Louisville and Jefferson County Metropolitan Sewer Dist. v. Simpson, 85-SC-688-DG
| Decision Date | 30 April 1987 |
| Docket Number | No. 85-SC-688-DG,85-SC-688-DG |
| Citation | 730 S.W.2d 939 |
| Parties | LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT, Appellant, v. Brenda SIMPSON et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Richard M. Trautwein, Robert A. Winter, Jr., Gary L. Napier, Louisville, for appellant.
John T. Ballantine, Gregory J. Bubalo, James N.G. Cauthen, Ogden, Robertson & Marshall, Karl M. Walz, Louisville, Carroll House, Covington, Ralph H. Logan, Hardy, Logan & Priddy, Bruce P. Zalman, Richard H. Nash, Jr., Nash, Gildersleeve & Nash, Oliver H. Barber, Jr., Gittleman & Barber, B. Hume Morris, II, Morris, Nicholas, Welsh & Vandeventer, Brian K. Darling, Edward A. Mayer, Louisville, for appellees.
The trial court granted the Louisville and Jefferson County Metropolitan Sewer District a partial summary judgment on the basis of sovereign immunity. The Court of Appeals reversed for a trial on the merits. We granted discretionary review and reverse the decision of the Court of Appeals.
The Metropolitan Sewer District maintains storm and sanitary sewer facilities for the City of Louisville and Jefferson County. The District was created pursuant to KRS 76.010 which provides:
In the interest of the public health and for the purpose of providing adequate sewer and drainage facilities in and around each city of the first and second classes and in each county containing such city, there may be created and established a joint metropolitan sewer district under the provisions of KRS 76.010 to 76.210, having the powers, duties and functions as herein prescribed, to be known by and under the name of ...... (Name or city of the first or second class) and ....... (Name of county) metropolitan sewer district, which district under that name shall be a public body corporate, and political subdivision, with power to adopt, use, and alter at its pleasure a corporate seal, sue and be sued, contract and be contracted with, and in other ways to act as a natural person, within the purview of KRS 76.010 to 76.210. (Enact. Acts 1946, ch. 104, Sec. 1; 1968, ch. 152, Sec. 50.)
In accordance with the provisions of KRS 76.090(2), the District finances its public health responsibilities through user charges approved by both the county and the city. It is governed by a Board jointly appointed by the county and the city under authority of KRS 76.170.
The District constructed a facility in southwest Jefferson County with sluice gates which open to allow water to be diverted to the Ohio River during heavy rainfall. This lawsuit was occasioned by flooding of appellees' property when the sluice gates failed to open after a heavy rainfall. The appellees allege that the District negligently designed, maintained, and operated the sluice gates, the result of which caused damage to their property by flood waters. The trial court dismissed the claims of the appellees against the District on the basis of sovereign immunity. The Court of Appeals reversed for a trial on the merits, relying upon Gas Service Co., Inc. v. City of London, Ky., 687 S.W.2d 144 (1985). We are of the opinion that the holding in Gas Service does not apply to the present case. Gas Service held that a city (municipal corporation) is no longer immune from suit for tort liability. The line of cases overruled in Gas Service involved cities. The District here is not a city. In Gnau v. Louisville and Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961), we held that the District was an agency of the state with the immunity of the Commonwealth. Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967), held that Jefferson County is a political subdivision of the Commonwealth and, as such, is an arm of the state government and that it, too, is clothed in sovereign immunity.
The legislature, by statute, has declared the District to be a political subdivision. It is, at least, partially an arm of the county. Whatever the District may be, it is not a city, and we are of the opinion Gas Service should not be extended to cover the District and strip it of immunity to tort liability.
As a matter of policy, the long-standing immunity of the District will not be disturbed by this court in the absence of a change in policy by the legislature.
The decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.
In Gnau v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961), we held that the limited waiver of immunity of the Board of Claims Act did not include MSD. The Court stated:
[T]he waiver of immunity attaches only to those agencies which are under the direction and control of the central State government and are supported by monies which are disbursed by authority of the Commissioner of Finance out of the State treasury.
