Heimberger v. City of Fairfield

Opinion

CHRISTIAN, J.

Donald Heimberger purportedly appeals after the court sustained, without leave to amend, the general demurrer of respondent City of Fairfield to appellant’s first amended complaint. The record on appeal does not include a judgment of dismissal; an order sustaining a demurrer is not appealable. (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, §§ 843, 850, pp. 2448-2449, 2453.) However, where the questions are of law and the parties have invited the appellate court to decide the issues, the court may dismiss the appeal after rendering an opinion dealing with the merits. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 225, pp. 4214-4215.)

Appellant sought recovery for injuries allegedly sustained in the course of efforts of city firemen to rescue him when he was trapped by a fire in the boarding house in which he resided. In sustaining the general demurrer without leave to amend, the court took the view that appellant’s claim was defeated by Government Code section 850.4, which provides for governmental immunity for fire-fighting activities.

Appellant contends that Government Code section 850.4

1

relieves respondent from liability

only

for injury caused, in fighting fires, by the condition of fire equipment or facilities. Government Code section 850.4 provides: “Neither a public entity, nor a public employee acting in the scope of his employment, is liable for any injury resulting from the condition of fire protection or firefighting equipment or facilities or

[714]

except as provided in Article 1 (commencing with Section 17000) of Chapter 1 of Division 9 of the Vehicle Code, for any injury caused in fighting fires.” The statutory language explicitly establishes immunity not only for injury resulting from the condition of fire-fighting equipment or facilities but also for conduct of firemen in fighting fires.

The Law Revision Commission comment states: “Section 850.4 provides for absolute immunity from liability for injury caused in fighting fires (other than injuries resulting from operation of motor vehicles) or from failure to properly maintain fire protection equipment or facilities. There are adequate incentives to careful maintenance of fire equipment without imposing tort liability; and firemen should not be deterred from any action they may desire to take in combating fires by a fear that liability might be imposed if a jury believes such action to be unreasonable.” (4 Cal. Law Revision Com. Rep. (1963) p. 862.)