Shaw v. Plunkett

Opinion

GRODIN, P. J.

A police officer, in the process of arresting a prostitute in the parking lot of a motel, is struck and injured by an automobile driven by the prostitute’s customer. The police officer sues, alleging in the alternative that the customer was guilty of negligence and intentional misconduct. Is he barred from recovery by the “fireman’s rule” because the accident occurred in the line of duty? The trial court thought so, and granted summary judgment for the defendant. Aided by subsequently decided authority, we conclude the trial court was wrong.

Plaintiff is a police officer with the Oakland Police Department. At the time of the accident he was assigned to the vice squad, and under orders to arrest prostitutes in the MacArthur Boulevard area of Oakland. In the early morning hours of August 26, 1978, he and his partner, both in plain clothes and in an unmarked patrol car, observed the

[758]

activities of a suspected prostitute in the area of a motel, and moved in to arrest her. She was sitting in a vehicle which was parked at the motel. Plaintiff removed her from that vehicle, and placed her in the patrol car.

The driver of the vehicle in which the prostitute was sitting was Terrence Plunkett. At the time the officers approached, he was outside of the car, at the motel office. As plaintiff was placing the suspect in the patrol car, he heard an engine start and tires squeal. He turned around to see Plunkett’s vehicle coming toward him. He attempted to get out of the way by diving over the Plunkett vehicle, but in the process his knee was struck. There was some subsequent maneuvering of the vehicle back and forth before Plunkett was finally arrested.

Discussion

The fireman’s rule was first applied in California to preclude recovery by firefighters for injuries sustained in fighting a fire which they claimed was the product of defendant’s passive negligence.

(Giorgi

v.

Pacific Gas & Elec. Co.

(1968) 266 Cal.App.2d 355, 360 [72 Cal.Rptr. 119].) In