Judge: Joel R Wohlfeil, Case: 37-2023-00016658-CU-PO-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00016658-CU-PO-CTL SCHARBER VS JOHN A MARTINDALE PERSONAL REPRESENTATIVE OF ESTATE OF FRANK E BARNHART DECEASED [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 06/20/2023

The special and general Demurrer (ROA # 11) of Defendant JOHN A. MARTINDALE Personal Representative of the Estate of Frank E. Barnhart ('Defendant' or 'Martindale') to the Complaint, and each of the causes of action contained therein, by Plaintiff BRITTNY SCHARBER ('Plaintiff'), is OVERRULED IN PART and SUSTAINED IN PART.

The special Demurrer to each cause of action in the Complaint is OVERRULED.

The general Demurrer to each cause of action is SUSTAINED without leave to amend.

The special Demurrer for uncertainty is overruled because the asserted causes of action are not fatally ambiguous or unintelligible. Code Civ. Proc. 430.10(f).

The remainder of this ruling will address the general Demurrer.

Regarding both causes of action, Plaintiff alleges she sustained injuries while working as a Lead 9-1-1 Dispatcher with the San Diego Police Department. She alleges that while in the course and scope of her employment as a dispatcher she witnessed the sounds of the decedent's suicide by gunshot. As alleged, she sustained severe emotional distress.

A cause of action for general negligence fails under the primary assumption of risk doctrine where 'a defendant owes no duty to protect a plaintiff from particular harms.' Knight v. Jewett (1992) 3 Cal. 4th 296, 306, 308, 309.

'[W]hether the primary assumption of risk doctrine applies is a legal question to be decided by the court.' Griffin v. The Haunted Hotel (2015) 242 Cal. App. 4th 490, 498.

The 'fireman's rule' bars Defendant's liability where 'defendant's negligence created an apparent risk, which is the type usually dealt with by firemen, and which is the cause of the fireman's presence, and which is the cause of the fireman's injury.' Scott v. E. L. Yeager Constr. Co. (1970) 12 Cal. App. 3d 1190, 1198, 1199.

The Court of Appeals in City of Oceanside v. Superior Court (2000) 81 Cal. App. 4th 269, 279 - 80 noted the application of the fireman's rule to lifeguards, 'police officers and emergency medical personnel' recognizing that 'all respond to public emergencies or crises for which they have been employed and specially trained. In the typical application of the firefighter's rule, a public safety officer responds to an Calendar No.: Event ID:  TENTATIVE RULINGS

3017844  12 CASE NUMBER: CASE TITLE:  SCHARBER VS JOHN A MARTINDALE PERSONAL  37-2023-00016658-CU-PO-CTL emergency crisis situation to aid a member of the public .... A lifeguard typically acts in a similar fashion.

The lifeguard responds to a report of a water-related emergency or crisis that endangers the lives of the public. The only discernable distinction between the functions of firefighters and lifeguards is that they generally respond to different hazards. We believe this is a distinction without a difference.' Id., at 280.

The fireman's rule is applicable to 9-1-1 dispatchers employed by a public agency. A 9-1-1 dispatcher's employment involves communicating with people in emergency situations, such as taking calls from persons in distress like the decedent. A 9-1-1 dispatcher is essentially an emergency first responders employed by the police department. A 9-1-1 dispatcher's primary function is to answer crisis calls involving perils that demand emergency assistance including danger, injury and death.

Here, Plaintiff was working within the scope of her employment as a 9-1-1 dispatcher when she sustained her injury. As a matter of policy, there is no reason the fireman's rule would not apply to an emergency dispatcher engaged in responding to and aiding distressed citizens.

The general Demurrer is granted on the substantive basis set forth above such that the Court does not reach the issue of submission of a timely creditor claim.

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