Episode 11: Louisville attorneys Rob Mattingly and Kevin C. Burke unpack Kentucky’s Firefighter’s Rule. A recent opinion by the Supreme Court has resulted in a flurry of comments on social media.
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TODAY’S LEGAL QUESTION:
Lauren comments she recently saw the Supreme Court issued a new opinion about the Firefighter’s Rule in Wooster Motor Ways, Inc. vs. Gonterman (10/24/24). It’s a hot topic on social media. She asks Rob and Kevin to provide details about this rule. Kevin submitted an amicus brief, on behalf of the Kentucky Justice Association for the Wooster case.
What Is the Firefighter’s Rule?
Kevin begins by explaining what the rule is. In its most basic form, it bars public employees (such as firefighters, police officers, EMTs, etc.) who are exposed to risks as part of their normal job activities, from recovering damages for injuries from the property owner or the person who may have caused the situation (e.g. the arsonist).
The rule is a misnomer. This is not a rule the firefighters or other first responders actually want. Rob mentions it’s also referred to as a professional rescuer’s rule or a first responder’s rule.
Rob goes on to advice attorneys to review this rule, if they are approached by an injured first responder regarding a claim for the injuries they suffered. While they may have a workers’ compensation claim, the other types of personal injury claims wouldn’t typically apply.
Public Policy Rational for the Rule
Rob and Kevin comment that the general public policy is that we want someone who has a fire or other emergency to call 911, rather than worrying about the potential legally liability should one or more of the first responders get injured while resolving the emergency situation.
However, could this rule also discourage people from pursuing first responder jobs, if they know they can recover damages as compared to other people?
Public vs. Private Employees
Lauren asks about a healthcare professional, such as a nurse, who encounters a car wreck. Aren’t they compelled to render assistance? If so, does the firefighter’s rule apply to them?
Kevin points out that in Kentucky, the rule only applies to public employees, so a nurse or other healthcare professional would not be limited by the Firefighter’s Rule, were they to suffer an injury.
The Origin of the Firefighter’s Rule
Rob and Kevin discuss the origin of the Firefighter’s Rule, from a national perspective. The origin goes back to Gibson vs. Leonard, 32 N.E. 182 (Illinois 1892). This was the first case in the country that applied the Firefighter’s Rule.
A Chicago warehouse fire occurred. The warehouse stored whiskey barrels. Mr. Gibson and his fellow firefighters responded. Back in the day, they part of the Fire Insurance Patrol. This was roughly 21 years after the great Chicago fire). The Patrol was created by the insurance agencies to protect the assets of the businesses they insured, in the case of a fire.
Note: The Fire Insurance Patrol and the Chicago Fire Department both responded to the warehouse fire.
The Fire Insurance Patrol is tarping the area and moving the barrels in an effort to prevent them from being destroyed. Mr. Gibson and others place some of the barrels into the lift elevator to move them to a different location. The lift fails, causing an injury to Mr. Gibson. He later attempts to sue the owners of the building for his injuries.
The Illinois Supreme Court said both the Chicago Fire Department and the Fire Insurance Patrol were responding to the fire and had a right to be there and their attempts to save the building and its assets were justified. The public policy was to encourage people to call the fire department in the case of an emergency. This was not only to put out the fire, but to also prevent it from spreading to adjoining properties.
The Court created the rule of non-liability, acknowledging that firefighters assume the liability for potential injury as part of their job.
Rob explains that on a national basis, some jurisdictions have adopted the rule, while others have rejected it. The trend tends toward more courts now rejecting the rule.
Kentucky’s Adoption of the Firefighter’s Rule
The first Kentucky case Rob and Kevin address is Buren vs. Midwest Industries, Inc., 380 S.W.2d 96 (Ky. 1964). This is the case that establishes the Firefighter’s Rule in Kentucky. In this situation, Louisville firefighters were called to a fire in a commercial building. The building included a bowling alley, restaurant and storage space.
There were several factors that may have led to the rapid spread of the fire. One or more firefighters were injured while battling the blaze. They file a suit to recover damages from the owners. The Firefighter’s Rule was applied by the Court. It emphasized the assumption of risk by the licensee (e.g. the firefighters), as well as the fact that they are public employees.
The Court did however recognize the improperly stored cleaning solvents could have created an unusual hazard. Kevin notes when the Court recognized the Rule, it immediately recognized an exception.
Note: The elimination of the assumption of the risk was overturned later, in 1967, in Parker vs. Redden.
The Hawkins Case
This is Hawkins vs. Sunmark Industry, Inc., 727 S.W.2d 397 (Ky. 1986). The Supreme Court has moved away from the assumption of the risk and that other parties may have liability. Kevin also notes that comparative fault was recognized in 1984.
In Hawkins, firefighters were injured at a fire at a gas station. There were numerous claims regarding liability for the injuries and deaths against the motorist who hit the gas dispenser and other parties.
The Courts maintained that the firefighters could not recover from the motorist. They also could not recover damages from the owner or the operator of the station. However, the Court said a products liability claim could be pursued against the manufacturer of the gas dispenser.
