The question in this case is whether sovereign immunity under Government Code section 850.4 (section 850.4) "for any injury caused in fighting fires" or an exception under Vehicle Code section 17001 imposing liability for death or injury "proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle" applies when death and injury result from the use of a fire engine in an attempt to rescue persons and save a home from being destroyed by a wildfire. We conclude that section 850.4 immunity prevails over the Vehicle Code section 17001 exception where, as here, death or injury results from a firefighter's allegedly negligent operation of a motor vehicle at the scene of a fire while attempting to rescue persons from the fire and to extinguish the fire. We therefore affirm the summary judgment in favor of the Department of Forestry and Fire Protection (CAL-FIRE).
Several wildfires burned through San Diego County in October and November 2007. One such fire was the Harris Ranch fire, which swept over more than 90,000 acres and destroyed more than 450 structures.
Thomas Varshock (now deceased) lived with his wife Dianne and their son Richard in a mobilehome on a piece of property (the Property) atop a remote ridge within the area consumed by the Harris Ranch fire.
As they were evacuating, Thomas and Richard encountered a group of firefighters. They demanded that the firefighters "do something" to save the Property.
The firefighters then proceeded in their engine towards the Property, and Thomas and Richard followed on their all-terrain vehicle (ATV). When the engine encountered thick smoke, the fire captain decided to back out to a location where he and his crew could await reinforcements. While backing out, the fire engine struck the ATV, which apparently had already broken down; Richard and Thomas got off the ATV, manually moved it to the side of the road and banged on the windows of the fire engine. Because the ATV had broken down and conditions were too dangerous to leave them outside, the fire captain told Richard and Thomas to get inside the fire engine. At that point, the fire captain saw flames behind the fire engine and believed there was a clearing at the Property, so he again proceeded toward the Property.
When they arrived at the Property, the firefighters found a shed that was ablaze and saw several small spot fires near the mobilehome which did not then appear to be on fire. The fire captain parked alongside the mobilehome, and the firefighters exited the fire engine and began spraying water on the burning shed and embers beneath the mobilehome. As the fire captain walked around the mobilehome, he heard glass breaking and saw the interior was on fire. He instructed his crew to get back into the fire engine so that they could get away from the burning mobilehome.
As the captain tried to back the fire engine away from the fire, the wind increased and directed flames across the engine. The engine "died," and the vehicle was subjected to intense heat and surrounded by thick smoke. When the windows of the fire engine shattered and flames entered the cab, the captain instructed everyone to get out.
Thomas was unable to exit the engine and perished at the scene. Richard and the firefighters survived, but each sustained serious burn injuries.
After their administrative claim for damages was rejected, Dianne, Richard, and Thomas's brother and business associate, George Varshock (collectively the
CAL-FIRE moved for summary judgment on the ground it was entitled to immunity under section 850.4. (See Code Civ. Proc., § 437c, subds. (a), (o)(2).) According to CAL-FIRE, it was entitled to judgment as a matter of law because the undisputed facts showed that its employees were acting within the scope of their employment as firefighters in response to a fire when Thomas was killed and Richard was injured.
In opposition to the motion, the Varshocks did not dispute that the firefighters were responding to a fire and were acting within the scope of their employment when Thomas died and Richard was injured. They argued, however, that the Vehicle Code section 17001 exception for injuries caused by the negligent operation of a motor vehicle applied and precluded entry of summary judgment.
The trial court granted the motion on the basis of Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 153 [281 Cal.Rptr. 191] (Colapinto), where our colleagues in Division Two held that "where the motor vehicle was used as a method to fight a fire and not in a negligent manner on the streets and highways," the Vehicle Code section 17001 exception to section 850.4 immunity does not apply. The court subsequently entered judgment in favor of CAL-FIRE on all of the Varshocks' causes of action.
