Fletcher v. Illinois Cent. Gulf R. Co., 83-CA-1327-MR

• Decision Date: 10 February 1984
• Docket Number: No. 83-CA-1327-MR,83-CA-1327-MR
• Citation: 679 S.W.2d 240
• Parties: Donald L. FLETCHER, Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Appellee.
• Court: Kentucky Court of Appeals

Page 240

679 S.W.2d 240

Donald L. FLETCHER, Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Appellee.

No. 83-CA-1327-MR

Court of Appeals of Kentucky.

Feb. 10, 1984.

Discretionary Review Denied

May 24, 1984.

Kent Overton Sublett, Bardstown, for appellant.

James G. Apple, Rebecca F. Schupbach, Louisville, for appellee.

Before GUDGEL, HOWERTON and WILHOIT, JJ.

GUDGEL, Judge:

The issue in this appeal is whether the rule adopted in Buren v. Midwest Industries, Inc., Ky., 380 S.W.2d 96 (1964), known as the "fireman's rule," applies to and bars a negligence action filed by a state trooper against a railroad in connection with a train derailment. The court below adjudged that it did and granted the railroad's motion for summary judgment. A review of the relevant authorities convinces us that the trial court's ruling is correct. Therefore, we affirm.

On July 26, 1980, several freight train cars derailed near Muldraugh, allegedly due to negligence on the appellee railroad's part. A few of the derailed cars were tank cars which contained vinyl chloride. This chemical gives off toxic fumes when it is released into the atmosphere. Three derailed tank cars were punctured, and considerable vinyl chloride escaped. Appellant, a state trooper, was called to the area of the derailment to assist in evacuating the residents of Muldraugh. He was on duty in the area for several days and apparently inhaled vinyl chloride fumes. As a result, he sustained serious personal injuries.

Appellant filed this negligence action against appellee on July 23, 1981. He sought compensatory and punitive damages. Appellee filed an answer and then a motion for summary judgment. The court granted the summary judgment motion on February 17, 1983. This appeal followed.

First, appellant argues that genuine issues of material fact existed which precluded the court from granting a summary judgment. We disagree. Appellee argued before the trial court that the "fireman's rule" adopted in Buren v. Midwest Industries, Inc., supra, is an absolute bar to this action. This issue was obviously one of law for the court to resolve. Hence, the issue was appropriately disposed of on appellee's motion for summary judgment.

Next, appellant contends that the court erred in applying the "fireman's rule" because he is a police officer. We disagree. Our highest court has never had occasion in a published opinion to resolve the issue of whether our "fireman's rule" applies to police officers. Other jurisdictions which adhere to the rule, however, do apply it to police officers. See Annot., 86 A.L.R.2d 1205 (1962). Moreover, the public policy considerations expressed in Buren, supra, which motivated our court to adopt the "fireman's rule" in the first place also apply to police officers. Thus, there is simply no valid basis for us to conclude that the "fireman's rule" does not apply to police officers. Hence, we decline to do so.

Next, appellant argues that the public policy considerations which prompted our court to adopt the "fireman's rule" are illogical and invalid. We disagree. Our highest court succinctly summarized the "fireman's rule" in Buren, supra, as follows:

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."

The public policy considerations which motivated our court to adopt the rule are summarized in the following paragraph from its opinion:

It is our opinion that the principle of assumed risk is applicable, at least in spirit if the label be considered in some respects inappropriate. That the fireman is duty bound to assume the risk because he is being paid to do so does not make it any the less voluntary. Except for unusual hazards known to the property owner or occupant but unknown to him, the trained fire fighter is equally cognizant of and better able to evaluate the unpredictable dangers involved. When he arrives on the scene the field is his. The owner has no power to direct or control his actions. He may not order him to stay outside, or to stay off the roof, or to wear a gas mask, or to limit his actions to shooting water into the building from a safe position outside. To hold the owner responsible while denying him any right or discretion to say what the fireman shall or shall not do would not consist with what this court believes to be the fundamental law of liability by reason of negligence. Having bound his hands, the law cannot justly inflict upon him the consequences of what he might otherwise have been able to prevent. See Suttie v. Sun Oil Co., 15 Pa.Dist. & Co.R. 3. Nor can a jury be permitted to do so. It is not fairly a question of fact, and this is true whether the claim is based on common law or statutory negligence.

Thus, in Buren, our court refused to permit owners of property to be held liable for their negligent failure to comply with applicable fire safety ordinances. This failure had caused a fire on their property to spread more rapidly than otherwise would have been the case, thereby proximately causing the deaths of several firemen.

In the case at bar, the same public policy...