Dyer v. Superior Court (56 Cal. App. 4th 61, 1997)

Opinion

BARON, J.

Petitioner Hollis O. Dyer’s motion for summary judgment was denied on real party in interest Moufeed O. Hasou’s action for negligence against Dyer. Dyer seeks a writ directing the trial court to vacate the denial of summary judgment and to enter a new order granting the motion, as well as judgment in Dyer’s favor. We grant the petition for writ of mandate.

Facts

The parties did not dispute the following facts: At approximately 10:10 p.m. on July 16, 1995, Dyer was driving his 1987 Ford Mustang on the westbound 134 Freeway when he experienced mechanical problems. He pulled his Mustang completely off the freeway and onto the right shoulder. Dyer, an American Automobile Association (AAA) member, called for a tow truck.

Hasou arrived and parked his tow truck completely off the freeway on the right shoulder, in front of Dyer’s Mustang. After obtaining Dyer’s AAA membership information, Hasou walked towards the tow truck. When Hasou was between the Mustang and the tow truck, a Ford Crown Victoria struck the Mustang, pinning Hasou between the Mustang and the tow truck. The Crown Victoria then veered across the freeway and crashed into the center divider. Its driver fled on foot.

Although Dyer was also injured in the accident, he was able to move the tow truck to relieve pressure on Hasou’s legs. He then phoned 911.

Relevant Procedure Background

On February 27, 1996, Hasou filed a complaint for personal damages against Dyer, the registered owner of the Crown Victoria, the California State Department of Transportation, and several other parties. The complaint included a cause of action for negligence against Dyer, alleging that Dyer had a duty to maintain his car, and his failure to do so caused the mechanical breakdown that brought Hasou to the freeway location where Hasou suffered injury. On or about June 16, 1996, Golden Eagle Insurance Company, which insured Hasou’s employer against liability for workers’ compensation benefits, filed a complaint in intervention alleging the same claim for negligence against Dyer.

On or about December 5, 1996, Dyer filed a motion for summary judgment. Dyer contended that the doctrine of assumption of risk and the firefighter’s rule barred Hasou’s action against him, citing Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696] and Holland v. Crumb (1994) 26 Cal.App.4th 1844 [32 Cal.Rptr.2d 366]. Hasou opposed the motion on the basis of a footnote in Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532 [34 Cal.Rptr.2d 630, 882 P.2d 347], in which our Supreme Court rejected the reasoning by which the Holland court applied the firefighter’s rule to claims by private tow truck operators. (See Neighbarger v. Irwin Industries, Inc., supra, at p. 545, fn. 4.) Golden Eagle Insurance Company joined in Hasou’s opposition.

At the hearing on Dyer’s motion, the trial court concluded that the Neighbarger footnote was dispositive, and it filed an order denying summary judgment on February 27, 1997. On March 7, 1997, Dyer filed his petition for writ of mandate, prohibition, or other appropriate relief. On April 11, 1997, we issued an alternative writ of mandate and temporary stay.

Discussion

A. Standard of Review

We review the trial court’s ruling on Dyer’s motion for summary judgment de novo. (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819 [44 Cal.Rptr.2d 56].) “A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail. [Citation.]” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].)

Because the essential facts are not in dispute, the key questions here are legal, and concern the doctrine of assumption of risk and the firefighter’s rule, Assumption of risk doctrine bars a plaintiff’s recovery for negligence when “it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care. [Citation.]” (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 538; see Knight v. Jewett, supra, 3 Cal.4th at pp. 313, 314-315.) The firefighter’s rule is a specific application of this doctrine. (See Knight v. Jewett, supra, 3 Cal.4th at pp. 309-310, fn. 5; Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 538.) “Under the firefighter’s rule, a member of the public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combat the fire is not injured thereby. [Citations.]" (Ibid.)

Dyer contends that (1) the trial court erred in concluding that the Neighbarger footnote is dispositive on his motion for summary judgment, and that (2) the primary assumption of risk doctrine precludes imposition of a duty on him towards Hasou.

B. Neighbarger Footnote

The first issue is the extent to which the Neighbarger footnote controls our resolution of the substantive legal issues presented by Dyer’s motion.

Even when stated in footnotes, our Supreme Court’s decisions bind us, and its dicta command our serious respect. (See Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 212 [262 Cal.Rptr. 513]; People v. Jackson (1979) 95 Cal.App.3d 397, 402 [157 Cal.Rptr. 154].) However, “language contained in a judicial opinion is ‘ “to be understood in the light of the facts and issue then before the court, and an opinion is not authority for a proposition not therein considered. [Citation.]” ’ [Citations.]” (People v. Banks (1993) 6 Cal.4th 926, 945 [25 Cal.Rptr.2d 524, 863 P.2d 769].) When questions about an opinion’s import arise, the opinion “should receive a reasonable interpretation [citation] and an interpretation which reflects the circumstances under which it was rendered [citation]” (Young v. Metropolitan Life Ins. Co. (1971) 20 Cal.App.3d 777, 782 [98 Cal.Rptr. 77]), and its statements should be considered in context (see Pullman Co. v. Industrial Acc. Com. (1946) 28 Cal.2d 379, 388 [170 P.2d 10]).