We first address the main substantive issue on this appeal—the interpretation and interplay of the language of the section 850.4 immunity and the
We begin by examining the statutory language because that is the most reliable indicator of legislative intent. (Catlin v. Superior Court (2011) 51 Cal.4th 300, 304 [120 Cal.Rptr.3d 135, 245 P.3d 860]; Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1394 [117 Cal.Rptr.3d 377, 241 P.3d 870].) We will analyze the immunity-conferring language of section 850.4 first and then turn to the language of the express exception to that immunity under Vehicle Code section 17001.
Second, by using the word "any," which "means without limit and no matter what kind" (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 [268 Cal.Rptr. 753, 789 P.2d 934]), to modify the word "injury," the Legislature intended for the immunity granted by section 850.4 to be interpreted broadly (Utility Cost Management v. Indian Wells Valley Water Dist. (2001) 26 Cal.4th 1185, 1191 [114 Cal.Rptr.2d 459, 36 P.3d 2]; Brandon S. v. State of California ex rel. Foster Family Home etc. Ins. Fund (2009) 174 Cal.App.4th 815, 827 [94 Cal.Rptr.3d 660]; Souza v. Lauppe (1997) 59 Cal.App.4th 865, 873 [69 Cal.Rptr.2d 494]). This is consistent with the general rule that sovereign immunity provisions are to be construed broadly. (See, e.g., Teter v. City of Newport Beach (2003) 30 Cal.4th 446, 451 [133 Cal.Rptr.2d 139, 66 P.3d 1225]; County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 228 [104 Cal.Rptr.3d 230]; Guzman v. County of Los Angeles (1991) 234 Cal.App.3d 1343, 1349 [286 Cal.Rptr. 317].)
Third, the type of conduct to which the Legislature intended section 850.4 immunity apply is indicated by its choice of the phrase "injury caused in fighting fires." "The language `injury caused' necessarily implies that an `act or omission' has occurred . . . ." (Heimberger v. City of Fairfield (1975) 44 Cal.App.3d 711, 715 [117 Cal.Rptr. 482] (Heimberger).) The language "in fighting fires" further indicates the Legislature intended to restrict the scope of section 850.4 immunity to public entities' and their employees' tortious acts or omissions "committed during the course of fighting fires." (Lewis v. Mendocino Fire Protection Dist. (1983) 142 Cal.App.3d 345, 347 [190 Cal.Rptr. 883] (Lewis); see also Potter v. City of Oceanside (1981) 114 Cal.App.3d 564, 566 [170 Cal.Rptr. 753] [no § 850.4 immunity when "alleged negligent act occurred before any fire started"].) Included within the course of fighting fires are acts or omissions of public entities or employees
In sum, we conclude that by relieving public entities and employees of liability "for any injury caused in fighting fires" under section 850.4, the Legislature intended immunity to apply to any claim based on death, personal injury, or property damage that results from an act or omission of a public entity or employee while responding to or combating an actual fire.
Among the statutory exceptions referred to in section 850.4 is Vehicle Code section 17001: "A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment." (Veh. Code, § 17001, italics added.)
First, the Varshocks' interpretation of the Vehicle Code section 17001 exception, if accepted, would eliminate a very large portion of the immunity the Legislature intended to confer under section 850.4. The general rule is that exceptions "are `qualifiers, not nullifiers'" and must "be strictly construed." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 736 [248 Cal.Rptr. 115, 755 P.2d 299].) As we have explained, the language of section 850.4 indicates the Legislature intended public entities and employees to be immune from claims for injuries caused by their efforts in responding to and combating fires. Such efforts routinely include operation of fire engines and
Second, the Varshocks' interpretation of the Vehicle Code section 17001 exception to section 850.4 immunity would expand liability far beyond that recognized in the case law pertaining to tortious operation of motor vehicles used for firefighting. The only cases that impose liability or recognize potential liability in that context were decided under the predecessor statutes to Vehicle Code section 17001.
