Fireman’s Rule did not apply to animal control officer bit by dog off the premises he was to retrieve the dog: FETCHCO v. MORGAN (COA 6/27/2008)

FETCHCO v. MORGAN
TORTS:  Fireman’s Rule did not apply to animal control officer bit by dog off the premises he was to retrieve the dog
2007-CA-000547
PUBLISHED: AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
PANEL: MOORE PRESIDING; LAMBERT, BUCKINGHAM CONCUR
JEFFERSON COUNTY
DATE RENDERED: 6/27/2008

Following an attack of an infant by a pit bull dog (Bandit),  Louisville Metro Animal Control was contacted to pick up Bandit.

Fetchko was employed as a Louisville Metro Animal Control Officer and was attacked by the dog off the property.  Fetchko filed his complaint in the circuit court, alleging claims of negligence, negligence per se, and strict liability against the dog’s owners.

The court determined that, as an animal control officer, Fetchko had “assumed the risk of being bitten or injured by one of the animals he transports."  However, in response to the defendant’s argument that the “Firefighter’s Rule” should apply to Fetchko’s cause of action, “thereby exempting all of the Defendants from liability” for Fetchko’s injuries, the court declined to extend the Firefighter’s Rule to the facts presented in this case  Despite her assertions, the COA agreed with the circuit court that K. Morgan’s actions were sufficient to statutorily define her as an “owner” of Bandit at the time of the incident and this portion of the circuit court decision is affirmed.

Assuming, for the sake of argument, that the Firefighter’s Rule applies to animal control officers, Fetchko had not yet arrived at the “given location,” in this case, the Edmunds/J. Morgan residence, in order to engage the “specific risk” of retrieving Bandit. Rather, Fetchko was approximately two blocks from the house and was motioned by an unknown person (later to be identified as K. Morgan) who was walking with two unknown dogs (one of which was later identified as Bandit).

Thus, Fetchko’s dog bite incident was in no way related to a specific risk he assumed at a given location. Thus, elements two and three of the Firefighter’s Rule are not met in this case.  In her appellate brief, K. Morgan contends that the circuit court “determined that Mr. Fetchko, as an Animal Control Officer acting within the scope of his duty, was a statutory owner of the dog.” However, her claim is misplaced. First, the circuit court never found that Fetchko was an “owner” of the dog pursuant to KRS 258.095(5). Second, as previously mentioned, Fetchko attested that he had just climbed out of his truck when Bandit bit him, and no evidence was presented to create an issue of fact that Fetchko had taken custody of the dog. Therefore, K. Morgan’s assertion that Fetchko was an “owner” of Bandit lacks all merit.

Digested by Michael Stevens

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