CANEYVILLE VOLUNTEER FIRE DEPARTMENT, ET AL. V. GREEN'S MOTORCYCLE MINTON, C.J., CONCURS IN RESULT ONLY BY SEPARATE
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CANEYVILLE VOLUNTEER FIRE
DEPARTMENT, ET AL
V.
ON REVIEW FROM COURT OF APPEALS
NO. 2006-CA-001142-MR
GRAYSON CIRCUIT COURT NO. 05-CI-00480
GREEN'S MOTORCYCLE
SALVAGE, INC., ET AL
APPELLEES
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
The present appeal comes to this Court by way of discretionary
review from an action asserting negligence brought by Appellees, Orville
Green, Catherine Green and Green's Motorcycle Salvage, Inc., against
Appellants, Caneyville Volunteer Fire Department (hereinafter CVFD), the
City of Caneyville and CVFD Fire Chief, Anthony Clark.
At the outset, we note that the City of Caneyville was entitled to
dismissal. CVFD is an agent of the Commonwealth, having been
recognized as such by the General Assembly by KRS 75 .070 and
declared immune from suit in tort. Because fire departments are thus
immune from suit in tort, and are agents of the Commonwealth, albeit
operating on a local basis, there can be no attendant municipality
liability for CVFD's firefighting actions. Therefore, it is not within our
authority to impose civil liability on an arm of the government carrying
out such a government function. This is also consistent with KRS
95 .830(2) in this instance.
Additionally, Chief Clark is immune in his official capacity as Fire
Chief of CVFD . In his individual capacity, Chief Clark is entitled to
qualified official immunity for his discretionary acts . Accordingly, we
reverse the decision of the Court of Appeals to the extent that it conflicts
with these holdings and the rationale articulated herein .
I.
INTRODUCTION
Unquestionably, the prudent path between sovereign immunity
and jural rights is a formidable legal quagmire to traverse. As a number
of my esteemed colleagues on the bench have observed through the
years, immunity is an area fraught with complexities which have divided
the courts and confounded jurists . However, the complexity in immunity
analysis has much to do with the courts' genuine attempt, over time, to
eliminate the guesswork from determining when immunity has been
properly and constitutionally recognized . Naturally, striking the
appropriate balance has been no small task.
At times during this endeavor, proponents and recipients of
immunity have bumped against Kentucky's jural rights or open courts
doctrine . While the doctrine is not without its critics, it is a deep-rooted
aspect of the Commonwealth's legal canon. And, although some would
liken it to legal fiction, we are disinclined to reach such a conclusion .
Indeed, thirty-nine (39) other states contain similar such provisions in
2
their state constitutions. Jonathan M. Hoffman, By the Course of Law:
The Origins of the Open Courts Clause of State Constitutions, 74 Or. L.
Rev. 1279 (1995) . In fact, the doctrine traces its genesis back to the
Magna Carta and was espoused by no less venerated a jurist than Sir
Edward Coke who, in his historically significant Second Institute,
envisioned it as a vehicle to "ensure the integrity of the judicial process
by stating that justice was not for sale," and to avoid undue interference
with the judiciary in the courts of law by outside forces.
I
Id . at 1281,
1317. Over a century after Coke penned his Second Institute, the
doctrine rang true with the American Colonies who feared that the
British Crown was meddling in the colonial courts . Id. at 1288 . Thus,
the doctrine found its way into early state constitutions.
Nonetheless, we have been called upon, here, to examine the
General Assembly's recognition of immunity in this state's fire
departments, which inherently dredges up considerations of sovereign
immunity and jural rights . Thus, the matter is one of constitutional
interpretation and common law application. As such, this Court is
bound, as it has oft been in the past, to articulate a plausible and
1 "[T]he clause was apparently taken from Sir Edward Coke's restatement
of Magna Carta Chapter 40 . It was first incorporated into the Delaware
Declaration of Rights while the Revolutionary War was still being fought, well
before the United States Constitution established the federal judiciary as an
independent branch of government . There is little indication that it was the
subject of debate when newer states copied it into their own constitutions. A
few states, such as Kentucky and Montana, appear to have made certain
assumptions about the meaning of the open courts clause when adopting or
revising their constitutions, but they are the exception. In most instances,
states simply adopted the open courts clause wholesale and without
discussion ." Id. at 1284-1285 (internal notations omitted) .
3
constitutionally sound solution to an immunity problem while respecting
the doctrine ofjural rights. That this area of the law is complex in
undeniable ; however, this does not mean, as the minority suggests, that
the remedy is to wipe the slate clean with regards to the evolution and
history of the common law in this arena.
As always, the doctrine of stare decisis remains an ever-present
guidepost in our undertaking. Stare Decisis compels us to decide every
case with deference to precedent. "Thus, it is with anything but a
cavalier attitude that we broach the subject of changing the ebb and flow
of settled law [and while], we do not feel that the doctrine compels us to
unquestioningly follow prior decisions when this Court finds itself
otherwise compelled," we recognize that "`stare decisis [is] the means by
which we ensure that the law will not merely change erratically, but will
develop in a principled and intelligible fashion .' Chestnut v.
Commonwealth , 250 S.W.3d 288, 295 (Ky. 2008)
(quoting Vasquez v.
Hillery, 474 U.S . 254, 265-265, (1986)) .
The open courts provision appears in our constitution, Ky. Const. §
14, which was ratified in 1891, and was linked with §§ 54 and 241 and
ascribed the moniker of jural rights doctrine in 1932 in Ludwig v.
Johhson, 243 Ky. 533, 49 S.W .2d 347 (1932) . This is a longstanding
common law principle of nearly fourscore years, to which this Court
should defer - unless we are strongly compelled otherwise, which we are
not.
II.
BACKGROUND
The Greens own a motorcycle salvage business in Grayson County
outside the city of Caneyville . Their business caught fire on December 3,
2003, and CVFD responded to the call to extinguish the fire . CVFD is a
volunteer fire department which provides fire protection services to
Caneyville and the surrounding areas. Despite the fire department's
attempt to contain the fire, the business along with much of its inventory
was destroyed . Appellees subsequently brought suit alleging that CVFD,
its Chief, and thus the City of Caneyville were negligent in failing to
timely extinguish the fire and that, as a result of this alleged negligence,
they suffered more severe property damage than they otherwise would
have if additional measures had been taken to extinguish the fire .2
Appellees also argued that KRS 75 .070 and KRS 95 .830(2) were
unconstitutional .
KRS 75 .070, which purports to provide fire departments and
firefighters with immunity from civil liability, states as follows:
(1) A municipal fire department, fire protection district fire
department, and volunteer fire department and the
personnel of each, answering any fire alarms, performing
fire prevention services, or other duly authorized
emergency services inside and outside of the corporate
limits of its municipality, fire protection district, or area
normally served by a volunteer fire department, shall be
considered an agent of the Commonwealth ofKentucky, and
acting solely and alone in a governmental capacity, and
such municipality, fire protection district, or area normally
served by a volunteer fire department, shall not be liable in
damagesfor any omission or act of commission or
2 Specifically, Appellees assert CVFD and Chief Clark should have
recognized the need for further assistance in combating the fire earlier and
called for additional. help from surrounding fire departments.
5
negligence while answering an alarm, performing fire
prevention services, or other duly authorized emergency
services.
(2) No municipal fire department, fire protection district fire
department or volunteer fire department answering any fire
alarms, performing fire prevention services or volunteer fire
department services inside the corporate limits of the
district shall be liable in damages for any omission or act of
commission or negligence while answering or returning
from any fire or reported fire, or doing or performing any
fire prevention work under and by virtue of this chapter
and said fire departments shall be considered agents of the
Commonwealth of Kentucky, and acting solely and alone in
a governmental capacity.
(emphasis added) . KRS 95.830(2) is a companion statute dealing with
use of fire apparatus, which purports to mandate that "[t]he city shall not
be liable in any manner on account of the use of the apparatus at any
point outside of the corporate limits of the city. The apparatus shall be
deemed to be employed in the exercise of a governmental function of the
city."
The Grayson Circuit Court found KRS 75.070 constitutional and
dismissed the case with prejudice. On appeal, however, the Court of
Appeals reversed the trial court, finding both KRS 75 .070 and KRS
95.830(2) unconstitutional for reasons that they violated Ky. Const. §§
14, 54, commonly known as the jural rights or open courts doctrine . 3 In
3 In addition to sections 14 and 54, the jural rights doctrine also
encompasses section 241 of the Kentucky Constitution . Section 14 provides,
"[a]11 courts shall be open, and every person for an injury done him in his lands,
goods, person or reputation, shall have remedy by due course of law, and right
and justice administered without sale, denial or delay." Ky. Const. § 14 .
Section 54 states, "[t]he General Assembly shall have no power to limit the
amount to be recovered for injuries resulting in death, or for injuries to person
or property." Ky. Const . § 54. And, section 241 mandates, in part, "[w]henever
the death of a person shall result from an injury inflicted by negligence or
wrongful act, then, in every such case, damages may be recovered for such
6
its reasoning, the Court of Appeals found that KRS 75 .070's attempt to
confer sovereign immunity on fire departments and firefighters was an
impermissible extension of immunity by the General Assembly akin to
the type previously struck down by our predecessor Court in Happy v.
Erwin, 330 S .W.2d 412 (Ky. 1959) and Haney v City of Lexington, 386
.
S .W.2d 738 (Ky. 1964) . The Court of Appeals held KRS 95.830(2) was
unconstitutional because Hanev had previously determined cities could
only enjoy immunity for real or quasi-legislative or judicial functions.
