JASON H. CROSS; MITZI R. CROSS; AND CHRISTOPHER A. SPRADLIN v. BARNEY JONES, INDIVIDUALLY AND AS SHERIFF OF BARREN COUNTY; GULF INSURANCE COMPANY; AND UNKNOWN INSURANCE CARRIER OF BARNEY JONES
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RENDERED:
AUGUST 5, 2005; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001224-MR
JASON H. CROSS; MITZI R. CROSS;
AND CHRISTOPHER A. SPRADLIN
APPELLANTS
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE PHIL PATTON, JUDGE
ACTION NO. 01-CI-00493
v.
BARNEY JONES, INDIVIDUALLY AND AS SHERIFF OF
BARREN COUNTY; GULF INSURANCE COMPANY; AND
UNKNOWN INSURANCE CARRIER OF BARNEY JONES
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI, MINTON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
Jason H. Cross, Mitzi R. Cross, and Christopher
A. Spradlin bring this appeal from April 10, 2003, and May 9,
2003, orders of the Barren Circuit Court dismissing negligence
claims asserted against Sheriff Barney Jones in his official
capacity on the basis of sovereign immunity.
We reverse and
remand.
On September 3, 2000, Kentucky State Police Troopers
Cross and Spradlin were on duty in Barren County.
Leland E.
Cox, Deputy Sheriff of Barren County, requested the troopers’
assistance in the execution of an arrest warrant against David
Price.
While attempting to effectuate the arrest, Price fled
into a grassy field.
The troopers pursued Price on foot, and
Deputy Cox drove his police cruiser in the field to join the
pursuit.
Unfortunately, Deputy Cox’s cruiser hit both Trooper
Cross and Trooper Spradlin.
Consequently, Cross and Spradlin (collectively
referred to as appellants)1 filed a complaint in the Barren
Circuit Court against Deputy Cox, in his individual and official
capacities; against Sheriff Barney Jones, in his individual and
official capacities; against Gulf Insurance Company, as the
liability insurance carrier of Cox and Jones; and against
Unknown Insurance Carriers of Cox and Jones.
Deputy Cox and
Sheriff Jones (collectively referred to as appellees) filed an
answer and thereafter, filed a motion to dismiss under Ky. R.
Civ. P. (CR) 12.02.
Therein, appellees claimed to be entitled
to sovereign immunity upon the official capacity claims and to
qualified official immunity upon the individual capacity claims.
By orders entered April 10, 2003, and May 9, 2003, the circuit
court concluded the claim against Sheriff Jones in his official
capacity was barred by the doctrine of sovereign immunity.
The
court also concluded that additional facts were needed upon
1
Mitzi R. Cross is also an appellant but merely asserts claims for “lost
wages” and loss of consortium.
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whether the claim against Sheriff Jones in his individual
capacity was barred by the doctrine of qualified official
immunity and thus, did not dismiss the claim.
The court further
held the claim against Deputy Cox in his official capacity was
barred by the doctrine of sovereign immunity2 but determined that
additional facts were needed upon whether the claim against
Deputy Cox in his individual capacity was barred by qualified
official immunity.
This appeal follows.3
Upon review of a dismissal under CR 12.02, all factual
allegations contained in the complaint must be taken as true,
and there must exist no set of facts upon which relief could be
based.
Pari-Mutuel Clerks’ Union, Local 541 v. Kentucky Jockey
Club, 551 S.W.2d 801 (Ky. 1977).
In this appeal, we are
presented with the following legal questions:
(1) whether a
sheriff is generally clothed with sovereign immunity when sued
in his official capacity; and specifically, (2) whether a
sheriff in his official capacity is liable for the negligence of
his deputy?
We address these questions seriatim.
The office of the sheriff has deep historical roots at
common law and even predates the Magna Carta.
See Wisconsin
Prof’l Police Ass’n v. County of Dane, 106 Wis.2d 303, 316
2
On appeal, appellants do not raise as error the dismissal of their claim
against Deputy Leland E. Cox in his official capacity.
3
The orders were made final and appealable by inclusion of Ky. R. Civ. P.
54.02 language.
-3-
N.W.2d 656 (1982)(recognizing that the office of the sheriff
originated prior to the Magna Carta).
In this Commonwealth, the
office of the sheriff is a constitutional office and elected
from each county.
Ky. Const. §§ 99 and 100; and Shipp v. Rodes,
196 Ky. 523, 245 S.W. 157 (1922).
The sheriff is not an officer
of the state but is, instead, recognized as the chief law
enforcement officer of the county.
Shipp, 245 S.W. 157.
Indeed, the office of the sheriff receives most of its funding
from the county and its residents.
See Kentucky Revised
Statutes (KRS) 64.121; KRS 70.036.
It is well-recognized that a county is viewed as a
political subdivision of this Commonwealth and as such, is
“cloaked” with sovereign immunity.
Lexington-Fayette Urban
County Gov’t v. Smolcic, 142 S.W.3d 128 (Ky. 2004).
The
doctrine of sovereign immunity precludes maintaining any
negligence action against the Commonwealth unless the
Commonwealth expressly consents or otherwise waives its
immunity.
Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001).
It is an
equally well-recognized tenet that sovereign immunity extends to
an official sued in his official capacity.
Id.
When sued in an
official capacity, the public official is said to be sued as a
representative of the sovereign, and the sovereign is viewed as
the real party in interest.
Id.
-4-
With the foregoing in mind, we hold that a sheriff is
a county official and absent a waiver thereof is clothed with
sovereign immunity when sued in his official capacity.