Section 850.4 was enacted as part of the California Tort Claims Act (Gov. Code, § 810 et seq.) in 1963 exactly as it was proposed by the California Law Revision Commission (the Commission) in its Recommendation Relating to Sovereign Immunity, Number 1—Tort Liability of Public Entities and Public Employees (Jan. 1963) (4 Cal. Law Revision Com. Rep. (1963) pp. 807-886 (hereafter, 4 Cal. Law Revision Commission Report)). (See Stats. 1963, ch. 1681, § 1, pp. 3266, 3279; Heimberger, supra, 44 Cal.App.3d at p. 714.) It has remained unchanged since that time. (See § 850.4.) The report of a commission that proposes a statute subsequently adopted is given "substantial weight" in construing the statute, especially where, as here, the proposed statute is adopted by the Legislature without any change. (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249 [66 Cal.Rptr. 20, 437 P.2d 508] (Van Arsdale), overruled on other grounds in Privette v. Superior Court (1993) 5 Cal.4th 689, 696, 702, fn. 4 [21 Cal.Rptr.2d 72, 854 P.2d 721]; see also Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003, fn. 6 [47 Cal.Rptr.2d 478, 906 P.2d 440] [Commission report entitled to substantial weight in construing Tort Claims Act].) "[I]n such a situation there is ordinarily strong reason to believe that the legislators' votes were based in large measure upon the explanation of the commission proposing the bill." (Van Arsdale, at p. 250.) Moreover, as it relates to section 850.4, our Supreme Court and other Courts of Appeal have considered the Commission's report
The Commission began its discussion of sovereign immunity for firefighting by stating that provision of fire protection services is a governmental function but that "[i]n California, the Legislature has removed a substantial portion of this immunity by providing that public entities are liable for the negligent operation of emergency vehicles, including firefighting equipment, when responding to emergency calls." (4 Cal. Law Revision Com. Rep., supra, at p. 828, italics added.) The Commission then expressed its public policy view that "[i]n emergency situations, it is more desirable for firefighters to act diligently to combat a conflagration, without thought of the possible liabilities that might be incurred, than it is to spread the loss from the fire by imposing such cost upon the taxpayers." (Ibid., italics added.) Based upon this view, the Commission recommended enactment of legislation "containing the following principles: [¶] . . . [¶] . . . Except to the extent that public entities are liable under Vehicle Code Sections 17000 to 17004 for the tortious operation of vehicles, public entities and public personnel should not be liable for injuries caused in fighting fires . . . . [F]iremen should not be deterred from any action they may desire to take in combatting fires by a fear that liability might be imposed if a jury believes such action to be unreasonable. The liability created by the Vehicle Code for tortious operation of emergency fire equipment should be retained, however, for such liability does not relate to the conduct of the actual firefighting operation." (Ibid., italics added.)
Thus, when considering sovereign immunity for firefighting activities the Commission had two policy objectives: (1) to shield from subsequent jury scrutiny the actions firefighters take while combating a fire; and (2) to preserve the existing liability for tortious operation of a motor vehicle when responding to an emergency call. Without an exception for injuries caused by such tortious operation of a motor vehicle, the liability the Commission wanted to retain would have been encompassed within the immunity for injuries caused in fighting fires because "[g]etting to the fire quickly is of the very essence of firefighting." (City and County of San Francisco v. Superior
Based on the statutory language of section 850.4, the interpretive case law, and the legislative history discussed above, we conclude that whether immunity or liability applies to injuries resulting from the tortious operation of a motor vehicle in fighting a fire depends on temporal, spatial and functional distinctions. The Legislature intended to immunize the conduct of firefighters while at the scene of a fire and actually combating a fire because imposition of liability in such situations might deter them from making necessary decisions quickly under extremely stressful and dangerous circumstances. (See State of California v. Superior Court, supra, 87 Cal.App.4th at p. 1414 ["Decisions must often be made under stressful circumstances and require a balancing of risks against the odds of success which must be imperfect at best."]; 4 Cal. Law Revision Com. Rep., supra, at pp. 828, 862 [firefighters should not be deterred from taking actions needed to combat fire by fear of liability].) At the same time, the Legislature intended to except from immunity liability for injuries resulting from the tortious conduct of firefighters while driving a motor vehicle from another location to the scene of a fire because such conduct is not subject to the same stresses and dangers involved in the conduct of actual firefighting operations at the scene of a fire. (See 4 Cal. Law Revision Com. Rep., supra, at p. 828 ["such liability does not relate to the conduct of the actual firefighting operation"]; see also cases discussed at pp. 645-646, ante.)
