Kelly Ann Maloney v. Wellspring, Inc. ( 2021 )

RENDERED: AUGUST 20, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1056-MR
KELLY ANN MALONEY APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
v. HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 19-CI-00212
WELLSPRING, INC. APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
DIXON, JUDGE: Kelly Ann Maloney appeals from the order dismissing her
claims against Wellspring, Inc. (“Wellspring”) entered by the Shelby Circuit Court
on July 22, 2020. Following a careful review of the record, briefs, and law, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
On April 25, 2018, Maloney was employed as an officer with the
Shelbyville Police Department. She was monitoring her radio while patrolling in
her cruiser in downtown Shelbyville when she heard a dispatch from the probation
and parole office. The dispatch was regarding a suspected parole violator, Joseph
Cardwell, and included his physical description. When Maloney observed a man
matching this description, she approached and asked if he was Cardwell. The man
responded affirmatively and then fled. Maloney pursued Cardwell on foot and
onto Wellspring’s property, where she was traversing an outside set of steps, fell,
and was injured. Maloney later described the steps as “crumbling” at her feet.
In addition to a workers’ compensation claim, Maloney brought the
instant lawsuit against Wellspring alleging negligence. After Maloney was
deposed, Wellspring moved the trial court for summary judgment, which was
granted. This appeal followed.
STANDARD OF REVIEW
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” CR1 56.03. An
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Kentucky Rules of Civil Procedure.
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appellate court’s role in reviewing a summary judgment is to determine whether
the trial court erred in finding no genuine issue of material fact exists and the
moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de
novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.
Serv.’s., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12
S.W.3d 698 (Ky. App. 2000)).
ANALYSIS
On appeal, Maloney argues the trial court erroneously granted
summary judgment for Wellspring in her negligence action against it as a result of
injuries she suffered on its property. The trial court determined that the
“Firefighter’s Rule”2 prevented Maloney from pursuing damages against
Wellspring for the injuries she sustained in the course of her employment with the
Shelbyville Police Department. Maloney maintains, however, the trial court
misapplied the law to her case because it did not meet all of the elements for the
Firefighter’s Rule to bar her claim.
The Firefighter’s Rule was first established in American jurisprudence
in Gibson v. Leonard, 143 Ill. 182, 189, 32 N.E. 182, 183 (1892). Therein, a
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This is also referred to as the Fireman’s Rule.
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fireman sued the owner of a burning building in Chicago when he was badly
injured by a defective elevator while attempting to put out the fire. In denying the
fireman’s claim, the court focused on the fireman’s entry status on the burning
property as determinative:
[a]ctionable negligence, or negligence which constitutes
a good cause of action, grows out of a want of ordinary
case and skill in respect to a person to whom the
defendant is under an obligation or duty to use ordinary
care and skill. The owner of land and of buildings
assumes no duty to one who is on his premises by
permission only as a mere licensee, except that he will
refrain from willful or affirmative acts which are
injurious. As was said in Sweeny v. Railroad Co., 10
Allen, 368: “A licensee, who enters on premises by
permission only, without any enticement, allurement, or
inducement being held out to him by the owner or
occupant, cannot recover damages for injuries caused by
obstructions or pitfalls. He goes there at his own risk,
and enjoys the license subject to its concomitant perils.”
When, at the time of the fire, the members of the fire
patrol forced open the door, and entered the main floor
and basement of the building, they were not trespassers;
nor did they enter the premises by virtue of a license,
either express or implied, from either appellee, the owner
of the building, or Sues, his tenant. The facts that the
premises were closed for the night, that the doors were all
locked and barred, that no ingress was possible without
using force and violence and breaking the doors, and that
the lawful owners and occupants were all absent, and had
no knowledge of either the fire or the proposed entry, and
all the other surrounding circumstances, preclude any
theory of license from the owner or tenant.
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(Emphasis added.) Broadly then, a fireman entering a burning building assumes
the risk of injury or death as a “concomitant peril” of the occupation of fireman.
In later cases, the Firefighter’s Rule has been applied to police
officers, reasoning as follows:
[F]iremen, policemen and other such persons
professionally trained to deal with dangerous situations
on a regular basis must be held to assume the normal
apparent risks that are to be expected in encountering
such hazards, whether on or off the premises. Yet the
fireman’s rule has been held only to apply when the
firefighter or police officer is injured from the very
danger, created by the defendant’s act of negligence, that
required his professional assistance and presence at the
scene in the first place, and the rule will not shield a
defendant from liability for independent acts of
misconduct which otherwise cause the injury.
W. Page Keeton, et al., PROSSER AND KEETON ON THE LAW OF TORTS § 61 (5th ed.
1984) (emphasis added). Thus, the Rule was limited to situations in which a
fireman or police officer was injured by the “very danger” created by the property
owner’s act of negligence which caused the responder to be on the defendant’s
property in the first place.
However, the Supreme Court of Kentucky somewhat recently
expanded the Firefighter’s Rule. In a factually similar - although not completely
identical - case, Norfolk Southern Railway Company v. Johnson, 554 S.W.3d 315(Ky. 2018), the Court discussed the historical application of the Firefighter’s Rule
in Kentucky’s jurisprudence, stating:
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Our predecessor Court adopted the Firefighter’s Rule in
Buren v. Midwest Indus., Inc., 380 S.W.2d 96 (Ky.
1964). The Rule is a public policy consideration that
bars firefighters from recovering from injuries sustained
while in the course of their duties. The constitutionality
of this rule was challenged in Hawkins v. Sunmark
Indus., Inc., in which this Court held:
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.
