Farnam

A police dog handled by defendant, Joseph Morrison, a California Highway Patrol officer, bit plaintiff Ronald Farnam, a Los Alamitos police officer, at the scene of an arrest. Plaintiff sued Morrison and his agency, contending Morrison negligently handled the dog. We affirm the summary judgment in favor of defendants because primary assumption of risk (the firefighter’s rule) bars the claim.

Facts

After participating with other law enforcement agencies in the vehicular pursuit of a suspected felon, Morrison learned by radio the suspect had been stopped. Morrison, accompanied by his canine companion Barry, went to the scene of the attempted arrest. Upon his arrival, he stepped out of his vehicle, holding Barry by a choke collar. Thereafter, he discovered plaintiff standing by the suspect’s car with a gun pointed at the suspect.

Unfortunately, Barry mistook plaintiff for the villain, broke free of his handler, and bit plaintiff. Plaintiff then filed this action against Morrison and his employer. The trial court granted defendants’ summary judgment motion, concluding that public safety officers were shielded from liability under Government Code section 821.6, which…

I

I wholeheartedly support the idea of immunizing public safety officers from liability for injuries suffered by an officer from a different agency *1456 during a joint response. I like the result my colleagues have crafted, and would join them if I could discern some basis for their conclusion other than judicial fiat. However, I cannot find such a rule in Calatayud v. State of California (1998) 18 Cal.4th 1057 [ 77 Cal.Rptr.2d 202 , 959 P.2d 360 ], and I believe creation of such an immunity is properly the role of the Legislature, not the Court of Appeal.

In Calatayud , the Supreme Court did not analyze the firefighter’s rule itself; instead it confined its opinion to determining whether Civil Code section 1714.9, a particular statutorily created exception to the rule, was applicable to public safety officers. The court’s holding was merely that the phrase “any person” in section 1714.9 was not intended to include other police officers, and thus the exception to the firefighter’s rule created by statute did not apply. Nothing in Calatayud changed the basic parameters of the firefighter’s rule.

In fact, Calatayud cites with approval the Supreme Court’s prior opinion in…