Kelhi

This appeal involves the “firefighter’s rule” (Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394 [ 22 Cal.Rptr.2d 514 ]) and the doctrine of primary assumption of the risk (Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ]). We conclude the trial court properly entered summary judgment for defendants under both doctrines. A highway patrol traffic officer driving on a state freeway on his official motorcycle is on duty even though he is on his way to work. When two tires suddenly break off of a truck in front of the officer, who immediately responds by braking to create a traffic break to protect the motorists behind him and then by directing the defective vehicle to the side of the road, the officer may not recover in tort for personal injuries sustained as a result of being hit by the runaway tires. We affirm the summary judgment.

*1152 Background

The accident occurred on May 10, 1988, about 2 p.m. Officer Patrick M. Kelhi, a uniformed highway patrol traffic officer, was riding his official motorcycle to work. As he travelled westbound in the No. 2 lane on State Route 60 (the Pomona Freeway), Officer Kelhi saw a pickup…

I respectfully dissent. In my view, there are triable issues of fact as to whether plaintiffs action is barred by the firefighter’s rule and the doctrine of assumption of the risk.

I

The firefighter’s rule bars a recovery by a professional firefighter against one whose active or passive negligence creates a risk of the type usually dealt with by firefighters, which risk causes the firefighter’s presence and injury. (Lipsoti v. Superior Court (1982) 31 Cal.3d 362, 367-368 [ 182 Cal.Rptr. 629 , 644 P.2d 822 ].) This rule is equally applicable to peace officers. (Hubbard v. Boelt (1980) 28 Cal.3d 480, 484 [ 169 Cal.Rptr. 706 , 620 P.2d 156 ].) The rule is based on the principle that it is the business of firefighters and peace officers to deal with particular hazards and, accordingly, they cannot complain of negligence in the creation of the very occasion for their engagement. {Ibid.) Underlying this principle are “(1) the traditional principle that ‘one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby,’ . . . and (2) a public policy to preclude tort recovery by [firefighters or peace officers] who are presumably adequately…

Krimen, Bjornsen & Klein and Steven Helfend for Intervener and Appellant.

Kinkle, Rodiger & Spriggs, Paul B. Reynolds, L. Steven Hattendorf, Gerard C. Mogab, Breidenbach, Swainston & Way, Breidenbach, Swainston, Crispo & Way, Gregory D. Bistline, Ted H. Luymes, McGee, Willis & Greene, McGee, Lafayette, Willis & Greene, Robert Lipscomb and Sarah J. Goldberg for Defendants and Respondents.

OPINION

ORTEGA, J.

This appeal involves the "firefighter's rule" ( Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal. App.4th 394 [ 22 Cal. Rptr.2d 514 ]) and the doctrine of primary assumption of the risk ( Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal. Rptr.2d 2 , 834 P.2d 696 ]). We conclude the trial court properly entered summary judgment for defendants under both doctrines. A highway patrol traffic officer driving on a state freeway on his official motorcycle is on duty even though he is on his way to work. When two tires suddenly break off of a truck in front of the officer, who immediately responds by braking to create a traffic break to protect the motorists behind him and then by directing the defective vehicle to the side of the road, the officer may not recover in…