Comair v. Lexington-Fayette

• Decision Date: 01 October 2009
• Docket Number: No. 2007-SC-000602-TG.,2007-SC-000602-TG.
• Citation: 295 S.W.3d 91
• Parties: COMAIR, INC.; and Comair Services, Inc., Appellants, v. LEXINGTON-FAYETTE URBAN COUNTY AIRPORT CORPORATION; and Lexington-Fayette Urban County Airport Board, and the Members, Officers and Directors of the Board and/or Corporation in their Official Capacities, Appellees.
• Court: Supreme Court of Kentucky

295 S.W.3d 91

COMAIR, INC.; and Comair Services, Inc., Appellants, v. LEXINGTON-FAYETTE URBAN COUNTY AIRPORT CORPORATION; and Lexington-Fayette Urban County Airport Board, and the Members, Officers and Directors of the Board and/or Corporation in their Official Capacities, Appellees.

No. 2007-SC-000602-TG.

Supreme Court of Kentucky.

October 1, 2009.

Ronald L. Green, Boehl, Stopher & Graves, LLP, Lexington, KY, Raymond G. Smith, Edward H. Stopher, Jeffrey Wayne Adamson, Boehl, Stopher & Graves, LLP, Louisville, KY, for appellants.

Kevin G. Henry, Sturgill, Turner, Barker & Moloney, PLLC, Lexington, KY, for appellees.

Opinion of the Court by Justice NOBLE.

This case raises the question whether the Lexington-Fayette Urban County Airport Board, the Lexington-Fayette Urban County Airport Corporations, and the Board's members are entitled to sovereign, governmental, or other immunity so as to preclude liability in litigation over a tragic air crash. The Fayette Circuit Court found they are immune. Because the Airport Board and Airport Corporation are government agencies, specifically of the Lexington-Fayette Urban County Government, performing a governmental function, they are entitled to immunity from suit for alleged negligence, and the board members are entitled to immunity from suit in their representative capacities. The circuit court therefore is affirmed.

I. Background

Comair Flight 5191 was scheduled to depart from Lexington Blue Grass Airport at approximately 6:00 a.m. on August 27, 2006. Due to ongoing redesign and reconstruction of the runways and taxiways, the normal path to the regular runway was reportedly blocked. In attempting to navigate the construction, the plane took a wrong turn and ended up on a shorter secondary runway from which it could not gain sufficient altitude for a safe takeoff and crashed into an adjacent field immediately after takeoff. All forty-seven passengers and two crew members died. A third crew member was critically injured but survived the crash.

The estates of the deceased passengers began filing wrongful death actions against the companies that operated Flight 5191, Comair, Inc. and Comair Services, Inc. (collectively "Comair"), in the Fayette Circuit Court on September 1, 2006. Eventually forty-four such suits were filed. Other claims were filed in federal district court,¹ and at least one was filed in Florida state court.

In May 2007, Comair filed a third-party complaint naming the Lexington-Fayette Urban County Airport Board, the Lexington-Fayette Urban County Airport Corporation, and twenty John Does (the members of the Board) in their individual and representative capacities. Initial discovery was undertaken, including the production of financial records and the deposition of John Rhodes, the Blue Grass Airport Director of Administration and Finance. In June, the Airport Board and the Airport Corporation moved to dismiss the third-party complaint on the ground that they enjoyed immunity from liability.

On August 2, 2007, the circuit court held a hearing on the motion to dismiss. At the hearing, the court orally discussed the Kentucky cases covering immunity of government agencies, stating that the matter would ordinarily be controlled by Kentucky Center for the Arts v. Berns, 801 S.W.2d 327 (Ky.1990), but noting that the Court of Appeals had previously held that the Airport Board and Airport Corporation were entitled to immunity in Inco, Ltd. v. Lexington-Fayette Urban County Airport Board, 705 S.W.2d 933 (Ky.App.1985). Finding that Inco, Ltd. was binding precedent, the circuit court dismissed as to the Airport Board, the Airport Corporation, and the Board members.² In a subsequent written order, the circuit court "adopt[ed] by reference its oral bench ruling stating its rationale" from the August 2nd hearing.

Comair appealed the decision. Given the importance of the issues, this Court transferred the case from the Court of Appeals' docket to its own.

II. Analysis

Comair has challenged the trial court's decision as to the immunity of the Airport Board, the Airport Corporation, and the Board's members in their official capacities, but has not addressed the board members' immunity or liability in their individual capacities. This Court will therefore not address individual liability issues.

Despite the frequency of opinions on the subject from this Court, the law of sovereign immunity, and the related doctrines of governmental immunity, official immunity, and qualified official immunity, is still difficult to apply, no doubt in part because of the large number of decisions on the subject. Attitudes about the propriety of immunity for the state and its subdivisions, government agencies and their employees, and government-created entities have shifted back and forth over time and personnel changes on the Court.

