BRIAN TEISMANN; GAVIN ELLIS; JAMES MCCULLEY; AND MELISSA ANN MCCULLEY v. CAMPBELL COUNTY FIRE DISTRICT NO. 2; CENTRAL CAMPBELL COUNTY FIRE DISTRICT; COLD SPRINGS CRESTVIEW VOLUNTEER FIRE DEPARTMENT; HIGHLAND HEIGHTS VOLUNTEER FIRE DEPARTMENT; WILDER VOLUNTEER FIRE DEPARTMENT; MARK CLAIR; JEFF BAKER; STEVE LEHMAN; AND RON LANE
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RENDERED: SEPTEMBER 20, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
MODIFIED: DECEMBER 20, 2002; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002015-MR
BRIAN TEISMANN; GAVIN ELLIS;
JAMES MCCULLEY; AND MELISSA ANN MCCULLEY
APPELLANTS
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD KOPOWSKI, JUDGE
ACTION NO. 01-CI-00285
v.
CAMPBELL COUNTY FIRE DISTRICT NO. 2;
CENTRAL CAMPBELL COUNTY FIRE DISTRICT;
COLD SPRINGS CRESTVIEW VOLUNTEER FIRE
DEPARTMENT; HIGHLAND HEIGHTS VOLUNTEER
FIRE DEPARTMENT; WILDER VOLUNTEER FIRE
DEPARTMENT; MARK CLAIR; JEFF BAKER;
STEVE LEHMAN; AND RON LANE
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Brian Teismann, Gavin Ellis, James McCulley, and
Melissa McCulley (hereinafter appellants) have appealed from an
order entered by the Campbell Circuit Court on August 22, 2001,
which granted the appellees’1 motion to dismiss for failure to
state a claim upon which relief can be granted.2
Having
concluded that the complaint properly stated a claim upon which
relief can be granted and that at this stage of the proceedings
the pleadings present a genuine issue as to a material fact
concerning the defense of joint venture, we must vacate the trial
court’s dismissal of the appellants’ complaint and remand this
matter for further proceedings.3
On April 10, 2000, Campbell County Fire District No. 2,
the Cold Spring Crestview Volunteer Fire Department, the Highland
Heights Volunteer Fire Department, and the Wilder Volunteer Fire
Department participated in a joint firefighter training exercise
at a house located in Campbell County, Kentucky.4
The purpose of
this exercise was to have a “controlled burning” of the house,
i.e., the house was deliberately set on fire so the firefighters
could train inside an actual burning building.
Teismann, Ellis,
1
The appellees are Campbell County Fire District No. 2;
Central Campbell County Fire District; Cold Spring Crestview
Volunteer Fire Department; Highland Heights Volunteer Fire
Department; Wilder Volunteer Fire Department; Mary Clair; Jeff
Baker; Steve Lehman; and Ron Lange.
2
Kentucky Rules of Civil Procedure (CR) 12.02.
3
While the appellees have argued in their brief that the
order of dismissal should be affirmed on other grounds, we note
that the only issue relied upon by the trial court for dismissing
this action was the doctrine of joint venture. We express no
opinion as to the merits of any other defense, and this Opinion
is not intended to act as a bar to any defense.
4
According to the appellants’ brief, Northern Kentucky
University owned both the house and property where the training
exercise was conducted. The university is not a party to this
dispute.
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and McCulley, three of the appellants herein, participated in
this training exercise.5
Teismann was a volunteer firefighter
for Campbell County Fire District No. 2, and Ellis and McCulley
were volunteer firefighters for the Highland Heights Volunteer
Fire Department.
The exercise was supervised by Lieutenant Mary
Clair of the Cold Spring Crestview Volunteer Fire Department,
Captain Jeff Baker and Captain Steve Lehman of the Highland
Heights Volunteer Fire Department, and Safety Officer Ron Lange
of the Cold Spring Crestview Volunteer Fire Department, four of
the appellees herein.
Unfortunately, the training exercise went awry and the
firefighters were trapped inside the burning house.
Teismann,
Ellis, and McCulley claim that as a result of the incident they
suffered severe injuries, which included second and third degree
burns on various parts of their bodies.
On July 25, 2000, the Kentucky Labor Cabinet cited
Campbell County Fire District No. 2 for six safety violations
pursuant to KRS6 338.031(1)(a), for failing to “furnish to each
of [its] employees employment or a place of employment which are
[sic] free from recognized hazards that are causing or are likely
to cause death or serious physical harm to [its] employees.”
