimes supposedly justified by the claim that the police officer or firefighter knowingly and “voluntarily” encounters that danger of intentional infliction of injury on his person, that he is paid a high salary and pension for encountering such risks, and that to allow recovery would flood the courts with cases.
The answer to these claims is that (1) the “lawful employment” of police officers and firefighters compel them to take these risks in the line of duty, and were they not to do so, they would not be allowed to continue in their employment; (2) they are not paid all that much considering the great risks they must take to protect society; (3) no other workers in California whose employment compels them to work in dangerous locations or under dangerous conditions are thereby completely and automatically barred from recovery against negligent, wanton or intentional third party tortfeasors who inflict injuries upon them. In fact, Labor Code section 3852 provides that “ ‘[t]he claim of an employee for [worker’s] compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer. ’ (Italics added.) (See, e.g., Baugh v. Rogers (1944) 24 Cal.2d 200, 214 [181 P.2d 387]; Witt v. Jackson (1961) 57 Cal.2d 57, 69 [17 Cal.Rptr. 369, 366 P.2d 641]; cf. Walters v. Sloan, supra, 20 Cal.3d 199, 203, fn. 3.)” (Hubbard v. Boelt, supra, 28 Cal.3d 480, 491 (dis. opn. of Tobriner, J.).)
Lastly, the spectre of a flood of cases in the event of the abolition of the “fireman’s rule” is in my opinion, grossly exaggerated. Liability insurance indemnifying one against his own intentional infliction of injuries on another, is not available except under the most extraordinary circumstances. (See Ins. Code, § 533; Civ. Code, § 1668; Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865 [151 Cal.Rptr. 285, 587 P.2d 1098]; Nuffer v. Insurance Co. of North America (1965) 236 Cal.App.2d 349 [45 Cal.Rptr. 918]; and Evans v. [723]Pacific Indemnity Co. (1975) 49 Cal.App.3d 537 [122 Cal.Rptr. 680].) History teaches us that in the absence of such insurance few suits will be filed against the great majority of intentional tortfeasors who are unable to respond in civil damages, which in turn will result in no great increased burden on the courts. As to the remaining small percentage of uninsured intentional tortfeasors who are able to respond in civil damages, I see no policy reason to bar recovery from them if they intentionally inflict injuries on police officers or firefighters carrying out the duties of their lawful employment.
If a police officer or a firefighter unreasonably proceeds to knowingly and voluntarily encounter the risk of physical injuries caused by the negligence, wilful or wanton misconduct of another, I believe his comparative negligence in so doing should be measured by the Li-Daly scheme of assessment of liability in proportion to fault. I know that the Supreme Court’s rulings in Walters and Hubbard combined with the Auto Equity Sales, Inc. rule presently prohibit such a result against a negligent, reckless or wanton tortfeasor whose conduct brings a police officer or firefighter to the scene. I cannot, however, join in extending the pernicious cloak of the “fireman’s rule” to benefit intentional tortfeasors.
I would therefore reverse the summary judgment.
Appellant’s petition for a hearing by the Supreme Court was denied April 13, 1983. Bird, C. J., Kaus, J., and Reynoso, J., were of the opinion that the petition should be granted.