As to the Fire Chief, the Court of Appeals found he was entitled to
qualified official immunity, but the record was insufficient to determine
whether his acts were discretionary or ministerial in nature, and thus
remanded the matter back to the trial court for further proceedings . This
Court granted discretionary review .
The impetus of the foregoing is that once again this Court is faced
with the prospect of defining the permissible boundaries of sovereign
immunity within this Commonwealth and the lengths to which such
immunity may extend without improperly impinging upon the citizenry's
constitutional right to have access to its courts and to obtain redress
therein . Specifically, the task before this Court is to determine whether
the Caneyville Volunteer Fire Department is, or should be, afforded
governmental immunity from tort liability either by virtue of its status as
a governmental or quasi-governmental agency, or pursuant to KRS
death, from the corporations and persons so causing the same." Ky. Const. §
241 .
7
75 .070, which attempts to confer such immunity, and whether that
statute is constitutional .
III .
ANALYSIS
The Interplay of Sovereign Immunity and Jural Rights
The present matter requires this Court to examine an apparent
tension between two doctrines implied in the Kentucky Constitution :
sovereign immunity and jural rights . The issue is whether the General
Assembly has the right, through the enactment of legislation, to confer
immunity on fire departments and volunteer fire departments, or
whether jural rights preclude this grant of immunity as unconstitutional .
Firefighting has always been inherently intertwined with American
civil governance . Dating back to the establishment of Jamestown in
1607, which was subsequently ravaged by fire a year later, the threat of
fire and the need to curtail that threat became a pressing concern for the
fledgling American colonies . Firefighting in Colonial America,
http : / /www.firefightercentral . com/history/ fireflghting-in colonial ameri
ca.htm. As early as 1648, the Governor of New Amsterdam, in what is
present-day New York, appointed four fire wardens to enforce fire safety
rules . Id. Volunteer firefighting can likewise trace its roots to colonial
America as the vast majority of these early organizations were staffed by
volunteer citizen-firefighters . During this same period in New
Amsterdam, city burghers appointed citizens to a "Rattle Watch," who
volunteered to patrol the city streets at night to alert citizens if they saw
a fire and organize a bucket brigade to extinguish it. Id . Boston, too,
8
took steps to secure itself from the danger of fire as early as 1631 and
already had a remedial fire engine when the city was consumed by fire in
1676 . Id . When the engine proved ineffective for thwarting the fire, the
city subsequently purchased a state of the art machine from England
whose tank was filled by bucket brigade . Id . This engine brought about
the need for the first organized fire department in the colonies, beginning
service on January 27, 1678, requiring the General Court to seek out
twelve men and a captain to man the engine and fight fires . Id.
As with so many things in the emerging Union, Benjamin Franklin
played a pivotal role in the development of the modern-day volunteer fire
department . 4 Upon a visit to Boston, Franklin observed that the city
had a far better established infrastructure for fighting fire than did his
hometown of Philadelphia . See The Electric Ben Franklin, Franklin's
Philadelphia : A Journey Through Franklin's Philadelphia,
http://www .ushistory.org/franklin/philadelphia/fire .htm. In 1735, in
an effort to drum up support and raise public awareness about the need
for organized firefighting, Franklin wrote to his own newspaper, the
Pennsylvania Gazette, under the alias of "old citizen" as to the threat of
fire:
In the first Place, as an Ounce of Prevention is worth a
Pound of Cure, I would advise 'em to take care how they
suffer living Coals in a full Shovel, to be carried out of one
Room into another, or up or down Stairs, unless in a
Warmingpan shut; for Scraps of Fire may fall into Chinks
4 Interestingly, George Washington served as a volunteer fireman in
Alexandria, Virginia in 1774 and Thomas Jefferson also served on a volunteer
brigade . The History of American Firefighting,
http: / /www.infobarrel .com/The History-of American-Fire-Fighting .
9
and make no Appearance until Midnight ; when your Stairs
being in Flames, you may be forced, (as I once was) to leap
out of your Windows, and hazard your Necks to avoid being
oven-roasted .
Id. Soon thereafter, on December 7, 1736, Franklin established the
Union Fire Company, which served as the model for volunteer firefighter
organization in the rest of the colonies. Id . By the time of the Civil War,
volunteer fire departments were widespread and were emerging as an
entrenched aspect of state and local government .
The evolution of firefighting in Kentucky mirrored that of much of
the rest of the colonies and, ultimately, the newly formed country. For
instance, organized firefighting was first commenced in Winchester in
1792, consisting largely of organized bucket brigades . Winchester
Fire/EMS History, http: / / wfems .winchesterky.com/history .phtm l.
These remedial tactics soon gave way to engine pumps, filled by buckets
and pumped by hand . Id. In 1838, in an effort to modernize the
firefighting force, the city levied a tax to purchase a modern fire engine
dubbed the old "Rough and Ready." Id. In 1848, the General Assembly,
eager to advance the organization and discipline of the profession,
legislated the charter of the Rough and Ready Fire Company, so named
after the city's beloved engine, mandating the "duty of each member of
said company, when alarms of fire are given, to meet promptly, with their
engine, buckets, and other apparatus, the same; and shall, in all cases,
render obedience to the officers of said company." Id. Like other cities in
the state, modernization in technologies and population increases soon
10
begat more advanced firefighting techniques and closer governmental
regulation . Around 1886, Winchester obtained its first horse-drawn
steam engine, capable of dispensing with 400 gallons per minute, and by
1909 the fire department had a Webb hose truck, which was apparently
one of the first motorized engines in Kentucky . Id .
Likewise, the capitol city, Frankfort, has had tax supported fire
service since at least the early 1820s and additionally had regulations in
effect during that period empowering fire engineers to require the
assistance of lay citizens in answering fire alarms and mandating that
households own one leather bucket for every three fireplaces found in the
home for purposes of fighting house fires. City of Frankfort Fire and
EMS, http: / / Fankfort-ky.gov/fire-and-ems . html. In 1895, the Common
Council passed an ordinance to establish and maintain a fire company
and set forth the manner in which it would be governed . Id .
The thrust of the aforementioned historical perspective is to note
that the development of fire departments in Kentucky has arisen out of
the common need of public service and grown alongside government
legislation, regulation, and financial support of these entities . Fire
departments, however, are particularly unique in their evolution in that,
of necessity, they have been forced to maintain roots confined to the
locality in which they serve . Because the nature of firefighting involves
the need for expeditious and virtually instantaneous response to the
scene of a fire, fire departments are maintained and operated in local
areas, despite the fact that the authority from whence their existence
11
arises stems from the central state legislature. See KRS 75 .010; see
generally §§ KRS 95.010-.015
It is incontrovertible that fire departments perform a paradigmatic
function of the government in keeping the populous and its property safe
from fire . Indeed, one would be hard-pressed to think of a more
representative government function. Notably, Kentucky has a
longstanding tradition of treating firefighting as a governmental function
and thereby cloaking it in immunity . See Greenwood v. Louisville, 76 Ky.
(13 Bush) 226, *2 (1877) ("although a city has the power to establish a
fire department and to appoint and remove its officers, still it is not liable
for the negligence of firemen appointed and paid by it.") ; Davis v. City of
Lebanon, 108 Ky. 688, 691, 57 S.W . 471, 472 (1900) ("The appellee [city]
is authorized by law to establish and provide for the prevention and
extinguishment of fire, and it seems that such authority may be treated
as a governmental function.") ; Terrell v. Louisville Water Co ., 127 Ky. 77,
80, 105 S .W. 100, 101 (1907) (finding firefighting a government function) ;
see also City of Louisville v. Bridwell, 150 Ky. 589, 150 S .W. 672, 673
(1912) ("It is true that in maintaining a fire department for the protection
of the lives and property of its inhabitants the city of Louisville performs
a public or governmental duty imposed upon it by law, and for that
reason it cannot be held liable for injuries resulting."); Smith v.
Lexington , 307 S .W .2d 568, 569 (Ky. 1957) ("This [C]ommonwealth,
however, is generally committed to the theory that when a city engages in
an activity which relates primarily to the health and welfare of its
12
citizens, it is protected by a sovereign immunity, and we have specifically
found that a city fire department is engaged in such work.") .
The doctrine of sovereign immunity, as embodied in Ky. Const . §
231, purports to prohibit claims against the_ government treasury absent
the consent of the sovereigns Sovereign immunity is a bedrock
component of the American governmental ideal, and is a holdover from
the earliest days of the Commonwealth, having been brought over from
the English common law. The doctrine has been included in all four of
the Commonwealth's constitutions and predates each. Kentucky Center
for the Arts Corporation v. Berns , 801 S.W.2d 327, 329 (Ky. 1990) .
In recent years this Court has examined the history of sovereign
immunity in Kentucky in Yanero and in Berns. noting that the doctrine
made its way into the Commonwealth's jurisprudence at least as early as
1828 . See Yanero, 65 S .W .3d at 517-518 (citin Divine v. Harvie, 23 Ky.
(7 T.B. Mon) 439 (1828) . Thus, by the time our second Constitution was
in effect, our courts had recognized that the applicable constitutional
provision in force at that time - which manifested authority in the
General Assembly to determine the manner in which the Commonwealth
"'As noted in Reyes v. Hardin Memorial Hospital [55 S.W.3d 337 (Ky.
2001)] the words `sovereign immunity' are not found in the Constitution of
Kentucky. Rather, sovereign immunity is a common law concept recognized as
an inherent attribute of the state. Thus, contrary to assertions sometimes found
in our case law, Sections 230 and 231 of our Constitution are not the source of
sovereign immunity in Kentucky, but are provisions that permit the General
Assembly to waive the Commonwealth's inherent immunity either by direct
appropriation of money from the state treasury (Section 230) and/or by
specifying where and in what manner the Commonwealth may be sued (Section
231) ." Yanero v. Davis , 65 S.W .3d 510, 523-524 (Ky. 2001) (internal citations
omitted) .
