RENDERED: JANUARY 6, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1304-MR
MICHAEL GONTERMAN AND APPELLANTS
JEANA GONTERMAN
APPEAL FROM HENRY CIRCUIT COURT
v. HONORABLE JERRY CROSBY, II, JUDGE
ACTION NO. 18-CI-00221
WOOSTER MOTOR WAYS, INC.;
TEDDY SEERY; EC DELIVERY,
LLC; JAMES BAUMHOWER;
KENTUCKY FARM BUREAU
MUTUAL INSURANCE COMPANY;
AND KENTUCKY SELF-INSURED
AUTO PROGRAM-STATE RISK &
INSURANCE SERVICES DIVISION APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
THOMPSON, CHIEF JUDGE: Michael Gonterman and his wife, Jeana
Gonterman, appeal from orders granting summary judgment to Appellees. The
trial court found that the Firefighter’s Rule1 prevented Appellants from recovering
from Appellees. The Firefighter’s Rule, under certain circumstances, prohibits
emergency personnel from recovering for injuries sustained while performing their
duties. The court held that Appellees could not be held liable for Mr. Gonterman’s
injuries and granted them all summary judgment. We disagree and reverse and
remand.
FACTS AND PROCEDURAL BACKGROUND
On April 25, 2018, John Crawford was driving on Interstate 71 in
Henry County. While driving, he saw two dogs on the side of the interstate. In
response, he pulled over onto the right shoulder, parked off the roadway, and
called 911 to ask for assistance. He then attempted to corral the dogs on his own.
Numerous other people had called 911 that day to report the dogs being near the
interstate.
Mr. Gonterman, a Kentucky State Police trooper, was dispatched to
respond to the dogs. When he arrived, the dogs and Mr. Crawford were on a
bridge. Trooper Gonterman pulled over onto the shoulder of the interstate, just
before the entrance of the bridge, turned on his emergency lights, and exited the
vehicle. He then proceeded along the shoulder and onto the bridge in order to
assist Mr. Crawford.
1
Also known as the Fireman’s Rule.
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Trooper Gonterman and Mr. Crawford were walking along the
shoulder of the bridge with the dogs when two commercial vehicles operated by
Teddy Serry, an employee of Wooster Motor Ways, Inc., and James Baumhower,
an employee of EC Delivery, Inc., were involved in a collision. As a result of the
collision, Mr. Baumhower’s truck killed Mr. Crawford and pushed Trooper
Gonterman off the bridge. Trooper Gonterman suffered severe injuries, but
survived.
Sergeant Dusty Corbin of the Kentucky State Police then began an
investigation of the accident. According to Sergeant Corbin’s report, when Mr.
Baumhower and Mr. Serry saw the police vehicle with emergency lights flashing,
they both moved into the left lane. Mr. Baumhower then had to abruptly move
back into the right lane to avoid a car that had almost completely stopped in front
of him in the left lane. It was at this time that Mr. Baumhower saw the pedestrians
and dogs on the bridge. He then immediately swerved back into the left lane to
avoid them.
When Mr. Baumhower swerved into the right lane, Mr. Seery then
saw the slow-moving car in the left lane. He too then swerved into the right lane to
avoid colliding with the car. As Mr. Seery moved into the right lane, he collided
with Mr. Baumhower’s truck. This collision caused Mr. Baumhower’s truck to
fishtail into the bridge railing and hit Trooper Gonterman and Mr. Crawford.
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Sergeant Corbin concluded that Mr. Seery was following too closely
to Mr. Baumhower just prior to the collision. He also believed Mr. Seery was
driving too fast and unable to come to a safe stop when he came upon the slow-
moving car. Sergeant Corbin also believed that Mr. Baumhower was inattentive to
traffic, following the car in front of him too closely, and driving too fast.
Appellants then brought suit against the truck drivers, their employers,
and the relevant insurance carriers.2 Appellants’ claims against Mr. Baumhower
and Mr. Seery were for negligence, gross negligence, and loss of spousal
consortium. Appellants brought those same claims against Wooster and EC
Delivery and also included claims for respondeat superior and negligent hiring,
training, supervision, and retention.
After some discovery, Appellees all moved for summary judgment.
They argued that the Firefighter’s Rule barred Appellants’ claims. The trial court
agreed and granted summary judgment to Appellees. This appeal followed.
ANALYSIS
On appeal, Appellants argue that the Firefighter’s Rule does not apply
to Trooper Gonterman and his injuries.
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. We narrowly circumscribe the
2
Appellants sued other individuals, but they are irrelevant for our purposes.
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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.