The one clear thing is that pure sovereign immunity, for the state itself, has long been the rule in Kentucky. Though "[t]he basis and policy of the doctrine has been many times stated," Kentucky State Park Com'n v. Wilder, 260 Ky. 190, 84 S.W.2d 38, 39 (1935)—as has much criticism—perhaps the most succinct explanation accounting for the concept is that "it is not a tort for government to govern...." Dalehite v. United States, 346 U.S. 15, 57, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) (Jackson, J., dissenting). In Kentucky the doctrine is sometimes claimed to stem from Section 231 of the Kentucky Constitution, but it is really a common law concept that recognizes a quality (immunity from suit) of the sovereign state: "Absolute immunity from suit is a high attribute and prerogative of sovereignty.... This immunity has come down to us as a part of the fundamental common law and is only indirectly contained in the Constitution." Wilder, 84 S.W.2d at 39.³ Put more succinctly: "The immunity as a matter of fact appears in the Constitution not at all, except as the grant of a dispensing power of the legislature implies the existence of the immunity." Paul Oberst, The Board of Claims Act of 1950, 39 Ky. L.J. 35, 35 n. 8 (1950-1951). More recently, the doctrine has been "recognized as an inherent attribute of the state" in Yanero v. Davis, 65 S.W.3d 510, 523 (Ky.2001).

The reach of sovereign immunity becomes more complicated when dealing with governmental and quasi-governmental entities and departments below the level of the Commonwealth itself. However, at least one line is clear for now: the distinction between counties and cities. Counties, which predate the existence of the state and are considered direct political subdivisions of it, enjoy the same immunity as the state itself. Lexington-Fayette Urban County Government v. Smolcic, 142 S.W.3d 128, 132 (Ky.2004); see also Schwindel v. Meade County, 113 S.W.3d 159, 163 (Ky.2003) ("A county government is cloaked with sovereign immunity."); cf. Thomas P. Lewis, James S. Kotas, and Charles N. Carnes, Consolidation—Complete or Functional—of City and County Governments in Kentucky, 42 Ky. L.J. 295 (1952-1953) ("[T]he main purpose of counties has been to function as administrative subdivisions of the state."). Cities, as municipal corporations, on the other hand, while enjoying some immunity for much of this state's history, are now liable for negligent acts outside the legislative and judicial realms. See Gas Service Co., Inc. v. City of London, 687 S.W.2d 144, 146 (Ky.1985); Haney v. City of Lexington, 386 S.W.2d 738, 742 (Ky. 1964).

Numerous other entities, however, fall outside this taxonomy of city versus state and county, and it is not immediately clear whether they are agencies of the state, and therefore possibly entitled to immunity, or more akin to municipal corporations, and are therefore liable in tort. These in-between entities have given courts the most trouble in recent years.

The obvious starting point for addressing the immune status of the entities in this case is the previous case law related to them. Airport boards (frequently termed "air boards") have been discussed numerous times by this Court, then sitting as the Court of Appeals, and the current intermediate Court of Appeals. Usually, however, the immune status of such entities has not been the primary concern in the case. Nevertheless, those cases demonstrate the confusion surrounding the exact legal nature of airport boards.

When this Court sat as the Court of Appeals prior to the current Judicial Article, several decisions addressed county airport boards and described them as municipal corporations or similar entities. See, e.g., Dixie Taxi Service, Inc. v. Louisville and Jefferson County Air Bd., 465 S.W.2d 273, 274-76 (Ky.1971) (analogizing the air board to a private property owner); Bowling Green-Warren County Airport Bd. v. Bridges Aircraft Sales & Service, Inc., 460 S.W.2d 18, 19 (Ky.1970) ("The [Airport] Board is a municipal corporation established pursuant to the enablements of KRS 183.133."); Sawyer v. Jefferson County Fiscal Court, 438 S.W.2d 531, 534 (Ky. 1969) (citing Louisville & Jefferson County Air Board v. American Airlines, Inc., 160 F.Supp. 771 (W.D.Ky.1958), as having held that an airport board is a municipal corporation: "[t]here is nothing extraordinary in the concept that a [development board created by the fiscal court] is a municipality"); Stephenson v. Louisville and Jefferson County Bd. of Health, 389 S.W.2d 637, 638 (Ky.1965) (stating in dicta that the Louisville and Jefferson County Air Board was a "municipal corporation" based a Louisville & Jefferson County Air Board v. American Airlines, Inc., 160 F.Supp. 771 (W.D.Ky.1958), and holding that the Board of Health, also a municipal corporation, was not immune under Haney v. City of Lexington); Louisville and Jefferson County Air Bd. v. Porter, 397 S.W.2d 146, 150 (Ky.1965) (stating in dicta that an airport board is "a governmental agency which has the power to sue and be sued liable for damage to property caused by its non-negligent acts," in the context of a...