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soverign immunity
does anyone have any info or like to have info regaurding the soverign immunity issue now making its way through the kentucky supreme court system?
Replies to This Discussion
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Permalink Reply by jerry baldwin on
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my undersanding as to the facts in the case are the same as yours. certainally i agree with your assessment of what will happen should the supreme court rule in favor of the plaintiff. sad as it is to say there are a lot of people here in kentucky who would love to sue somebody -anybody! and would break their necks to sue a government entity. as a volunteer firefighter in kentucky this issue is of great importance to me. please keep me posted if you hear of any further devlopments in this case. and it would be an honor to have you on my friend list.
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Permalink Reply by Brian Dumser on
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"The plaintiff is suing the fire dept. for not responding in a timely manner and for lack of training and lack of manpower as the reason his business burned down."
His business burned down because there was a friggin fire in it! The Fire Department didn't start the fire. I'd like to know what the cause of the fire was. Stay safe!
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Permalink Reply by Mark Montgomery on
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Gee, I forget how lucky we are here in New Zealand with only a couple of laws covering the provision of firefighting and also providing for some level of indemnity for the brigades and the firefighters.
The Fire Service Act of 1975 states in Section 43
"43 Limitation of liability
(1) No action or proceeding shall be brought against the Crown, or the Commission, or any employee of any of them, or against any fire brigade, or member of a fire brigade, or any person whatsoever to recover damages for any damage to property occasioned by the Chief Fire Officer or any member of a fire brigade, or any other person, in the performance in good faith of his functions or duties or the exercise in good faith of his powers under this Act or under any other enactment:
Provided that nothing in this subsection shall relieve any of them against or in any way affect the liability of any of them for any damage to property caused by or in connection with the use of any fire engine or other motor vehicle for transport purposes.
(1A) Subsection (1) applies despite section 121 of the Crown Entities Act 2004.
(2) In any action or proceeding taken against the Commission or any fire brigade, or any employee or member of either of them, for their failure or neglect to make, or their negligence in making, adequate provision for the prevention of fire, the suppression and extinction of fires which may occur, and the protection of property endangered in fires, it shall be a defence to show that the provisions made were in accordance with standards approved by the Commission under this Act or the operational instructions of the National Commander under section 27A of this Act and that the employees or members had complied with all relevant requirements and instructions of the Commission.
(3) Sections 120 to 126 of the Crown Entities Act 2004 apply to a member of a volunteer fire brigade as if that member were an employee of the Commission."
The full Act is attached as well as a link to the NZ Fire Service website at http://www3.fire.org.nz/ - Attachments:
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Fire Service Act 1975.pdf, 2.3 MB
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Permalink Reply by lutan1 on
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I wonder if the failure to call the other department was linked to a lack of mutual aid agreement?
Part of me actually hopes so, as it may act a timely reminder to get them in palce and sorted before a similar incidnet occurrs elsewhere...
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Permalink Reply by FETC on
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Interesting posts, will follow this one.
I was told in another state in the US that a fire department was sued for lack of readiness when responding to a fire alarm in a hotel that turned out to be a fatal fire and they were filmed by security cameras being unprepared on arrival, no gear, ppe and scba, but I can't remember what state it was in...
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in answer to your questions. i am from the same state (so you can see the reason for my concerns) this problem stems from the western part of the state where as i reside and serve in the eastern part. i know what kentucky law says they are required to do as far as training ect. but i do not know if they were doing it. same thing on their track record, though i am given to understand that this has been their first problem, legally speaking. todd parker's addition to this discussion was run in all the news papers and probably can answer more of your questions than i can. thanks for the intrest in the discussion and you have an open invite to be added to my friends list. thanks and be ssafe.
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in reply to your comments on the soverign immunity issue, i don't think there was a mutual aid agreement in force, but there probably should have been. caney ville volunteer is a small department that got in over their heads. perhaps you are correct in saying that this is what it will take to teach them a lesson that there is no shame in calling for help. at least preventing another loss would be some good coming from this. thanks for your intrest.
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thanks for your intrest in this discussion. i would hope that the department that you mention was not from kentucky! as i find more info regaurding this case i will post it and i hope to be hearing from you in the future. you have an open invite to join my friends list. thanks again and stay safe.
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Permalink Reply by Jenny Holderby on
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This is from the Ohio Revised Code:
2744.02 Governmental functions and proprietary functions of political subdivisions.
(A)(1) For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.
Farther down in this section it states that "willful & wanton misconduct" must be proven for a political subdivision or an employee to be liable for damages done while performing their duties.
As far as the Ky law goes maybe the people who filed the lawsuit had a point. I didn't find anything that said that the FD did or did not call for mutual aid. How long was the delay from the time the fire actually started until the FD was called? There are a lot of questions I would ask in this situation. One of them is why the individuals are suing & not the insurance company. If there is a question of neglect the insurance company will do an investigation to determine if sound or standard practices were used in response & extinguishment of a fire. I would also like to know if there the allegations that the FD "underestimated" the fire was actually true and how many ffs were on scene & if they actually did only have 1 small truck. A "small" truck could be any kind of apparatus depending on who is describing it.
The problem here is that you can be pretty sure that some legal eagle urged the plaintiff to file hoping to score a big settlement of which they get a huge percentage of. The more money awarded to the people, the bigger chunk the lawyer gets. So the more neglect he is going to try to put on the FD and everyone involved. The entire world is lawsuit happy. Which is why insurance is so outrageously expensive.
AND - if the court sets a president, then anybody & everybody will be suing the FD for damages to their home/property during a fire.
We fall under the state statute liste above but the FD also carries liability insurance in case something goes wrong. That insurance will pick up for us if someone tries to sue the Chief or individual members instead of the FD or the township.
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thanks for the intrest jenny. i am in the dark about much of this and i know only what was run in the news. there was a response to this discussion earlier that does a good job of stating at least some of the facts in this case. you may wish to check it out. for further info, i found literally thousands of pages just by doing a google search. i even found copies of the legal briefs ect. hope you can understand all that legalese, i can't. again thanks for teh interest and God bless and stay safe!
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Theoretically, F.D's might have to carry malpractice insurance!
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Something just sparked with me here.
I don't know enough about Caneyville City and any public planning laws it might have, likewise I don't' know what might be in place for Grayson County or the Commonwealth of Kentucky in this regard. Hopefully those of you out there who do will be able to help develop this thread.
Caneyville is a small place, with a population of just 627 at the 2000 census. The city was incorporated in 1880 and named for its location on Caney Creek. According to the United States Census Bureau, the city has a total area of 1.6 square miles (4.2 km²), all of it land. As of the census of 2000, there were 627 people, 281 households, and 168 families residing in the city. The population density was 384.8 people per square mile (148.5/km²). There were 321 housing units at an average density of 197.0/sq mi (76.0/km²).
If the City had no public planning laws then the City, not the Caneyville VFD would be responsible for the losses.
If the City had public planning laws, but did not actively pursue them, then the Caneyville VFD would not be responsible for the losses.
If the City had public planning laws and the people running the destroyed business did not notify the City of the development of the home business into something quite substantial then the Caneyville VFD cannot be held responsible for the losses.
If the City had public planning laws and actively enforced them, knew of the motorcycle business and did nothing to manage the situation then the Caneyville VFD cannot be held responsible for the losses.
Anyone care to comment?
Anyone with more information than I have about the Caneyville situation, especially as I am sitting at a computer in New Zealand?
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