This interpretation of section 850.4, unlike those urged by the parties, harmonizes the immunity language with the Vehicle Code section 17001 exception language where, as here, firefighting involves operation of a motor vehicle (State Farm, supra, 32 Cal.4th at p. 1043) and results in "`a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity'" (City of Poway, supra, 229 Cal.App.3d at p. 858). This interpretation also yields a "workable definition" of the respective scopes of immunity and liability, which is crucial in the context of sovereign immunity. (See Johnson v. State of California (1968) 69 Cal.2d 782, 793 [73 Cal.Rptr. 240, 447 P.2d 352].)
Having determined how section 850.4 immunity and the Vehicle Code section 17001 exception work together in cases involving the tortious operation of a motor vehicle during the course of fighting a fire, we must now determine whether the trial court correctly granted CAL-FIRE's motion for summary judgment. The Varshocks contend the summary judgment must be reversed on two grounds: (1) CAL-FIRE did not meet its initial burden to establish section 850.4 immunity, because it did not negate the Varshocks' theory of liability under the Vehicle Code section 17001 exception to immunity and did not include an adequate separate statement of undisputed facts as part of its motion; and (2) triable issues of material fact preclude summary judgment. We will address each contention in turn.
According to the Varshocks, CAL-FIRE did not meet its initial burden in moving for summary judgment because it did not negate their theory of liability under the Vehicle Code section 17001 exception. We disagree.
In the first amended complaint, the Varshocks alleged the firefighters "operated a fire truck in a way that breached [their] duty of reasonable care to the [Varshocks]" and "so negligently and carelessly . . . drove, operated, controlled, parked and maintained" the fire engine that it became engulfed in flames while parked at the Property, which led to Thomas's death and Richard's injuries.
Here, the same evidence that established CAL-FIRE's immunity under section 850.4 also negated its liability under the Vehicle Code section 17001 exception. In its motion for summary judgment, CAL-FIRE included declarations from three firefighters who participated in the firefighting activities at the Property. Those declarations established that the fire captain ordered Thomas and Richard into the fire engine because conditions were too dangerous to leave them outside and then proceeded to the Property to try to extinguish the fire. When it became clear the mobilehome could not be saved, the fire captain ordered an evacuation but the engine "died," Thomas was killed, and Richard and the firefighters were severely burned. Thus, Thomas died and Richard was burned at the scene of a fire during the course of the firefighters' efforts to rescue them and to prevent the mobilehome from being destroyed by the fire. The injuries of which the Varshocks complain did not occur as the result of negligent operation of the fire engine while the firefighters were proceeding from another location to a fire in response to an alarm. The firefighters were already at the scene of the Harris Ranch fire when Thomas and Richard approached them and demanded that the firefighters "do something" to save their home. Therefore, CAL-FIRE's evidence was sufficient both to establish section 850.4 immunity and to negate liability under the Vehicle Code section 17001 exception, as we have construed the statute. (See pp. 649-650, ante.)