Sallee v. GTE South, Inc., 839 S.W.2d 277, 278 (Ky. 1992) (citation omitted).
The Firefighter’s Rule was first adopted by our courts in Buren v.
Midwest Industries, Inc., 380 S.W.2d 96 (Ky. 1964). The Court in that case stated
that
as a general rule the owner or occupant is not liable for
having negligently created the condition necessitating the
fireman’s presence (that is, the fire itself), but may be
liable for failure to warn of unusual or hidden hazards,
for actively negligent conduct and, in some jurisdictions,
for statutory violations creating undue risks of injury
beyond those inevitably involved in fire fighting.
Id. at 97-98 (internal quotation marks and citation omitted).
[F]or 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.
Hawkins v. Sunmark Industries, Inc., 727 S.W.2d 397, 400 (Ky. 1986). This rule
was expanded to include police officers in the case of Fletcher v. Illinois Cent.
Gulf R.R. Co., 679 S.W.2d 240 (Ky. App. 1984).
Under the Firefighter’s Rule, a first responder may not recover for any
negligence that created the situation to which the responder responds. In Sallee,
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supra, the Kentucky Supreme Court listed three factors a court is to consider when
trying to determine if the Firefighter’s Rule should apply.
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.
Sallee, 839 S.W.2d at 279 (footnote omitted) (emphasis in original).
As this case revolves around a legal question and summary judgment,
we review de novo. Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App.
2001). The trial court in the case at hand found that all three of the above factors
were present. We disagree. We believe factors one and three are not applicable.
The trial court found that the first factor was met by the truck drivers because, as
drivers on the interstate, they were people who would benefit from the police
officer’s presence. The court believed that all drivers on that stretch of road would
benefit from Trooper Gonterman attempting to remove the dogs from the road;
therefore, they were considered “others similarly situated.” The trial court found
that the third factor was present because Trooper Gonterman was dispatched to
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Interstate 71 to mitigate a road hazard and prevent an accident. He was then struck
by a car accident. The trial court believed that Trooper Gonterman was injured by
the situation to which he responded.
We will first discuss the first Sallee factor. The Firefighter’s Rule is a
judicially created public policy exception to negligence liability. It is used to
prevent emergency personnel from suing people who cause or are involved in a
public safety hazard if the emergency responder is injured by said hazard. The
reasoning is that emergency responders are paid to deal with dangerous hazards;
therefore, they cannot complain about the hazards they encounter as part of their
employment. Sallee, 839 S.W.2d at 278; Hawkins, 727 S.W.2d at 400; Buren, 380
S.W.2d at 98.
“[B]y accepting employment as a police officer [an officer] must be
deemed to have assumed the personal risk inherent in dealing with the emergency
which necessitated his presence.” Fletcher, 679 S.W.2d at 243. Decisions by the
courts of Kentucky regarding the Firefighter’s Rule
should not be construed to mean that policemen and
firemen are precluded from recovering for any injury
incurred in the performance of their duties. On the
contrary, our decision is limited in scope. It applies only
to those situations where officers in the performance of
their duties are required to subject themselves to an
unreasonable risk of harm negligently created by a party
and are injured. In such instances, they may not maintain
a negligence action against the party who created the risk
to recover damages for any injuries they may have
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sustained as a result of their exposure to that particular
risk.
Id.
We do not believe the truck drivers in this case fit into the categories
described by Sallee factor one. First, the truck drivers are not owners or occupiers
of the land where the accident took place. This was a public highway owned and
operated by the Commonwealth of Kentucky. The truck drivers had no ownership,
leasehold, or other legal authority over the land. We also do not believe they fit
into the definition of “others similarly situated.” The truck drivers had nothing to
do with the road hazard that Trooper Gonterman was responding to. The dogs did
not belong to the truck drivers and neither of the truck drivers called 911 to report
the dogs being in the road. Because they had no connection to the road hazard at
issue, they are not the type of people who the Firefighter’s Rule was created to
protect. In other words, they are not people who needed to be concerned over
being sued by emergency personnel responding to the dogs in the road because
they did not create the risk to Trooper Gonterman. The trial court erred in finding
Sallee factor one was met.
We now move on to Sallee factor three, that Trooper Gonterman was
injured by the risk he was called to remedy. The Firefighter’s Rule bars recovery
for negligence which created the emergency or flows from the emergency. For
example, in Norfolk Southern Railway Company v. Johnson, 554 S.W.3d 315 (Ky.
