Request By:
Mr. John H. Sage
Attorney at Law
Suite 348, 200 High Rise Drive
Holiday City Office Building
Louisville, Kentucky 40213
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to the possible liability of a fire protection district and its firemen where the district authorizes its firemen to use burn sheets to enclose burned bodies prior to the arrival of an ambulance or medical facilities.
KRS 411.148 grants immunity from suit where emergency aid is gratuitous as relates to the patient. However, that "Good Samaritan" act covers only physicians, registered or practical nurses, and persons certified as emergency medical technicians by the Kentucky Department for Human Resources. We assume the firemen in question are not so certified. Thus the statute does not apply to your district's firemen.
Judge Griffin Bell, in United States v. Devane (U.S.C.A.-5, 1962) 306 F.2d 182, 186, wrote that the Good Samaritan doctrine provides that the negligence of the volunteer rescuer must worsen the position of the person in distress before liability will be imposed. He cited, among others, Indian Towing Co. v. United States, 1955, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48, on this point. Other cases stress the principle that a volunteer [as concerns the injured party] is charged with the duty of common or ordinary humanity to provide proper care and attention, so that at least the injured party is made no worse. Rockwell v. State, 224 N.Y.S.2d 342 (1962) 345; Malloy v. Fong, Cal., 232 P.2d 241 (1951) 247; and David v. Southern Farm Bureau Casualty Ins. Co., La., 122 So.2d 691 (1960) 693. Also see 65 C.J.S., Negligence, § 58, p. 551.
The Kentucky Court adopted this principle in Gates v. Chesapeake & O. Ry. Co., 185 Ky. 24, 213 S.W. 564 (1919) 568, the court holding that liability will be imposed upon the Good Samaritan in the case of additional or further pain or aggravated injury caused solely by the neglect of the volunteer after he undertakes to care for the injured.
You say the firemen use a "burn sheet" to cover up the body of a person pulled out of a fire and whose body is badly burned or charred. Whether the use of a particular burn sheet is advisable is a matter for medical burn experts. There are variable factors involved. They include the sterility of the sheet, the kind of fabric or cloth, whether it is used one or more times, and whether the sheet would irritate the skin. The obvious purpose of the sheet is to prevent additional infection of the body. You could consult with Dr. Harry Stambaugh, Medical Director, Burn Center, Norton's Hospital, Louisville, on that point. He can be contacted through Mr. Frank Coffey, Vice President, Norton's Hospital.
The answer to your first question is that if the use of the particular "burn sheet" would worsen the condition or aggravate the injury of the patient, the fire protection district firemen using such sheet would be liable for any additional or aggravated pain or injury.
KRS 75.070 exempts from tort liability fire protection districts and their employees. However, in Happy v. Erwin, Ky., 330 S.W.2d 412 (1959), the court struck down as unconstitutional a similar statute granting immunity to city firemen from tort liability. The court held that, in limiting recovery from injuries or death, the statute violates § § 14, 54, and 241 of the Kentucky Constitution. Therefore, KRS 75.070, as it applies to limiting recovery against fire protection district firemen, is unconstitutional under Happy, above. Those constitutional sections proscribe the General Assembly from eliminating or delimiting rights of action for tort.
Now let us consider the possible liability of the fire protection district when the use of the burn sheet has worsened the condition of the patient. The district is exempt from liability under KRS 75.070. The old Court of Appeals, in narrowing the holding of Haney as to a city's tort liability [Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1965)], held in City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638 (1968), that a municipality would be immune from tort liability only when the act complained of affects all members of the general public alike in carrying on a function of government. However, the court held that when the municipality, by its dealings or activities, seeks out or separates the individual from the general public and deals with him on an individual basis, as any other person might do, it should be subjected to the same rules of tort liability as are generally applied between individuals. Thus in City of Lexington v. Yank, Ky., 431 S.W.2d 892 (1968), where the city policeman had used excessive force in making an arrest, the court, in holding the city answerable in tort to the arrestee, Yank, ruled that the city, through its officer, substantially separated Yank from the general public and dealt with him on an individual basis just as a private person might have done.
Although KRS 75.070 exempts a fire protection district from tort liability, it is our opinion that the courts would hold, where the firemen voluntarily use a "burn sheet" and worsen a patient's condition, that the fire protection district does not have immunity from liability.
The Bureau for Health Services has informed us that under the Emergency Medical Services Act of 1973 [P.L. 93-154], federal grant money has been used to train some urban firemen as emergency medical technicians. In connection with the certificate of need and Licensure Board and emergency care and ambulance services, see KRS 216.405 and 902 KAR 20:115. Although none of your firemen have received certification as emergency medical technicians, the Bureau for Health Services emphasizes that your firemen, in this "burn sheet" situation, should not go beyond their proper training.