COOK (ROSE ANNETTE), ET AL. VS. TAYLOR (RUSSELL "RUSTY"), ET AL.Annotate this Case
RENDERED: AUGUST 22, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
ORDERED NOT PUBLISHED BY SUPREME COURT:
AUGUST 19, 2009
(FILE NO. 2008-SC-000682-D)
Commonwealth of Kentucky
Court of Appeals
ROSE ANNETTE COOK,
INDIVIDUALLY; ROSE ANNETTE COOK,
AS ADMINISTRATRIX OF THE ESTATE
OF DAVID ALAN COOK; AND
WARREN LEE COOK
APPEAL AND CROSS-APPEAL FROM ANDERSON CIRCUIT COURT
HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 06-CI-00020
RUSSELL “RUSTY” TAYLOR, INDIVIDUALLY;
RUSSELL “RUSTY” TAYLOR, AS PARAMEDIC
FOR ANDERSON COUNTY EMERGENCY
MEDICAL SERVICES; GARY REYNOLDS, JR.,
INDIVIDUALLY; AND GARY REYNOLDS, JR.,
AS EMT FOR ANDERSON COUNTY EMERGENCY
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CAPERTON, LAMBERT, AND THOMPSON, JUDGES.
LAMBERT, JUDGE: Rose Annette Cook, both individually and as administratrix
of the estate of David Allen Cook, and Warren Lee Cook appeal from the opinion
and order of the Anderson Circuit Court dismissing her claims against paramedic,
Russell Taylor, and Emergency Medical Technician (hereinafter EMT), Gary
Reynolds. Taylor and Reynolds cross-appeal on the trial court’s decision not to
additionally dismiss the claims pursuant to the doctrine of release. After careful
review, we reverse and remand.
On May 11, 2006, David Cook (hereinafter David) became
lightheaded as he was driving home from work and pulled to the side of the road.
A friend of David’s contacted the Anderson County Emergency Medical Services
(hereinafter EMS), who dispatched Reynolds and Taylor to the scene. Taylor and
Reynolds determined that David was dehydrated, and allege that they advised him
that he should be transported to the hospital for further treatment. David refused to
be taken to the hospital, and his family was called to the scene to take him home.
Upon arrival, David’s wife, Rose, signed a release form from EMS, stating that
David had refused transportation to the hospital and EMS was released from
liability. David was taken home where, within five hours, he suffered a cardiac
arrest. He was transported to the hospital and pronounced dead at the scene.
Rose filed suit against Taylor and Reynolds based on negligence and
failure to meet the appropriate standard of care. She further alleged that Taylor
altered and destroyed documents in an attempt to cover-up the alleged negligence.
Taylor and Reynolds filed a motion to dismiss the claims pursuant to Kentucky
Revised Statutes (KRS) 411.148, the Good Samaritan Statute, and the doctrine of
release. Rose responded by arguing that KRS 411.148 did not shield Taylor or
Reynolds, outlining several specific reasons. The trial court disagreed with Rose
and entered an opinion and order holding that KRS 411.148 applied to Taylor and
Reynolds, thus barring the suit. Rose now appeals the trial court’s order and
opinion. Taylor and Reynolds bring a cross-appeal, asserting that the trial court
erroneously declined to additionally dismiss the claims against them pursuant to
the doctrine of release.
Rose argues that the trial court erred in finding that Taylor and
Reynolds were subject to the Good Samaritan immunity because KRS 411.148
does not apply to the regular professional work responsibilities of Taylor and
Reynolds for which they were paid. We agree. As this is a matter of first
impression in Kentucky, we look to foreign jurisdictions for guidance.
In pertinent part, Kentucky’s Good Samaritan Statute, KRS
No . . . person certified as an emergency medical
technician by the Kentucky Cabinet for Health and
Family Services . . . shall be liable in civil damages for
administering emergency care or treatment at the scene
of an emergency outside of a hospital, doctor’s office, or
other place having proper medical equipment excluding
house calls, for acts performed at the scene of such
emergency, unless such acts constitute willful and
In 2002, the General Assembly enacted KRS 311A.150, which
expands the protections afforded under KRS 411.148(1) to include paramedics.
