Cullivan v. Leston

*363 BUTTLER, P. J. Plaintiff is a police officer employed by the City of ortland Bureau of Police. He commenced this action )r personal injuries against the defendant Leston as íe proprietor of the No Dogs Allowed Tavern, and ppeals from a summary judgment entered in favor of íe defendant. On the night of his injuries, plaintiff was on duty in liform. He went to the tavern to investigate a fight ¡ported to be in progress. Plaintiff had been to the vem at least a half a dozen times during the preced-ig six months to investigate disturbances, and he lew that the tavern had a reputation for rowdiness. At the time plaintiff arrived at the tavern, there as no indication of a disturbance. When plaintiff Ltered the tavern he noticed some loud and boisterous havior, but people were in the process of leaving, iddenly one of the tavern patrons, whose name was >wer, began to assault another patron. Plaintiff at-mpted to subdue Tower and arrest him. Tower’s ends came to his rescue, and they, as well as Tower, oceeded to hit plaintiff with their fists, resulting in e injuries complained of. Plaintiff relies on Campbell v. Carpenter, 279 Or 237, 566 P2d 893 (1977), for the proposition that a rem owner is liable in common law negligence to rd persons who are injured by the conduct of a fcron to whom the tavern owner has served drinks ten the patron was visibly intoxicated. That case Id that a person injured in an automobile accident in Rich the intoxicated tavern patron was the other ■ver could hold the tavern owner liable. Plaintiff Huid have us extend that liability in favor of a police Hicer who, while on duty, responds to a call to investi-Re a brawl among intoxicated patrons of a tavern. ■While this question has not been addressed in Ore-HL it is closely analogous to that involved in the H’eman’s rule” which the Supreme Court adopted in *364 Spencer v. B. P. John Furniture Corp., 255 Or 359, 467 P2d 429 (1970). In that case, the Court held that a fireman injured in firefighting does not have a cause of action against a property owner who has negligently caused the fire, unless it is shown that the danger which caused the injury was an "unusual, serious, hidden danger of a totally unexpected kind” (255 Or at 365). The Court stated: "Whatever choice a fireman makes about those dangers to which he will submit himself, such choice is necessarily made at the time he becomes a fireman. When he appears upon the scene of a fire and realizes that the owner or possessor has created or permitted a situation which has enhanced the normal risks to be expected in fighting a fire of the kind involved, he does not have the privilege of refusing to fight the fire. He has to fight it anyway. When he becomes a fireman, he does not undertake to fight only ordinarily dangerous fires which have not been started nor been made more dangerous by someone’s lack of care. He undertakes to fight all fires. As a result, for the purpose of deciding if any duty is owed to him by a property owner or possessor, it is impossible to distinguish situations solely on the basis of their being more than normally dangerous or their being made that way by someone’s lack of care.” 255 Or at 364-65. Here, plaintiff was told to investigate the fight in a tavern, and knew that a normal risk of carrying out his official duties was that he would walk into a tavern where a fight was in progress and that he might be injured by the participants. There was no "unusual, serious, hidden danger of a totally unexpected kind.” We conclude that notwithstanding its apparent unfairness, the application of the "fireman’s rule” to police is the better policy. If we were to accept plaintiff’s contention, it would put a tavern owner in the anomalous position of being liable to other patrons for injuries he does not attempt to prevent by, among other things, calling the police, and to the police if he calls upon them and one of them is injured. At least *365 no other states have applied the fireman’s rule to policemen: see Walters v. Sloan, 20 Cal 3d 199, 142 Cal Rptr 152, 571 P2d 609 (1977); Weaver v. O’Banion, 359 So 2d 706 (1978). Plaintiff also assigns error to the granting of sum-lary judgment for defendant "where plaintiff police-lan requested assistance and defendant Leston reused to give any such assistance.” He relies upon ORS 32.245, which provides: "(1) A person commits the offense of refusing to assist a peace officer if upon command by a person known by him to be a peace officer he unreasonably refuses or fails to assist in effecting an authorized arrest or preventing another from committing a crime. "(2) Refusing to assist a peace officer is a violation.” Assuming, without deciding, that the statute was acted to provide police officers with a private rem-y for a violation thereof, plaintiff has not alleged in 3 complaint, or put in issue by other means, suffi-jnt facts to come within its terms. Affirmed.