Sallee v. GTE South, Inc.

839 S.W.2d 277, 1992 Ky. LEXIS 147, 1992 WL 298081
CourtKentucky Supreme Court
DecidedOctober 22, 1992
DocketNo. 91-SC-971-DG
StatusPublished
Cited by13 cases

This text of 839 S.W.2d 277 (Sallee v. GTE South, Inc.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sallee v. GTE South, Inc., 839 S.W.2d 277, 1992 Ky. LEXIS 147, 1992 WL 298081 (Ky. 1992).

Opinion

LEIBSON, Justice.

This case requires us to revisit the parameters of the so-called “Fireman’s Rule” (henceforth, Firefighter’s Rule) as articulated in Buren v. Midwest Indus., Inc., Ky., 380 S.W.2d 96 (1964) and Hawkins v. Sunmark Indus., Inc., Ky., 727 S.W.2d 397 (1986).

[278]*278Movant, Phillip Sallee, a paramedic for the Lexington-Fayette Urban County Government Fire Department, seeks damages for injuries sustained during the course of his employment, allegedly caused by the respondents’ negligence.1

In the early morning hours of January 23, 1990, Sallee and two other paramedics responded to a call to come to Water Street in Lexington to treat and transport an assault victim. The respondents had been involved in laying underground cable on Water Street near the premises where the assault victim was down. In doing their construction work the respondents had dug a trench which they had then refilled about two inches or so less than necessary to be level with the street’s surface. In departing the ambulance Sallee tripped over the offset and severely twisted his ankle.

The trial court ruled Sallee’s claim was barred by the Firefighter’s Rule, and granted summary judgment for the respondents. The Court of Appeals affirmed, and we granted discretionary review.

Movant contends that the Firefighter’s Rule does not apply here because there is no direct causal relationship between the performance of his duties as a paramedic and the source of his injury, the alleged defect in the street which caused him to trip on his way to the side of the assault victim. Movant argues that the Firefighter’s Rule is not a general rule barring firefighters and police officers whenever negligently injured in the course of their duties, but a limited public policy exception to the general rule that we are all liable to those whom we negligently injure, an exception that reaches no further than the policy it serves and thus does not reach to this case. Movant acknowledges that the street was under construction, albeit not closed to traffic, and that issues of negligence and contributory negligence remain unresolved. Movant’s position is his status as a firefighter is no reason, per se, to bar his right of recovery. For reasons which we will discuss, we agree with the movant on the issue presented.

In Gas Serv. Co., Inc. v. City of London, Ky., 687 S.W.2d 144, 148 (1985), we said:

“The duty to exercise ordinary care commensurate with the circumstances is a standard of conduct that does not turn on and off depending on who is negligent.”

Much less so does it “turn on and off” depending on who is injured. The Firefighter’s Rule is a “common law rule of longstanding,” judicially created as a “public policy” exception to the liability for negligence which might otherwise exist. Hawkins v. Sunmark Indus., supra at 399. We narrowly circumscribe the application of such exceptions so as to protect no one from responsibility for the consequences of their wrongdoing except where protecting the public makes it essential to do so. As so aptly stated in Nazareth Literary & Benevolent Inst. v. Stephenson, Ky., 503 S.W.2d 177, 179 (1973), we must ask “... wherein the public interest lies. Claims of privilege are carefully scrutinized, and ... afforded validity in relatively few instances in the common law.”

To amplify, we quote from Buren v. Midwest Indus., Inc., supra, the seminal case on the subject:

“[The] basis of non-liability is that ‘it is the fireman’s business to deal with that very hazard and hence ... he cannot complain of negligence in the creation of the very occasion for his engagement,’ the precise risk which the public pays him to undertake.” 380 S.W.2d at 98.

And we quote from this further explanation in Hawkins v. Sunmark Indus., supra at 400:

“Thus, for reasons of public policy, our rule is that firemen are required to assume the ordinary risks of their employment, a dangerous occupation, to the extent necessary to serve the public purpose of fire control, and this means providing the Fireman’s Rule as a defense for those who are the owners or occupiers of the property he is employed to protect.”

[279]*279There are three prongs necessary to the application of the Firefighter’s Rule as adopted in Kentucky:

1) The purpose of the policy is to encourage owners and occupiers, and others similarly situated, in a situation where it is important to themselves and to the general public to call a public protection agency, and to do so free from any concern that by so doing they may encounter legal liability based on their negligence in creating the risk.

2) The policy bars public employees (firefighters, police officers, and the like) who, as an incident of their occupation, come to a given location to engage a specific risk; and

3) The policy extends only to that risk.2

Movant, Sallee, fits the second prong of the Firefighter’s Rule, because he was indeed a firefighter called to the location where he was hurt to engage a specific risk. However, he does not fit the third prong because he was not injured by the risk he was called upon to engage, but by a risk different in both kind and character.

Moreover the respondents, who seek to shield themselves from liability even should they be proved at fault for this injury, do not fit the first prong of the rule because they are neither owners, occupiers, nor persons otherwise fitting the description of those who, in the situation presented, need to be protected.

The trial judge painted with too broad a brush. His summary judgment opinion states:

“It would also be true that if a policeman in the investigation of a drunk driving incident were to be directing traffic, that the Fireman’s Rule would not be excluded from application if another driver came along and struck and injured that policeman.”

The Firefighter’s Rule would insulate the persons involved in the drunk driving incident, but not another driver who negligently injured the police officer directing traffic. The hypothetical police officer, and the present movant, assume the risk that occasion their presence, but not a further risk from a different source.

The trial court and the Court of Appeals cited Fletcher v. Illinois Cent. Gulf R. Co., Ky.App., 679 S.W.2d 240 (1984) wherein, following an allegedly negligent train derailment, the Firefighter’s Rule was applied to bar a police officer from pursuing a cause of action against the railroad to recover for injuries sustained as a result of inhaling toxic fumes that escaped from some derailed tank cars. But the reason behind the ruling in the Fletcher case is thus explained:

“Thus, like the firemen in Buren,

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Bluebook (online)
839 S.W.2d 277, 1992 Ky. LEXIS 147, 1992 WL 298081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sallee-v-gte-south-inc-ky-1992.