Specifically KRS 311A.150 states:
[a] paramedic licensed pursuant to this chapter and a first
responder certified pursuant to this chapter shall have the
privileges and immunities specified in KRS 411.148,
subject to the provisions of that statute.
The basic premise of Good Samaritan statutes is “to induce voluntary
rescue by removing the fear of potential liability which acts as an impediment to
such rescue. Thus they are directed at persons who are not under some preexisting [sic] duty to rescue.” Lee v. State, 490 P.2d 1206, 1209 (1971). When a
preexisting duty to aid exists,
no additional encouragement to the provider is needed
because he already has a duty to respond to the
emergency situation. The purpose of encouraging
volunteerism would not be furthered as the responding
provider could not be considered a volunteer. Rather, he
would be compelled by a legal duty to act.
See Hirpa v. IHC Hospitals, Inc., 948 P.2d 785, 790 (Utah 1997). Courts in other
states “have uniformly held that the law is not meant to exempt all medical
personnel in every emergency situation, but only those personnel who happen
across an emergency outside the normal course of their work and who otherwise
have no duty to assist.” James v. Rowe, 674 F.Supp. 332, 333-34 (D.Kan.1987)
(emphasis added); see also, e.g., Clayton v. Kelly, 357 S.E.2d 865, 868 (Ga.App.
1987) (the occurrence of an emergency will not invoke the immunity, if it was the
person’s duty to respond to the emergency); Lee, 490 P.2d at 1209 (Alaska 1971)
(statute applies to those persons who otherwise have no duty to rescue) overruled
on other grounds by Munroe v. City Council for City of Anchorage, 545 P.2d 165
(Alaska 1976); Colby v. Schwartz, 78 Cal.App.3d 885, 892, 144 Cal.Rptr. 624,
628 (Ca. 1978) (Good Samaritan law does not excuse physician rendering
emergency care in the ordinary course of practice); Lindsey v. Miami Development
Corp., 689 S.W.2d 856, 860 (Tenn. 1985) (statute did not abrogate liability of
person who otherwise had duty to render aid).
Taylor and Reynolds provided care to Cook in the normal course of
their work. As an EMT and a paramedic who were called to the scene of the
emergency while on duty, Taylor and Reynolds both had a duty to assist David.
As Taylor and Reynolds point out,
[w]here a statute on its face is intelligible, the courts are
not at liberty to supply words or make additions which
amount, as sometimes stated to providing casus omissus,
or cure an omission, however just or desirable it might be
to supply an omitted provision. It makes no difference
that it appears the omission was mere oversight.
Commonwealth v. Allen, 980 S.W.2d 278, 280-81 (Ky. 1998), quoting Hatchett v.
City of Glasgow, 340 S.W.2d 248, 251 (Ky. 1960). KRS 411.148(2) specifically
states that “[n]othing in this section applies to the administering of such care or
treatment where the same is rendered for remuneration or with the expectation of
remuneration.” The legislature then carves out a specific exception to this rule in
subsection (3), where the statute reads,
[t]he administering of emergency care or treatment at the
scene of an emergency by employees of a board of
education shall not be considered to be rendered for
remuneration or with the expectation of remuneration
because such personnel perform such care as part of their
regular professional or work responsibilities for which
they receive their regular salaries from the school board
which is their employer.
The legislature chose only to carve out this one exception to the remuneration rule.
Therefore, we will not now carve out another exception to this rule for EMTs and
paramedics in direct contravention of the legislature’s omission to do so. We do
not opine that an EMT is without the protection of KRS 411.148 when responding
as a volunteer. In fact, due to their specialized training, this would be the very
action the legislature seeks to encourage with the enactment of KRS 411.148. On
the other hand, care or treatment for remuneration or due to a preexisting duty, as
in the instant case, is specifically exempted from the immunity granted by KRS
411.148. Accordingly, we find that the trial court committed reversible error in
applying the immunity granted under the Good Samaritan statute to Taylor and
Reynolds when the care they provided was based on a preexisting duty, and we
remand this issue for proceedings consistent with this opinion.