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2018), a police officer was injured when she fell down an embankment while
pursuing a suspect. The embankment was on Norfolk’s property. The officer sued
Norfolk and claimed that the embankment was a dangerous condition and
negligently maintained by Norfolk. The Kentucky Supreme Court held that the
Firefighter’s Rule applied because the officer was called to the area to investigate
the suspect and a foot chase ensued. During the chase was when she fell down the
embankment. The Court reasoned that her injury was caused by the emergency
she was there to investigate as chasing a suspect is part of her job. Id. at 318-19.
On the other hand, it does not bar recovery for injuries sustained by
negligent, reckless, or intentional conduct separate from the emergency. For
example, in Sallee, supra, two paramedics were sent to treat and transport an
assault victim. An underground utility cable had recently been installed on the
property where the assault victim was located. Upon arrival, one of the paramedics
tripped and fell because the trench in which the underground cable was installed
had not been filled in properly. The paramedic then sued the utility company for
damages due to his injuries. The Kentucky Supreme Court held that the
Firefighter’s Rule did not apply because the injury was not due to the emergency
he was called upon to deal with, i.e., the injured assault victim.
We believe that the injuries sustained by Trooper Gonterman were not
the result of the situation he was sent to Interstate 71 to remedy. Trooper
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Gonterman was sent to remove traffic hazards in the form of two dogs and Mr.
Crawford. He was to remove the hazards in order to prevent an accident.
Although an accident did occur, it occurred due to the alleged active and
independent negligence3 of Mr. Seery and Mr. Baumhower. Both were traveling
too fast and were too close to the vehicle in front of them. The accident did not
occur because of the dogs or Mr. Crawford. Had one of the dogs or Mr. Crawford
accidentally pushed Trooper Gonterman into the road, causing him to be struck by
a vehicle, then the Firefighter’s Rule would probably apply. Had one of the dogs
darted into the road, causing a vehicle to swerve and strike Trooper Gonterman,
then the Firefighter’s Rule would likely have applied. The accident in this case
was caused by the alleged intervening and active negligence of the two truck
drivers, not the dogs or Mr. Crawford. As the accident and subsequent injuries
were not caused by the emergency Trooper Gonterman was sent to remedy, the
third factor of the Firefighter’s Rule does not apply and Trooper Gonterman’s
claims are not barred.
Further supporting our conclusion is a hypothetical situation discussed
by the Kentucky Supreme Court in Sallee, supra. The Court in Sallee stated that if
a police officer were investigating a drunk driver and during the investigation, he
3
Active negligence has been defined as new, subsequent conduct that has occurred after the
emergency responder has arrived. Hawkins, 727 S.W.2d at 399 n.1.
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began directing traffic and was struck by another motorist, the Firefighter’s Rule
would apply to the drunk driver, but not to the other driver who struck the officer.
Sallee, 839 S.W.2d at 279. A similar situation to the Sallee hypothetical occurred
in this case. Trooper Gonterman was involved in removing the dogs and Mr.
Crawford from the interstate4 when the truck drivers caused an accident and
injured him.5
Appellants raise other issues on appeal; however, they are moot now
that we have determined that the Firefighter’s Rule does not apply in this case.
CONCLUSION
Based on the foregoing, we reverse and remand. The trial court erred
when it determined that the Firefighter’s Rule applied in this case. It does not.
Trooper Gonterman’s injuries were not caused by the emergency he was called out
to mitigate and the truck drivers were not the type of people the Firefighter’s Rule
was created to protect.
ALL CONCUR.
4
This would be comparable to the drunk driver investigation.
5
This is comparable to the other motorist striking the officer while he was directing traffic.
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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES EC
DELIVERY, LLC AND JAMES
Tyler S. Thompson BAUMHOWER:
Liz J. Shepherd
Marshall J. Rowland Lynsie Gaddis Rust
Louisville, Kentucky Andrew Bokeno
Louisville, Kentucky
Edward Bourne
Courtney Bourne ORAL ARGUMENT FOR
Owenton, Kentucky APPELLEES EC DELIVERY, LLC
AND JAMES BAUMHOWER:
Chad O. Propst
Louisville, Kentucky Lynsie Gaddis Rust
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANTS: BRIEF AND ORAL ARGUMENT
FOR APPELLEES WOOSTER
Chad O. Propst MOTOR WAYS, INC. AND TEDDY
Louisville, Kentucky SEERY:
Christina R. L. Norris
Louisville, Kentucky
BRIEF FOR APPELLEE
KENTUCKY FARM BUREAU
MUTUAL INSURANCE
COMPANY:
James M. Crawford
Jake A. Thompson
Carrollton, Kentucky
ORAL ARGUMENT FOR
APPELLEE KENTUCKY FARM
BUREAU MUTUAL INSURANCE
COMPANY:
Jake A. Thompson
Carrollton, Kentucky
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