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 compensated (in special salary, retirement, and disability benefits) for undertaking their hazardous work . . . .” {Ibid., citations omitted.)
In order for a defendant to invoke the firefighter’s rule in a given situation, the defendant must make a two-pronged showing; it must show its negligence created an obvious risk and was the cause of the firefighter’s or peace officer’s presence at the scene. (Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 663 [20 Cal.Rptr.2d 148], review den. Sept. 16, 1993.) The second prong of this showing is the crucial one here: Were plaintiff’s injuries caused by acts of negligence which prompted plaintiffs presence at the scene? (Ibid.)
Two cases are illustrative of the analysis of this prong of the showing. In City of Sacramento v. Superior Court (1982) 131 Cal.App.3d 395, [182 Cal.Rptr. 443] plaintiff, a California Highway Patrol officer, was driving his patrol vehicle down the street while on duty. When he entered an intersection, his vehicle was struck by a vehicle driven by a suspected drunk driver who was being pursued by city police officers who allegedly had not activated their red lights and siren. (Id. at p. 399.) The court held the firefighter’s rule did not apply to bar plaintiff’s maintenance of an action for negligence. (Id. at p. 401.) It pointed out “[t]he policy reasons for the fire[fighter]’s rule do not apply where an injury occurs due to negligence which is unrelated to the fire[fighter] or police officer’s performance of his *1163duties.” (Ibid.) Plaintiff’s “presence at the intersection in which the accident occurred was fortuitous and wholly independent of any conduct of [the city police officers or the suspected drunk driver]. Although plaintiff was still on duty at the time of the accident, there was insufficient connection between the performance of his duties and the cause of his injuries to preclude recovery under the fire[fighter]’s rule.” (Ibid.)
In Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394 [22 Cal.Rptr.2d 514], plaintiff, a police officer, was at a hospital after having brought an arrestee there for examination of possible injuries. While he was there a mental patient attacked a security officer, who called for help. Plaintiff responded, helping to subdue the mental patient; he was injured in the process of doing so. (At pp. 402-403.) The court agreed with the principle that the firefighter’s rule does not apply when an officer’s presence at the scene is unrelated to the negligence which results in the officer’s injury. (Id. at p. 407.) However, it held that principle inapplicable on the facts before it, noting plaintiff “was performing one duty—completing paperwork relating to the injured suspect—when the alleged negligence of Seibert employees caused him to initiate a new and different law enforcement action and attempt to subdue [the mental patient]. While the conduct of Seibert employees may have been ‘independent of and unrelated to’ the conduct which originally brought plaintiff to the hospital, it is factually undisputed that it was the immediate cause of [plaintiffs] presence in or near the holding cell in which” the mental patient was fighting with the security officer. (Id. at p. 411, italics in the original.)
The court in Seibert Security Services, Inc., pointed out the case before it involved more than “the fortuitous presence” of a police officer. (Seibert Security Services, Inc. v. Superior Court, supra, 18 Cal.App.4th at p. 411.) It involved the officer’s subsequent reaction in a professional capacity to a crisis situation created by defendant’s negligence. (Ibid.) Once the officer responded in this manner, the firefighter’s rule applied. (Ibid.) Thus, the question in the instant case is whether the evidence establishes as a matter of law that plaintiff was injured while responding in his professional capacity to a crisis situation. If so, the firefighter’s rule applies and summary judgment properly was granted. (Code Civ. Proc., § 437c, subd. (c); Seibert Security Services, Inc., supra, at p. 411; Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548 [5 Cal.Rptr.2d 674].) If not, if the evidence establishes his presence at the scene was merely fortuitous or if there is a triable issue of fact as to his capacity at the scene, then summary judgment erroneously was granted. (Code Civ. Proc., § 437c, subd. (c); City of Sacramento v. Superior Court, supra, 131 Cal.App.3d at p. 401.)
According to plaintiff, in his answers to interrogatories, the accident occurred while he was on his way from his home to work as a California *1164Highway Patrol (CHP) officer. He was in the No. 2 lane on the Pomona Freeway and the Ford Ranger pickup truck was ahead of him and in the No. 3 lane. He saw the right axle of the truck break at the hub and the dual tires come off and start rolling behind the truck. Plaintiff slowed his motorcycle as the truck slowed and moved up toward the truck’s driver on the driver’s left to direct him to move his truck to the shoulder of the road. As the driver started to pull to the shoulder, the tires hit the wall along the shoulder, bounced into the air, hit the back of the truck, then came down on his motorcycle and right arm and leg, knocking him off the motorcycle and onto the road.
In his deposition, plaintiff elaborated on his description of the accident. He explained the truck was several hundred feet ahead of him and he was slowly overtaking it when he observed the tires come off the truck and the right rear axle frame bed area of the truck start scraping on the ground. Plaintiff immediately applied his brakes and activated his four-way hazard flashers; he began checking the traffic to his rear, looking for vehicles whose drivers did not see the tires rolling—“[i]n other words, creating an instant traffic break behind me so that no cars or trucks would run into the tires as they were running down the freeway.”
The truck was slowing, braking in the No. 3 lane, and the tires were rolling forward in the No. 4 lane. Plaintiff and the other vehicles on the freeway also slowed. It appeared to plaintiff the pickup truck was going to stop in the No. 3 lane. Believing the tires would continue to roll forward in a relatively straight line and were not a hazard to him, plaintiff passed the tires, positioned himself near the driver’s side of the truck and directed the driver to pull the truck over to the right shoulder of the road. As the driver complied, plaintiff slowed, regaining his position to the left rear of the truck, and looked for the tires. He saw the tires rolling behind him, in the No. 4 or 5 lane, at about 35 miles per hour. Suddenly, the tires veered to the right and hit the retaining wall along the shoulder of the road. They flew into the air and plaintiff immediately began braking, not knowing or wanting to know where they were going to land. The tires hit the back of the pickup truck and bounced back toward plaintiff. They hit the windscreen on his motorcycle, knocking him off the motorcycle and the motorcycle over on its side. As plaintiff fell, the tires hit him as well.
