THERESE HOUGHTON AND MARK HOUGHTON v. CITY OF LOUISVILLE
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RENDERED: June 22, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001740-MR
THERESE HOUGHTON AND
MARK HOUGHTON
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ERNEST A. JASMIN, JUDGE
ACTION NO. 97-CI-000614
v.
CITY OF LOUISVILLE
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND McANULTY, JUDGES.
GUIDUGLI, JUDGE.
Therese and Mark Houghton (Appellants) appeal
a summary judgment in favor of the City of Louisville (Appellee)
in an action to recover for injuries the Houghtons sustained due
to the allegedly negligent maintenance of a stop sign, and an
Order of the Jefferson Circuit Court denying their Motion to
Reconsider.
For the reasons set forth below, we reverse and
remand.
On July 26, 1996, an automobile collision occurred at
the intersection of Rosedale and Roanoke Avenues in Louisville,
involving the Appellant and another individual not named in this
appeal.
Appellant's automobile collided with the second
automobile after Appellant failed to stop at a stop sign at the
intersection.
Appellants contend that this collision occurred
because foliage beneath the sign and branches from a tree in the
yard adjacent to the intersection had obscured the stop sign.
Appellants filed this lawsuit against the Appellee,
City of Louisville, and another Defendant, Jennifer Post (Post),
on January 31, 1997.
Post was the owner of the property upon
which the tree allegedly obstructing the stop sign was situated.
Appellants' complaint is premised upon Appellee having had a duty
to maintain the stop sign, including the duty to remove
obstructions from its visibility, and having failed in that
regard.
Appellee filed a motion for summary judgment after
answers were filed by Appellee and Post.
The Jefferson Circuit
Court sustained Appellee's motion on July 24, 1997, concluding
that Appellee's actions were discretionary in nature, and
therefore entitled to immunity under KRS 65.2003.
Motions to reconsider filed by both Appellants and
Post were rejected by the Circuit Court on October 21, 1997.
Appellants' first appeal was dismissed by this Court as
interlocutory.
Once again, Appellants and Post jointly requested
that the Jefferson Circuit Court reconsider its summary judgment
in favor of the Appellee.
This request was rejected by the
Jefferson Circuit Court on July 11, 2000.
Subsequently, all
claims were resolved between Appellants and Post.
followed.
Standard of Review
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This appeal
Summary judgment is only proper "where the movant shows
that the adverse party could not prevail under any
circumstances."
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc.,
Ky., 807 S.W.2d 476, 480 (1991), reaffirming Paintsville Hosp. v.
Rose, Ky., 683 S.W.2d 255 (1985).
However, "a party opposing a
properly supported summary judgment motion cannot defeat the
motion without presenting at least some affirmative evidence
demonstrating that there is a genuine issue of material fact
requiring trial."
Hubble v. Johnson, Ky., 841 S.W.2d 169, 171
(1992), citing Steelvest, 807 S.W.2d
at 480.
The circuit court
must view the record "in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be
resolved in his favor."
Steelvest, 807 S.W.2d
at 480, citing
Dossett v. New York Mining & Mfg. Co., Ky., 451 S.W.2d 843
(1970).
"The trial judge must examine the evidence, not to
decide any issue of fact, but to discover if a real issue
exists."
Id. at 480.
This Court has said that the standard of review on
appeal of a summary judgment is "whether the trial court
correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment
as a matter of law."
Scifres v. Kraft, Ky. App., 916 S.W.2d 779,
781 (1996) (citations omitted).
"There is no requirement that
the appellate court defer to the trial court since factual
findings are not at issue."
Scifres, 916 S.W.2d at 781.
According to Kentucky Rule of Civil Procedure (CR)
56.03, summary judgment is appropriate "if the pleadings,
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depositions, answers to interrogatories, stipulations, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
To
prevail on a motion for summary judgment, the City of Louisville
must demonstrate that "it would be impossible for [the Houghtons]
to produce evidence at trial warranting a judgment in [their]
favor."
Steelvest, 907 S.W.2d at 480; CR 56.03.
Municipal Immunity
In 1985, the Kentucky Supreme Court addressed the
judicially created doctrine of municipal immunity in Gas Service
Co., Inc. v. City of London, Ky., 687 S.W.2d 144 (1985).
That
Court expressed frustration with the "legal morass" that had
generated around the doctrine.
Gas Service, 687 S.W.2d at 146.
In an earlier case, Haney v. City of Lexington, Ky., 386 S.W.2d
738 (1964), the Court had supposedly "abrogated the rule of
sovereign immunity for a municipal corporation," making liability
the rule.
(1968).
City of Lexington v. Yank, Ky., 431 S.W.2d 892, 893
However, subsequent decisions had whittled away at the
Haney holding.
