Gordon v. Union Pac. R.R. Co.

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DAVID J. GORDON et al., Plaintiffs and Appellants, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Respondent.

C096270

California Court of Appeals, Third District, Sacramento

January 22, 2024

NOT TO BE PUBLISHED

Super Ct. No. 34202000288688CUPAGDS

MESIWALA, J.

California Highway Patrol (CHP) Officer David Gordon was injured while directing traffic at the scene of a malfunctioning crossing gate owned and operated by defendant Union Pacific Railroad Company (Union Pacific). He and his wife Tinna Gordon (the Gordons) sued Union Pacific for negligence, premises liability, and loss of consortium. The trial court granted summary judgment in favor of Union Pacific on the ground that the Gordons' claims are barred by the firefighter's rule, a rule that limits the public's liability to peace officers.

On appeal, the Gordons contend an exception to the firefighter's rule applies when the defendant unreasonably increases the risks of injury beyond those inherent in the activity the firefighter is called upon to address (i.e., an "unreasonably increased the inherent risk exception"), and a triable issue of material fact exists that Union Pacific's negligence triggered such an exception. Alternatively, the Gordons contend the exception to the firefighter's rule articulated in Civil Code section 1714.9, subdivision (a)(1) applies to the undisputed facts. (All further undesignated section references are to the Civil Code.)

We need not determine whether an unreasonably increased the inherent risk exception is available under the firefighter rule. Assuming it is, the Gordons failed to show a triable issue that the exception applies. At best, the Gordons' evidence suggests that various conditions increased Officer Gordon's risk of contending with the emergency, not that Union Pacific created an undue risk of injury beyond the risks inevitably involved in directing traffic around a malfunctioning crossing arm. We also find no merit in the Gordons' improperly preserved section 1714.9 theory. The judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On October 19, 2019, Officer Gordon was injured while directing traffic around a malfunctioning railroad crossing arm at the crossing located on State Route 99 just north of Live Oak Boulevard (Live Oak crossing or the crossing). The Gordons sued Union Pacific, alleging that Union Pacific failed to maintain and repair the crossing and thereby caused a collision that injured Officer Gordon.

Union Pacific filed a motion for summary judgment on the grounds that the Gordons' claims are barred by the firefighter's rule. In support of the motion, Union Pacific offered the following materials facts: (1) Officer Gordon was working in his official capacity as a CHP officer when he was injured; (2) Officer Gordon was at the scene of the incident responding to Union Pacific's malfunctioning railroad crossing warning devices; (3) the Gordons contend that Officer Gordon was injured as a result of Union Pacific's negligent maintenance of the railroad crossing; and (4) the Gordons have no evidence of any negligent act or omission on the part of Union Pacific occurring after Officer Gordon arrived at the scene.

In opposition, the Gordons argued that the firefighter's rule did not apply because Union Pacific unreasonably increased the risks to Officer Gordon beyond the risks inherent in the CHP activity he undertook. In support, the Gordons offered the additional material facts described below, which Union Pacific did not dispute.

State Route 99 is a rural highway that "carries a significant volume of traffic at fairly high speeds." Because of various physical features, Live Oak crossing is a "unique . . . crossing" that is "inherently more dangerous to traffic" and to "officers attempting to control traffic in the area." Union Pacific's personnel were aware of "a risk at [] Live Oak crossing due to the volume of traffic and high speed."

On October 19, 2019, Officer Gordon and his partner, CHP Officer Steve Klippel, were dispatched to the crossing due to a crossing gate that was stuck in the down position. Union Pacific sent an employee, Electronic Technician Inspector Damon Letcher, to address the malfunction. A sign warning drivers to prepare to stop was not activated until Letcher installed a shunt across the tracks. As Officer Gordon and Officer Klippel directed traffic around the malfunctioning gate, a car approached at a high rate of speed, attempted to go around the gate, lost control, and hit Officer Gordon (the accident). The accident occurred when it was dark and in an area that was not well lit.

Leading up to the accident, gate malfunctions at Live Oak crossing were a recurrent problem. The CHP generated at least nine incident reports of malfunctions at the crossing between December 2016 and the date of the accident, and CHP officers responded to at least seven of those reports. Officer Klippel had been to the crossing at least 12 times between October 2017 and the accident and was aware of multiple collisions occurring there. The gate had malfunctioned at least four times the month before the accident. Union Pacific's personnel were aware that drivers who frequented the area would become frustrated when the gate malfunctioned and would drive around it.

Union Pacific does not become aware of a gate malfunction unless notified by a third party. In response to such notification Union Pacific usually dispatches a single technician and does not send any personnel with traffic control training or personnel to help with traffic control. It typically takes several hours for a technician to arrive and make the needed repairs, longer if the malfunction occurs after hours or if parts must be obtained.

One of Union Pacific's employees told Officer Gordon and Officer Klippel they should bounce the crossing arm gate up and down if it gets stuck because this could cause the arm to return to an upright position. When the arm malfunctioned, Officer Gordon and Officer Klippel would attempt to bounce the gate up and down. One of Union Pacific's employees told the officers that the gate would sometimes malfunction because of a break in one of the railroad rails, so the officers would walk the rails trying to locate the break while they waited for one of Union Pacific's employees to arrive. These actions are not within the normal scope of Officer Gordon and Officer Klippel's duties.

The Gordons also offered two additional facts to which Union Pacific objected: (1) the physical features of the crossing combined with increased traffic moving at high rates of speed, a repeatedly malfunctioning crossing arm, Union Pacific's policy of not notifying CHP of arm malfunctions, and the lack of operational warning indicators to motorists creates an unreasonable risk to drivers pedestrians, and responding traffic officers; and (2) the experts opine that a recurring malfunctioning crossing arm at this specific location unreasonably increases the inherent danger to first responders who have to direct traffic around the malfunctioning arm. Union Pacific failed to file its objections as a separate document as required by California Rules of Court, rule 3.1354.

At oral argument in the trial court, after the court issued a tentative decision granting Union Pacific's motion, the Gordons argued for the first time that the exception to the firefighter's rule articulated in section 1714.9, subdivision (a)(1) applied. After taking the matter under submission, the court declined to rule on Union Pacific's improperly filed objections, granted the motion on the ground that "the increased risk exception does not apply to the firefighter's rule," and entered judgment in favor of Union Pacific. The Gordons filed a timely notice of appeal.

DISCUSSION

I. Standard of Review

A trial court may grant a motion for summary judgment "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) To meet its burden, a moving defendant must show either that one or more elements of the plaintiff's causes of action cannot be established or that there is a complete defense to the plaintiff's case. (Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant meets this initial burden, the burden then shifts to the plaintiff to show that at least one factual issue exists that is both material and triable. (Code Civ. Proc., § 437c, subd. (p)(2).)

In reviewing a trial court's decision on a motion for summary judgment, we apply a de novo standard, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. (Code Civ. Proc., § 437c, subd. (c); Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65.) We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 639-640.) "Although we review the trial court's decision de novo, we do not ignore [that] decision. Instead, that decision is presumed to be correct, and [plaintiffs] have the burden of affirmatively establishing reversible error." (LaBarbera v. Security National Ins. Co. (2022) 86 Cal.App.5th 1329, 1339.) "We will affirm an order granting summary judgment . . . if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court's stated reasons." (Securitas Security Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 120 (Securitas Security).)

II. Firefighter's Rule

The firefighter's rule is a variant of the primary assumption...