Intentional Misrepresentations of a Hazard In California
Lipson v. Superior Court (1982), 31 Cal. 3d 362, dealt not with negligence based on physical conduct by the defendant but based on misrepresentation of a known hazard to which emergency personnel were summoned.
There, a firefighter was called to the scene of a chemical boilover at the defendants' plant.
In attempting to contain the boilover, which was caused by the defendants' negligence, the firefighter was severely injured.
The plaintiff alleged that his injuries were caused not by the negligence in permitting the boilover to occur in the first place, but were due to the defendants' negligent or intentional misrepresentations of the nature of the hazard presented.
The plaintiff asserted that, when he arrived at the plant, defendants told him that the spill did not involve toxic chemicals or materials and that there would be no danger in attempting to contain the boilover.
This was false, as toxic chemicals were implicated. the fireman alleged that if he had been told the true nature of the hazard, he would have taken adequate measures to ensure his safety.
The defendants moved for summary judgment, asserting the firefighter's rule. the trial court denied the motion, and the defendants sought a writ of mandate in the Supreme Court.
In distinguishing cases applying the rule where the negligent conduct was the event for which the public safety officials were originally summoned to the scene, the court stated: "Smoke, flames and the collapse of a burning wall, ceiling, or floor are typical risks normally associated with a fireman's occupation.
However, the risk that the owner or occupier of a burning building will deceive a firefighter as to the nature of the existence of a hazard on the premises is not an inherent part of a firefighter's job.
A fireman cannot reasonably be expected to anticipate such misconduct on the part of an owner or occupier of a building." (Lipson v. Superior Court, supra, 31 Cal. 3d at p. 371.)
The Supreme Court denied the writ, holding:
"Thus, the principle of assumption of risk, which forms the theoretical basis for the fireman's rule, is not applicable where a fireman's injuries are proximately caused by his being misled as to the nature of the danger to be confronted." ( Lipson v. Superior Court, supra, 31 Cal. 3d at p. 371.)
In Lipson, the Supreme Court upheld the existence of a duty owed by those at the scene of an emergency to refrain from misrepresenting material facts about the nature of the hazard to the public safety officers who were present. (Lipson v. Superior Court, supra, 31 Cal. 3d 362, 371 182 Cal. Rptr. 629, 644 P.2d 822.)
The court relied in part on Labor Code section 3852, the predecessor to section 1714.9, which at the time contained a virtually identical recitation of the duty owed to emergency personnel as is now set out in section 1714.9. (Lipson, supra, 31 Cal. 3d at p. 373, fn. 8; see Deerings Ann. Lab. Code (1991 ed.) foll. 3852, 1982 Amendments (ch. 258), p. 195.)