Request By:
Mr. John F. Hutcheson
Dow Corning Corporation
Carrollton Plant
Carrollton, Kentucky 41008
Opinion
Opinion By: Robert F. Stephens, Attorney General; Reid C. James, Assistant Attorney General
We are in receipt of your letter in which you ask our opinion of whether KRS 411.148, the so-called, "Good Samaritan Act" , violates Kentucky Constitution § 54. The question presented is of such public interest that an opinion thereon is appropriate, see KRS 15.025; 40 KAR 1:020 § 3.
KRS 411.148 provides:
"(1) No physician licensed under KRS Chapter 311, registered or practical nurse licensed under KRS Chapter 314 or person certified as an emergency medical technician by the Kentucky department for human resources shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency outside of a hospital, doctor's office, or other place having proper medical equipment excluding house calls, for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct.
(2) Nothing in this section applies to the administering of such care or treatment where the same is rendered for remuneration or with the expectation of remuneration. "
Kentucky Constitution § 54 provides:
"The general assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property."
There was no debate in the convention which proposed this section. Indeed, only a brief explanation of it appears:
"Section thirty-nine [Ky. Const. § 54] is a new section, forbidding the General Assembly from limiting amount recovered for damage to person or property. The Legislature has, perhaps in some cases, put a limit upon the amount to be recovered for damages by railroad accidents to persons resulting in death or in injury to person or property. This section forbids the General Assembly from putting any limit upon the amount of damages to be recovered, leaving it to the jury." III Official Report of the Proceedings and Debates of the convention, at 3793.
In Ludwig v. Johnson, 243 Ky. 534, 49 S.W.2d 347 (1932) the Court held that a "guest statute" was in violation of this section and, therefore, unconstitutional. The statute in the Ludwig case, supra, provided that no person transported in a motor vehicle without having paid compensation therefor shall have a cause of action against the owner or operator for injuries unless caused by an intentional act. The Court said:
"The statute under consideration violates the spirit of our Constitution as well as its letter as found in sections 14, 1 54 and and 241. 2 It was the manifest purpose of the framers of that instrument to preserve and perpetuate the common-law right of a citizen injured by the negligent act of another to sue to recover damages for his injury. The imperative mandate of section 14 is that every person, for an injury done him in his person, shall have remedy by due course of law. If the allegations of appellant's petition are true, he has suffered serious injuries occasioned by the negligent acts of the appellee Darwin Johnson. The Constitution guarantees to him his right to a day in court for the purpose of establishing the alleged wrong perpetuated on him and recovery of his resultant damages. We conclude that chapter 85 of the Acts of the General Assembly of 1930 is unconstitutional and void. " Ludwig, supra, 49 S.W.2d at 351.
Similarly, in Happy v. Erwin, Ky., 330 S.W.2d 412 (1959), a statute purporting to establish immunity from tort liability for a city's officers and employees in connection with the use of its fire fighting equipment outside its corporate boundaries was held violative of Kentucky Constitution § 54.
We have been able to find three exceptions to the application of Kentucky Constitution § 54. The first exception is statutes in derogation of a common law right of action which substitute one remedy for another, cf. Greene v. Caldwell, 170 Ky., 571, 186 S.W. 648 (1916) (workman's compensation) and Fann v. McGuffey, Ky., 534 S.W.2d 770 (1970) (no fault automobile insurance). The second are statutes which alter contractual obligations, cf. Kentucky Hotel v. Cinotti, 298 Ky. 88, 182 S.W.2d 27 (1944) (liability of bailee limited to $100.00) and Fidelity & Deposit Co. v. Commonwealth, 231 Ky. 346, 21 S.W.2d 452 (1929) (limitation on the liability of a surety). The third is the rule of Jacobs v. Underwood, Ky., 484 S.W.2d 855 (1972) which holds that because Kentucky Constitution § 54 only protects actions arising upon death or damage to person or property, a statute which bars a defamation action is not in violation of this section.
We find that none of these exceptions apply to KRS 411.148. First, the statute does not substitute another remedy for a cause of action based upon negligent treatment, see Greene, supra;Fann, supra. Second, the statute specifically applies to situations in which no compensation is expected. Thus, there is no possibility of finding an implied contract, which may otherwise arise, see Restatement,Restitution § 116 (1939); 61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 225-231, the terms of which the legislature could modify, see Kentucky Hotel, supra. Third, the statute appears to reach damages arising from negligence causing death or physical injury.
The correct rule of statutory interpretation is to indulge in every presumption and inference which will sustain the constitutional validity of a statute, cf. Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387 (1939) reh. den. (1940). Nonetheless, when a statute is expressly or by necessary implication inhibited or violative of the purposes and intentions of the Constitution of Kentucky, the statute is void, Ludwig,supra. Our analysis of KRS 411.148, Kentucky Constitution § 54 and the cases interpreting this constitutional provision has revealed no presumption or inference whereby the statute may be interpreted in a way to sustain its validity. As discussed, supra, no existing exception to Kentucky Constitution § 54 applies to save KRS 411.148. This present analysis merely confirms the doubt which we previously expressed about the constitutional validity of this statute, see OAG 77-47 (January 25, 1977), OAG 78-258 (April 7, 1978), and OAG 79-71 (January 31, 1979.
Accordingly, to the extent KRS 411.148 relieves the persons named therein from liability arising from death or physical injury to persons caused by negligence, the statute is unconstitutional under Kentucky Constitution § 54 and, to the extent applicable, also under Kentucky Constitution §§ 14 and 241, and is, therefore, void, Ludwig,supra; Happy, supra.
Notably this loss of immunity protection can be compensated for by a county, city, or urban county government by insuring its employees and officials against liability pursuant to KRS 65.150. This statute, however, would not authorize protection for others previously believed to be protected by the "Good Samaritan Act" . Those left unprotected would include such persons as those not actually employed by a governmental unit, but acting under contract, or those acting beyond the scope and course of their employment. Authorization to insure these groups would have to be addressed by legislation. The Legislative Research Commission would be the appropriate body to consider such legislation.
Summary: It is our opinion that KRS 411.148 is in violation of Kentucky Constitution § 54 to the extent that it limits the liability of the persons named therein for death or physical injuries caused by negligent medical treatment which is rendered without remuneration or the expectation of remuneration. When death results under these circumstances, KRS 411.148 also violates Kentucky Constitution § 241, see Ludwig v. Johnson, 242 Ky. 534, 49 S.W.2d 347 (1932);Happy v. Erwin, Ky., 330 S.W.2d 412 (1959). Our opinion is limited to and extends no further than its expression as contained in this Summary. *
Footnotes
Footnotes
1 Kentucky Constitution § 14 provides:
"All courts shall be open and every person, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."
"Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The general assembly may provide how the recovery shall go and to whom belong; and until such provision is made the same shall form part of the personal estate of the deceased person. "
2 Kentucky Constitution § 241 provides:
"Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The general assembly may provide how the recovery shall go and to whom belong; and until such provision is made the same shall form part of the personal estate of the deceased person. "
* The Office of the Attorney General appreciably acknowledges the efforts of Mark F. Armstrong, Esq., in the preparation of this opinion while a member of this Office.