LESLIE CLAY CAREY v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT; RAY SABATINI, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS FAYETTE COUNTY JAILER; AND ROBERT RAMSEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DEPARTMENT OF GENERAL SERVICES
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RENDERED:
AUGUST 10, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001297-MR
LESLIE CLAY CAREY
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS G. PAISLEY, JUDGE
ACTION NO. 99-CI-00619
v.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT;
RAY SABATINI, INDIVIDUALLY, AND IN HIS
OFFICIAL CAPACITY AS FAYETTE COUNTY JAILER;
AND ROBERT RAMSEY, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS DIRECTOR OF THE
DEPARTMENT OF GENERAL SERVICES
APPELLEES
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
BARBER, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Leslie Clay Carey has appealed from an order of
dismissal of the Fayette Circuit Court entered on June 3, 1999,
which dismissed his negligence action against Lexington-Fayette
Urban County Government (LFUCG) and two individuals, Ray Sabatini
and Robert Ramsey, based on the doctrine of sovereign immunity.
Having concluded that LFUCG was entitled to have its motion to
dismiss granted, we affirm in part.
However, we hold that
dismissal as to Sabatini and Ramsey was premature and we must
reverse and remand in part.
Carey was an inmate at the Fayette County Detention
Center and he was assigned work through the community service
work program.1
On March 14, 1998, while Carey was working at the
Fayette County Juvenile Detention Center, he fell and severely
injured his leg.
As a result of the fall, Carey underwent a
number of medical procedures including surgeries and he
ultimately lost his leg.
the defendant, LFUCG.
The Detention Center is an agency of
Carey’s medical bills relating to his
injury were paid by LFUCG during the time he was incarcerated.
After Carey was released from jail, LFUCG refused to pay for his
medical treatment.
Subsequently, on February 19, 1999, Carey filed a
complaint against LFUCG,
Ray Sabatini, individually and in his
official capacity as Fayette County Jailer and Robert Ramsey,
individually and in his capacity as Director of the Department of
General Services.
In his complaint, Carey alleged a cause of
action for common law negligence by stating that his injuries
resulted from the negligence, carelessness, or recklessness of
the appellees due to their failure “to maintain, repair and
otherwise provide a safe place for [him] to work.”
More
specifically, the complaint alleged that while Carey was
“returning to the kitchen from the dumpster where he had
1
Kentucky Revised Statutes (KRS) 441.125.
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deposited rubbish, [he] was caused to fall [sic] due to the
grounds’ unsafe, dangerous, and poorly maintained condition about
which [sic] Defendants knew or in the exercise of ordinary care
should have known.”
On March 29, 1999, the appellees filed a
motion to dismiss based on the doctrine of sovereign immunity.
On May 14, 1999, the Fayette Circuit Court heard oral arguments
on the motion, which was granted by an order entered on June 3,
1999.
This appeal followed.
While the parties have failed to discuss the procedural
basis for the order of dismissal or our standard of review, we
believe a discussion of these issues is necessary for an
understanding of this case.
Since the appellees filed their
motion to dismiss prior to filing an answer to the complaint, the
motion can only be viewed as a motion to dismiss for failure to
state a claim upon which relief can be granted under Kentucky
Rules of Civil Procedure (CR) 12.02 (f).
Our standard of review
is as follows:
For the purpose of testing the sufficiency of
the complaint the pleading must not be
construed against the pleader and the
allegations must be accepted as true. “[The]
court should not dismiss unless it appears
the plaintiff would not be entitled to relief
under any state of facts which could be
proved in support of his claim.” Ewell v.
Central City, Ky., 340 S.W.2d 479 (1960);
Heuer v. Loop, 198 F.Supp. 546 (1961)
D.C.Ind. Since the adoption of the civil
rules liberality and simplicity in pleadings
is the style in Kentucky. Johnson v.
Coleman, Ky., 288 S.W.2d 348 (1956). Only a
concise statement of facts is required (CR
8.01) because the “complaint need only give
fair notice of a cause of action and the
relief sought.” Security Trust Co. v.
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Dabney, Ky., 372 S.W.2d 401 (1963); 6
Kentucky Practice, Clay, 128.2
Carey’s first claim of error is that he had some type
of employee status with LFUCG and as such he was entitled to
minimum protections and a forum for recovery on his claim against
the appellees.
Carey makes the convoluted argument that the
Legislature by enacting the Board of Claims Act at KRS
44.070(1),3 somehow provided “a partial waiver of sovereign
immunity.”
The only case that Carey cites in support this
argument is Department of Education v. Blevins.4
Carey’s
reliance on Blevins and KRS 44.070(1) is totally misplaced.