See City of Louisville v. Louisville Seed Co.,
Ky., 433 S.W.2d 638 (1968); Hempel v. Lexington-Fayette Urban
Cty. Gov't, Ky. App., 641 S.W.2d 51 (1982); Carmichael v.
Lexington-Fayette Urban Cty. Gov't, Ky. App., 608 S.W.2d 66
(1980).
In Gas Service, the Supreme Court overruled contrary
case law and reiterated its support for the Haney holding,
stating:
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In Haney we hold that municipal
corporations are no longer "immune from
liability for ordinary torts." 386 S.W.2d at
742. We then designate a narrowly defined
exception to liability:
"We wish to make it plain, however, that
this opinion does not impose liability on the
municipality in the exercise of legislative
or judicial or quasi-legislative or quasijudicial functions." Id.
Gas Service, 687 S.W.2d at 147.
The Gas Service Court then proceeded to apply Haney to
the facts before it, and ruled that the City of London was not
entitled to immunity.
Gas Service Company was seeking indemnity
for damages incurred in a gas explosion.
The city had installed
a system of sewer lines in close proximity to existing gas lines.
Testimony adduced during discovery revealed that a public works
employee made a faulty repair to the sewer line, which caused a
hole in the adjacent gas line.
The trial court and the Court of
Appeals had afforded immunity to the city, but the Supreme Court
reversed.
The maintenance of a sewer line, the Court ruled, was
not a quasi-legislative or quasi-judicial function of the city
government; instead, it was a ministerial function not immune
from liability under Haney.
Gas Service, 687 S.W.2d at 149.
In
Gas Service, the city itself was charged with having caused the
injury, not with having "failed to prevent it by proper exercise
of regulatory functions which have elements appearing quasijudicial and quasi-legislative in nature."
Id.
In Zanella v. City of Grand Rivers, 687 F. Supp. 1105
(W.D. Ky. 1988), a Federal diversity case, the Court applied the
Gas Service and Haney cases to a case with facts strikingly
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similar to those at issue here.
Subsequent to an automobile
collision, one driver brought suit against the city to recover
for the city's allegedly negligent failure to maintain a stop
sign or other traffic warning device at the intersection where
the accident had occurred.
The stop sign, which had earlier been
posted at the intersection, was missing at the time of the
accident.
The intersection was a "blind-type intersection."
Zanella, 687 F. Supp. at 1107.
Without stopping at the
intersection, the plaintiff proceeded onto the highway and was
struck by another vehicle.
The Zanella Court observed that, with respect to the
construction and maintenance of streets within a city's limits,
"municipalities must exercise ordinary care and reasonable
diligence to keep the streets and sidewalks therein in a
reasonably safe condition for travel, and if they should
negligently fail to do so they are liable for consequent injuries
to a traveler thereon."
Id., at 1108, citing Wyatt v. City of
Henderson, 222 Ky. 292, 300 S.W. 921 (1927).
The Zanella Court
reasoned that, while the rule is inapplicable to a city's
decision to erect or not erect a stop sign at a particular
intersection, once that decision is made, the erection and
maintenance of that sign must be done in a reasonable manner.
687 F. Supp. at 1108.
The difference lies in the distinction
between the legislative decision to build, and the ministerial
duty to maintain, the sign.
Zanella, 687 F.Supp. at 1108.
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Subsequently, also in 1988, the General Assembly
codified the Gas Service interpretation of the Haney rule in KRS
65.2001 to 65.2006.
KRS 65.2001(2) provides:
Except as otherwise specifically provided in
KRS 65.2002 to 65.2006, all enacted and casemade law, substantive or procedural,
concerning actions in tort against local
governments shall continue in force. No
provision of KRS 65.2002 to 65.2006 shall in
any way be construed to expand the existing
common law concerning municipal tort
liability as of July 15, 1988, nor eliminate
or abrogate the defense of governmental
immunity for county governments.
As examples of the types of judicial, quasi-judicial,
legislative, and quasi-legislative discretion for which municipal
immunity had been retained, the General Assembly provided a nonexhaustive list in KRS 65.2003(3), including "(b) The failure to
enforce any law," ... “(d) The exercise of discretion when in the
face of competing demands, the local government determines
whether and how to utilize or apply existing resources," and "(e)
Failure to make an inspection."
KRS 65.2003(3) further provides
that, "Nothing contained in this subsection shall be construed to
exempt a local government from liability for negligence arising
out of acts or omissions of its employees in carrying out their
ministerial duties."
This Court had an opportunity to apply the provisions
of KRS 65.2003 in City of Frankfort v. Byrns, Ky. App., 817
S.W.2d 462 (1991).
The City of Frankfort had decided to enlarge
the capacity of an existing storm drainage system.
As a result
of the improvements made to the system's capacity, the drainage
ditch in the Westgate Subdivision overflowed its banks after
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rainfall.