The
citations stated that with regard to the training exercise:
1.
Campbell County Fire District No. 2 did
not repair two doors which jammed and
5
A fourth individual also participated, but he was never a
party to this litigation.
6
Kentucky Revised Statutes.
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blocked the main means of egress from
the house.
2.
Diesel fuel was improperly used to start
the fire.
3.
Campbell County Fire District No. 2
failed to ensure that each hose line was
capable of delivering 95 gallons of
water per minute or that an instructor
had been assigned to each crew.
4.
Campbell County Fire District No. 2 did
not ensure that safety personnel were in
the proper positions.
5.
Campbell County Fire District No. 2
failed to ensure that the stated means
of egress from the building were
accessible.
Campbell County Fire District No. 2
failed to ensure that no other fires
were burning at the time of the
exercise.
6.
On March 7, 2001, the appellants filed a complaint in
Campbell Circuit Court, alleging inter alia:
(1) that they were
injured as a result of the negligence of Lt. Clair, Capt. Baker,
Capt. Lehman, and Off. Lange; (2) that the appellees were
negligent per se due to the numerous safety violations; and (3)
that the appellees intentionally caused the firefighters’
injuries.
The firefighters sought compensatory damages and
payment of medical expenses for their injuries and punitive
damages for the alleged malicious and reckless conduct of the
appellees.
Melissa McCulley, wife of injured firefighter James
McCulley, also asserted a loss of consortium claim for the
injuries suffered by her husband.
On April 27, 2001, the appellees filed a CR 12.02
motion to dismiss, claiming that the appellants had failed to
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state a claim upon which relief can be granted and that the
Campbell Circuit Court lacked subject matter jurisdiction of this
action.
The appellees argued, inter alia, that the appellants’
exclusive remedy was pursuant to the Workers’ Compensation Act.7
The trial court agreed and on August 22, 2001, it entered an
order dismissing the appellants’ complaint.
The trial court
found that the training exercise was a joint venture; and
therefore, the appellants’ sole remedy was to pursue a claim
under the Workers’ Compensation Act.8
This appeal followed.
We agree in part with the appellants’ argument that the
trial court erred in ruling that the joint venture doctrine
barred their common-law claims against the various appellees.
From the current state of the record, it would be premature to
make a determination as to whether the joint venture doctrine is
applicable.
However, we do conclude that the appellants have
stated a claim upon which relief can be granted and that
dismissal under CR 12.02 was improper.
Recently, our Supreme Court in Roethke v. Sanger,9
discussed the doctrine as follows:
7
See KRS 342.690. (We note that this statute constitutes a
bar to any claim other than a workers’ compensation claim only
“[i]f an employer secures payment of compensation as required by
this chapter[.]” This Opinion does not address the issue of
whether the appellees actually provided the workers’ compensation
coverage required under this statute.)
8
Volunteer firefighters are expressly covered by the
Worker’s Compensation Act under KRS 342.640(3).
9
Ky., 65 S.W.3d 352, 364 (2001).
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Sometimes referred to as a joint
adventure, a joint enterprise is “an informal
association of two or more persons, partaking
of the nature of a partnership, usually, but
not always, limited to a single transaction
in which the participants combine their
money, efforts, skill, and knowledge for
gain, with each sharing in the expenses and
profits or losses.” Eubank v. Richardson,
Ky., 353 S.W.2d 367, 369 (1962); see also
Drummy v. Stern, Ky., 269 S.W.2d 198, 199
(1954). In Huff v. Rosenberg, Ky., 496
S.W.2d 352 (1973), we enumerated the elements
essential to a joint enterprise, viz: “(1) an
agreement, express or implied, among the
members of the group; (2) a common purpose to
be carried out by the group; (3) a community
of pecuniary interest in that purpose among
the members; and (4) an equal right to voice
in the direction of the enterprise, which
gives an equal right of control.” Id. at 355
(citing Restatement (Second) of the Law of
Torts, § 491, cmt. c (A.L.I. 1965).
While no published Kentucky case has applied this
doctrine as a bar to a third-party negligence action based on the
workers’ compensation exclusive remedy provision, the doctrine
has been so used in other jurisdictions.
In Conner v. El Paso
Natural Gas Co.,10 the Court of Appeals of Arizona stated:
Where a joint venture exists, each of
the parties is the agent of the others and
each is likewise a principal of the others so
that the act of one is the act of all. West
v. Soto, 85 Ariz. 255, 336 P.2d 153 (1959).