Blevins involved three separate actions that were filed in the
Board of Claims against the Kentucky Department of Education.
Carey fails to explain how the valid actions in the Board of
Claims in Blevins against a state agency has anything to do with
his civil action filed in circuit court.
This argument has no
merit.
Carey’s claims against LFUCG were dismissed based upon
the doctrine of sovereign immunity as provided for in § 231 of
the Kentucky Constitution.5
2
Kentucky courts have ruled in many
Pike v. George, Ky., 434 S.W.2d 626, 627 (1968).
3
The Act states in KRS 44.070(1) that this waiver is “to
compensate persons for damages sustained to either person or
property as a proximate result of negligence on the part of the
Commonwealth, any of its departments, bureaus, or agencies, or
any of its officers, agents or employees. . . .”
4
Ky., 707 S.W.2d 782 (1986).
5
“The General Assembly may, by law, direct in what manner
(continued...)
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cases that the doctrine of sovereign immunity is applicable to a
county.6
In Hemple, this Court stated that an urban-county
government retains the immunities of county government, and that
“the City of Lexington ceased to exist on the day on which urban
county government became effective and that Fayette County
remained as a geographical subdivision governed by a new
creature, urban county government.”7
A county’s immunity from liability is absolute unless
waived by the Legislature.
While the Legislature has waived the
defense of sovereign immunity for the Commonwealth to a limited
extent by enacting the Board of Claims Act, a county is not
covered by that act.
In Ginter v. Montgomery County,8 the former
Court of Appeals stated that “our Board of Claims statute does
not completely abrogate the doctrine of immunity even as to the
state government, and as to local governments it does not purport
to waive any immunity.”9
5
(...continued)
and in what courts suits may be brought against the
Commonwealth.”
6
Moores v. Fayette County, Ky., 418 S.W.2d 412 (1967);
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967); Carr v.
Jefferson County, 275 Ky. 685, 122 S.W.2d 482 (1938); Hemple v.
Lexington-Fayette Urban County Government, Ky.App., 641 S.W.2d 51
(1982).
7
Hemple, supra at 52 (citing Jacobs v. Lexington-Fayette
Urban County Government, Ky., 560 S.W.2d 10, 12 (1978)).
8
Ky., 327 S.W.2d 98, 100 (1959).
9
See also Board of Education of Rockcastle County v. Kirby,
Ky., 926 S.W.2d 455, 456 (1996); Cullinan, supra at 410; and Gnau
v. Louisville & Jefferson County Metropolitan Sewer District,
(continued...)
-5-
Thus, we must determine whether the Legislature, by
enacting some other statute, has waived LFUCG’s defense of
sovereign immunity.
KRS 65.150(1) permits a county to purchase
liability insurance, and LFUCG did purchase liability insurance
and did establish a self-insurance fund.
Carey, relying on
Dunlap v. University of Kentucky Student Health Services
Clinic,10 asks this Court to revisit the recent Kentucky Supreme
Court decisions that have held the purchase of liability
insurance is not an implied waiver of immunity.
In Withers v. University of Kentucky,11 the Court
attempted to clarify the application of the doctrine of sovereign
immunity.
Justice Lambert stated: “For decades, this Court has
struggled with whether various governmental entities are entitled
to the protection of sovereign immunity, and of those which are,
whether statutes or conduct of the immune entity amount to an
express or implied waiver.”12
Withers had filed a wrongful death action against the
University of Kentucky for the alleged medical negligence of a
doctor-in-training at the university hospital.
dismissed on the grounds of sovereign immunity.
The complaint was
The Supreme
Court noted that our Legislature by enacting KRS 44.072 and
9
(...continued)
Ky., 346 S.W.2d 754, 755 (1961).
10
Ky., 716 S.W.2d 219 (1986).
11
Ky., 939 S.W.2d 340 (1997).
12
Id. at 342.
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44.073(2) and (14) intended to preserve sovereign immunity as a
defense.13
The Supreme Court held that the University of
Kentucky was protected by sovereign immunity and that by enacting
the University of Kentucky Medical Center Malpractice Act, KRS
164.939, et seq., the Legislature had not waived sovereign
immunity.
The Supreme Court stated: “If immunity exists, it is
not lost or diminished or affected in any manner by the purchase
of liability insurance or the establishment of an indemnity fund,
whether directed or authorized by statute or merely undertaken
without authorization, notwithstanding that such may have been an
unnecessary expenditure of funds.”14
The Supreme Court further stated:
[I]n an effort to avoid the morass we have
heretofore been in, we will observe a rule
similar to the one found in Edelman v.
Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347,
1361, 39 L.Ed.2d 662, 678 (1974), as follows:
“We will find waiver only where stated ‘by
the most express language or by such
overwhelming implications from the text as
[will] leave no room for any other reasonable
construction.’ Murray v. Wilson Distilling
Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464-65,
53 L.Ed. 742 (1909).”15
In Franklin County, Ky. v. Malone,16 the Court held
that “[p]articipation in a self-insurance fund pursuant to an
13
We also note the Legislature’s intent to preserve
sovereign immunity for counties by its enactment of KRS
65.2001(2) and 67A.060.
14
Id. at 346.
15
Id.
16
Ky., 957 S.W.2d 195, 203 (1997).
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inter-local cooperation act does not give rise to an implied
waiver of sovereign immunity.”
The Court, in discussing
Withers, stated, “the majority of the Supreme Court determined
that a clear legislative intent to preserve the defense of
sovereign immunity unless expressly waived was announced by the
General Assembly and that the legislature abrogated the decision
of Dunlap.”17
Essentially, Carey is asking this Court to do something
it does not have the authority to do: to overturn these recent
Supreme Court decisions based on public policy.18
In a
dissenting opinion in Withers, Justice Wintersheimer stated:
“Immunity is a barren legal concept that is generally used as a
shield for those who have committed some wrong so as to prevent
their legal liability.
Accountability and responsibility are far
better standards to be applied in our advanced civilized
society.”19
While this Court is inclined to agree with the
reasoning of Justice Wintersheimer, this Court is not the proper
place to revisit Withers and Malone.
Any changes in this law
must come from the Legislature or the Supreme Court.
Thus, since LFUCG’s sovereign immunity was not
expressly waived when the Legislature permitted it to purchase
liability insurance or to establish a self-insurance fund, the
dismissal of the complaint against it was proper.
While as a
17
Id.
18
Kentucky Rules of the Supreme Court 1.030(8)(a).
19
Withers, supra at 348.
-8-
matter of public policy, it is unjust for an injured party not to
have a remedy against a county for a county’s negligence, our
Supreme Court has held that any remedy must be expressly granted
by the Legislature.
The trial court also ruled that Carey’s claims against
Ray Sabatini and Robert Ramsey were barred by the doctrine of
sovereign immunity.
In Malone the Court was faced with the issue
of whether a jailer could be held personally liable for a suicide
that took place while the decedent was in the custody of the
jailer.
The Court stated:
Public officials are responsible only for
their own misfeasance and negligence and are
not responsible for the negligence of those
who are employed by them. Moores v. Fayette
County, Ky., 418 S.W.2d 412 (1967). In order
to have negligence or fault attributed to a
public official, there must be proof of
personal wrongdoing.20
Carey alleged in his complaint that Sabatini and Ramsey were
negligent by exercising exclusive control over him and by
negligently maintaining the Detention Center’s grounds for which
they were solely responsible in an unsafe and dangerous condition
and that such negligence was the proximate cause of his injury
and caused him to suffer substantial damages.
This is a classic
allegation of common law negligence; and Sabatini’s and Ramsey’s
reliance upon immunity as an absolute defense is premature.
There are still many factual matters to be considered.
20
Malone, supra at 199-200.
-9-
It was premature of the trial court to dismiss Carey’s
claims against Sabatini and Ramsey in their official capacity
because they have not even raised as a defense that the negligent
acts allegedly committed by them were being performed as a
discretionary function.
The defense of official immunity was
discussed by our Supreme Court in Malone:
The doctrine of official immunity
protects public officials from liability in
certain instances when exercising a
discretionary function. In such
circumstances, a public official is entitled
to absolute immunity from liability as long
as the official acts are within the general
scope of their authority [citations omitted].
The essence of a discretionary power is that
the person or persons exercising it may
choose which of several courses will be
followed. The power to exercise an honest
discretion necessarily includes the power to
make an honest mistake of judgment [citations
omitted].21
In Upchurch v. Clinton County, Ky.,
330 S.W.2d 428[, 430] (1959), the former
Court of Appeals stated:
Discretionary or judicial
duties are such as necessarily
require the exercise of reason in
the adaptation of means to an end,
and discretion in determining how
or whether the act shall be done or
the course pursued. Discretion in
the manner of the performance of an
act arises when the act may be
performed in one of two or more
ways, either of which would be
lawful and where it is left to the
will or judgment of the performer
to determine in which way it shall
be performed.
21
Id. at 201.
