Schwindel v. Meade County, No. 2001-SC-0648-TG.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtCooper
Citation113 S.W.3d 159
Docket NumberNo. 2001-SC-0648-TG.
Decision Date21 August 2003
PartiesLeah SCHWINDEL; and Jake Schwindel, Appellants, v. MEADE COUNTY, Kentucky; Mark S. Brown, in His Official Capacity as Meade County Judge/Executive; Charles E. Goghill, Jean McNally, Charles Baker, IRV Spencer, Troy Seelye, and Kent Allen, in their Official Capacity as Members of the Meade County Fiscal Court; Meade County Board of Education; David T. Wilson, in His Official Capacity as Superintendent of the Meade County School System; James S. Redmon, Michael Chism, Jeff Greer, Belinda Cross, and John Inman, in their Official Capacities as Meade County Board of Education Members; and the Unknown Defendant(s), the Servants, Agents, and Employees of Meade County, Kentucky, and/or Meade County Board of Education, Appellees.
113 S.W.3d 159
Leah SCHWINDEL; and Jake Schwindel, Appellants,
v.
MEADE COUNTY, Kentucky; Mark S. Brown, in His Official Capacity as Meade County Judge/Executive; Charles E. Goghill, Jean McNally, Charles Baker, IRV Spencer, Troy Seelye, and Kent Allen, in their Official Capacity as Members of the Meade County Fiscal Court; Meade County Board of Education; David T. Wilson, in His Official Capacity as Superintendent of the Meade County School System; James S. Redmon, Michael Chism, Jeff Greer, Belinda Cross, and John Inman, in their Official Capacities as Meade County Board of Education Members; and the Unknown Defendant(s), the Servants, Agents, and Employees of Meade County, Kentucky, and/or Meade County Board of Education, Appellees.
No. 2001-SC-0648-TG.
Supreme Court of Kentucky.
August 21, 2003.

[113 S.W.3d 161]

Paul L. Madden, Paul Liston Madden, Jr., Kathleen Joy C. Madden, Thomas Edward Madden, Hawesville, Counsel for Appellants.

Reford H. Coleman, Matthew C. Hess, Coleman, Lochmiller & Hall, Elizabeth-town, Darren A. Sipes, Meade County Attorney, Brandenburg, Counsel for Appellees Meade County, Kentucky; Mark S. Brown, in His Official Capacity as Meade County Judge/Executive; Charles E. Goghill, Jean McNally, Charles Baker, IRV Spencer, Troy Seelye, and Kent Allen, in

[113 S.W.3d 162]

their Official Capacity as Members of the Meade County Fiscal Court.

Donald E. Skeeters, Skeeters, Bennett, Shumate & Wilson, Radcliff, Michael A. Owsley, W. Cravens Priest, III, Brett A. Reynolds, English, Lucas, Priest & Owsley, Bowling Green, Counsel for Appellees Meade County Board of Education; David T. Wilson, in His Official Capacity as Superintendent of the Meade County School System; James S. Redmon, Michael Chism, Jeff Greer, Belinda Cross, and John Inman, in their Official Capacities as Meade County Board of Education Members; and the Unknown Defendant(s), the Servants, Agents, and Employees of Meade County, Kentucky, and/or Meade County Board of Education.

Opinion of the Court by Justice COOPER.


On March 26, 1999, Appellant Leah Schwindel was injured while a spectator at an interscholastic softball tournament held at Meade Olin Park in Brandenburg, Kentucky. As Schwindel attempted to descend the bleachers provided for the use of spectators, a foot rail slipped out of place causing her to fall onto the open metal braces below. She was immediately transported to a hospital where surgery was performed. At 12:27 p.m. on Monday, March 27, 2000, eleven hours and thirty-three minutes before the expiration of the period of limitations for filing an action for personal injuries, KRS 413.140(1)(a), CR 6.01, Schwindel and her husband, Appellant Jake Schwindel, filed a complaint for damages in the Meade Circuit Court (she for her injuries, he for loss of consortium). Named as defendants were Meade County and its county judge and fiscal court magistrates "in their official capacities" and the Meade County Board of Education and its superintendent and board members "in their official capacities."

The complaint alleges that: (1) Meade Olin Park is owned by Meade County; (2) the softball tournament was sponsored by the Meade County Board of Education; and (3) "their servants, agents, and employees," negligently caused Mrs. Schwindel's injuries by failing to properly construct or maintain the bleachers. Mrs. Schwindel subsequently filed an affidavit (the only evidence in the record) alleging, inter alia, that the foot rail was not properly bolted or attached to the bleachers. The affidavit also alleged that spectators, including Mrs. Schwindel, were charged an admission fee to attend the event and that refreshments and event programs were sold on the premises. All of the named defendants filed motions to dismiss, CR 12.02(f), asserting the defense of sovereign immunity.1 (When Mrs. Schwindel filed her affidavit in opposition to the motions, the motions to dismiss were converted into motions for summary judgment. Ferguson v. Oates, Ky., 314 S.W.2d 518, 521 (1958)).

