Request By:
Major General Billy G. Wellman, KyNG
The Adjutant General
Department of Military Affairs
Boone Center
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: John H. Gray, Assistant Attorney General
Thank you for your letter of October 14, 1980 in which you request an opinion on the constitutionality of KRS 39.419.
KRS 39.419 provides that:
Any person owning or controlling real estate or other premises who voluntarily and without compensation grants a license or privilege, or otherwise permits the designation or use of the whole or any part or parts of such real estate or premises for the purpose of sheltering persons during an actual, impending, mock or practice disaster or emergency shall, together with his successors in interest, if any, not be civilly liable for negligently causing the death of, or injury to, any person on or about such real estate or premises for loss of, or damage to, the property of such person.
It is the opinion of this office that KRS 39.419 is violative of § 14, 1 § 54, 2 and § 241 3 of the Kentucky Constitution.
It is a basic rule of statutory interpretation that a statute must be construed, if possible, so as to give it force and effect. Thieman v. Hancock, 296 Ky. 223, 176 S.W.2d 418 (1944). Also, every presumption and inference which will sustain the constitutional validity of a statute must be indulged in. Cf. Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387 (1939). These rules, however, have no application when the provisions of a particular statute are either expressly, or by necessary implication, inhibited or subversive to the purposes and intentions of the makers of the Constitution. In such case, the statute is unconstitutional. Ludwig v. Johnson, 243 Ky. 534, 49 S.W.2d 347 (1932).
In the case of KRS 39.419, there appears to be no presumption or inference that may be indulged in, whereby the statute could be interpreted in such a way as to sustain its validity.
Statutes similar to KRS 39.419 have in the past been declared unconstitutional by the Supreme Court of Kentucky. In Ludwig v. Johnson, supra, the Court held that a "guest statute" was in violation of these sections and, therefore, unconstitutional. The statute in the Ludwig case 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, 54 and 241. 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.
An analysis of KRS 39.419, Sections 14, 54, and 241 of the Kentucky Constitution and the cases interpreting these constitutional provisions, leads this office to conclude that, to the extent that KRS 39.419 relieves the persons named therein from liability from negligently causing the death or injury to another person or the loss of or damage to the property of that other person, the statute is unconstitutional.
Footnotes
Footnotes
1 Section 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.
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.
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 Section 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.
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.
3 Section 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.