According to plaintiff, he “followed good safety practices by trying to clear the road,” positioning himself to the left rear of the pickup truck and monitoring the location of the tires. He would have been remiss if he had ignored the situation; when he saw something like what occurred, he was supposed to take some sort of enforcement action and try to get the driver off *1165to the side of the road, and that was what he had done on this occasion. He also indicated that he positioned himself in the safest manner possible, trying to keep the pickup truck between himself and the tires for protection.
Plaintiff in his declaration clarified that his four-way hazard flashers were amber lights, which functioned as turn signals as well. They were not the flashing red enforcement lights he would have used in making an enforcement stop. Also, he did not pull the pickup truck over to the shoulder of the road in the same manner he would have had he been making an enforcement stop, for fear of coming into contact with the truck or tires. To that extent, he was not following established procedures or guidelines.
He also added that the entire accident took place within 10 to 15 seconds. Given his speed and his distance from the truck at the time the tires came off, he did not know what he could have done to avoid being involved in the accident. He had nowhere to go and no time in which to get there; he tried to pick the safest place in which to be, but it turned out to be unsafe.
It is clear plaintiff’s presence on the freeway when the tires came off the pickup truck was unrelated to any negligence on the part of defendants which allegedly caused the tires to come off the truck. It also is clear some of the steps plaintiff took in response to the unfolding situation were in response to his duty as a CHP officer. He acknowledged he tried to create an instant traffic break to keep the freeway behind him clear and prevent other vehicles from being hit by the loose tires. He also tried to get the driver of the pickup truck to pull off the freeway onto the shoulder of the road. These actions were consistent with his duty to take appropriate enforcement actions when he observed an incident like this occur. After taking these actions, he tried to position himself in a safe location but was nonetheless hit by the tires.
On these facts, in this type of hybrid situation, I find it impossible to say, as a matter of law, that plaintiff’s presence at the location where he was injured either was fortuitous or was the immediate result of his exercise of his duty as a CHP officer. It is not clear whether he was in the particular location he was in as a result of having done his duty as a police officer, or whether he would in any event have been in the same location, having thought it to be the safest one. Accordingly, I would hold the trial court erred in granting summary judgment based on the firefighter’s rule; there is a triable issue of fact as to whether the rule applies to bar plaintiff’s action. (Code Civ. Proc., § 437c, subd. (c); Seibert Security Services, Inc. v. Superior Court, supra, 18 Cal.App.4th at p. 411; City of Sacramento v. Superior Court, supra, 131 Cal.App.3d at p. 401.)
*1166II
In Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696] and Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal.Rptr.2d 30, 834 P.2d 724], the California Supreme Court sought to determine whether the doctrine of assumption of the risk survived the adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393]. The plurality opinion in Knight (by George, J., with Lucas, C. J. and Arabian, J. cone.) noted that under Li, the doctrine of assumption of the risk bars a plaintiff’s recovery in “those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk—the category of assumption of risk that the legal commentators generally refer to as ‘primary assumption of risk.’ ” (Knight, supra, at p. 308.) However, assumption of the risk is merged into the doctrine of comparative fault and does not completely bar a plaintiffs recovery in “those instances in which the defendant [owes] a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty—what most commentators have termed ‘secondary assumption of risk.’ ” (Ibid.) Thus, the key determination to be made in an assumption of the risk case is whether the defendant’s duty of care has been reduced, placing the risk on the plaintiff rather than the defendant. (Knight, supra, at pp. 307-308.)
Of particular interest here is the plurality’s comment as to when primary assumption of the risk may be found. It noted that, “[i]n addition to the sports setting,” which Knight involved, “. . . the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the ‘firefighter’s rule.’ [Citation.] In its most classic form, the firefighter’s rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. [Citation.] Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. [Citations.]” (Knight v. Jewett, supra, 3 Cal.4th at pp. 309-310, fn. 5.)
Ford v. Gouin, supra, 3 Cal.4th 339 is consistent with Knight. Under these cases, the question here thus is whether, as a matter of law, plaintiffs recovery against defendants is barred by primary assumption of the risk, in that defendants owed no duty to plaintiff to protect him from risks arising *1167from any negligence in the construction and maintenance of the Ford Ranger pickup truck. (Knight v. Jewett, supra, 3 Cal.4th at p. 308; accord, Donohue v. San Francisco Housing Authority, supra, 16 Cal.App.4th at pp. 662-663.) Again, if plaintiff was present in his capacity as a CHP officer at the time he was injured, defendants had no duty to protect him from the risks he encountered as a CHP officer and any recovery is barred by primary assumption of the risk. (Ibid.) If his presence was fortuitous, defendants owed him the same duty they owed to anyone else on the road, and primary assumption of the risk is not a complete bar to his recovery. (Ibid.) Since I conclude there is a triable issue of material fact as to the nature of plaintiff’s presence at the scene at the time he was injured, I would hold the trial court erred in granting summary judgment based on assumption of the risk. (Code Civ. Proc., § 437c, subd. (c).)
A petition for a rehearing was denied July 12, 1994, and the petition of appellant Patrick M. Kelhi for review by the Supreme Court was denied September 8, 1994.