Carter by Carter v. Cornwell, 92-5292

Decision Date23 February 1993
Docket NumberNo. 92-5292,92-5292
Citation983 F.2d 52
PartiesChristina CARTER, an infant under the age of fourteen years, by her father and next friend, Grover C. CARTER; Grover C. Carter, individually; and Jo Hannah Carter, individually, Plaintiffs-Appellants, Community Mutual Insurance Company, Intervening Plaintiff, v. Gary CORNWELL; James Murphy, as Director of Public Works, City of Ashland, Kentucky; and Ronald McBride, as Chief of Police, City of Ashland, Kentucky, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Charles R. Coy, James T. Gilbert (argued and briefed), Coy, Gilbert & Gilbert, Richmond, KY, for plaintiffs-appellants.

Daniel King, III (argued and briefed), Gregory L. Monge (briefed), Matthew J. Wixsom (argued), Van Antwerp, Monge, Jones & Edwards, Ashland, KY, for defendants-appellees.

Before MILBURN and NORRIS, Circuit Judges; and KRUPANSKY, Senior Circuit Judge.

KRUPANSKY, Senior Circuit Judge.

Plaintiffs-Appellants, Christina Carter, Grover C. Carter and Jo Hannah Carter, have appealed from the district court's dismissal of their diversity action against defendants-appellees, James R. Murphy and Ronald McBride for damages resulting from injuries to Christina Carter suffered in an automobile accident.

On April 9, 1990, Christina Carter was struck by a vehicle operated by Gary Cornwell. Cornwell was driving south on 29th Street in Ashland, Kentucky when Carter attempted to cross the roadway and was struck by Cornwell's automobile. Ashland City Ordinance Number 128 (1988) fixed the speed limit within the city's boundaries at 25 m.p.h. excepting specifically identified roadways. The area of 29th Street here in controversy was not excepted from the imposed 25 m.p.h. speed limitation. The ordinance also authorized the Director of Public Works and the Chief of Police to enforce the promulgated speed limits and to post the said designated speed limits throughout the city where, within their discretion, posting was warranted. 1 Nowhere did the ordinance specifically require that the speed limit on 29th Street be posted in the area in which Christina Carter was injured.

Plaintiffs filed suit in federal district court wherein they charged that as a direct and proximate result of the defendants' negligent failure to post and enforce the speed limit the plaintiff, Christina Carter, was injured. In response, defendants, Murphy and McBride, moved for dismissal. Their motion argued that the complaint failed to state a cause of action upon which relief could be granted because it named defendants only in their official capacities and that in these positions they were protected by a limited municipal or official immunity from liability in tort. The district court agreed and granted defendants' motion to dismiss on the basis of official immunity.

Plaintiffs then moved to alter or amend the court's order dismissing Murphy and McBride as defendants, charging that governmental immunity in Kentucky only protects officials from making policy or discretionary decisions, while the complaint against defendants alleged ministerial functions. Plaintiffs also moved for leave to file an amended complaint in order to name defendants Murphy and McBride in their individual capacities. The district court denied both of these motions and reaffirmed its decision to dismiss the complaint against Murphy and McBride for failure to state a claim. Moreover, the district court concluded that even if defendants were named in their individual capacities, the plaintiffs would nevertheless fail to state a claim since defendants alleged failure to act would not be considered wrongful outside of their official positions. In order to perfect the case for appeal, plaintiffs filed a motion for entry of final judgment on the dismissal of the claims against Murphy and McBride which the court granted. 2

Whether the district court properly dismissed plaintiffs' complaint pursuant to FED.R.CIV.P. 12(b)(6) is a question of law which this court reviews de novo. A district court's grant of a motion to dismiss is proper when there is no set of facts that would allow the plaintiff to recover. All factual allegations are deemed true and any ambiguities must be resolved in the plaintiff's favor. Jackson v. Richards Medical Co., 961 F.2d 575, 577 (6th Cir.1992). In the present case, the district court granted defendants' motion to dismiss because it found that plaintiffs' claims against defendants Murphy and McBride in their official capacities were barred by the official immunity doctrine in Kentucky. 3

The case comes before this court on an appeal from a diversity action initiated in the United States District Court for the Eastern District of Kentucky. As such, this court must apply Kentucky law in determining whether the doctrine of official or municipal immunity affords defendants any protection. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In Gas Service Co. v. City of London, 87 S.W.2d 144, 150 (1985), the Kentucky Supreme Court found as a general rule that the principle of official or municipal immunity had been abolished by its earlier decision in Haney v. City of Lexington, 386 S.W.2d 738, 742 (1964). In Haney, the Kentucky court eliminated the doctrine of municipal immunity but retained two exceptions to the general rule of no liability. Acts committed in the "exercise of legislative or judicial or quasi-legislative or quasi-judicial functions" would remain immune from liability. Id. at 742.

In the ensuing years between Haney and its reaffirmation in Gas Service, the Kentucky Supreme Court allowed arguments of financial expediency and economic impact on municipalities to temper the strict rule of no immunity and the exceptions began to erode the general principle which accords no immunity to municipalities and their officials. Gas Service, 687 S.W.2d at 148-49. Thus, in Gas Service, the Kentucky Supreme Court once again attempted to set out a general principle of no immunity for municipalities and their officials, while still retaining the quasi-legislative and quasi-judicial exceptions articulated in Haney. Id. at 149. In an effort to clarify these exceptions, the court emphasized that municipalities and their officials should not be liable when the "government was not charged with having caused the injury, but only with having failed to prevent it by proper exercise of regulatory functions which have elements appearing quasi-judicial and quasi-legislative in nature." Id.

Although the Kentucky Supreme Court has not to this date decided a case involving facts identical to those...

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