McElroy v. State of California

Opinion

RYLAARSDAM, Acting P. J.

Plaintiffs Michael McElroy and Gary Nelson, officers with the City of Orange Police Department (OPD), appeal from a summary judgment entered in favor of defendants the State of California and California Highway Patrol (CHP) Officers Brent Pembleton and Aaron D’Aoust. The CHP officers collided with plaintiffs’ unmarked police car after joining an ongoing pursuit in the City of Orange.

Prior to the accident, defendants were returning to their station when they “noticed several marked police vehicles traveling ‘Code 3’ . . .in front of

[548]

them.” Defendants followed the police cars and attempted to make radio contact with the OPD dispatcher to find out the nature of the chase. Plaintiffs filed suit alleging negligence; they sought damages for injuries sustained in the accident. Defendants moved for summary judgment contending they were immune from liability under the “firefighter’s rule” as construed in

Calatayud v. State of California

(1998) 18 Cal.4th 1057 [77 Cal.Rptr.2d 202, 959 P.2d 360]

(Calatayud).

In their deposition testimony, defendants stated they observed plaintiffs’ unmarked car approaching an intersection; as defendants approached the intersection, they activated their overhead lights to “warn traffic” behind them and assist the OPD units in their pursuit. The court granted the motion after concluding “the individual parties were ‘jointly engaged’ in their duties as peace officers within the meaning set forth in

[Calatayud]

. . . .”

The undisputed facts show that all officers involved were on duty at the time of the accident. The only issue on appeal is whether defendants were “jointly engaged” with plaintiffs in the pursuit such that they are shielded from liability.

Calatayud

holds that unintentional harm caused by law enforcement officers to their fellow officers does not fall into the statutory exception to the “firefighter’s rule” (Civ. Code, § 1714.9, subd. (a)(1)) when the officers are “jointly involved” in police or rescue activities.