13
could be sued - was but a voluntary grant of ability to sue the state, and
that the state was otherwise immune from suit in its own courts . See
Divine , 23 Ky. (7 T.B . Mon.) 439 at *2-3.
On the other hand, what has come to be known as the jural rights
doctrine exists as the constitutional counterbalance to sovereign
immunity . Under Kentucky jurisprudence, three provisions of the
Kentucky Constitution have been read in conjunction to assert a canon
of jural rights whose purpose is to ensure that citizens are afforded an
opportunity to have their causes heard in open court and to prevent the
v.
legislature from unnecessarily inhibiting that right. In Ludwig Johnson, which was the first case to recognize these three sections
together as implementing the doctrine, the Court found that the statute
under review in that instance
violates the spirit of our Constitution as well as its letter as
found in sections 14, 54, and 241 . It was the manifest
purpose of the framers of that instrument to preserve and
perpetuate the common-law right of a citizen injured by the
negligent act of another to sue to recover damages for his
injury. The imperative mandate of section 14 is that every
person, for an injury done him in his person, shall have
remedy by due course of law.
Ludwig v. Johnson, 243 Ky. 533, 49 S.W .2d 347, 351 (1932) .
Happy is typically regarded as extending the reasoning in Ludwi
and giving rise to the line of cases proffering jural rights as sovereign
immunity's counterargument, although nowhere does the case mention
sovereign or official immunity. "The line of cases originating from HapPV
provides that the application of official immunity should be limited, that
14
an individual's right to suit should be protected, and that the Kentucky
Constitution sections 14, 54, and 241 serve to prohibit the abolition or
diminution of legal remedies for personal injuries." G. Thomas Barker,
Official Immunity in Kentucky : The New Standard under Yanero v.
Davis , 90 Ky. L .J . 635, 646-647 (2002) (internal citations omitted) .
In Happy, a fire truck operator, responding to a call to fight a fire
in a neighboring city, was involved in an accident which injured the
appellant-bystander . 330 S.W .2d at 413. Therein, the appellant argued
that an earlier version of KRS 95 .830(2), which purported to grant
absolute immunity to firefighters and municipalities engaged in the use
of a fire apparatus outside of the city, was unconstitutional because it
prevented the appellant from bringing suit against the alleged firefighter
tortfeasor . Our predecessor Court agreed, holding unconstitutional the
version of KRS 95.830(2) in effect at the time on the grounds that the
statute was an impermissible restraint on a person's right to bring suit
for damages done to person or property. See Happy, 330 S .W.2d at 414.
(finding that the statute ran afoul of Ky. Const. §§ 14, 54) .
Accordingly, since the Happy decision, this reasoning has typically
been asserted by those injured by a government agent for the proposition
that sovereign immunity should be limited in scope . See G. Thomas
Barker, Official Immunity in Kentucky : The New Standard under Yanero
v. Davis , 90 Ky. L.J. 635, 648 (2002) . At first blush, it would appear,
then, that the two seminal cases for sovereign immunity and jural rights,
Yanero and Happy respectively, are at odds with one another.
15
Admittedly, these cases and their progeny, espouse two distinct theories
based on common law principles . Yanero seeks to clarify the sovereign
immunity defense to which qualified government agents are entitled
under the common law, while "Happy, and the jural rights doctrine
protect against the overextension of immunity by the legislature ." G .
Thomas Barker, Official Immunity in Kentucky : The New Standard
under Yanero v. Davis, 90 Ky. L.J . 635, 654 (2002) (citin Happy, 330
S.W .2d at 412 ; Ludwig v. Johnson , 49 S .W.2d at 351) . However, these
two lines of cases and competing common law principles need not
represent mutually exclusive objectives . Indeed, we believe they may be
read together and harmonized to produce compatible ends. Namely,
Yanero may be construed as providing the proper framework for
analyzing liability of a government agent, while Happy may be construed
to limit the reach of Yanero in determining when a statute has extended
immunity beyond constitutional constraints . Here, we believe the
General Assembly's recognition of firefighters and fire departments'
immunity was constitutional and, therefore, not repugnant to jural
rights.
Organizational Framework of Immunity Analysis
In Yanero, a junior-varsity high school baseball player, who was
not wearing a helmet, was struck in the head and injured by a baseball
thrown by a teammate during batting practice . 65 S .W.3d at 517 . The
batsman ultimately brought suit against the Jefferson County Board of
Education, the school's athletic director, assistant coaches, and the
16
Kentucky High School Athletic Association (KHSAA), alleging negligence
for failure to require that players wear helmets while participating in
batting practice. This Court upheld summary judgment in favor of
defendants, the Board of Education, the athletic director and the KHSAA,
on grounds of governmental or sovereign immunity and qualified official
immunity. Id. at 531 .
As Yanero notes, sovereign immunity "is an inherent attribute of a
sovereign state that precludes the maintaining of any suit against the
state unless the state has given its consent or otherwise waived its
immunity." Id. at 517 (citing Restatement (Second) of the Law of Torts §
895B(1) (A.L.I .1979) ; 72 Am.Jur.2d, States, Territories, and
Dependencies, § 99 (1974)) . Governmental immunity is, thus, a policyderived offshoot of sovereign immunity and is premised upon protecting
government entities from civil liability. See Yanero, 65 S .W .3d at 519 .
The constitutional and policy justifications for the doctrine are rooted in
notions of separation of power, the principle being that courts should not
be in the position to impose civil liability on government entities engaged
in official functions, as this would disrupt the business of the
government governing. See id . ; Ky. Const. §§ 27, 28; see also Dalehite v.
United States, 346 U.S . 15, 57 (1953) (Jackson, J., dissenting) .
This Court has long struggled with where the permissible limits of
sovereign immunity extend . "The decision when the sovereign immunity
defense applies to an entity created by an act of the General Assembly
17
has been historically troublesome to our Court, resulting in diverse
decisions difficult to reconcile ." Berns , 801 S .W.2d at 328 . To be sure,
[t]he only positive conclusion one can draw from the various
cases is that the appropriate line separating persons and
entities entitled to claim inclusion in the Commonwealth's
sovereign immunity is not a line which the General Assembly
may draw in its discretion, but a problem of constitutional
law which our Court must address on a case by case basis.
Id. at 329 .
The reigning authority on the matter holds that sovereign
immunity (as embodied in Ky. Const. § 231) will trump jural rights (Ky.
Const. §§ 14, 54, 241) because it is a specific provision of the
Constitution, rather than a general provision. See id. However, this only
holds true in instances wherein it is the Commonwealth who is being
sued . Thus, the crucial determination in sovereign immunity analysis
boils down to: whether the entity being sued is the sovereign, its agency,
or one who goes about the business of conducting the sovereign's work.
Therefore, if CVFD was an agent of the Commonwealth, engaged in the
Commonwealth's work, KRS 75 .070 is constitutional .
Determining Agency
Whether an entity is a government agent is a threshold
consideration in governmental immunity analysis . However, as Berns
alludes to, the determination of which entities are to be deemed agents
of the state government has, historically, not been a conclusion easily
forthcoming and is one which has proven troublesome for our courts in
the past, leading to various tests with sometime conflicting results .
One such test for determining whether an entity is an agent of the
state is whether, "when viewed as a whole, the entity is carrying out a
function integral to state government ." Berns , 801 S.W .2d at 332 ; see
also Schwindel v . Meade County, 1 13 S.W.3d 159, 168 (Ky. 2003) . This
holistic view of the entity necessarily requires several underlying,
subsidiary considerations in making the "integral government function"
determination.
In Berns, we recognized that Gnau v. Louisville 8v Jefferson Co.
Metropolitan Sewer Dist. , 346 S.W.2d 754 (Ky. 1961) established a twopronged test for determining whether an entity was an agent of the state
government within the meaning of the waiver provision of the Board of
Claims Act, KRS 44 .070, with the first prong "consisting of the `direction
and control of the central state government,' and the second addressing
the extent to which the entity was `supported by monies which are
disbursed by authority of the Commissioner of Finance out of the State
Treasury.' Berns, 801 S .W.2d at 331 . However, this "test" may be more
accurately characterized as a factorial analysis, whose showing will lend
weight to deciding if an entity should be considered a state agency. See
Yanero ,6 65 S .W .3d at 520 ("These [Berns] factors are primarily relevant
to determining whether an entity is properly classified as a state
agency.") ; see also Withers v. University of Kentucky , 939 S.W .2d 340,
342-343 (Ky. 1997) . The real thrust of the "test" is the third factor that
6 Yanero, which is presently the seminal Kentucky immunity case, did
not expressly address the issue of how to determine whether an entity is an
agent, instead limiting its focus on distinguishing what properly constitutes
governmental versus sovereign immunity.
19
Berns adds to the Gnau factors, which is whether the entity carries out
an integral governmental function.
Thus, building off of Berns and Gnau, in Autry v. Western
Kentucky University, 219 S .W.3d
713, 717 (Ky. 2007),
we tried once
more to articulate a workable test, stating
[goovernmental immunity extends to state agencies that
perform governmental functions (i.e ., act as an arm of the
central state government) and are supported by money from
the state treasury. However, unless created to perform a
governmental function, a state agency is not entitled to
governmental immunity . An analysis of what an agency
actually does is required to determine its immunity status.