As MSD was not such an agency, we held that it was not subject to the jurisdiction of the Board of Claims.
Later in Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964), this Court abolished municipal tort immunity except for legislative or judicial functions. Prior to Haney, we held in Rash v. Louisville & Jefferson County Metropolitan Sewer District, 309 Ky. 442, 217 S.W.2d 232 (1949) that The Metropolitan District is a separate entity acting for its own purposes and possessing defined, though limited, powers of a municipal community. It meets the conventional descriptions or definitions of a "municipality."
Relying on Haney, supra, we held in Louisville & Jefferson County Metropolitan Sewer District v. Kirk, Ky., 390 S.W.2d 182 (1965):
Metropolitan next asserts the trial judge erred in overruling its motion for a directed verdict for the reason that this action was essentially one based upon negligence and that, since Metropolitan has been held to be a governmental functionary, Gnau v. Louisville and Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 [ (1961) ] it is protected from liability for its torts by the doctrine of immunity. This defense (municipal tort immunity) is now unavailing because this doctrine was abolished in Kentucky, insofar as it attaches to a public agency such as appellant by the recent case of Haney v. City of Lexington, Ky., 386 S.W.2d 738 [ (1964) ].
If any doubt remained as to the abolition of municipal tort immunity in Haney, such was removed by our holding in Gas Service Co., Inc. v. City of London, Ky., 687 S.W.2d 144 (1985).
MSD now comes before this Court arguing that it is entitled to immunity as a quasi-municipal corporation and relies upon Fawbush v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 240 S.W.2d 622 (1951). In view of Rash and Kirk, I disagree with this contention.
On the basis of the majority opinion in the case at bar and Gnau, MSD has achieved the exalted status of being immune from liability for its tortious conduct in any forum. I do not believe this is an accurate interpretation of the legislative act authorizing the creation of MSD or of the Constitution of Kentucky.
Reading the majority and other dissenting opinions clearly shows that the beat-goes-on. The scope of governmental immunity is far from being resolved. The ink is barely dry on Gas Services Co. Inc. v. City of London, Ky., 687 S.W.2d 144 (1985) and the exceptions predicted in the dissent begin and certain immunities were preserved in Gas Services itself.
It is my opinion that we should adhere to the Gas Services, supra, decision to provide stability in the law despite the debatable proposition as to whether a municipal corporation as a generic entity is stripped of immunity or if liability attaches only to a city as a municipal corporation. For good or ill, Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964) set the pattern and Gas Services followed it. Another reason I dissent is because the affirmation of a partial summary judgment does not contribute to the disclosure of the identity of the tort-feasor if any exists. The dissent in Gas Services properly acknowledged the limited concept that liability follows negligence and suggests that a case could be tried against the actual individual committing the tort. The legal process should seek the true wrongdoer, if any.
In my view, individual responsibility has been overlooked in the rush to find a deep-pocket. Any corporation, municipal or otherwise, can act only through its agents or employees. Recovery should first be sought against the active wrongdoer. The conduct of those agents and employees must first be examined before any claim can be sustained against the principal corporation. Therefore, I would not affirm a summary judgment in this field which has not included a careful review of the responsibilities of both principal and agent or employee. In this case, the manufacture and design of the sluice gates may also play an important role in ascertaining responsibility.
Cities should not be treated differently from other governments, special districts or municipal corporations. If the conduct complained of amounts to negligence and is not protected by the exercise of valid legislative or executive judgment, then liability could result.
As I noted in my concurring opinion in Gas Services, the only valid exercise of government which should be exempt from tort liability is the purely administrative or legislative decision-making process. Redress from the exercise of poor judgment is at the ballot box. Compensation for the failure to exercise ordinary care under all the circumstances is obtained by damages.
The ultimate answer may be from the general assembly which might aid the people who have incorporated into municipalities by enacting a realistic and comprehensive tort claims act which would recognize the...
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