The plaintiffs raised a constitutional challenge based on Kentucky jural rights (Section 14). The Court considered it but said the common-law defense of the Firefighter’s Rule predated our 1891 State Constitution. No case was cited by the Court. However, Kevin and Rob point out that the Gibson opinion was in 1892.
The Salle Case
In Salle vs GTE South, Inc., 839 S.W.2d 277 (Ky. 1992), a paramedic working for the Lexington-Fayette Urban County Government, responded to a call to help an assault victim. The paramedic fell in a trench dug by GTE South, while he was exiting the ambulance. A suit was filed based on the hazard created by GTE’s trench.
The Kentucky Supreme Court rules the paramedic to bring a claim, regardless of the Firefighter’s Rule. The Court created a 3-part test. First, the Court recognizes the policy of encouraging property owners to engage first responders when emergencies occur. Second, the public employees are at the scene to engage a public risk. Three, the policy extends ONLY to that risk.
In the Salle case, it failed “prong one” because GTE was not the property owner or occupier of land. They weren’t the one who called for help. Rather, it was the assault victim. It also fails “prong three” because the injury was unrelated to the specific risk (i.e. the assault). Therefore, the Court ruled the paramedic could recover from GTE in a premises liability claim.
The Norfolk Southern Railway Case
In Norfolk Southern Railway Co. vs. Johnson, 554 S.W.3d 315 (Ky. 2018), a police officer, employed by the Danville Police Department responded to a call involving a suspicious person, who was possibly intoxicated. Upon arrival, the suspect flees onto Norfolk Southern’s property. The office falls down an embankment while pursuing the suspect. The officer files a claim against Norfolk Southern, based on mismanagement of the embankment, which resulted in the fall and related injuries.
The “risk” was the investigation of the suspect. One could argue the ensuing chase was unrelated to the mismanaged embankment. There was no connection between the suspect and the railway. The Kentucky Supreme Court applied the 3-factor test.
Norfolk Southern was an owner/occupier of the defect land. The incident involved a public employee. The court ruled that the officer engaged the specific risk and the injury arose from that risk (i.e. the investigation/pursuit of the suspect). Therefore, the Firefighter’s Rule applies.
Wooster Motor Ways, Inc. vs. Gonterman
The Wooster Motor Ways, Inc. vs. Gonterman (2023-SC-0062-DG) case involves a Kentucky State Trooper (Michael Gonterman), who responded to a situation on I-71. Rob comments that this opinion, issued on 10/24/24, lays out what will probably be Kentucky’s Firefighter’s Rule for many years to come.
The Parties Involved
John Crawford was driving a tanker truck and stopped in the emergency lane to remove 2 dogs from the interstate. He called 911 to alert them to the issue. The 911 dispatcher gets KSP Trooper Michael Gonterman to respond. He arrives at the scene and parks in the emergency lane. Crawford and Gonterman are able to remove the dogs from the interstate. Both men are walking single file back to their respective vehicles.
Kim Perkinson, driving a Nissan Altima approaches the scene. James Baumhower, driving a box truck for EC Delivery is behind Ms. Perkinson. Teddy Seery is behind Baumhower driving a tractor trailer for Wooster Motor Ways. Traffic in the area is slowing down.
Perkinson begins slowing down and moves to the left lane. Baumhower is unable to slow down and swerves back into the right lane to avoid colliding with Perkinson. Seery also swerves right and is unable to stop in time. Seery’s tractor trailer collides with Baumhower’s box truck.
The collision flips Seery’s box truck onto its side and slides into the walking Crawford (the tanker truck driver). Crawford is pinned against the concrete barrier and later dies as a result of those injuries. Trooper Gonterman is also sustains life-altering injuries.
Trooper Gonterman files a lawsuit against Seery (Wooster), Baumhower (EC Delivery), Crawford’s estate and Gonterman’s own UIM policy with Kentucky Farm Bureau.
The defendants file for Summary Judgement, citing the Firefighter’s Rule. The trial court grants Summary Judgement for the defendants, including the claim against the Crawford estate.
The Kentucky Court of Appeals reverses the trial court. The Plaintiffs decides not to pursue the claims against the Crawford estate. This leaves the question of what happens to the claims against Seery, Baumhower and the UIM carrier?
The Supreme Court’s Opinion in Wooster
As previously stated, Kevin Burke submitted an amicus brief on behalf of the Kentucky Justice Association, in this proceeding.
At the outset of the opinion, the Court acknowledges the Firefighter’s Rule. But then, it points out the rule of non-liability is narrowly circumscribed, when in the public’s interest. The Court restates the 3-prong rule created in Salle.
Prongs 1 and 2 are easily addressed by the facts of the case. However, referring the prong 3, Kevin explains the Court clarifies the risk denoted in the third prong does not extend to the independent and intervening negligence otherwise unrelated to the risk.
The Court recognizes the trooper was injured by the independent negligence of another, while performing his duty as a public employee. Therefore, the Rule will not bar a suit against the independent, negligent party.
Rob and Kevin explain that if you receive a call from an injured, first responder you’ll need to carefully review this case, the 3-prong test, determine who made the 911 call and other factors related to this narrow Firefighter’s Rule.
That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues.
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To Contact Kevin Burke:
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