COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS V. SHANNON D. SEXTON, ET AL.
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CORRECTED: AUGUST 26, 2008
RENDERED : JUNE 19, 2008
TO BE PUBLISHED
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2006-SC-000454-DG
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
V
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2005-CA-000005
JEFFERSON CIRCUIT COURT NO . 04-CI-003938
SHANNON D. SEXTON;
COMMONWEALTH OF KENTUCKY,
ENVIRONMENTAL AND PUBLIC
PROTECTION CABINET,
KENTUCKY BOARD OF CLAIMS
APPELLEES
OPINION OF THE COURT BY JUSTICE MINTON
REVERSING AND REMANDING
I . INTRODUCTION .
We granted discretionary review of a decision of the Court of Appeals that
(1) created a new duty on the state's urban landowners owed to adjoining
landowners to exercise ordinary care to prevent an unreasonable risk of harm
arising from defective or unsound trees on the urban landowners' property and
(2) held that administration of this new duty was ministerial in nature, meaning
that the Commonwealth of Kentucky had waived sovereign immunity and could
beheld liable for damages allegedly caused by defective or unsound trees
located on state-owned lands. We reverse the Court of Appeals and hold that
the acts at issue in the case before us were not ministerial acts and that the
Commonwealth has, therefore, not waived sovereign immunity.
Il . FACTS .
A dead tree standing on a vacant land fell onto Shannon Sexton's
adjacent property in suburban Louisville, damaging Sexton's garage and
destroying his vehicle. Upon investigation, Sexton discovered that the vacant
land belonged to the Department of Highways, which is a division of the
Kentucky Transportation Cabinet . Sexton then filed an action against the state
highway department in the Board of Claims.
A.
The Board of Claims Ruled for Sexton,
and the Circuit Court Agreed .
A hearing officer for the Board of Claims found that the dead tree had
been located somewhere between ten and twenty-five feet from Sexton's garage
and that the state highway department had been doing road work approximately
two hundred feet from the dead tree. According to Sexton, the dead tree was
clearly visible from the construction site. Sexton was aware of the dead tree
before it fell, but he had not reported it to anyone . After he discovered the
ownership of the vacant land, Sexton reported another dead tree, which the
highway department removed .
A highway department engineer testified before the Board of Claims
hearing officer that no one from the highway department would have inspected
the vacant lot adjacent to Sexton's property before the tree fell and that the
highway department did not know of the tree's condition before it fell. The
engineer further testified that she did not ask her employees whether they
noticed the dead tree before it fell. She stated that maintenance workers for the
highway department look at trees that may cause potential highway hazards to
determine whether the trees should be removed .
The hearing officer noted the parties' stipulations : (1) "that the Cabinet is
responsible for informing the maintenance department of dangerous or defective
conditions on property owned by the Commonwealth" and (2) that "the
maintenance department regularly locates and removes dead trees from property
owned by the Commonwealth and . . . did, in fact, remove a dead tree located on
the Commonwealth's property a short distance from the dead tree at issue in this
case : The hearing officer then found that tree inspection and removal of dead
trees from its property were ministerial acts for the highway department; that the
highway department had constructive notice of the dead tree and negligently
failed to remove it; and that the highway department was, therefore, liable to
Sexton for damages totaling $7,875 .00. The Board of Claims entered a Final
Order accepting the hearing officer's recommended order, which the Jefferson
Circuit Court affirmed .
B . The Court of Appeals Created a New Rule of Law for Kentucky.
In a split decision, the Court of Appeals also affirmed, stating :
We believe that rather than asking whether the Department's failure
to act in this case was discretionary or ministerial, our inquiry
should be whether or not the Department owed a duty of care to
Sexton, and, if so, whether or not it breached that duty. This is so
because, if the Department owed a duty of care to Sexton as an
adjoining landowner in a populous area, then a breach of that duty
would in fact be a violation of a defined or ministerial duty.