The property owners alleged negligence on the part of
the city in the installation, design, and maintenance of the
drainage system serving the subdivision and claimed that, because
of the flooding, they were unable to use that portion of their
lands, constituting an unjust taking under provisions of the
Kentucky and United States Constitutions.
Citing Gas Service, this Court determined that the
actions of the city were ministerial in nature and, therefore,
were not immune from liability.
Byrns, 817 S.W.2d at 464.
"Once
the City of Frankfort made a decision to design and construct the
system in question, a decision which was within its discretionary
capacity, its subsequent actions in designing and building the
system were ministerial."
Id.
Citing Justice Wintersheimer's
concurring opinion in Gas Service, this Court defined
discretionary acts as those bearing upon the formulation of
policy, and ministerial acts as those relating to the execution
or implementation of that policy.
Id. at 465.
In the case sub judice, Appellee has argued, and the
circuit court agreed, that the provisions of KRS 65.2003(3)(d)
and (e) establish that municipal immunity applies to the City of
Louisville's action, or rather inaction, of not adequately
maintaining a stop sign.
We do not agree.
Paragraph (d)
provides immunity for actions where "the local government
determines whether and how to utilize or apply existing
resources."
The trial court read that paragraph broadly, to
include not only the city's decision of how to utilize it
maintenance resources to fix the stop sign, but also the decision
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whether to use its maintenance resources at all.
Such a broad
interpretation of KRS 65.2003(3)(d) would exempt virtually every
decision by a city government from liability, because virtually
every decision of a local government can, in some attenuated
fashion, be construed as bearing upon the allocation of scarce
financial resources.
Accordingly, we reject this view.
Having
made the policy decision to control traffic at an intersection
through use of a stop sign, the city simply cannot fail to
maintain that sign or place it in such a location that it will be
ineffective.
The maintenance methods of the city do not relate
to the "formulation" of the city's traffic control policy; they
are methods for ensuring the effective execution and
implementation of that policy.
Similarly, there is no support for Appellee's
contention that KRS 65.2003(3)(e), which shields a municipal
corporation from liability for failure to make an inspection,
applies to this case.
According to KRS 65.2001(2), KRS 65.2003
must be read in harmony with the existing case law on municipal
immunity, and "shall [not] in any way be construed to expand the
existing common law concerning municipal tort liability."
As is
obvious from the face of the statute, KRS 65.2001 to 65.2006 must
be interpreted as a codification of the then-existing common law,
not as an abrogation of it.
Gas Service and Zanella are part and
parcel of that common law, so it is therefore appropriate to
evaluate Appellee's claim of immunity under the standards
established in those cases, and to interpret the provisions of
KRS 65.2003 in conformity therewith.
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Paragraph (e) is one of five items in the nonexhaustive list of "quasi-legislative" and "quasi-judicial"
functions specifically immune from tort liability under KRS
65.2003.
The "inspection" referred to in that paragraph, being
"quasi-judicial" in type, is of the sort whereby an agent of the
municipality seeks to ascertain and evaluate the conformity of a
private person's conduct with an appropriate standard established
by city ordinance or other law.
Examples of this type of
"inspection" are housing and building inspections, where a
landlord or contractor is held to a specific standard of care by
a landlord-tenant ordinance, a building code, or other health and
safety regulations promulgated under the city's police power.
The "inspection" contemplated by Appellee and the
Circuit Court in this case is not quasi-judicial in type.
"Quasi-judicial" connotes an ability to adjudicate individual
claims and individual rights, neither of which bear upon a city
government's inspection of its own property.
The facts of this
case, therefore, do not fall within the provision of KRS
65.2003(3)(e).
What remains after Appellee's claims to immunity are
defeated is tort liability, as announced in the Gas Service,
Zanella, and Byrns cases.
Each of these cases imposed liability
upon a municipal government for negligent maintenance of its own
property, and remain the rule in this Commonwealth even after the
enactment of KRS 65.2001 to 65.2006.
Because municipal tort immunity was the only ground
upon which the Circuit Court granted summary judgment, we go no
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further than to address that sole issue.
Further, we express no
opinion as to the likelihood of Appellant's success on the merits
at trial.
But, because
genuine issues exist as to the
visibility of the stop sign, the existence of an obstruction
occasioned by the growth of a tree and weeds, and the possibility
of a breach of duty to maintain the stop sign by Appellee, we
cannot say that it would be impossible for Appellant to prevail
at trial.
Because of the absence of municipal tort immunity
under the facts presented in this case, summary judgment was not
proper.
We, therefore, reverse the summary judgment entered by
the Jefferson Circuit Court and remand this case for further
proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
A. Neal Herrington
Louisville, KY
William C. Stone
Director of Law
Gregory Scott Gowen
Assistant director of Law
Louisville, KY
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