For purposes of workmen’s compensation, each
individual joint venturer is the employer of
all employees doing work on behalf of the
joint venture, W.B. Johnston Grain Co. v.
Self, 344 P.2d 653 (Okl. 1959); Insurance
Company of North America v. Dept. of
Industry, 45 Wis.2d 361, 173 N.W.2d 192
(1970); Industrial Commission v. Lopez, 150
Colo. 87, 371 P.2d 269 (1962), and each
enjoys the protection of the exclusive remedy
10
123 Ariz. 291, 599 P.2d 247 (1979).
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provisions, Felder v. Old Falls Sanitation
Co., Inc., 47 A.D.2d 977, 366 N.Y.S.2d 687
(1975); Cook v. Peter Kiewit Sons Co., 15
Utah 2d 20, 386 P.2d 616 (1963); Guilbeau v.
Liberty Mutual Insurance CO., 324 So.2d 571
(La.App.1975); Lewis v. Gardner Engineering
Corp., 254 Ark. 17, 491 S.W.2d 778 (1973).
For the joint venture doctrine to apply, all four
essential elements must be present; and at this stage of the
proceedings, it is premature to make a determination as to
whether there is a genuine issue as to a material fact regarding
these essential elements.
If no such factual issue exists, then
summary judgment may well be appropriate; if such a factual issue
does exist, then that issue or those issues will have to be
presented to the fact-finder for the appropriate findings.11
Regardless, the trial court erred by dismissing the complaint
pursuant to CR 12.02.
Therefore, while Teismann may be precluded under the
workers’ compensation exclusivity bar from pursuing a claim
against his own fire department, Campbell County Fire District
No. 2, he will only be barred from pursuing common-law claims
against the Cold Spring Crestview Volunteer Fire Department, the
Highland Heights Volunteer Fire Department, or the Wilder
Volunteer Fire Department if after further discovery there is no
genuine issue as to any material fact regarding the elements
required for the doctrine of joint venture to be applied or if
the proper factual findings in support of such a bar are made.
11
Cf. Julian Consolidated, Inc. v. Conrad, 553 So.2d 784
(Fla.Dist.Ct.App. 1989).
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Likewise, while Ellis and McCulley may be precluded from pursuing
an action against the Highland Heights Volunteer Fire Department,
they will only be precluded from pursuing common-law claims
against Campbell County Fire District No.2, the Wilder Volunteer
Fire Department, or the Cold Spring Crestview Volunteer Fire
Department if after further discovery there is no genuine issue
as to any material fact regarding the elements required for the
doctrine of joint venture to be applied or if the proper factual
findings in support of such a bar are made.
Accordingly, we hold
that the trial court erred as a matter of law by dismissing the
appellants’ common-law claims under CR 12.02 based on the
doctrine of joint venture; and we vacate the order on this issue
and remand this matter for further proceedings.
Our holding that there must either be no genuine issue
as to any material fact or that proper factual findings must be
made regarding the applicability of the joint venture doctrine
also extends to Melissa McCulley’s loss of consortium claim.
In
Brooks v. Burkeen,12 our Supreme Court held that “[t]he decision
by a spouse to be covered by the Workmen's Compensation Act [is]
binding upon his or her marital partner. . . .”
Hence, Melissa
McCulley is precluded from pursuing a loss of consortium claim
against her husband’s fire department if James accepted its
workers’ compensation coverage.
However, pursuant to Brooks, she
may not be precluded from pursuing a loss of consortium claim
against the other appellees.
12
Accordingly, the dismissal of
Ky., 549 S.W.2d 91, 93 (1977).
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Melissa McCulley’s loss of consortium claim is also vacated and
her case is remanded with the appellants’ cases for further
proceedings regarding the essential elements of the joint venture
doctrine.
For the foregoing reasons, the order of dismissal of
the Campbell Circuit Court is vacated and this matter is remanded
for further proceedings consistent with this Opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANTS:
BRIEF FOR APPELLEES:
Bernard J. Blau
Cold Spring, Kentucky
Stephen D. Wolnitzek
Donna M. Bloemer
Covington, Kentucky
M. Kathryn Manis
Lexington, Kentucky
ORAL ARGUMENT FOR APPELLEES:
Stephen D. Wolnitzek
Covington, Kentucky
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