The Court of Appeals stated that Kentucky courts had previously embraced a
traditional rule that landowners did not have a duty to fix natural occurrences on
their land which might endanger or damage others outside the land . But the
Court of Appeals then stated that it now recognized an urban landowner's "duty
to others outside of his land to exercise reasonable care to prevent an
unreasonable risk of harm arising from defective or unsound trees on the
premises." It also held that administration of this new duty was ministerial and
affirmed the decision in favor of Sexton, based on constructive notice since "even
a cursory inspection of the vacant lot should have revealed the presence of dead
trees in the boundary line adjoining Sexton's property ." Because we are
concerned about the magnitude of this new duty and the characterization of
inspection of trees on all state-owned land for soundness as a ministerial act, we
granted discretionary review.
III. ANALYSIS .
A.
Sovereign Immunity Has Not Been Waived
Under the Board of Claims Act .
This case involves an action seeking damages from the Commonwealth
through one of its governmental agencies . Our courts have long recognized that
the Commonwealth and its agencies and subdivisions are immune from suit,
unless the Commonwealth has waived its immunity.'
Section 231 of the
Kentucky Constitution states, "The General Assembly may, by law, direct in what
Yanero v. Davis, 65 S .W.3d 510, 523-24 (Ky. 2001). See also Commonwealth v.
Kelley , 314 Ky. 581, 236 S.W.2d 695, 696 (1951) ("Immunity from suit has always
been an attribute of state sovereignty.").
manner and in what courts suits may be brought against the Commonwealth ." In
other words, the legislature is vested with the power to decide when and how
sovereign immunity may be waived . The Board of Claims Act (KRS 44.070,
et. seq.) provides for a waiver of sovereign immunity for negligence in the
performance of ministerial acts only.2
B. Under the Facts of this Case, Tree Inspection and Dead Tree
Removal on Commonwealth-Owned Property Was Not a
Ministerial Act.
In our view, the Board of Claims and lower courts erroneously concluded
that tree inspection on state-owned land was a ministerial act and, thus, erred in
finding a waiver of sovereign immunity . The Board of Claims and the circuit court
decided that the inspection of trees and removal of dead trees were ministerial
acts largely based upon the highway department's admission that its
maintenance department regularly locates and remedies dangerous defects on
its property, which sometimes includes removing dead trees. The Court of
Appeals stated that these acts were ministerial if the highway department had a
well-defined duty to inspect trees for dangerous defects, despite lack of actual
notice of such defects, and then imposed such a duty of inspection . Neither
KRS 44.073(2) ("The Board of Claims shall have primary and exclusive jurisdiction
over all negligence claims for the negligent performance of ministerial acts against
the Commonwealth, any of its cabinets, departments, bureaus, or agencies, or any
officers, agents, or employees thereof while acting within the scope of their
employment by the Commonwealth or any of its cabinets, departments, bureaus, or
agencies ."); see also Collins v. Commonwealth of Kentucky Natural Resources and
Environmental Protection Cabinet, 10 S.W.3d 122, 125 (Ky. 1999), construing
KRS 44.073(2) ("This provision clearly establishes that any negligence claims
against the Commonwealth or its subdivisions must be for the negligent performance
of `ministerial acts.' By implication, the negligent performance of non-ministerial, i.e.,
discretionary, acts cannot be a basis for recovery under the Act.").
approach is consistent with our case law defining ministerial and discretionary
duties .
In determining whether acts are ministerial or discretionary for purposes of
determining whether the Commonwealth or one of its agencies may be held
liable for negligent performance of that act, "it is necessary to determine whether
the acts involve policy-making decisions and significant judgment, or are merely
routine duties ." s And the fact that an agency occasionally or even regularly
engages in a particular act does not necessarily mean that the act is a "routine
duty" not involving "significant judgment, statutory interpretation, or policy-making
decisions .
,4
In particular, the fact that highway department employees in this
case later removed the second dead tree from the vacant lot after receiving
actual notice of its condition does not mean that inspection for dead trees in the
absence of actual notice is a ministerial act. An agency's "routine duties" will
typically be established by statutes or regulations that very clearly and
Collins , 10 S.W.3d at 126. As Collins also concerned whether the Commonwealth
itself (through one of its agencies) had waived sovereign immunity, its test
concerning whether an act is discretionary or ministerial applies . Obviously, cases
involving whether an individual government employee can be held liable or has
qualified official immunity involve different concerns (such as individual decisions), so
their tests of what acts are ministerial or discretionary would be less applicable . See,
e.g., Yanero, 65 S.W .3d at 522 ("an officer or employee is afforded no immunity from
tort liability for the negligent performance of a ministerial act, i.e., one that requires
only obedience to the orders of others, or when the officer's duty is absolute, certain,
and imperative, involving merely execution of a specific act arising from fixed and
designated facts .").