(internal citations omitted) . We believe that Autry provides a good
reference point for this analysis in recognizing that there must be a
subsidiary inquiry into what an entity "actually does" to determine if it
should be entitled to government immunity. Recognizing the benefit of a
factorial analysis,
The Sixth Circuit has utilized a method of analysis adopted
from the Third Circuit for determining whether a
governmental entity . . . is an "arm of the state" for Eleventh
Amendment [sovereign immunity] purposes :
[L]ocal law and decisions defining the status and
nature of the agency involved in its relation to
the sovereign are factors to be considered, but
only one of a number that are of significance .
Among the other factors, no one of which is
conclusive, perhaps the most important is
whether, in the event plaintiff prevails, the
payment of the judgment will have to be made
out of the state treasury; significant here also is
whether the agency has the funds or the power
to satisfy the judgment . Other relevant factors
are whether the agency is performing a
governmental or proprietary function; whether it
has been separately incorporated ; the degree of
20
autonomy over its operations; whether it has the
power to sue and be sued and to enter into
contracts; whether its property is immune from
state taxation, and whether the sovereign has
immunized itself from responsibility for the
agency's operations.
Blackburn v . Floyd County Bd. of Educ. By and Through Adams , 749
F. Supp. 159, 161-162 (E.D. Ky. 1990) (quoting Hall v. Medical College of
Ohio at Toledo, 742 F.2d 299, 302 (6th Cir. 1984) .
At the federal level, jurisdictions are divided as to which factors
should be considered in "determine[ing] whether a state agency is an
alter ego of the state or is sufficiently independent to constitute a citizen
in its own right, [however] courts look to the attributes or characteristics
of the agency which tend to associate it with or disassociate it from the
sovereign ." 32A Am . Jur. 2d Federal Courts § 748 (2008) . Among the
factors considered are : (1) whether state statutes and case law tend to
characterize the entity as an arm of the state, PYCA Industries, Inc . v.
Harrison County Waste Water Management Dist. , 81 F.3d 1412 (5th Cir.
1996) ; (2) whether state resources may be required in satisfying adverse
judgments against the entity, State Highway Commission of Wyoming v.
Utah Const. Co . , 278 U.S . 194 (1929) ; (3) whether the state has a
financial or otherwise relevant beneficial interest in litigation affecting
the entity, Martin Sales 8v Processing, Inc. v. West Virginia Dept . of
Enemy, 815 F. Supp 940 (S.D . W.Va. 1993) ; (4) how the entity is funded,
PYCA Industries, Inc. , 81 F.3d 1412; (5) its level of autonomy, id. ; Roche
v. Lincoln Property Co ., 175 Fed . App'x 597 (4th Cir . 2006) ; (6) whether
21
the entity deals with primarily local or statewide problems, Roche, 175
Fed. Appx. 597; (7) how state law/courts treats the entity, id. ; Texas
Dept. of Housing, and Community Affairs v. Verex Assur., Inc . , 68 F .3d
922 (5th Cir. 1995) (8) the ability of the entity to sue and be sued in its
own name,
, Bosse v. Pitts, 455 F. Supp. 2d 868 (W .D . Wis . 2006) ; (9)
whether the entity holds and uses property, PYCA Industries, Inc. , 81
F.3d 1412 ; (10) whether the entity can take or sell property, e.g. ,
Tradigrain, Inc. v. Mississippi State Port Authority, 701 F.2d 1131 (5th
Cir. 1983) ; (11) the independent management authority of the entity,
Verex Assur., Inc . , 68 F.3d 922; (12) whether the entity performs
governmental or proprietary functions, Ohio Bldg. Authority v . Xerox
Corp., 819 F. Supp. 696 (S.D . Ohio 19930; Iowa Comprehensive
Petroleum Underground Storage Tank Fund Bd . 990C80656 v . Amoco Oil
Co . , 883 F. Supp. 403 (N.D. Iowa 1995) ; (13) the entity's corporate
status, e .g., University System of New Hampshire v. U.S. Gypsum Co . ,
756 F. Supp . 640 (D . N .H. 1991) ; and (14) whether the entity's property
is subject to state taxation, New England Multi-Unit Housing Laundry
Ass'n v. Rhode Island Housing and Mortg. Finance Cow. , 893 F. Supp .
1180 (D . R.I . 1995) .
While this list is not exhaustive, it does characterize some of the
pertinent considerations federal courts have relied upon in their
classification . And, while federal courts are far from uniform in their
treatment of these factors, with some indicating that no single factor
should be afforded more weight, those that do place more emphasis on a
22
single factor tend to look toward the financial nexus between the entity
and the state treasury and/or whether the entity performs an essential
governmental function . See 32A Am . Jur. 2d Federal Courts § 748.
It appears from our case law that, although the courts have
engaged in somewhat of a hodgepodge of factorial considerations,
Kentucky follows the latter approach in placing greater weight on the
extent to which the entity engages in an essential government function.
See, e .g . , Berns, 801 S .W.2d at 332 ("when viewed as a whole, the entity
is carrying out a function integral to state government.") ; Schwindel, 113
S.W.3d at 168; Autry, 219 S .W.3d at 717 ("unless created to perform a
governmental function, a state agency is not entitled to governmental
immunity.") .
While the initial determination of agency, for governmental
immunity purposes, has proven troublesome, the subsequent liability
inquiry is well-settled . If the entity is "a state agency[, then it] is entitled
to immunity from tort liability to the extent that it is performing a
governmental, as opposed to a proprietary, function ." Yanero , 65 S .W .3d
at 519 (citing 72 Am.Jur.2d, States, Territories and Dependencies, § 104
(1974)) . A proprietary function is of the type normally engaged in by
businesses or corporations and will likely include an element of
conducting an activity for profit. See Schwindel, 113 S.W .3d at 168 .
With regards to the governmental versus proprietary test, "when
municipal immunity was curtailed, if not effectively abolished, in Haney
v. City of Lexington, [386 S.W .2d 738 (Ky. 1964)] and (again) in Gas
23
Service Co ., Inc . v. City of London, [687 S.W .2d 144 (Ky. 1985)], many
assumed that the governmental/ proprietary distinction had been
abolished with it." Yanero, 65 S .W.3d at 519. This was not so . Yanero
recognizes that the governmental/proprietary distinction lives on and is
still good law, having been utilized by this Court in Berns , which held
that the government agency in that instance (the Center for the Arts)
"was not entitled to immunity because it `was not created to discharge
any "governmental function," and was not `carrying out a function
integral to state government .' Yanero, 65 S. W.3d at 520 (quoting Berns,
801 S .W.2d at 330, 332) . We have noted that while the
government/ proprietary test is imperfect, it provides
a reasonable compromise between allowing state agencies to
perform their governmental functions without having to
answer for their decisions in the context of tort litigation,
and allowing private enterprises to pursue their legitimate
business interests without unfair competition from
government agencies performing purely proprietary functions
without the same costs and risks inherent in commercial
enterprise .
Id . at 521 .
Certainly, fire departments and volunteer fire departments are
government agents engaged in governmental, as opposed to, proprietary
functions. The General Assembly outlines that the procedure and
authority for creating fire protection districts and volunteer fire
departments is the same as creating taxing districts under KRS 65.182 .
Chapter 75 of the Kentucky Revised Statutes outlines the formation of
volunteer fire departments and fire protection districts within this
24
scheme and KRS 75.040 governs the delegation of authority to operate
the fire department .
KRS 75 .020 governs the manner in which a fire protection district
may annex property or reduce its land holdings . KRS 75 .040 empowers
a fire protection district to levy taxes. KRS 75 .050 authorizes a fire
protection district to enter into contracts on its own behalf. Volunteer
fire departments are recognized and certified under KRS 75 .410 by the
Kentucky Commission on Fire Protection Personnel Standards and
Education - which is attached to the Department of Housing, Buildings
and Construction - under the oversight of the State Fire Marshall . KRS
75.400(1) . Significantly, KRS 75 .070 characterizes fire departments and
volunteer fire departments as "an agent of the Commonwealth" that acts
"solely and alone in a governmental capacity." See also KRS 95A .010(1)
("This chapter shall apply to the personnel of all fire departments in the
state whether paid or unpaid, or both.") .
Fire departments of all kinds receive funding from taxes and
government backing.? They do not sell goods nor conduct their business
with an eye toward making a profit. To be sure, the very term "volunteer
fire department" attests to their task: that is to provide a gratuitous
service to the population whereby volunteer citizens risk life and limb to
provide a public service.
Looking to the factors previously employed by this Court and those
considered by the federal courts, they weigh overwhelmingly in favor of
That they receive some contributions from the citizenry is no different
than the tolls which states often charge in building parkways.
25
acknowledging that fire departments and volunteer fire departments are
government agents who engage in a governmental (not proprietary)
function. Autry, 219 S .W.3d at 717 . Thus, "these facts compel the
conclusion that our constitutional fathers would . . . view this activity as
qualifying for sovereign immunity ." Berns, 801 S.W .2d at 331 .
The General Assembly's Recognition of Immunity
The Court of Appeals found KRS 75.070 to be unconstitutional
insofar as it purported to impart personal immunity upon firefighters for
negligent conduct and because fire departments were not agents of state
or county government.$ We disagree.
