Frankfort Variety, Inc. v. City of Frankfort

• Decision Date: 10 June 1977
• Citation: 552 S.W.2d 653
• Parties: FRANKFORT VARIETY, INC., et al., Appellants. v. CITY OF FRANKFORT, Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 653

552 S.W.2d 653

FRANKFORT VARIETY, INC., et al., Appellants. v. CITY OF FRANKFORT, Kentucky, Appellee.

Supreme Court of Kentucky.

June 10, 1977.

John C. McCord, William P. Swain, Thomas Watson, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellants.

William Young, Young & Williams, Allen Prewitt, Jr., Frankfort, for appellee.

STERNBERG, Justice.

This is an appeal from a judgment of the Franklin Circuit Court which granted the City of Frankfort freedom from liability by reason of the cloak of sovereign immunity.

A fire started on the premises in which the variety store was being operated, which is within the city limits of Frankfort. The fire occurred about 9:00 p. m. on April 14, 1973. The Frankfort Fire Department responded and extinguished the fire by midnight; however, the firemen continued to hose down the fire until about 2:30 a. m. the following morning. Upon their departure, the firemen requested the policemen, who were assisting at the scene of the fire, to watch out for vandalism and a rekindling of the fire. About 8:30 a. m. on the day following the initial fire, it again began burning and the firemen were called back to the scene, where it was extinguished by noon.

Frankfort Variety, Inc., and the intervenors, who are the owners of the premises, charged that the firemen so negligently and carelessly failed to sufficiently and adequately protect their premises from fire and so negligently handled and operated the fire fighting equipment that they were damaged in a total sum in excess of $300,000.

On appeal to this court three issues are presented, as follows:

"1. Whether the doctrine of municipal immunity as announced in City of Louisville v. Louisville Seed Company, should be abolished?

2. Whether the allegations contained in the complaints filed in the case at bar bring this case within the 'personal dealing' exception to the municipal immunity doctrine?

3. Whether the doctrine of municipal immunity should be abrogated in its entirety to the extent of any applicable insurance coverage?"

In Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964), the doctrine of municipal immunity for tort liability was abolished. Absolute liability was not the result, but liability based on duty was the resulting criterion. It was charged that the City of Lexington was negligent in the operation of a swimming pool, which resulted in a death by drowning. The circuit judge held, as a matter of law, that the operation of the swimming pool was a governmental, not proprietary, function and, therefore, the city was not liable for the result of negligence. Accordingly, the action was dismissed. An appeal was taken to this court, and in the course of the opinion we said, "So, once again, we are called upon to examine this legal anachronism of municipal immunity from liability for tort." We pointed out that " * * * this Court in late years has accepted the theory with reluctance and has seized upon almost any excuse, however flimsy, to grant relief to any person harmed by negligence of a municipal corporation. * * * " Further criticism of the doctrine was leveled in our comment that, "It is equally hard to determine how this doctrine became imbedded in the law of our Commonwealth." As to the propriety of the doctrine, we said:

" * * * It is sufficient to say that courts made distinctions between functions of the municipal corporation that purportedly were governmental or public and those thought to be proprietary or private, denying liability in the case of governmental functions, but imposing it in situations involving proprietary actions. At most, the distinctions seem to be contrived and without sensible basis. * * * "

After a lengthy discussion of the doctrine, its origin and application, we rejected the municipal immunity doctrine. In doing so, we adopted the Wisconsin rule, as follows:

"Perhaps clarity will be afforded by our expression that henceforward, so far as governmental responsibility for torts is concerned, the rule is liability the exception is immunity. In determining the tort liability of a municipality it is no longer necessary to divide its operations into those which are proprietary and those which are governmental. Our decision does not broaden the government's obligation so as to make it responsible for all harms to others; it is only as to those harms which are torts that governmental bodies are to be liable by reason of this decision."

In City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638 (1968), liability was sought to be imposed for the failure of the city to install gates in the municipal floodwall system. A jury found against the city and awarded a substantial verdict. An appeal followed. In discussing the nature of the liability, we made a distinction between those acts which affect all members of the general public and those situations where the city seeks out or separates a person from the general public and deals with him on an individual basis. In the former instance we said, " * * * it would be unreasonable to apply to it the broad privilege of tort liability * * *." (No tort had been committed.) To the latter situation, we said, " * * * it then should be...