Collins , 10 S.W.3d at 126 (finding acts at issue to be routine duties or ministerial acts
in light of specific regulations governing that act, such that those performing the act
did not have to make significant judgment, interpret statutes, or make policy
decisions) .
specifically set forth those actions that the agency must take. For example, in
Collins we found that mine site inspection by the Natural Resources and
Environmental Protection Cabinet was a ministerial act because several statutes
and regulations established how inspection was to be performed and required
attention to specific details .
We recognize that in a different context (that of determining whether an
individual government employee was individually liable or should be accorded
qualified official immunity), we found the act of a law enforcement officer
responding to a fellow officer's call for assistance to be a ministerial act, despite
the lack of specific statutes or regulations detailing how to respond for such a call
for assistance.' In some situations, an act may be ministerial even if that act is
not specifically covered by applicable statutes, or administrative regulations . For
example, though we need not definitively decide the issue in this case, if a state
entity has actual notice of the existence of a dead or dangerous tree on property
owned by that state entity, inspecting or removing the tree may be a ministerial
act. Given the absence of a statute or regulation creating any duty owed by the
highway department to the public in general or to adjoining landowners regarding
defective or unsound trees and the lack of any other authority (including case
law) imposing such a duty at the time of the incident, tree inspection and removal
of dead trees on all highway department-owned lands was not a ministerial act.
See id. at 126 (finding act to be ministerial, in light of statutes and regulations clearly
setting forth duties, in particular regulations requiring inspection of certain details
relevant to case).
See Jones v. Lathram , 150 S.W.3d 50, 53 (Ky. 2004).
We are unaware of any statutes or regulations specifically establishing a
duty that the highway department inspect trees on its lands.$ It does have a duty
The duties of the Department of Highways are set forth in KRS 176 .050, which
provides :
The department shall:
(a) Investigate all problems relating to the construction and maintenance of
roads in the state;
(b) Examine all projects and ascertain the feasibility of all routes ;
(c) Obtain information as to the proper type of road for any project;
(d) Examine all types of road materials which may be used in the construction
or maintenance of any road to be constructed by the department or under
its direction or supervision;
(e) Require the design plans for all road projects constructing a new route to
identify, if at all feasible, one (1) or more publicly owned sites at least four
(4) acres in size, along the proposed new route that will be used as waste
sites during the construction phase of the project but that have the potential
for a city, county, or other governmental entity to turn the site into an
industrial park upon completion of the road project, regardless of whether
the site currently has the infrastructure necessary to support an industrial
park ;
(f) Consult with all legislative bodies affected by a new road construction
project during the design phase for the purpose of soliciting local
government officials' preferences for the location of waste sites that could
be turned into an industrial park;
(g) From time to time, examine and have examined and audited all of its books,
papers and records;
(h) Cause to be made all necessary surveys in the establishment and
construction of the system of public highways ; all necessary maps, prints,
plans and specifications of all work to be done on the roads; estimates of
costs ; advertisement for bids ; contracts for construction or maintenance;
and all necessary forms in connection therewith ; and
(i) Promulgate administrative regulations under KRS Chapter 13A for the care
and maintenance of roads after they have been constructed.
(2)
(3)
The department may publish bulletins containing useful information concerning
the construction and maintenance of roads.
An invoice or bill to be paid out of the road or bridge funds shall not be
approved by the department for payment until it has been carefully examined
by the department to ascertain if the bill or invoice is in every respect a proper
and legitimate charge against the road or bridge funds . The commissioner may
to "[i]nvestigate all problems relating to the construction and maintenance of
roads in the state," 9 which may have led to some tree inspections where the
trees could have potentially affected the construction and maintenance of roads .
But despite relatively close proximity to a highway department construction site,
the condition of the trees in the vacant lot owned by the Commonwealth here did
not affect the construction or maintenance of roads in any manner.
Not only are there no statutes or regulations governing tree inspection in
the absence of actual notice of unsound trees by the. highway department, there
was no existing Kentucky case law at the time of the property damage that
imposed on the highway department a duty to inspect trees for soundness on its
property . In fact, earlier decisions held that the highway department had no duty
to inspect for dead trees even where the dead tree was located along a roadway.
