Steve Ferreira was employed as a deputy in the Los Angeles County Sheriff’s Department. While off duty, Ferreira was with his nephews and two other friends when Anthony Cruz Carlin approached them in the parking lot of the King Taco Restaurant and began pushing and shoving Ferreira’s nephews. Carlin began to choke one of Ferreira’s nephews. Ferreira interceded and held Carlin “in a hold.” Ferreira released Carlin and told everyone to “knock it off and get back into the car.” Ferreira then noticed Carlin walking in his direction. Carlin stabbed Ferreira with a knife. After he was stabbed, Ferreira pulled out his badge, told Carlin to “drop the knife,” and took steps to arrest Carlin. Following the incident, Ferreira was unable to work for nine months. He applied for and received workers’ compensation benefits.
Ferreira brought this lawsuit against the King Taco Restaurant, alleging the Restaurant was negligent in failing to provide adequate security to protect its customers. Ferreira sought damages, medical expenses, and loss of earning capacity in connection with the stabbing incident. The Restaurant filed a summary judgment motion, contending that the firefighter’s rule barred this action because Ferreira obtained workers’ compensation benefits and was, therefore, judicially estopped from claiming the stabbing incident was unrelated to Ferreira’s occupation as a peace officer. The trial court agreed and granted the motion. The Court of Appeal sustained the dismissal in the unpublished case of Ferreira v. King Taco Restaurant.
The defense created by the firefighter’s rule limits the duty of care the public owes to firefighters and police officers. “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. Nor does a member of the public whose conduct precipitates the intervention of a police officer owe a duty of care to the officer with respect to the original negligence that caused the officer’s intervention.” In Hodges v. Yarian, 53 Cal.App.4th 973, the court extended the firefighter’s rule to an off-duty deputy sheriff who suffered injuries when he shot and killed a suspected burglar in the deputy’s own apartment building. Because Hodges was performing off-duty the same activity he performed on-duty, that is, attempting to effectuate an arrest of the suspect, the court applied the firefighter’s rule to bar the lawsuit.
The firefighter’s rule, however, is “hedged about with exceptions.” (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 538.) Ferreira unsuccessfully raised two statutory exceptions and one common law exception.
Ferreira contends that whether he was acting as an off-duty deputy sheriff at the time he was stabbed is a question of fact that should have been left to the jury. It is undisputed that Ferreira sought workers’ compensation benefits following the stabbing incident and stated in that application that the injury occurred when he was “stabbed in abdomen by suspect.” It is further undisputed that the parties settled the case, and Ferreira obtained a stipulated award in which he received workers’ compensation benefits. The Court of Appeal agreed with the trial court that because Ferreira obtained workers’ compensation benefits as an off-duty peace officer he was judicially estopped from asserting in this action that he was attempting “to break up a fight as a private citizen.” Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.
In his claim for workers’ compensation benefits, Ferreira invoked an exception to the workers’ compensation laws for off-duty peace officers who are injured outside the workplace and outside assigned working hours. Off-duty peace officers may arrest lawbreakers at any time and are entitled to compensation whenever the officer is injured, dies, or is disabled from performing his duties as a peace officer by reason of engaging in the apprehension or attempted apprehension of law violators or suspected law violators, or protection or preservation of life or property, or the preservation of the peace anywhere in this state, including the local jurisdiction in which he is employed.
Ferreira also unsuccessfully attempted to apply other exceptions to the firefighter’s rule contained in Civil.Code, §1714.9. The common law exception Ferreira invokes is referred to as the “independent cause exception,” which applies when the plaintiff’s injuries were not caused by an act of negligence that prompted the plaintiff to be present at the time and place where the injuries were sustained. One of these exceptions require that the defendant must commit an act of negligence injuring a peace officer “after the person knows or should have known of the presence of the peace officer.” In the present case the Restaurant had no knowledge of his presence.