We are not persuaded by the Varshocks' argument that summary judgment should have been denied simply because CAL-FIRE did not identify in the separate statement included among its moving papers all the facts that established its immunity defense. Rulings on summary judgment motions are to be based on "all of the evidence set forth in the papers, except that to which objections have been made and sustained." (Code Civ. Proc., § 437c, subd. (c).) Although a party moving for summary judgment must include a separate statement that sets forth the material facts it contends are undisputed (id., subd. (b)(1)), a trial court is not required to deny a motion simply because the moving party has not done so and may, in its discretion, consider evidence contained elsewhere in the motion (ibid.; Zimmerman, Rosenfeld,
CAL-FIRE's summary judgment motion involved a single legal issue of immunity under section 850.4, which turned on a relatively small amount of evidence describing the sequence of events that led up to Thomas's death and Richard's injuries—evidence which the Varshocks did not materially dispute. CAL-FIRE's separate statement referenced the paragraphs of the declarations on which it relied, although it did not explicitly state the facts contained in those paragraphs. The Varshocks were able to oppose the motion with a declaration from an expert witness and other evidence and arguments. On this record, we cannot say the trial court abused its discretion in considering facts not specifically included in CAL-FIRE's separate statement when it ruled on the motion. (See Truong v. Glasser (2009) 181 Cal.App.4th 102, 118 [103 Cal.Rptr.3d 811] [no abuse of discretion when critical facts adequately identified and plaintiff's ability to present factual dispute not impaired]; King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 437-438 [60 Cal.Rptr.3d 359] [no abuse of discretion when trial court considered evidence on dispositive issue not specifically referenced in separate statement].)
In sum, we hold that CAL-FIRE satisfied its initial burden in moving for summary judgment by submitting evidence that established immunity under section 850.4 and negated liability under the Vehicle Code section 17001 exception. The burden then shifted to the Varshocks to "set forth the specific facts showing that a triable issue of material fact exists." (Code Civ. Proc., § 437c, subd. (p)(2); see Bacon, supra, 53 Cal.App.4th at p. 859 [once defendant established immunity and negated exception, burden shifted to plaintiff to show triable issue of fact as to applicability of exception].)
The Varshocks contend the trial court erred in granting CAL-FIRE's motion for summary judgment because "the facts here support a claim for negligence in the operation of the fire truck" in that "the firefighters . . .
The centerpiece of the Varshocks' opposition to CAL-FIRE's motion was a declaration from a retired fire chief whom they retained as an expert witness. The retired fire chief reviewed, among other documents, various deposition transcripts and other discovery materials; various statutes and regulations pertaining to firefighting; and two reports of investigations of the fire at the Property, one prepared by the Division of Occupational Safety and Health of the Department of Industrial Relations, and the other by CAL-FIRE's Serious Accident Review Team.
The judgment is affirmed.
McDonald, Acting P. J., and Mclntyre, J., concurred.
We note, however, that Vehicle Code section 17001 liability does not appear to be limited to tortious operation of motor vehicles on streets and highways, as suggested in Colapinto, supra, 230 Cal.App.3d at page 153. The text of Vehicle Code section 17001 contains no such limitation, and cases have recognized potential liability when motor vehicles were operated at other locations. (See, e.g., Bright, supra, 168 Cal.App.2d 7 [liability may exist under predecessor to Veh. Code, § 17001 for injury in collision caused by emission from off-road motor vehicle of spray that decreased visibility on nearby highway]; Behling v. County of Los Angeles (1956) 139 Cal.App.2d 684 [294 P.2d 534] [reversing dismissal of claim under predecessor to Veh. Code, § 17001 for injury caused by operation of bulldozer on ungraded, unpaved dirt roadway not open to public for vehicular travel]; Marshall v. County of Los Angeles (1955) 131 Cal.App.2d 812 [281 P.2d 544] [reversing dismissal of claim under predecessor to Veh. Code, § 17001 for injury caused by operation of dump truck on prison farm].) We also note our Supreme Court cited Colapinto with approval for the proposition that Vehicle Code section 17001 does not apply when a motor vehicle is used as a method to fight a fire but left out the qualification concerning operation of motor vehicles on streets and highways. (Ladd, supra, 12 Cal.4th at p. 925.)
