SOVEREIGN IMMUNITY, FIREFIGHTERS & MUNICIPALITIES): GREEN’S MOTORCYCLE SALVAGE, INC. V. CANEYVILLE VOLUNTEER FIRE DEPT (COA 6/29/2007)

GREEN’S MOTORCYCLE SALVAGE, INC. V. CANEYVILLE VOLUNTEER FIRE DEPT
TORTS:  SOVEREIGN IMMUNITY (FIREFIGHTERS, MUNICIPALITIES)
2006-CA-001142
PUBLISHED: REVERSING AND REMANDING
PANEL: BUCKINGHAM PRESIDING; STUMBO AND HENRY CONCUR
COUNTY: GRAYSON
DATE RENDERED: 6/29/2007

The Court of Appeals held that KRS 95.830 was unconstitutional to the extent that it attempted to confer absolute immunity on cities in connection with firefighter negligence. The Court held that KRS 75.070 was unconstitutional to the extent that it attempted to confer absolute immunity on municipal fire departments and firefighters for their own negligence. In reaching these holdings, the Court of Appeals relied on the seminal case of Kentucky Center of Arts Corp. v. Berns, 801 S.W.2d 327 (Ky. 1990), which holds that “Where sovereign immunity exists by reason of the constitution, the General Assembly may extend or limit waiver as it sees fit, but where no constitutionally protected sovereign immunity exists the General Assembly cannot by statute create it.” Id. at 329.

The other issue addressed in the case concerned a municipal fire chief’s immunity, which the Court of Appeals determined was controlled by Ashby v. City of Louisville, 841 S.W.2d 184 (Ky. App. 1992), under which personal liability of the firefighter turns on the familiar distinction between ministerial and discretionary duties.

By Hays Lawson

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