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Firefighter Rule Applies to UPS Workers

In Moore v. William Jessup University, 2015 WL 9464864, the Court of Appeal used the firefighter rule to bar a negligence action by a UPS driver who was injured after lifting a mislabeled box.

FACTS

Plaintiff worked as a UPS delivery driver for 15 years and had 20 years of experience lifting and handling packages for UPS.   Plaintiff injured his wrist, shoulder, and back after picking up a mislabeled box in the William Jessup University (“University”) mailroom. The subject box had a shipping label stating the box weighed 48 pounds, however plaintiff estimated the box weighed 70 to 80 pounds based on his 20 years of experience. UPS customers are required to attach warning labels to packages weighing 70lbs or more; however, plaintiff knew customers sometimes mislabel packages.

Plaintiff filed a workers’ compensation claim and sued the University for negligence.  The University filed a motion for summary judgment on the ground it did not owe a duty to protect plaintiff from injuries arising from lifting heavy boxes, which was an inherent risk of his employment, and the University did not increase the risk inherent in plaintiff’s job.  The trial court granted the summary judgment motion, concluding the University owed plaintiff no duty of care, and the doctrine of primary assumption of risk barred plaintiff’s action.  Plaintiff appealed contending the primary assumption of risk did not bar his negligence action because the University increased the risk of injury to him by failing to state the true weight of the box and by failing to use highlighted tape to mark the box.

RULING

The Court of Appeal affirmed the trial court’s ruling, finding the primary assumption of risk doctrine barred plaintiff’s action.  The Court of Appeal applied the firefighter’s rule, a specialized assumption of risk doctrine applied in the employment context, which states a person who starts a fire owes no duty of care to the firefighter who is employed to respond to fires.   The Court stated receiving an injury in the course of moving or lifting heavy objects was a risk inherent in plaintiff’s occupation.

As such, the Court concluded the risk of injury from lifting heavy boxes that may be labeled with inaccurate weight information was inherent in plaintiff’s job as a UPS delivery driver, and the University did not owe a duty to protect plaintiff from that risk; nor did the University increase the risk of harm to plaintiff.

For public policy reasons, the Court stated the nature of plaintiff’s job duties and the relationship between the parties did not support a conclusion the University had a duty to protect plaintiff from his injuries or that the University increased the risk of harm to plaintiff.  The risk of injury based on inaccurate weight information on a shipping label prepared by a UPS customer was an obvious risk of plaintiff’s job.  The University secured the services of plaintiff’s employer to ship the boxes plaintiff was moving as part of his regular job duties when he was injured; plaintiff had 20 years of experience lifting and handling packages for UPS; and plaintiff was in the best position to guard against lifting injuries.   Further, the Court stated applying the doctrine of assumption of risk in cases like this promotes the use of commercial shipping or delivery services and properly places the burden of ensuring the safety of delivery persons, who have to move or lift packages, on the businesses who employ them and can provide necessary training, supervision, and assistance in their work.

The Court did not reach the question whether the doctrine of secondary assumption of risk applied because the Court concluded the University owed no duty to prevent injuries resulting from a risk inherent in plaintiff’s occupation.  Because the Court found the University did not owe plaintiff a duty under the primary assumption of risk doctrine, the Court also did not need to address whether the University owed plaintiff a duty under the Rowland v. Christian factors.

The primary assumption of risk doctrine is a powerful tool in defense counsel’s arsenal under the right factual scenarios.  While traditionally applied to bar plaintiff’s claims in sports and recreational contexts, the court of appeals continue to extend the doctrine to employment-type cases based on public policy grounds.

ABOUT THE AUTHOR

Kevin Rogers is a graduate of University of San Diego School of Law. He specializes in general liability, professional liability, and business litigation. Contact him at krogers@tysonmendes.com.

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