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Maggard v. Conagra Foods2/11/2005
AFFIRMING
Michael Maggard is an emergency medical technician employed by the Carter County Ambulance Service. On July 5, 2001, Maggard and his partner responded to an emergency call concerning an employee complaining of chest pain at the business premises of Cook Family Foods. Upon arriving, Maggard and his partner were taken to the human resources office on the third floor where the patient was seated. After assessing the patient, Maggard and his partner proceeded to take the patient on a stretcher down the stairs to an ambulance. There was no elevator. After wheeling the patient down the hallway to the stairwell, Maggard and his partner requested assistance in carrying the patient down the stairs from some men who were standing in the area. Abdul Razak, an employee who worked in human resources, and another Conagra employee volunteered to assist in carrying the patient down the stairs along with Maggard and his partner.
The four men proceeded to carry the patient down the stairs, with Maggard and Razak on the lower end of the stretcher. Upon reaching a second flight of stairs, Razak grew tired, swayed and fell against the wall. He called for someone to come and help him. When this occurred, Maggard moved to catch the patient and twisted as he did so. The stretcher partially dropped but did not fall. Maggard alleges he injured his back in the incident, which led to his having lumbar disc surgery and having to work on restricted duty. Maggard sought to recover damages from Conagra Foods d/b/a Cook Family Foods (hereinafter Conagra Foods) for personal injury sustained as a result of negligence during the course of moving one of its employees by stretcher.
The trial court granted summary judgment to Conagra Foods. Summary judgment is appropriate when it appears impossible for the non-moving party to produce evidence at trial warranting judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). The court determined that Maggard put forth no evidence to show that Conagra Foods owed a duty to assist Maggard or that there was any deviation from the standard of care owed to him, or that Maggard was injured as a direct result of any failure on the part of Conagra Foods to perform. The existence of a duty is a question of law for the court because it is essentially a policy determination. Ostendorf v. Clark Equipment Co., 122 S.W.3d 530, 533 (Ky. 2003).
In addition, the court found that Conagra Foods was protected by the public policy considerations of the Firefighter's Rule adopted in Buren v. Midwest Industries, Inc., 380 S.W.2d 96 (Ky. 1964). The Firefighter's Rule was stated in that case as follows: as a general rule the owner or occupant is not liable for having negligently created the condition necessitating the fireman's presence (that is, the fire itself), but may be liable for failure to warn of unusual or hidden hazards, for actively negligent conduct and, in some jurisdictions, for statutory violations "creating undue risks of injury beyond those inevitably involved in fire fighting."
Id. at 97-98. Because public policy requires firefighters to assume the ordinary risks of their employment to the extent necessary to serve the public purpose of fire control, the Firefighter's Rule acts as a defense for the owners or occupiers of the property the firefighter is employed to protect. Hawkins v. Sunmark Industries, Inc., 727 S.W.2d 397, 400 (Ky. 1986).
Maggard challenges the grant of summary judgment since he alleges that he could establish that Conagra Foods breached a duty of ordinary care. He further argues that the Firefighter's Rule was inapplicable to him as an emergency medical technic
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