On July 6, 2000, the date scheduled for final arguments on the motions and more than three months after the expiration of the period of limitations, the Schwindels were permitted to file an amended complaint naming as additional defendants "The Unknown Defendant(s), the servants, agents, and employees of Meade County, Kentucky, and/or Meade County Board of Education" and asserting negligence claims against them. The amended complaint also alleged that the original defendants were operating an "enterprise for profit" by charging an admission fee and

113 S.W.3d 163

selling refreshments and event programs "for income and profit." The circuit judge abated the motions to dismiss so that Appellants could depose the county judge/executive, the superintendent of schools, and the park superintendent to discover evidence that might show why the facially immune original defendants were not entitled to a dismissal. No depositions were ever taken nor were any affidavits, other than that of Mrs. Schwindel, ever filed. No attempt was made to identify the "unknown defendants" through an inquiry under the Open Records Act, KRS 61.870, et seq., or otherwise, or to have a warning order attorney appointed for the purpose of obtaining constructive service of process on them. CR 4.05(e). On January 23, 2001, summary judgment was entered in favor of the original defendants. On July 12, 2001, the amended complaint was dismissed. The Schwindels appealed and we granted transfer. CR 74.02.

I. COUNTY LIABILITY.

A county government is cloaked with sovereign immunity. Franklin County v. Malone, Ky., 957 S.W.2d 195, 203 (1997), overruled on other grounds by Commonwealth v. Harris, Ky., 59 S.W.3d 896, 900 (2001) (as to whether claim against a county can be brought in Board of Claims), and on other grounds by Yanero v. Davis, supra note 1, at 523 (as to whether public employee performing ministerial function is cloaked with official immunity); Cullinan v. Jefferson County, Ky., 418 S.W.2d 407, 408 (1967), overruled on other grounds by Yanero, supra note 1 at 527 (as to whether a local board of education is a "government"); Moores v. Fayette County, Ky., 418 S.W.2d 412, 413 (1967); cf. Yanero, supra note 1, at 526. Nor can a county, absent a legislative waiver of immunity, see Reyes v. Hardin Memorial Hospital, Ky., 55 S.W.3d 337, 338-39 (2001), be held vicariously liable in a judicial court for the ministerial acts of its agents, servants, and employees. Cf. Yanero, supra note 1, at 528; Malone, supra, at 199-200; Moores, supra, at 414. If damages could be recovered against a county on the basis of respondeat superior, the concept of sovereign immunity would be largely nullified because state and county governments perform their ministerial functions by and through their agents, servants, and employees. That brings us to Appellants' primary contention with respect to their claims against Meade County, i.e., that KRS 65.200, et seq., the so-called "Claims Against Local Governments Act" (CALGA), constitutes a waiver by the General Assembly of a county's immunity from vicarious liability for damages arising from the tortious performance of ministerial acts by its employees. For the reasons explained infra, we conclude that the legislative intent was not to waive any immunity enjoyed by any local government but to specify what damages could be obtained against local governments that are subject to common law judgments and what obligation a local government has to provide a defense for and pay judgments rendered against its employees for the tortious performance of their ministerial duties.

Any attempt to discern the legislative intent of the 1988 enactment of CALGA, 1988 Ky. Acts, ch. 224, §§ 15-21, necessarily begins with an examination of the legal climate existing at the time with respect to immunities. As of 1988, this Court had recently reaffirmed that municipal immunity extended only to "legislative or judicial or quasi-legislative or quasi-judicial functions." Gas Serv. Co., Inc. v. City of London, Ky., 687 S.W.2d 144, 149 (1985) (quoting Haney v. City of Lexington, Ky., 386 S.W.2d 738, 742 (1964)). We also had recently used the terms "sovereign immunity" and "governmental immunity" interchangeably, Dunlap v. Univ. of Ky., Ky.,

113 S.W.3d 164

716 S.W.2d 219, 219, 222 (1986), an interchange of terminology not uncommon at the time. See Yanero, supra note 1, at 519. And we were then considering whether to affirm a recent Court of Appeals' decision holding that employees of immune entities did not enjoy the same immunity as their employers. That holding was, in fact, subsequently affirmed in University of Louisville v. O'Bannon, Ky., 770 S.W.2d 215, 217 (1989).