Fire departments are agents of the Commonwealth who engage in
an essential governmental function in providing for the safety and wellbeing of its citizens - and because there is likely no more epitomizing
symbol of government function - reason dictates they must be
considered an agent of the sovereign. As such, they are cloaked in
immunity from suit in tort. When an entity is entitled to government
immunity, the General Assembly may draft legislation recognizing that
immunity. "Where sovereign immunity exists by reason of the
constitution, the General Assembly may extend or limit waiver as it sees
fit, but where no constitutionally protected sovereign immunity exists the
General Assembly cannot by statute create it." Berns, 801 S.W.2d at
8 It would seem only logical that fire departments are an agent of one or
the other. Here, the General Assembly was clearly within its constitutional
authority to acknowledge the immunity to the Commonwealth's fire
departments because these entities are agents of the sovereign who engage
locally in necessary government functions .
26
329 . Thus, as in Yanero where we found that the KHSAA, as an agent of
the Kentucky Board of Education, was entitled to immunity, so too
should the CVFD be afforded immunity as an agent of the
Commonwealth of Kentucky . See Yanero , 65 S .W.3d at 530 .
It is an axiomatic rule of statutory interpretation that when this
Court considers the constitutionality of a statute, we must draw all fair
and reasonable inferences in favor of upholding the validity of the
statute. See, e.g., Posev v. Commonwealth , 185 S .W.3d 170, 175 (Ky.
2006) . In Kentucky, a statute carries with it the presumption of
constitutionality; therefore, when we consider it, "we are `obligated to give
it, if possible, an interpretation which upholds its constitutional
validity .' Commonwealth v. Halsell, 934 S .W.2d 552, 554 (Ky. 1996)
(quoting American Trucking Assn v. Com., Trans-p . Cab. , 676 S .W.2d
785, 789 (Ky. 1984)) (emphasis added) . To the extent that there is
reasonable doubt as to a statute's constitutionality, all presumptions will
be in favor of upholding the statute, deferring to the "voice of the people
as expressed through the legislative department of government." Walters
v. Bindner, 435 S.W .2d 464, 467 (Ky. 1968) . A constitutional
infringement must be "clear, complete and unmistakable" in order to
render the statute unconstitutional. Kentucky Industrial Utility
Customers, Inc. v. Kentucky Utilities Company, 983 S .W.2d 493, 499
(Ky. 1998) .
In its Opinion below, the Court of Appeals cited to Haney and
Happy for the proposition that KRS 75.070's extension of immunity to
27
municipal fire departments was unconstitutional. Hane , however, is
inapplicable because KRS 75.070 is not premised on a grant of municipal
immunity. Nor does it offend Happy as it does not attempt to grant
absolute immunity, but rather recognizes and extends waiver of
immunity for acts carried out only in a government capacity .
Moreover, considering the present statute, the General Assembly
has articulated a clear public policy determination - as manifested by the
passage of such legislation - that it intends for all fire departments,
volunteer fire departments, and firefighters to be immune from tort
liability for their governmental or official acts. We would be remiss to
ignore a directive which is so clearly within the purview of this
Commonwealth's legislature.
In City of Louisville v. Louisville Seed Co . , 433 S.W .2d 638, 640641 (Ky. 1968) (overruled by Gas Service Co., Inc . , 687 S . W.2d 144),
wherein the constitutional efficacy of the Haney decision was challenged,
this Court attempted to come to terms with how to deal with the liability
of important public service providers such as fire and police departments
in a post-municipal immunity judicial landscape. Therein, we noted:
Public agencies engage in activities of a scope and variety far
beyond that of any private business. These activities affect a
much larger segment of the public than do the activities of
private business . Private business carries on no activities
even remotely comparable to a city street system which may
cover many thousands of miles and is used by the entire
public . With rare exceptions, private business carries on no
function as hazardous or exacting in detail as the work of a
city fire or police department . These activities are so
inherently dangerous that private business would hesitate to
undertake them . . . [but] are so important to the health,
28
safety and welfare of the public that they cannot properly be
abandoned . And, it can be readily appreciated that the
imposition of broad standards of tort liability upon them might
be extremely burdensome and could possibly force their
curtailment or even abandonment to the detriment of the
general public. For this reason, some reasonable compromise
must be reached-one that will permit the isolated citizen to
recover for grievous injustices imposed upon him by a
negligent society, yet protect that society from what could
cumulate into ruinous claims.
Louisville Seed Co. , 433 S .W.2d at 641 (emphasis added) ( overruled by
Gas Service Co., Inc. , 687 S .W.2d 144) . Consequently, the Court
attempted to fashion a rule, which was, incidentally, a mutation of the
government/ proprietary test, whereby a city would not be liable in tort
for risks undertaken by agencies such as fire and police departments on
the grounds that they served all members of the public generally as
opposed to dealing with persons on an individual capacity. Id.
As previously noted, we recognize Louisville Seed Co . was
subsequently overruled by Gas Service Co . and the
government/ proprietary test is still the prevailing rule; however, it is
significant to note the motivation and reasoning behind the formulation
of such a rule represent sound judicial policy and we must acknowledge
that our courts have been consistently aware of and alarmed by the need
to distinguish amongst those agencies which require insulation from
liability in order to ensure their continued survival. While policy
determinations are generally beyond the purview of the judiciary, they
are squarely within the legislative province . Thus, in response to the
concerns of the courts and the public, the General Assembly enacted
KRS 75 .070 .
Shaping public policy is the exclusive domain of the General
Assembly . We have held that "[t]he establishment of public policy is
granted to the legislature alone . It is beyond the power of a court to
vitiate an act of the legislature on the grounds that public policy
promulgated therein is contrary to what the court considers to be in the
public interest." Commonwealth ex rel. Cowan v. Wilkerson, 828 S .W.2d
610, 614 (Ky. 1992) . Through its enactment of KRS 75 .070, the General
Assembly has articulated the public policy that firefighters and fire
departments within the Commonwealth should not be liable for negligent
acts committed in good faith in emergency situations while engaged in
fighting a fire or responding to a call .
Stated otherwise, the statute in question confers governmental
immunity to fire departments and qualified official immunity to
firefighters engaged in discretionary functions. Thus, the statute fully
comports with constitutional law. Unless the General Assembly is
prohibited by the Kentucky or Federal Constitutions from enacting such
legislation, it must be free to do so. See Boone County v. Town of
Verona, 190 Ky. 430, 432, 227 S .W. 804, 805 (1921) . Here, it is not so
prohibited. And, as noted in Berns , in the present matter, independent
constitutional justification for immunity exists, as KRS 75 .070 does not
conflict with Ky . Const § 231 . See Berns, 801 S .W .2d at 329.
30
Accordingly, we hold KRS 75 .070 is constitutional and confers
governmental immunity upon municipal fire departments, fire protection
district fire departments and volunteer fire departments . CVFD is
therefore entitled to governmental immunity .
Official and Qualified Official Immunity
In its opinion below, the Court of Appeals found KRS 75.070
unconstitutional insofar as it attempted to confer immunity to Fire Chief
Clark in his personal capacity. However, the Court of Appeals
determined that Chief Clark and similarly situated firefighters were
entitled to qualified official immunity to the extent that they were
engaged in discretionary rather than ministerial duties . Cf. Ashby v. City
of Louisville , 841 S.W.2d 184, 189 (Ky. App. 1992) (holding that
municipal policemen were entitled to qualified official immunity as set
forth in Restatement (Second) of Torts § 895D(3)) . Believing that the
record, however, was insufficient to determine whether the negligent
action of which Chief Clark was accused was premised upon
discretionary or ministerial functions, the Court of Appeals remanded the
matter back to the circuit court for further proceedings .
We agree with the Court of Appeals' logic to the extent that KRS
75.070 should not be construed to issue a blanket grant of immunity
upon firefighters in their personal capacity. "In Kentucky, personal
liability for a public officer's or employee's negligent performance of
duties depends in part on whether the powers or duties in question were
31
ministerial or discretionary in nature ." Ashby, 841 S .W .2d at 188 (citin
Thompson v . Huecker, 559 S .W.2d 488 (Ky. App. 1977)) .
We simply do not believe that the language of KRS 75.070(1)
attempts to confer personal immunity as it expressly references "acting
solely and alone in a governmental capacity." (emphasis added) . Thus,
the immediately following reference to "such municipality . . . district or
area" is a clear reference and limitation to its acting in a "government[al]
capacity." Id. (emphasis added) . Indeed, this is an entirely reasonable
reading of the language contained therein. See id. ("[Firefighters and fire
departments shall be considered agents of the Commonwealth ] acting
solely and alone in a governmental capacity, and such municipality, fire
protection district, or area normally served by a volunteer fire
department, shall not be liable in damages for any omission or act of
commission or negligence while answering an alarm, per,formingfire
prevention services, or other duly authorized emergency services.")
(emphasis added) ; see also 57 Am . Jur .2d Municipal, County, School,
and State Tort Liability § 454 (2008) (recognizing that in jurisdictions
which predicate tort liability on distinguishing between discretionary and
ministerial functions, a fire department's decision on how to fight a fire
does not give rise to liability.).
Moreover, "if there are two ways to reasonably construe a statute,
one upholding the validity and the other rendering it unconstitutional,
we `must adopt the construction which sustains the constitutionality of
the statute."' Flynt v . Commonwealth , 105 S.W .3d 415, 423 (Ky. 2003)
32
(quoting Halsell, 934 S.W.2d at 555) . Thus, we are bound to construe
KRS 75.070 as acknowledging the governmental immunity of fire
departments and the official and qualified official immunity of
firefighters .
Autry, 219 S .W.3d at 717, succinctly and accurately sets forth the
current status of Kentucky law in regards to official and qualified official
immunity:
The immunity that an agency enjoys is extended to the
official acts of its officers and employees. However, when
such officers or employees are sued for negligent acts in their
individual capacities, they have qualified official immunity.