-10-
Our Supreme Court stated in Malone, “[t]he enactment of rules
prescribing proper treatment of prisoners necessarily involves
discretionary policy determinations and consequently such an act
is clearly a discretionary function. . .”22; but at this time
Sabatini and Ramsey have produced no evidence as to the
discretionary nature of their actions.
Furthermore, to the extent Carey’s complaint has
alleged the individual liability of Sabatini and Ramsey based on
allegations of their personal negligence, they are not immune
from liability.
In Gould v. O’Bannon,23 our Supreme Court held
that official immunity does not bar a claim for personal
negligence:
Individual state employees are
accountable for their actions and torts. The
state is also vicariously liable in the Board
of Claims. The Court is not unmindful that
in many situations, the practical economic
realities effectively insulate the individual
employee from suit, but that may not be the
case in regard to medical employees.
Nonetheless individuals must be accountable
for their conduct.
There is a distinction between
discretionary and ministerial functions of
state employees. Discretionary acts will not
result in liability when negligently
performed. The administration of medical
care is a ministerial function by employees,
including doctors. Compliance with the
applicable standard of care does not involve
discretionary governmental function. State
officers have frequently been held
responsible for their ministerial conduct.
22
Malone, supra.
23
Ky., 770 S.W.2d 220, 221-22 (1989).
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See Whitt v. Reed, Ky., 239 S.W.2d 489
(1951); 43 Am.Jr. Public Officers § 279.
The three physicians in the university
hospital have no special protection by means
of sovereign immunity. Happy v. Erwin, Ky.,
330 S.W.2d 412 (1959) provides that a statute
which purports to extend sovereign immunity
to the personal liability of its employees
violates Sections 14, 54 and 241 of the
Kentucky Constitution. Our Constitution
specifically prohibits the abolition or
dimunition of legal remedies for personal
injuries. Carney v. Moody, Ky., 646 S.W.2d
40 (1982). The legislature may not abolish
an existing common law right or action for
personal injury. Saylor v. Hall, Ky., 497
S.W.2d 218 (1973).
It is the manifest purpose of the
Kentucky Constitution to preserve and
perpetuate the common law right of any
citizen injured by the negligent acts of
another to sue or recover damages for such
injuries. Saylor, supra.
Subsequently, in Board of Trustees of University of Kentucky v.
Hayse,24 the Supreme Court further stated:
Dean Stephenson was sued for his personal
wrongdoing, direct responsibility for
violating Hayse's constitutionally protected
rights. The fact that this wrongdoing
occurred while serving in his official
capacity does not entitle him to the defense
of sovereign immunity. Our recent decision
in Gould v. O'Bannon, Ky., 770 S.W.2d 220
(1989), finality June 8, 1989, and our
decision of long-standing in Happy v. Erwin,
Ky., 330 S.W.2d 412 (1959), lay this matter
to rest.
Therefore, even though it may later be determined that
Sabatini and Ramsey are immune from liability in their official
capacity due to the discretionary nature of their actions, the
24
Ky., 782 S.W.2d 609, 615 (1989).
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doctrine of official immunity does not bar a claim based on their
alleged personal negligence.
We believe our holding is supported by the majority of
jurisdictions.
In Montanick v. McMillin,25 the Supreme Court of
Iowa stated:
A public official may be guilty of
negligence in the performance of official
duties for which his official character gives
him no immunity. Public service should not
be a shield to protect a public servant from
the consequences of his personal misconduct.
Iowa’s high court went on to explain the soundness of this
principle with case law from several different jurisdictions:
The New Jersey court in the case of
Florio v. Mayor and Aldermen of Jersey City,
101 N.J.L. 535, 129 A. 470, at page 471, 40
A. L. R. 1353, at page 1356, said:
But it would be a travesty
upon both law and justice to hold,
that, because of the gravity and
importance of the duties cast upon
him, he has become clothed with the
privilege, while in the act of
performing such duties, to thrust
aside all ordinary prudence in
driving along the public streets to
the great hazard of life and limb
of men, women, and children of all
classes and conditions, who may be
upon the public highway. He must
answer for his negligence, though
in the performance of a public
duty, in the same manner as if he
were an individual in private life
and had committed a wrong to the
injury of another. The servant of
the municipality is required to
perform his duty in a proper and
careful manner, and when he
negligently fails to do so, and in
25
225 Iowa 442, 280 N.W. 608, 615 (1938).
-13-
the performance of his duty
negligently injures another, his
official cloak cannot properly be
permitted to shield him against
answering for his wrongful act to
him who has suffered injury
thereby.
The Connecticut court in Voltz v.