KRS 65.2001 is titled "Application and construction of KRS 65.2002 to 65.2006." Subsection (1) of KRS 65.2001 provides:

(1) Every action in tort against any local government in this Commonwealth for death, personal injury or property damages proximately caused by:

(a) Any defect or hazardous condition in public lands, buildings or other public property, including personalty;

(b) Any act or omission of any employee, while acting within the scope of his employment or duties; or

(c) Any act or omission of a person other than an employee for which the local government is or may be liable

shall be subject to the provisions of KRS 65.2002 to 65.2006.

(Emphasis added.)

Nothing in subsection (1) purports to waive the existing immune status of any local government. It simply provides that all subsequent sections of the Act apply, inter alia, to "actions in tort" brought "against any local government" because of a "defect or hazardous condition" existing on public property or an "act or omission of any employee." KRS 65.200 defines "action in tort," "employee," and "local government" as follows:

(1) "Action in tort" means any claim for money damages based upon negligence, medical malpractice, intentional tort,...

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  • B.L. v. Schuhmann, Civil Action No. 3:18-cv-151-RGJ-CHL
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 2 Mayo 2019
    ...F.Supp.2d 762, 765 (E.D. Ky. 2013). Under Kentucky law, county governments are protected by sovereign immunity. Schwindel v. Meade Cty. , 113 S.W.3d 159, 163 (Ky. 2003). "A county ‘is a political subdivision of the Commonwealth as well, and as such is an arm of the state government. It, too......
  • Degolia v. Kenton Cnty., CIVIL ACTION No. 2:17-CV-226 (WOB-CJS)
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • 7 Mayo 2019
    ...held "vicariously liable in a judicial court for the ministerial acts of its agents, servants, and employees." Schwindel v. Meade Cty. , 113 S.W.3d 159, 163 (Ky. 2003) ). Degolia has not pointed to any authority establishing that sovereign immunity for Kenton County has been waived. Moreove......
  • Rowan County v. Sloas, No. 2003-SC-000938-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 21 Septiembre 2006
    ...judgments in favor of Rowan County and in favor of the Jailer and Henderson in their official capacities, see Schwindel v. Meade County, 113 S.W.3d 159, 163, 169 (Ky.2003), but reversed the summary judgments as to the Jailer and Henderson in their individual capacities, reasoning that "ther......
  • Gambrel v. Knox Cnty., 20-6027
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 8 Febrero 2022
    ...prejudice.Citing Jefferson County Commonwealth Attorney's Office v. Kaplan , 65 S.W.3d 916 (Ky. 2001), and Schwindel v. Meade County , 113 S.W.3d 159 (Ky. 2003), Knox County suggests that the Kentucky Supreme Court has already foreclosed Gambrel's reading. Yet neither case answers the quest......
  • Request a trial to view additional results
146 cases
  • B.L. v. Schuhmann, Civil Action No. 3:18-cv-151-RGJ-CHL
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 2 Mayo 2019
    ...F.Supp.2d 762, 765 (E.D. Ky. 2013). Under Kentucky law, county governments are protected by sovereign immunity. Schwindel v. Meade Cty. , 113 S.W.3d 159, 163 (Ky. 2003). "A county ‘is a political subdivision of the Commonwealth as well, and as such is an arm of the state government. It, too......
  • Degolia v. Kenton Cnty., CIVIL ACTION No. 2:17-CV-226 (WOB-CJS)
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • 7 Mayo 2019
    ...held "vicariously liable in a judicial court for the ministerial acts of its agents, servants, and employees." Schwindel v. Meade Cty. , 113 S.W.3d 159, 163 (Ky. 2003) ). Degolia has not pointed to any authority establishing that sovereign immunity for Kenton County has been waived. Moreove......
  • Rowan County v. Sloas, No. 2003-SC-000938-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 21 Septiembre 2006
    ...judgments in favor of Rowan County and in favor of the Jailer and Henderson in their official capacities, see Schwindel v. Meade County, 113 S.W.3d 159, 163, 169 (Ky.2003), but reversed the summary judgments as to the Jailer and Henderson in their individual capacities, reasoning that "ther......
  • Gambrel v. Knox Cnty., 20-6027
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 8 Febrero 2022
    ...prejudice.Citing Jefferson County Commonwealth Attorney's Office v. Kaplan , 65 S.W.3d 916 (Ky. 2001), and Schwindel v. Meade County , 113 S.W.3d 159 (Ky. 2003), Knox County suggests that the Kentucky Supreme Court has already foreclosed Gambrel's reading. Yet neither case answers the quest......
  • Request a trial to view additional results

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