Rose additionally argues that KRS 411.148 is unconstitutional as it
violates the “jural rights” doctrine, the premise of which is that Sections 14, 54,
and 241 of the Kentucky Constitution, when read together, preclude any legislation
that impairs a right of action in negligence that was recognized at common law
prior to the adoption of the 1891 Constitution. See generally, Williams v. Wilson,
972 S.W.2d 260 (Ky. 1998); Ludwig v. Johnson, 49 S.W.2d 347 (Ky. 1932).
When considering the constitutional validity of a statute, “[l]egislative
acts are presumed to be valid; therefore, the burden is on one attacking a statute to
show the negative.” Keith v. Hopple Plastics, 178 S.W.3d 463, 469 (Ky. 2005).
“[T]he violation of the Constitution must be clear, complete, and unmistakable in
order to find the law unconstitutional.” Kentucky Indus. Utility Customers, Inc. v.
Kentucky Utilities Co., 983 S.W.2d 493, 499 (Ky. 1998) (emphasis added).
“Among the police powers of government, the power to promote and
safeguard the public health ranks at the top.” Graybeal v. McNevin, 439 S.W.2d
323, 325 (Ky.App. 1969).
[T]he legislature's power to pass laws, especially laws in
the interest of public safety and welfare, is an essential
attribute of government. Thus, we must always accord
great deference to the legislature's exercise of these socalled ‘police powers,’ unless to do so would ‘clearly
offend [ ] the limitations and prohibitions of the
See Posey v. Commonwealth, 185 S.W.3d 170, 175 (Ky. 2006) (internal citations
omitted). The purpose of the Good Samaritan Statute is to encourage the rendering
of medical assistance to those in need by trained medical personnel by removing
the fear of liability that accompanies rendering aid under the common law. This
purpose is clearly in the interest of public safety and welfare, and we accordingly
find that the adoption of the Good Samaritan Statute falls under the legislature’s
enumerated police powers.
Taylor and Reynolds counter-appeal on the issue of waiver. They
contend that the action should have been additionally dismissed based on the
execution of the “Release of Liability/Refusal to Consent to Treatment” by Rose at
the scene of the emergency. There is a factual dispute, however, as to what was
stated by Taylor and Reynolds to the Cooks about David’s condition. Rose states
that Taylor advised them that David would be okay, an EKG had been performed
and David’s heart was normal, his blood pressure was normal, and that he was just
dehydrated. Rose also states that Taylor advised David to go home, get in the air
conditioning, and drink Gatorade. She additionally contends that had they been
told that David was having a heart attack, or that his EKG was abnormal, then they
would have insisted that he be transported to the hospital immediately and that she
would not have signed the release form.
Taylor and Reynolds specifically state that they advised David that he
required further medical attention, requested to take him to the hospital and David,
thereafter, refused medical transport. A court should not dismiss a claim unless the
pleading party appears not to be entitled to relief under any state of facts which
could be proved in support of his claim. Kentucky Rules of Civil Procedure (CR)
12.02; Weller v. McCauley, 383 S.W.2d 356 (Ky. 1964); Pari-Mutuel Clerks’
Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551
S.W.2d 801 (Ky. 1977).
In this case, there are allegations of facts that, if true, may entitle the
Cooks to relief. The disputed facts bring into question the validity of the “Release
of Liability/Refusal to Consent to Treatment” due to the disputed circumstances
under which it was signed. Whether Rose would have signed the release depends
on the version of the facts that is correct. Therefore, it was correct for the trial
court to refuse to dismiss on the grounds of waiver due to this additional genuine
issue of material fact.
The remaining issues raised by Rose are rendered moot by this
opinion. We, accordingly, reverse the opinion and order of dismissal and remand
the case back to the Anderson Circuit Court for proceedings consistent with this
BRIEF FOR APPELLANTS/
BRIEF FOR APPELLEES/
Betty A. Springate
Edward H. Stopher
Matthew B. Gay