Orange Volunteer Fire Association, Inc., 118
Conn. 307, 172 A. 220, 222, said:
This claim involves a misconception
of the doctrine of governmental
immunity, which does not extend to
the protection of the employee of
the municipality from the
consequences of his own negligence.
The driver of a fire truck is
liable to one injured by his
negligent driving, though the
municipality employing him is
exempt from liability.
[T]he Court of Appeals of the City of New
York had occasion to consider this question
in Ottmann v. Incorporated Village, 275 N.Y.
270, 9 N.E.2d 862, 863, 864, where it was
held:
Sound public policy requires that
one injured by the negligent act of
another engaged in a public service
should be permitted to recover the
damages suffered as a result of
such misconduct. Public service
should not be a shield to protect a
public servant from the result of
his personal misconduct. . . . We
believe the law to be that a
servant, agent or officer of a
municipality is required to do his
work in a reasonably careful
manner and that if he fails to do
so and another is injured because
of his negligence he is personally
responsible, the same as any other
person who has by his misconduct
caused injury.
We agree with these courts and hold that Sabatini and Ramsey can
be held liable for their alleged personal negligence in carrying
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out their official duties.
The dissent in the case sub judice relies upon Malone,
supra for the position that a county employee performing a
ministerial activity which is inherently within the traditional
role of government is entitled to official immunity.26
problem with this application is twofold.
The
First, Malone cites no
authority for the statement that “[a]s long as the police officer
acts within the scope of the authority of office, the actions are
those of the government and the officer is entitled to the same
immunity and the only recourse available to claimants is through
the Board of Claims.”27
Second, Malone does not overrule the
long line of cases which denied official immunity to a government
employee who was allegedly negligent in performing a ministerial
duty.28
By dismissing the complaint for failure to state a
claim, the trial court failed to accept Carey’s allegations as
true, failed to assume that Carey could prove a state a facts to
26
Here are a few examples of this incorrect application of
Malone: (1) Inmate is seriously injured after following jailer’s
negligent instructions to perform extremely hazardous work
involving the removal of toxic chemicals from a storage room even
though jailer knew the inmate was untrained and improperly
equipped to perform this work; (2) Bystander is seriously injured
when a member of the court’s clerical staff negligently causes a
box of court files to fall from a third floor courthouse balcony;
or (3) Children leaving school are killed when a county employee
negligently operates a dump truck and crashes into the school bus
in a school zone.
27
Malone, supra at 202.
28
See Hayes, supra; Gould, supra; Happy, supra; and Whitt,
supra.
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support his claim of negligence, and failed to provide Carey with
a liberal application of his simple and concise complaint.29
Accordingly, we must reverse the order of dismissal as to
Sabatini and Ramsey, individually and in their official capacity,
and remand this matter for further proceedings.
For these reasons, this Court affirms the order of the
Fayette Circuit Court which dismissed the complaint against
LFUCG, but we reverse the dismissal as to Sabatini and Ramsey and
remand for further proceedings consistent with this Opinion.
BARBER, JUDGE, CONCURS.
SCHRODER, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND
FILES SEPARATE OPINION.
SCHRODER, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART: While I agree with the majority that the LFUCG is protected
by sovereign immunity, I also believe the two jail employees were
covered by official immunity.
In Malone, 957 S.W.2d 195, the
Supreme Court considered whether or not employees of agencies
entitled to sovereign immunity are also protected by official
immunity.
It appears that the Malone Court distinguishes between
official immunity for state employees and county employees
because the Court employed a different analysis as to the
liability of county employees from that of the state employee
(trooper).
When dealing with county employees, the Court left
open the possibility of individual liability with its analysis of
29
Pike, supra at 627.
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discretionary v. ministerial functions.
An official performing
discretionary functions automatically enjoys official immunity.
However, where county employees are performing ministerial
activities, we must ask if those activities are inherently within
the traditional role of government.
applies.
If so, official immunity
If not, the employees have no official immunity,
although he or she may have a defense to an allegation of
wrongdoing.30
The complaint alleges negligence, carelessness or
recklessness while performing their duties of maintaining the
jail.
Maintaining the jail is a traditional role of government,
of the jailer and his/her deputies, and employees.
Therefore,
official immunity should apply and bar the action.
I would
affirm the Fayette Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephen D. Milner
Lexington, KY
Tracy W. Jones
Edward W. Gardner
Lexington, KY
30
The Supreme Court is currently considering what they said
in Malone in at least three pending cases: Michael Yanero, et al.
v. Allen Davis, et al., 1999-SC-871; Kentucky High School
Athletic Association v. Michael Yanero, et al., 2000-SC-347; and
Turner, et al. v. Newport, et al., 2000-SC-957.
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