1n Commonwealth, Department of Highways v. Callebs , 1° our predecessor-court
reversed a trial court judgment vacating a Board of Claims order denying
recovery from the highway department for a motorist killed by a dead tree falling
on the highway, stating the highway department had no duty to inspect land
along the roadway for dead trees :
9
10
call before him any person who may have information respecting any bill or
invoice .
In contrast to the apparent lack of specific duties regarding trees on the highway
department in statutes or regulations, we note that county road engineers are
specifically directed to "[r]emove trees or other obstacles from the right-of-way of any
publicly dedicated road when the tree or other obstacles become a hazard to traffic."
KRS 179.070(1)0) .
KRS 176.050(1)(a) .
381 S.W.2d 623 (Ky. 1964).
In order to affirm the circuit court judgment, which set aside
the order of the board, we would be required to hold that as a
matter of law the Department of Highways had a duty to make a
`walk-around' inspection of the tree, involving perhaps an entry on
private lands . We do not believe that such is the law.
We have been cited to no authority, nor has our research
disclosed any, imposing by law so great an inspection duty on
public highway authorities in an area such as here involved .
Although the area may have been within the city limits of
Barbourville, it was not truly urban in character, and in the near
vicinity there were wooded hillsides along the road . In such an area
we cannot say as a matter of law that the burden of a walk-around
inspection of each tree near the highway (perhaps requiring the
obtaining of entry permission from the abutting landowners) would
not be unreasonable in comparison with the risk."
Although the Court in Callebs noted that the inspection required to remove the
risk in that case might have required an entry onto private land, the Court,
nonetheless, did not recognize or impose a duty to inspect trees on the
Department's own lands for potential hazards. 12
As the Court of Appeals stated in its opinion in this case, very few cases
regarding potential liability for damage caused by dead or otherwise defective
trees have reached the appellate courts of this Commonwealth in recent
decades . 13 Nonetheless, the existing case law at the time the tree fell did not
13
Id. at 624.
Although not involving dead or defective trees, the highway department was similarly
held not liable for failing to discover or remedy another dangerous natural condition
(the loosening of a boulder along the highway) which resulted in a falling boulder
injuring a motorist in Schrader v. Commonwealth, 309 Ky. 553, 218 S.W.2d 406
(1949) (involving similar, differently numbered statutes about the Board of Claims) .
The Court of Appeals does mention that in 1984 it stated in dicta that perhaps
traditional rules of non-liability for failing to discover and remedy a dangerous natural
condition (specifically, a dead or dying tree) should be re-examined in Schwalbach v.
Forest Lawn Memorial Park, 687 S.W.2d 551, 552 (Ky.App. 1985). However, as the
Court of Appeals recognized here, Schwalbach directly concerned only damage to a
neighbor's property from the "natural dropping of leaves and other debris" from a
healthy tree and held that Kentucky adhered to the "Massachusetts rule," which
10
impose on the highway department a duty to inspect trees for potential hazards
to people or property. Therefore, especially in light of the lack of statutes or
regulations specifically imposing such a duty, there was no authority requiring
such regular, recurrent inspection of all trees located on highway department
property that tree soundness inspection could fairly be characterized as a
ministerial act by the highway department .
To the extent that the Department elected to conduct some tree
inspections to promote public safety on the highways or even prevent damage to
private property, this must have come about as a result of its employees'
discretion to elect to perform such a function since this specific function was not
required by any applicable law. Since this was clearly a discretionary act, the
Commonwealth has not waived sovereign immunity for any alleged negligence in
performing this act. So the judgment in favor of Sexton must be reversed with
directions to enter judgment in favor of the Commonwealth, Transportation
Cabinet, Department of Highways. Sexton's request for interest on the Board of
Claims award is necessarily rendered moot.
C.
We Decline to Address Whether Traditional Rules
Governing Liability for Damage to Neighbors'
Property Caused by Dead or Otherwise Defective
Trees Should be Abandoned .