727 S.W.2d 397, 400 (Ky. 1986).
The Rule was expanded by the Court of Appeals to
include police officers in Fletcher v. [Illinois Cent. Gulf
R.R. Co.,] 679 S.W.2d 240 (Ky. App. 1984). This Court
acknowledged that extension in Sallee v. GTE S., Inc.,
839 S.W.2d 277, 279 (Ky. 1992).
The elements that must be satisfied for the Firefighters
Rule to bar a claim are enumerated in Sallee, 839 S.W.2d
at 279:
There 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.
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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.
Id. at 279 (footnote omitted).
Id. at 317.
In Norfolk, a police officer - Officer Johnson - fell down an
embankment and was injured while pursuing a suspect on foot. The Norfolk Court
ultimately found all three elements of the Firefighter’s Rule were met and applied
to that case. Likewise, the trial court in this case followed the same factual and
legal analysis.
Nevertheless, Maloney claims the trial court erred by extending the
Firefighter’s Rule to include the risk of “crumbling” steps on Wellspring’s
property, which she claims had nothing to do with the specific risk of pursuing the
criminal suspect she was called upon to engage. This argument - like that raised in
Norfolk - goes to the third prong of the Firefighter’s Rule. Maloney argues she
was on Wellspring’s property to pursue Cardwell and that was the specific risk she
was called upon to engage, not being subjected to crumbling and unsafe steps.
Maloney attempts to distinguish her case from Norfolk because the officer in that
case fell down a natural, grassy embankment unintended for foot traffic, as
opposed to a manmade set of steps open to the public.
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However, Maloney’s argument ignores the analysis of Norfolk. In
that case, the Court observed:
Johnson was employed as a patrol officer and was called
to the location where she was injured while in pursuit of
a suspect. This is a normal part of the duties of a police
officer and the danger of changes in the terrain during
pursuit of a suspect is a specific risk of the job.
Further, she was on Norfolk Railway’s property for the
sole reason of apprehending the suspect in the course of
her job.
The Court of Appeals also held that Johnson did not fit
within the third prong of the rule. The court cited Sallee,
holding that Johnson “was not injured by the risk she was
called upon to engage, but by a risk different in both kind
and character.” Id. 839 S.W.2d at 279.
As mentioned previously, Johnson’s injury occurred after
she fell down an embankment while engaged in a foot
pursuit of a suspect. She had responded to a call
regarding an individual acting in a disorderly manner,
which led to this pursuit. We agree with the argument
presented by Norfolk Southern: Johnson’s injury was a
result of the risk that she was called upon to engage.
Id. at 318 (emphasis added). Likewise, here, the danger of changes in terrain
include those within the cityscape with which Maloney was faced during her
pursuit. Thus, encountering dilapidated steps was a specific risk of Maloney’s
duties as a police officer pursuing Cardwell in downtown Shelbyville.
Even so, Maloney contends her situation fits within the exception that
has existed with the Firefighter’s Rule since Buren, 380 S.W.2d 96. The Court
therein clearly stated,
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Suffice it to say 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. The Buren Court found the owner’s failure to comply with fire codes
was not a hidden hazard or continuing active negligence but noted “the presence of
explosives may predicate liability on the basis either of an unusual hidden hazard
or of continuing ‘active’ negligence, as the particular facts warrant.” Id. at 98.
The Court did not reject the notion that the presence of an explosive cleaning agent
on the premises constitutes an unusual hidden hazard to responders or continuing
“active” negligence but found the substance’s role in causing the responders’
deaths was too speculative.
Here, Maloney alleges the trial court prematurely granted summary
judgment because there were genuine issues of material fact that would preclude
same - namely, whether the “crumbling” steps were a hidden hazard and whether
her encounter with the steps was inherent in her job as a police officer. However,
in light of the broad scope of the decision in Norfolk, as previously discussed, it is
clear there is no genuine issue of material fact that would preclude summary
judgment on the issue of Maloney’s duty as a police officer to pursue Cardwell,
which led to and included Maloney’s attempt to navigate the steps. The focus is
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now whether Appellant fits within the three factors discussed in Norfolk. If so, the
issue of duty is now irrelevant and, therefore, so is the issue of whether the danger
is open and obvious, or not.
Maloney further argues the “actively negligent conduct” exception to
the Firefighter’s Rule mentioned in Buren and its progeny applies to her case.
“Continuing active negligence” refers to “new negligence that is subsequent
conduct after the [police] arrive[ ] on the premises.” Hawkins, 727 S.W.2d at 399
n.1. Maloney alleges no “new” negligence after her arrival on Wellspring’s
property; thus, this exception does not apply to her case.
Maloney’s final argument is the Firefighter’s Rule should not afford
first responders fewer rights than those enjoyed by other citizens. This, in effect,
challenges the rule itself as well as the policy considerations behind it. “There are .
. . sound policy reasons to continue the fireman’s special status, foreclosing him
from asserting a claim, but only as to those who are the intended beneficiaries of
the policy, to-wit: the owners and occupiers of the property he is employed to
protect.” Id. at 400. Firemen “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.” Id.
Whether we agree with Appellant’s position is irrelevant. Our Supreme Court has
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made clear the Firefighter’s Rule is determinative in Kentucky, and it is not our
place to depart from or abandon it.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Shelby
Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Joseph T. Pepper Michael S. Jackson
George Schuhmann Robert D. Bobrow
Louisville, Kentucky Louisville, Kentucky
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