Qualified official immunity applies to public officers or
employees if their actions are discretionary (i .e ., involving
personal deliberation, decisions and judgment) and are made
in good faith and within the scope of their authority or
employment . This is intended to protect governmental
officers or employees from liability for good faith judgment
calls in a legally uncertain environment. An act is not
`discretionary' merely because some judgment is used in
deciding on the means or method used . However, even if an
act is discretionary, there is no immunity if it violates
constitutional, statutory, or other clearly established rights,
or if it is done willfully or maliciously with intent to harm, or
if it is committed with a corrupt motive or in bad faith . The
burden is on the plaintiff to show that the public official or
employee was not acting in good faith.
If the negligent acts of public officers or employees are
ministerial, there is no immunity . An act is ministerial if the
duty is absolute, certain, and imperative, involving mere
execution of a specific act based on fixed and designated
facts. If ministerial acts are proper, then the public officer or
employee has official immunity without qualification . Any act
done by a public officer or employee who knows or should
have known that his actions, even though official in nature,
would violate constitutional rights or who maliciously
intends to cause injury, has no immunity.
(internal citations omitted) .
33
Therefore, as Autry portends, KRS 75 .070 recognizes the official
immunity enjoyed by firefighters engaged in their official acts; it should
not, however, be construed to confer immunity upon firefighters sued in
their personal capacity, as such liability turns on a subsidiary qualified
official immunity analysis .9 See Autry, 219 S .W.3d at 717.
Here, the CVFD was an agent of the state both by virtue of its
engaging in a function essential to government, Berns, 801 S .W .2d at
332, (which was inherently governmental as opposed to proprietary in
nature, Yanero , 65 S .W .3d at 519) and by virtue of the General
Assembly's recognition of its historical authority as such. See KRS
75.070 ("[a] volunteer fire department and the personnel of each . . . shall
be considered an agent of the Commonwealth of Kentucky, and acting
9 "The distinction between discretionary and ministerial acts by a
government employee is directly correlated to what immunity he will enjoy in
the event he has been negligent in his actions or in failing to act. In addition to
examining the applicable definitions of `discretionary' and `ministerial' acts or
functions in determining whether an officer's or employee's act or function is
immune, other factors are considered by the courts. In this regard, it has been
stated that the determination as to whether an official has acted in his or her
discretion or capacity, and therefore is entitled to immunity, is not subject to a
fixed, invariable rule, but instead requires a discerning inquiry into whether the
contributions of immunity to effective government in the particular context
outweigh the perhaps recurring harm to individual citizens. Furthermore, the
view has been expressed that, in the final analysis, the decision as to whether a
public official's acts are discretionary or ministerial must be determined by the
facts of each particular case after weighing such factors as the nature of the
official's duties, the extent to which the acts involve policymaking or the
exercise of professional expertise and judgment, and the likely consequences of
withholding immunity. In addition, noting that the distinction between
ministerial and discretionary acts is often made, but has not proved entirely
satisfactory, it has been said that the important point is that certain types of
activity, such as driving cars, posting warning signs, or moving office furniture
are the types of activity for which immunity serves no worthwhile purpose,
while other types of activities, such as evaluating reports or employees'
performances or deciding upon parole release, warrant at least qualified
immunity in order to advance importance public objectives : effective
government administered by skilled government officials ." 63C Am. Jur.2d
Public Officers and Employees § 327 (2008) (internal citations omitted) .
34
solely and alone in a governmental capacity .") . Therefore, its immunity
extends to its officers and employees who are sued in their official
capacity. Autry, 219 S.W .3d at 717; see also Yanero , 65 S .W.3d at 521522 . Thus, in the present instance, to the extent that Chief Clark was
sued in his official capacity he enjoys official immunity .
Here, the Court of Appeals correctly noted that Chief Clark was
named to the suit in both his official and individual capacities. In his
official capacity he is immune. However, the Court of Appeals also
believed that the record below was insufficient insofar as it failed to
articulate precisely how and for what actions/ omissions Clark was
allegedly personally negligent. Thus, as previously noted, the court
remanded the matter to the trial court for such further determinations .
In their pleadings and brief, Appellees allege and argue that Chief
Clark was negligent because CVFD lacked sufficient equipment and
personnel to combat the fire and Clark did not seek assistance from
neighboring fire departments until it was too late . However, it should be
noted that a judgment call by a fire chief as to how, with what
assistance, and in what manner to extinguish a fire is the very definition
of a discretionary act. Moreover, a decision as to how to fight a fire does
not necessarily render subsequent determinations ministerial . See 57
Am. Jur.2d Municipal, County, School, and State Tort Liability § 454 ; see
also City of Hammond v. Cataldi, 449 N.E.2d 1184, 1187 (Ind . Ct. App .
1983) .
35
Kentucky has recognized that part and parcel to the scheme of
qualified official immunity is the notion that public officials will not be
held liable for "`bad guesses in gray areas ."' Rowan County v. Sloas, 201
S .W.3d 469, 475 (Ky. 2006) (quoting Maciarello v. Sumner, 973 F.2d
295, 298 (4th Cir. 1992)) . Accordingly, in order to charge liability, a
complainant may not merely allege injury, but must point to "a causally
related `violation of a constitutional, statutory, or other clearly
established right,' Sloas, 201 S .W.3d at 475 (quoting Yanero, 65 S .W.3d
at 523), or produce some proof that the action was not in "good faith,"
Autry, 219 S.W .3d at 717 . There is often a clear distinction between
proof of a negligent act and proof of any bad faith which prompted it.
Thus, Chief Clark was not engaged in a ministerial function and
Appellants have not brought forth any allegations of bad faith. As such,
the trial court was proper in its ruling on Appellees CR 12 .02 motion to
dismiss this negligence action.
Judicious and timely resolution of immunity claims bears a twofold
purpose of particular social importance in ensuring that government
agents and officials are not needlessly ensnared in protracted litigation
and in preventing the incurrence of excessive trial expense by both
parties.
These social costs include the expenses of litigation, the
diversion of official energy from pressing public issues, and
the deterrence of able citizens from acceptance of public
office . Finally, there is the danger that fear of being sued will
`dampen the ardor of all but the most resolute, or the most
irresponsible [pubic officials], in the unflinching discharge of
their duties .
36
Crawford-El v . Britton, 523 U.S. 574, 591 n.12 (1998) (internal citation
omitted) .
Therefore, recognizing that Chief Clark's acts were discretionary
and that there is no allegation, or suggestion, that his decision was in
bad faith, Clark was entitled to qualified official immunity in his
individual capacity.
KRS 95 .830(2)
Moving now to the constitutionality of KRS 95 .830(2), the Court of
Appeals recognized that the trial court did not rely upon the statute in
rendering its decision, nor was the statute principally addressed on
appeal . Yet, it employed the rationale of Happy (which struck down an
earlier statute bearing the same numeration) in determining that the
present version of KRS 95.830(2) was unconstitutional. We disagree for
reasons that the statute does not offend jural rights.
The former version of KRS 95.830(2) stated :
Neither the city nor its officers or employees shall be liable in
any manner on account of the use of the apparatus at any
point outside of the corporate limits of the city. The
apparatus shall be deemed to be employed in the exercise of
a governmental function of the city.
The present version of KRS 95 .830(2) states:
The city shall not be liable in any manner on account of the
use of the apparatus at any point outside of the corporate
limits of the city. The apparatus shall be deemed to be
employed in the exercise of a governmental function of the
city.
The primary distinction between the statutes is the grant of immunity to
city officers and employees in the former statute, whereas, the present
statute limits immunity to the city only.
In Happy, the principal justification for rendering the former
version of KRS 95 .830(2) unconstitutional was that it attempted to confer
immunity to city officers and employees in their personal capacity . See
Happy, 330 S.W.2d at 414. At the time of the decision cities still enjoyed
municipal immunity . Thus, as the Court of Appeals correctly noted,
municipal firefighters would have been immune to the extent they were
r
sued in their official capacity. Therefore, though Happy does not
expressly indicate as much, it must be presumed that our predecessor
Court was troubled about extending immunity to firefighters in their
personal capacity for ministerial actions, i.e. actions that involve merely
following through on the orders of others or executing a duty under
preexisting facts, and accordingly struck down the statute for that
reason . Cf. Sloas, 201 S .W.3d at 478; Yanero 65 S.W.3d at 522 .
However, the Court in Happy also premised its finding, in part, on
the conclusion that the provision violated jural rights . It does not. Ky .
Const. § 54 states, "the General Assembly shall have no power to limit
the amount to be recovered for injuries resulting in death, or for injuries
to person or property." This section has since come to be interpreted as
meaning that the legislature may not take away a cause of action which
existed as of the inclusion of this section into Kentucky's constitution,
which was ratified in 1891 .
38
In 1877, in Greenwood , 76 Ky. (13 Bush) 226 at *2, our courts
recognized that a city could not be liable for the negligence of its
firefighters . Thus, no cause of action existed against the city for the
negligent acts of firefighters at that time. As such, KRS 95.830(2), in its
present or former manifestation, does not take away a right to suit
enjoyed by the citizenry in 1891 and does not offend Ky. Const. § 54 .
Thus, to the extent that it says otherwise, Happy is incorrect.
Nor does Hanev compel a different conclusion, as Hanev departed
only from previous common law decisions of this Court. See Hanev , 386
S .W.2d at 741 ("We must make a choice as to whether the change in
such a rule [concerning municipal immunity] should be made by the
legislature or by us . The majority of the court [in V.T.C. Lines, Inc. v.