In Neighbarger, a maintenance company provided its services at a refinery under contract with an oil company. (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 535.) When the maintenance company’s employees caused a fire that injured safety supervisors employed by the oil company, the safety supervisors sued the maintenance company, which argued that the firefighter’s rule barred their action. (Id. at pp. 535-536.)

The question thus presented, as framed by the court, was “whether a private safety employee who has occasional fire fighting duties may state a cause of action against a third party, not the employer, for injuries caused by the third party’s negligence in starting a fire.” (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at pp. 534-535.) The court concluded that neither the firefighter’s rule nor the assumption of risk doctrine bars such claims. (Id. at p. 535.) In the course of reaching this conclusion, the court discussed applications of the assumption of risk doctrine, including the “veterinarian’s rule,” which exempts parties who contract with veterinarians to treat their dogs from liability arising from dog bites. (Id. at pp. 536-545.) The court rejected one rationale for this rule and suggested a second rationale consistent with the decision in Knight, but did not decide whether the veterinarian’s rule remains viable following Knight.

At this point in its discussion, the court inserted the footnote at issue here. The footnote states in full: “We also reject the reasoning of the court in [Holland], applying the firefighter’s rule to the claim of a privately employed tow truck driver on the theory that a tow truck driver must assume the foreseeable risks of such hazardous employment. It is certainly not the case, as the Court of Appeal suggested in Holland, that private employees assume all the foreseeable risks of their employment. . . . [Knight] requires a closer analysis, focusing not on the foreseeability of the hazard or the plaintiff’s subjective awareness of risk, but on the defendant’s duty of care and the relationship of the parties.” (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 545, fn. 4.)

It is evident that this footnote, viewed in context, does not overrule the holding in Holland. The footnote occurs in a discussion of rationales for rules whose viability the court does not decide. Moreover, the holding in a case is not “the mere reasoning of the court,” but “[t]he point decided by the Court, and which the reasoning illustrates and explains . . . .” (Hart v. Burnett (1860) 15 Cal. 530, 598; see also In re John B. (1989) 215 Cal.App.3d 477, 481 [263 Cal.Rptr. 607].) Thus, the court’s rejection of the reasoning in Holland, construed in context, is not a rejection of its holding.

Nor is the footnote a persuasive dictum that Holland was wrongly decided. Generally, a dictum of the Supreme Court “ ‘while not controlling authority, carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic. [Citations.]”’ (Grange Debris Box & Wrecking Co. v. Superior Court (1993) 16 Cal.App.4th 1349, 1358 [20 Cal.Rptr.2d 515].) Here, the court did not subject the holding in Holland to the “closer analysis” required by Knight, and the issue decided by the Neighbarger court involved facts materially different from those of the present case. In concluding that the assumption of risk doctrine did not bar the safety supervisors’ negligence action, the Neighbarger court placed special significance on the absence of a contractual relationship between these parties. (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at pp. 542-543.) As we explain below (see pt. C., post), Dyer’s contractual relationship with Hasou supports the contrary conclusion about the application of the assumption of risk doctrine in the present case.

Although the Neighbarger footnote leaves the holding in Holland intact, we decline to treat Holland as persuasive precedent. The footnote’s clear import is that the question decided in Holland should be analyzed afresh under the principles stated in Knight. We turn to this task.

C. Assumption of Risk and the Firefighter's Rule

Under Knight, the key question concerning the application of assumption of risk doctrine is not whether the plaintiff was reasonable or unreasonable in undertaking an activity, but whether “by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury . . . .” (Knight v. Jewett, supra, 3 Cal.4th at pp. 314-315; see also id. at p. 309; Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 538.)

“As a general rule, each person has a duty to use ordinary care and ‘is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . .’ [Citations.]” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472 [63 Cal.Rptr.2d 291, 936 P.2d 70]; see Civ. Code, §1714, subd. (a).) In the context of motor vehicle use, “[a]n owner or operator of a motor vehicle has . . . a . . . duty to use reasonable and ordinary care, by properly maintaining the motor vehicle, to prevent an increase in the chances of inflicting injury on others by use of the vehicle. [Citations.] Likewise, an owner or motorist can be held negligent for failure to exercise the care an ordinary, prudent person would have exercised to maintain one’s motor vehicle in reasonably safe condition. [Citation.] [