Malo

The issue presented by this appeal is whether a California highway patrolman’s personal injury action is barred by the fireman’s rule. After the motion of defendant Ray Eugene'Willis for summary judgment was granted, plaintiffs Michael John Malo and the State of California moved for reconsideration. The trial court granted reconsideration, vacated a judgment entered while the reconsideration motion was pending, and denied the summary judgment motion. Defendant appeals.

Defendant’s moving papers included the deposition testimony of plaintiff Malo, from which the following factual statement is derived.

On November 4, 1976, Malo was employed as an officer of the California Highway Patrol. At 4:50 p.m., while on active duty in a marked patrol car, Malo was proceeding southbound on Interstate 15 just north of Baker when he decided to stop two automobiles for exceeding the speed limit. He pulled alongside one vehicle, driven by defendant Willis, turned his red lights on, and motioned for Willis to pull over. Malo then moved up behind the second vehicle and motioned to its driver to pull over also. All three vehicles moved off the roadway onto the paved shoulder, with Officer…