Cityof Harlan , 313 S .W.2d 573, (Ky. 1957)] believe[d] that the change
addresse[d] itself to legislative discretion and that we must content
ourselves only with criticism of the rule which we have created. We
think we were incorrect in [previously] taking such a position. The very
foundation upon which such an attitude is based is not a solid one . We
have no reason to believe that the members of the legislature approve all
existing common law rules concerning tort actions ; in fact, many
members of that body, when acting in individual capacities as lawyers,
have rather forceably [sic] indicated in briefs and petitions for rehearing
that they do not . It seems to us that an equally reasonable assumption
is that the legislature might expect the courts themselves to correct an
unjust rule which was judicially created." (internal quotations omitted)) .
39
Haney did not attempt to assert any constitutional right of this Court to
override the legislature's prerogative, i.e., that of the legislative power.
Ky. Const. § 29 .
IV.
CONCLUSION
In sum, we hold KRS 75.070 constitutional as a permissible
recognition, by the General Assembly, of governmental immunity of fire
departments and volunteer fire departments; official immunity to
firefighters sued in their representative capacity; and, consequently,
qualified official immunity to firefighters sued in their personal capacity
but engaged in good faith discretionary functions.
As a matter of observation, it cannot be overlooked that were we to
hold otherwise, the very survival of a vital profession, which predates the
Commonwealth itself, would be significantly called into question. One
must but momentarily pause to consider the substantial ramifications of
assessing financial liability on volunteer firefighters and fire departments
that fall short in their efforts of lending aid to the public. Truly, it is
entirely plausible that many such persons would no longer continue to
volunteer their services in this endeavor and that these institutions as a
whole would be unable to survive, monetarily, the effects of litigation .
Extrapolate this conjecture further and one must but pause to see the
very real danger this poses to the public in both actual and financial
terms .
Further, we also find KRS 95 .830(2) to be constitutional . For these
reasons, we hereby reverse the decision of the Court of Appeals and
40
affirm the decision of the Grayson Circuit Court, albeit, in some
instances, for different reasons.
All sitting. Venters, J ., concurs by separate opinion . Minton, CA .,
concurs in result only by separate opinion, in which Cunningham and
Schroder, JJ., join . Abramson, J., concurs in result only by separate
opinion. Noble, J., concurs in result only.
VENTERS, JUSTICE, CONCURRING : I concur with Justice Scott's
opinion . At the risk of extending an already lengthy series of opinions, I
submit that regardless of the immunity issue the Appellee's complaint
does not state a claim for which relief may be granted. Its only basis for
asserting liability is the claim that Appellants negligently "failed to
expeditiously extinguish the fire" at Appellee's business. We are
informed by Appellee's counsel at oral argument that the only act or
omission of the Caneyville VFD deemed negligent by Appellees was that it
lacked sufficient manpower and equipment to defeat the blaze . The same
could be said of any fire department at any fire where property is
damaged. There is no allegation that members of the Caneyville VFD
caused any injury or damage to Appellee, beyond that damage caused by
the fire. A fire department does not insure property owners from fire
losses, and it has no duty to a property owner to save his property. The
record before us consists of nothing more than the complaint, the motion
to dismiss, the trial court's ruling, and the appellate pleadings . No
answer was even filed . We should not scrap the jural rights doctrine or
undertake a major re-evaluation of governmental immunity on what 1
41
perceive is an insufficient claim and an exceedingly sparse record . A fire
department is not liable for failing, due to its lack of equipment and
manpower, to "expeditiously extinguish the fire ."
MINTON, CHIEF JUSTICE, CONCURRING IN RESULT ONLY : I concur
with the majority's conclusion that the CVFD enjoys immunity because it
is performing a governmental function and not a proprietary function .
Yanero v. Davis , 65 S.W .3d 510, 520-21 (Ky. 2001) . I also agree with the
result reached by the majority in which neither Chief Clark nor the City
of Caneyville will be liable in this action, but I do not agree with the
majority's methodology or reasoning.
Immunity, sovereign and otherwise, has been made into a difficult
area of the law, full of rules with subsets. Before delving into the details
of this case, I feel compelled to say that we should endeavor to drain this
judge-made swamp. Said simply, my view of immunity is this : the
Commonwealth enjoys inherent immunity by virtue of its status as a
sovereign state . As such, the Commonwealth may choose to lend its
immunity to its arms and agents, whether those arms and agents are
organizations like the CVFD or individuals like Chief Clark. And I would
eliminate, or at least reduce, the arbitrary differentiations that have
grown up in this Court around the concept of immunity and its various
subsets (e.g., sovereign, official, qualified official, etc.) and the various
tests that we have formulated in this area over the years (e.g., premising
qualified official immunity of a state actor based upon whether the acts
in question were ministerial or discretionary in nature) .
42
The Commonwealth, speaking through the General Assembly, is
forbidden by Section 2 of our Constitution from acting arbitrarily in
lending its immunity (i.e., the Commonwealth may not lend its immunity
to non-state actors) . But absent some specific constitutional prohibition,
I believe the General Assembly is free to declare if, when, or how the
Commonwealth lends its immunity to its arms and agents. With those
general principles in mind, I turn to the facts of this case .
Under our current precedent, a governmental employee receives
qualified official immunity for his or her discretionary acts but receives
no immunity for the performance of ministerial acts. Id. at 522 . So it is
possible for the employee of an arm of the Commonwealth to have
personal liability for actions taken in the scope of, and in furtherance of,
the employee's job performance. Unlike the majority, I believe the
General Assembly has the power to grant immunity to state actors in
their individual capacity. In fact, I believe the General Assembly did just
that in KRS 75.070(l) .
KRS 75 .070(l) provides, in relevant part, that a "volunteer fire
department and [its] . . . personnel . . . , answering any fire alarms . . .
shall be considered an agent of the Commonwealth of Kentucky, and
acting solely and alone in a governmental capacity, and . . . shall not be
liable in damages for any omission or act of commission or negligence
while answering an alarm . . . ." (Emphasis added .) The statute is
straightforward and uses language broad enough to demonstrate the
General Assembly's intent to provide as much immunity and protection
43
as possible, both to fire departments and to their employees answering
fire alarms . But the majority construes the statute to limit immunity to
Chief Clark and similarly situated firefighters in their official capacities
and holds that the firefighters' individual-capacity liability depends upon
whether the acts in question were discretionary or ministerial. The
artificial distinction between discretionary and ministerial functions
appears nowhere in the wording of KRS 75.070(l) . So I believe the
majority has judicially amended the statute effectively to provide that fire
departments and the personnel of fire departments are not liable in
damages for "any omission or act of commission or negligence while
answering an alarm provided that the omission or act of commission or
negligence is a discretionary, not ministerial act." I refuse to graft such a
restriction on an otherwise clear statute. Beckham v. Board of
Education of Jefferson County, 873 S .W.2d 575, 577 (Ky. 1994) ("[We
are] not at liberty to add or subtract from legislative enactment or to
discover meaning not reasonably ascertainable from language used.") .
My reading of KRS 75 .070(1) causes me to conclude that the
General Assembly intended to grant immunity to fire department
employees to the same extent enjoyed by fire departments themselves .
So I would hold that Chief Clark enjoys immunity in both his official and
individual capacity. And although overruled by Yanero, our precedent
once followed that precise line of reasoning. Franklin County,
Kentucky v. Malone , 957 S.W .2d 195, 202 (Ky. 1997) ("As long as the
police officer acts within the scope of the authority of office, the actions
44
are those of the government and the officer is entitled to the same
immunity . . . .") .
My conclusion runs contrary to our precedent. More particularly,
my conclusion regarding Chief Clark's liability runs headlong into the
often-cited jural rights theory, under which Sections 14, 10 54, 11 and
241 12 of our Kentucky Constitution are jointly interpreted to mean that
"any common law right of action existing prior to the adoption of the
1891 Constitution is sacrosanct and cannot be abolished." Williams v.
Wilson, 972 S .W.2d 260, 272 (Ky. 1998) (Cooper, J., dissenting) . But I
consider the jural rights theory to be a judicially created legal fiction to
which we should no longer cling. Rather, as Professor Thomas Lewis
convincingly declared, "the formal jural rights doctrine is founded on a
misconception of Kentucky's 1891 [C]onstitution . It should be
abandoned ." Thomas P. Lewis, Jural Rights Under Kentucky's
Constitution : Realities Grounded in Myth, 80 KY.L.J. 953, 985 (1991-92) .
to Section 14 provides that "[a]11 courts shall be open, and every person for an
injury done him in his lands, goods, person or reputation, shall have remedy
by due course of law, and right and justice administered without sale, denial
or delay."
Section 54 provides that "[t]he General Assembly shall have no power to
limit the amount to be recovered for injuries resulting in death, or for
injuries to person or property."
12 Section 241 provides that:
Whenever the death of a person shall result from an injury inflicted by
negligence or wrongful act, then, in every such case, damages may be
recovered for such death, from the corporations and persons so causing the
same. Until otherwise provided by law, the action to recover such damages
shall in all cases be prosecuted by the personal representative of the
deceased person . The General Assembly may provide how the recovery shall
go and to whom belong; and until such provision is made, the same shall
form part of the personal estate of the deceased person .
45
The jural rights theory first appeared in Kentucky in 1932 .
Ludwig v. Johnson , 243 Ky. 533, 49 S .W.2d 347 (1932) . But the case
that has the most direct bearing on the one at hand dates to 1959 . That
1959 case involved the potential immunity of an employee of a municipal
fire department . Happy v. Erwin , 330 S.W.2d 412 (Ky. 1959) . Although
it did not expressly use the term "jural rights," a majority of our
predecessor court concluded in Happy that the General Assembly lacked
the constitutional power to enact a statute that provided that a city
employee could not be liable for operating a fire apparatus outside the
city limits. Id. at 413-14 . Specifically, our predecessor court opined that
"[c)learly the statute violates sections 14 and 54 of the Kentucky
Constitution (and would violate section 241 if death were involved .)"