Because we conclude that the performance of discretionary rather than
ministerial acts is at issue here and that sovereign immunity has not been
provides that the injured neighbor had a right to cut back the offending tree but not to
sue in court for damages . See id. at 552 . Thus, the holding in Schwalbach certainly
is not dispositive of the case at hand . Lest this opinion be misconstrued, however,
we explicitly note that we intend for the Massachusetts rule to continue to apply to
cases involving the natural dropping of leaves and other naturally occurring debris
onto the property of another landowner .
waived, it is not necessary for us to address whether a private landowner in an
urban area is liable in tort for damages caused to a neighbor's property by dead
or otherwise defective trees falling . So we conclude that the Court of Appeals
erred in imposing a previously unrecognized legal duty on urban landowners
where it was not necessary for the resolution of the case before it.
IV. CONCLUSION.
For the foregoing reasons, the Court of Appeals' decision is hereby
reversed ; and the matter is remanded to the Board of Claims with directions to
14
For discussion and references, see CHERYL M . BAILEY, ANNOTATION, TREE OR LIMB
FALLS ONTO ADJOINING PRIVATE PROPERTY: PERSONAL INJURY AND PROPERTY
DAMAGE LIABILITY, 54 A.L .R .4th 530 (1987 & June 2007 Supplement). The Court of
Appeals frames the traditional rule as stating, "a possessor of land has no duty to
remedy purely natural conditions on his land, even if they are dangerous to his
neighbors ."
We note that some of the authorities that deal with a landowner's liability for dead or
otherwise defective trees falling specifically concern a tree falling on a highway or
other public roadway---a fact pattern that may implicate different duties or concerns
than that in the present case dealing with damage to nearby private property . For
example, Section 363 of the Restatement (Second) of Torts (1965), which is
mentioned in the Court of Appeals opinion, states the traditional rule of no landowner
liability for harm to persons outside the land caused by natural conditions on the land
with an exception for harm caused to persons injured by defective trees while
traveling on the highway in an urban area:
§ 363 Natural Conditions
Except as stated in Subsection (2), neither a possessor of land, nor a vendor,
lessor, or other transferor, is liable for physical harm caused to others outside
of the land by a natural condition of the land .
(2)
A possessor of land in an urban area is subject to liability to persons using a
public highway for physical harm resulting from his failure to exercise
reasonable care to prevent an unreasonable risk of harm arising from the
condition of trees on the land near the highway.
(Emphasis added.) See also Lemon v. Edwards, 344 S.W.2d 822 (Ky. 1961)
(holding that landowner was not liable for personal injury and property damage to
motorist traveling in car hit by landowner's falling dead tree, as there was no duty to
inspect rural land for defective trees posing danger to users of seldom-used
adjoining road).
12
enter judgment in favor of the Commonwealth of Kentucky, Transportation
Cabinet, Department of Highways.
All sitting, except Schroder, J . All concur.
COUNSEL FOR APPELLANT :
Arthur Andrew Draut
Russell Harper Saunders
Weber & Rose, P.S.C.
471 West Main Street
Suite 400
Louisville, Kentucky 40202
Paul Kevin Moore
General Counsel
Office of Legal Services
200 Mero Street
Frankfort, Kentucky 40601-1920
COUNSEL FOR APPELLEE
SHANNON D. SEXTON:
Daniel Michael Alvarez
Alvarez & Ansari, PLLC
539 W. Market Street, Suite 3
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE
COMMONWEALTH OF KENTUCKY,
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET,
KENTUCKY BOARD OF CLAIMS :
George Mitchell Mattingly
Legal Counsel
Board of Claims
130 Brighton Park Blvd .
Frankfort, Kentucky 40601-3113
13
uyrtntt Caurf Of ~Rtnfurhv
2006-SC-000454-DG
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2005-CA-000005
JEFFERSON CIRCUIT COURT NO . 04-CI-003938
SHANNON D. SEXTON;
COMMONWEALTH OF KENTUCKY,
ENVIRONMENTAL AND PUBLIC
PROTECTION CABINET,
KENTUCKY BOARD OF CLAIMS
APPELLEES
ORDER OF CORRECTION
The Opinion of the Court by Justice Minton, rendered June 19, 2008, is
CORRECTED on its face by substitution of pages 1 and 3 of the Opinion of the
Court by Justice Minton. Said correction does not affect the holding .
ENTERED: August 26, 2008.
Y'EF JUSTICE JOHN D. MIN
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