See
Commonwealth Bd. of Claims v. Harris, 59 S.W.3d 896 (Ky.
2001)(holding that a jailer sued in his official capacity is
cloaked with the county’s sovereign immunity).
Hence, a sheriff
is entitled to sovereign immunity when sued in his official
capacity.
We now turn to the more troublesome question of
whether the sheriff is liable in his official capacity for the
negligence of his deputy.
Resolution of this question centers
upon interpretation of KRS 70.040, which reads:
The sheriff shall be liable for the acts or
omissions of his deputies; except that, the
office of sheriff, and not the individual
holder thereof, shall be liable under this
section. When a deputy sheriff omits to act
or acts in such a way as to render his
principal responsible, and the latter
discharges such responsibility, the deputy
shall be liable to the principal for all
damages and costs which are caused by the
deputy's act or omission.
By its express terms, KRS 70.040 imposes “liability”
upon the office of the sheriff for acts and omissions of
deputies.
It is clear that KRS 70.040 exempts the sheriff
individually from its ambit;4 however, it is unclear whether KRS
4
Previous versions of Kentucky Revised Statutes 70.040 read that the sheriff
was responsible for the acts of deputies. Such versions were not limited to
the office of sheriff. See, e.g., Ky. St. 4563 (1894).
-5-
70.040 constitutes a limited waiver of sovereign immunity
enjoyed by the sheriff in his official capacity.
To constitute a waiver of sovereign immunity, a
statute must do so expressly or impliedly “by such overwhelming
implications from the text as [will] leave no room for any other
reasonable construction.”
Withers v. University of Kentucky,
939 S.W.2d 340, 346 (Ky. 1997)(quoting Murray v. Wilson
Distilling Co., 213 U.S. 151, 171, 29 S. Ct. 458, 464-65, 53 L.
Ed. 742 (1909)).
Under KRS 70.040, the office of sheriff is subject to
liability for the acts or omission of deputies.
As recently
observed by the Kentucky Supreme Court, “[i]mmunity, however,
means immunity from suit.”
Grayson County Board of Educ. v.
Casey, 157 S.W.3d 201, 207 (Ky. 2005).
By utilizing the term
“liability”, did the General Assembly intend to make the office
of sheriff amenable to civil suit?
The interpretation of a statute is a matter of law for
the court.
White v. McAllister, 443 S.W.2d 541 (Ky. 1969).
When interpreting statutory language, words possessing a
technical legal meaning should be given such meaning.
City of
Worthington Hills v. Worthington Fire Protection District, 140
S.W.3d 584 (Ky.App. 2004).
-6-
The word “liability” has acquired a particular legal
meaning:
The quality or state of being legally
obligated or accountable; legal
responsibility to another or to society,
enforceable by civil remedy . . . .
BLACK’S LAW DICTIONARY 925 (7th ed. 1999).
Under the above
definition, liability means a legal obligation enforceable by
civil remedy.
Therefore, we interpret KRS 70.040 as exposing
the office of sheriff to civil suit for the acts and omissions
of a deputy.5
By overwhelming implication, KRS 70.040 waives the
sovereign immunity historically enjoyed by the sheriff when sued
in his official capacity for the negligence of a deputy.
In
sum, we hold that Sheriff Jones in his official capacity is not
entitled to the shield of sovereign immunity by operation of KRS
70.040.
Appellants also challenge the constitutionality of KRS
70.040; however, the record reveals that appellants failed to
notify the attorney general of the challenge as required by KRS
418.075.
KRS 418.075 mandates that the attorney general be
served with a copy of the initiating document of an appeal when
the constitutionality of a statute is called into question;
moreover, this notice must be served before the filing of
5
Until the Kentucky Supreme Court directs otherwise, or until the General
Assembly repeals this statute, we reluctantly hold, that under prevailing
law, the office of sheriff is not immune from liability for the acts and
omissions of a deputy.
-7-
appellant’s brief.
The record reveals that no such notification
was served upon the attorney general.
In the certificate of
service to appellants’ brief, appellants certified that a copy
of the brief was served upon the attorney general.
However, KRS
418.075 clearly requires the initiating document be served upon
the attorney general before the filing of the brief.
Upon these
facts, we conclude that appellant failed to properly notify the
attorney general of his constitutional attack upon KRS 70.040.
See Maney v. Mary Chiles Hosp., 785 S.W.2d 480 (Ky. 1990).
Where the attorney general is not properly notified of a
constitutional attack upon a statute, the court must decline to
address the constitutionality of the statute.
Blake v. Woodford
Bank & Trust Co., 555 S.W.2d 589 (Ky.App. 1977); Massie v.
Persson, 729 S.W.2d 448 (Ky.App. 1987) overruled on other
grounds by Conner v. George W. Whitesides Co., 834 S.W.2d 652
(Ky. 1992).
We also observe that the circuit court did not pass
upon the constitutionality of KRS 70.040.
It is well-
established that an appellate court will only review alleged
errors that were actually presented to and decided by the
circuit court.
See Regional Jail Authority v. Tackett, 770
S.W.2d 225 (Ky. 1989).
Upon the above stated principles of law,
we decline to address the constitutionality of KRS 70.040.
-8-
For the foregoing reasons, the orders of the Barren
Circuit Court are reversed and this cause is remanded for
proceedings consistent with this opinion.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANTS:
BRIEF AND ORAL ARGUMENT FOR
APPELLEES:
Lee Huddleston
HUDDLESTON & HUDDLESTON
Bowling Green, Kentucky
Marc A. Lovell
HARLIN PARKER
Bowling Green, Kentucky
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