Id. at 413 . Following the logic in Happy would lead to the conclusion
reached by the majority in this case-i.e., that the General Assembly
could not constitutionally enact a statute that provided that Chief Clark
and all similarly situated firefighters are immune in their individual
capacities for both discretionary and ministerial acts . But because I
place no stock in the jural rights theory, I conclude that Happy was
erroneously decided and should be overruled.
The Commonwealth enjoys immunity simply by virtue of its
existence as a sovereign state; and the General Assembly is the
governmental body constitutionally authorized to determine if, when, and
how that immunity will be waived. Yanero, 65 S.W.3d at 523-24 . By
specifically stating in KRS 75.070 that firefighters are not liable for "any"
46
acts that occur during the course of their firefighting duties, I conclude
that the General Assembly has expressed its intention completely to
immunize Chief Clark and all similarly situated firefighters . But the
majority in Happy, proceeding under the jural rights theory, essentially
held that the General Assembly lacked the authority to refuse to waive
the immunity of state actors . Actually, the Happy court went so far as to
hold that the elected representatives of the people of this
Commonwealth-the General Assembly-lacked the power to declare, as
a matter of public policy, that public servants are immune from suit.
Specifically, the Happy court opined as follows: "It is argued that
the liability of public servants is a matter of public policy for the
legislature to determine . However, the public policy of the legislature
cannot supersede the public policy of the people of this Commonwealth
expressed in their Constitution ." 330 S .W .2d at 414 . But as Professor
Lewis has convincingly argued, "the formal jural rights doctrine is
founded on a misconception of Kentucky's 1891 constitution." Lewis,
80 KY.L.J. at 985. Although I will not belabor this opinion by recapping
the results of his scholarly and convincing research, Professor Lewis
traces the history of the adoption of Sections 14, 54, and 241 of the
Kentucky Constitution and arrives at the conclusion that the framers of
our Constitution did not intend for all tort laws extant in 1891 to be
inviolable . In other words, history caused Professor Lewis to declare that
the jural rights theory was nonsense, an opinion shared by former
47
Justice William Cooper . 13 Tellingly, we have been cited to nothing that
disputes Professor Lewis's scholastic research . Why, then, do we cling to
a legal theory that has no basis in history or the law? Accordingly, I have
concluded that Happy, along with all the jural rights cases that preceded
and succeed it, are unsupportable.
Referring to Professor Lewis's article, former Justice Cooper
memorably opined that jural rights "is nothing more nor less than a
judicial usurpation of a traditional legislative prerogative ." Williams ,
972 S.W.2d at 272 (Cooper, J., dissenting) . I agree. We should disabuse
ourselves of the jural rights theory and return the power to "formulate
public policy in the area of tort law" to the General Assembly . Williams ,
972 S .W .2d at 275 (Cooper, J ., dissenting) . In short, we should abdicate
the public policy crown that "[w]e, like Bonaparte, have placed . . . upon
our own head." Id. And if we abdicate our self-imposed position of
control in this area of tort law, we will recognize that the General
Assembly may choose when, if, and how it will waive immunity for state
actors. Because there is nothing in the words of KRS 75 .070(1) that
evidences an intent to waive any immunity for Chief Clark-the opposite,
in fact, appears-then the removal of the fallacious jural rights theory
leaves no impediment to Chief Clark's enjoying immunity in his
13
See Williams , 972 S .W.2d at 275 (Cooper, J ., dissenting) ("[T]he historical
analysis of the origins and purposes of Sections 14, 54 and 241 [of the
Kentucky Constitution], as set forth in Professor Lewis's article . . . reveals
not even an implication that those sections are interrelated or that the
framers intended for any or all of them, read separately or together, to
transform power over public policy with respect to tort law from the
legislature to the judiciary .") .
48
individual capacity, regardless of whether the acts in question underlying
the Greens' complaint are deemed ministerial or discretionary.
I recognize that abolishing the jural rights theory will logically
result in the General Assembly having the discretion to "exempt all
public officers and employees from any type of liability." Happy,
330 S .W.2d at 414 . But the General Assembly had that power all along.
We have simply refused to recognize that power, instead preferring to
cling to the fictitious jural rights theory .
I also see that recognizing the General Assembly's wide-reaching
power in this area creates a potential for abuse and may well result in
unwise public policy decisions . But the formulation of public policy,
whether wise or unwise, is the sole province of the General Assembly, not
the judicial branch. See Williams, 972 S.W.2d at 275 (Cooper, J .,
dissenting) .
Application of my conclusions regarding the jural rights theory
leads to the inevitable conclusion that under KRS 75.070(1), Chief Clark
has immunity for actions performed within the scope of his employment,
regardless of whether those actions are ministerial or discretionary.
Although I do not agree with its reasoning, I do agree with the majority's
ultimate conclusion that Chief Clark is not liable in either his official or
individual capacity.
Finally, under my approach, the City of Caneyville's liability would
be extinguished because neither the CVFD nor Chief Clark would have
any potential liability. The majority also concludes that the City of
49
Caneyville should not be liable . But since my reasoning is different than
that of the majority, I will briefly address why I believe the City should
not be liable.
Our predecessor court overturned decades of precedent when it
declared on public policy grounds that municipalities could no longer
enjoy immunity. Hane rev . City of Lexington, 386 S.W .2d 738 (Ky. 1964) .
I strongly believe, however, that the General Assembly is the
governmental body that should make the public policy decision as to
whether municipalities, which are, after all, closely governed by the
General Assembly, 14 should not enjoy the immunity afforded other
political subdivisions and agents of the Commonwealth . Our learned
former colleague, Justice Donald Wintersheimer, said it well when he
opined that "[m]unicipal immunity is closely interwoven with sovereign
immunity, and to consider them separately is an exercise in inequality[,]"
meaning that "[u]ltimately the decision as to whether a municipality
should be responsible in tort for the failure to provide proper services or
the provision of such services in a negligent fashion is best left to the
Kentucky General Assembly . . . ." Gas Service Co., Inc. v. Cit roof
London , 687 S.W.2d 144, 151 (Ky. 1985) (Wintersheimer, J ., concurring) .
14
Section 156a of the Kentucky Constitution provides that the General
Assembly "may provide for the creation . . . government, functions, and
officers of cities ." Under its constitutional authority, the General Assembly
has, for example, enacted statutes designating the proceedings necessary to
incorporate a city (KRS 81 .050) and has classified cites into six classes.
Therefore, it is manifest that the General Assembly's legislative fingerprints
are all over the creation, classification, duties, and powers of cities .
50
Therefore, I would overrule Haney, leaving the matter of municipal
immunity from tort to the General Assembly .
The General Assembly has expressly stated in KRS 75 .070(1) that
a municipality "shall not be liable in damages for any omission or act of
negligence" occurring while answering a fire alarm. And I believe we
must defer to the General Assembly's policy decision that municipalities,
such as the City of Caneyville, should not be liable in damages in cases
like the one at hand.
For the reasons discussed, I concur with the majority's ultimate
result, but respectfully disagree with its reasoning.
Cunningham and Schroder, JJ ., join .
ABRAMSON, JUSTICE, CONCURRING IN RESULT ONLY:
I respectfully concur in result only.
While Justice Venters correctly notes that the record before us is
"exceedingly sparse," the Caneyville Volunteer Fire Department's
representation to this Court regarding its legal status has been
unchallenged . The CVFD; notes that "contrary to the Appellees' assertion
that [CVFD] is the agent of the city, volunteer fire districts are created
through special taxing districts set up by the County under KRS 75 .010
and KRS 65.182 . Thus, these agencies are more appropriately
characterized as agents of the county and protected by sovereign
immunity." (emphasis in the original) . Indeed, it is fair to say that the
City of Caneyville has no legal role in this controversy whatsoever and
thus discussions of municipal immunity, jural rights and, indeed, the
51
constitutionality of KRS 95 .830 are beyond the scope of the controversy
before this Court. In my view, the CVFD is a county-authorized taxing
district and whether viewed in that light or through the "agent of the
Commonwealth" status accorded it in KRS 75 .070 it has sovereign
immunity . The majority is correct that Chief Clark in his official capacity
is entitled to the same immunity as the CVFD . Discussions of individual
capacity claims and the qualified official immunity doctrine, again in my
view, are beyond the scope of this controversy because the Appellees did
not state any individual capacity claims against Chief Clark. In sum, I
believe that the majority is correct that the trial court properly dismissed
the case but I disagree with its rationale .
COUNSEL FOR APPELLANT:
Gregory N . Stivers
Scott Donald Laufenberg
Kerrick, Stivers, Coyle 8v Van Zant, P.L.C.
1025 State Street
P.O. Box 9547
Bowling Green, KY 42102-9547
Jason B. Bell
Kerrick, Stivers, Coyle 8v Van Zant, P.L.C.
2819 Ring Rd ., Ste 200
P.O . Box 844
Elizabethtown, KY 42702-0844
COUNSEL FOR APPELLEE:
Alton L. Cannon
1453 Elizabethtown Road
P .O . Box 427
Leitchfield, KY 42755-0427
COUNSEL FOR KENTUCKY LEAGUE OF CITIES :
Christopher Gadansky
David Paul Bowles
Landrum & Shouse LLP
220 West Main Street, Ste . 1900
Louisville, KY 40202-1395
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