Assad v. Southern Pacific Transportation Co. (42 Cal. App. 4th 1609, 1996)

Opinion

POCHÉ, J.

Plaintiff and appellant George Assad (plaintiff) appeals from an adverse judgment entered following the granting of a summary judgment motion in favor of defendant and respondent Southern Pacific Transportation Company (defendant).

The Trial Court Proceedings

Plaintiff, a member of the volunteer auxiliary arm of the Shasta County Sheriff’s Department search and rescue division, filed suit against defendant alleging that he was injured by metam sodium fumes which were released when defendant’s railroad tank car derailed, spilling its contents of metam sodium into the Sacramento River near Dunsmuir. Plaintiff’s causes of action included negligence, products liability and violations of the Railroad Safety Act, the Hazardous Materials Transportation Act, and the Health and Safety Code.

As the litigation progressed the parties entered into the following stipulation: “Southern Pacific will stipulate to negligence in allowing the tankcar to fall into the river, for purposes of this case only. In return, Mr. Assad will waive punitive damages and all other causes of action except negligence. Southern Pacific expressly reserves the right to dispute any and all issues relating to damage causation and/or the existence, occurrence, size and/or amount of injuries and damages claimed by Mr. Assad. As in the class action, Mr. Assad must release and dismiss with prejudice all Southern Pacific entities other than Southern Pacific Transportation Company and all other defendants, individuals or entities in any way related to the spill. Southern Pacific will enter into this stipulation to accomplish a partial settlement of this case only and expressly denies its negligence insofar as any other claim or action is concerned.” (Italics in original.)

Thereafter defendant moved for summary judgment without mentioning the stipulation or even that it had conceded negligence. The theory of the motion was that the firefighter’s rule was applicable and defeated an element of plaintiff’s cause of action for negligence. Plaintiff responded by contending that the firefighter’s rule had no application to him because at the time of the injury he was neither a firefighter nor a policeman. In his opposition, plaintiff set forth the stipulation in full but made no argument with respect thereto.

The trial court’s written order granting summary judgment set forth its rationale as follows: “1. Defendant Southern Pacific, in support of its motion, proffered evidence establishing as a matter of law that the fireman’s [r]ule bars plaintiff’s claim. The risk to which plaintiff subjected himself was of the type usually dealt with by public safety officers who respond to clearly dangerous emergencies. [