Withers v. University of Kentucky

• Citation: 939 S.W.2d 340
• Decision Date: 27 February 1997
• Docket Number: No. 96-SC-017-DG,96-SC-017-DG
• Parties: 116 Ed. Law Rep. 1257 Michael O. WITHERS, Michael O. Withers as Administrator of the Estate of Emilie M. Withers, Deceased; and Michael O. Withers as Legal Guardian of Joanna May Withers, a Minor, Appellants, v. UNIVERSITY OF KENTUCKY, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 340

939 S.W.2d 340

116 Ed. Law Rep. 1257

Michael O. WITHERS, Michael O. Withers as Administrator of

the Estate of Emilie M. Withers, Deceased; and

Michael O. Withers as Legal Guardian of

Joanna May Withers, a Minor, Appellants, v. UNIVERSITY OF KENTUCKY, Appellee.

No. 96-SC-017-DG.

Supreme Court of Kentucky.

Feb. 27, 1997.

Shirley Allen Cunningham, Jr., Gerry L. Harris, Rosanna L. Peace, Lexington, for Appellants.

William J. Gallion, Gallion, Baker & Bray, P.S.C., Lexington, for Appellee.

William R. Garmer, Robert L. Elliott, Savage, Garmer & Elliott, P.S.C., Lexington, for Amicus Curiae, Kentucky Academy of Trial Attorneys.

Scott White, Director, Civil & Environmental Law Division, Office of the Attorney General, Frankfort, for Amicus Curiae, Office of the Attorney General.

John G. Irvin, McBrayer, McGinnis, Leslie & Kirkland, Lexington, for Amicus Curiae, Morehead State University.

Elizabeth Blincoe, Northern Kentucky University, Highland Heights, for Amicus Curiae, Northern Kentucky University.

Deborah Tomes Wilkins, Office of the President, Western Kentucky University, Bowling Green, for Amicus Curiae, Western Kentucky University.

C. Thomas Miller, Sheffer Hoffman, Paducah, for Amicus Curiae, Murray State University.

Giles T. Black, Eastern Kentucky University, Richmond, for Amicus Curiae, Eastern Kentucky University.

Harold S. Green, Sr., Kentucky State University, Frankfort, for Amicus Curiae, Kentucky State University.

Angela D. Koshewa, University of Louisville, Louisville, for Amicus Curiae, University of Louisville.

LAMBERT, Justice.

We are confronted again with the issue of sovereign immunity, a doctrine of law created by Section 231 of the Constitution of Kentucky. For decades this Court has struggled with whether various governmental entities are entitled to the protection of sovereign immunity, and of those which are, whether statutes or conduct of the immune entity amount to an express or an implied waiver. At issue here is whether the University of Kentucky is entitled to immunity from claims of medical negligence at its medical center, and, if so, whether statutes authorizing its participation in a malpractice compensation fund and its actual participation in the fund are sufficient to constitute a waiver of immunity.

Appellants brought this claim for wrongful death against the University of Kentucky arising out of the alleged medical negligence of certain physicians. They alleged that the negligent parties were agents of the University of Kentucky and that their conduct caused the death of Emilie M. Withers. The University of Kentucky sought dismissal on grounds of sovereign immunity. The trial court granted the motion to dismiss and subsequently denied appellants' motion to set aside the order of dismissal. ¹ An appeal was taken to the Court of Appeals and that court affirmed the dismissal of appellee, the University of Kentucky. The Court of Appeals squarely held that the University of Kentucky was entitled to sovereign immunity from its tortious conduct. For its decision, the court below relied extensively on Hutsell v. Sayre, 5 F.3d 996 (6th Cir.1993), and its analysis of the state of sovereign immunity in Kentucky. We granted discretionary review and now affirm the courts below.

Appellants first contend that the University of Kentucky is not an entity which is entitled to sovereign immunity under our Constitution and laws. For this contention they rely extensively on Kentucky Center for the Arts Corp. v. Berns, Ky., 801 S.W.2d 327 (1991), and the test it recognized from Gnau v. Louisville & Jefferson Co. Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961). Berns articulated the test as follows:

This is a two-pronged test, the first consisting of the "direction and control of the central state government," and the second consisting of being "supported by monies which are disbursed by authority of the Commissioner of Finance out of the State Treasury."

Berns, 801 S.W.2d at 331.

The determination of whether an entity is entitled to protection by the constitutional principle of sovereign immunity is for the judiciary.

The judiciary has the ultimate power, and the duty, to apply, interpret, define, construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to so do. This duty must be exercised even when such action serves as a check on the activities of another branch of government or when the court's view of the constitution is contrary to that of other branches, or even that of the public.

Rose v. Council for Better Education, Inc., Ky., 790 S.W.2d 186, 209 (1989). The General Assembly has no power to extend or limit the class of entities entitled to sovereign immunity as this determination must be made from Section 231 of the Constitution. Berns, 801 S.W.2d at 329. Contrary to appellants' contention, the University of Kentucky precisely meets the Berns test as set forth above. While we deem it unnecessary to repeat the analysis of the statutory existence of the University of Kentucky as contained in Hutsell v. Sayre, supra, it is appropriate to quote KRS 164.100 as follows:

The University of Kentucky located at Lexington, is recognized as established and maintained. It is the institution that was founded under the land grant of 1862 by the Congress of the United States under the corporate designation and title of "Agricultural and Mechanical College of Kentucky." The university shall be maintained by the state with such endowments, incomes, buildings and equipment as will enable it to do work such as is done in other institutions of corresponding rank, both undergraduate and postgraduate, and embracing the work of instruction as well as research.

In addition, KRS 164.125(2), provides:

The University of Kentucky shall be the principal state institution for the conduct of statewide research and statewide service programs and shall be the only institution authorized to expend state general fund appropriations on research and service programs of a statewide nature financed principally by state funds.

The language of KRS 44.073(1) establishes the University of Kentucky as an agency of the state and KRS 446.010(31) defines "state funds" or "public funds" in such a manner as to include sums paid to the University of Kentucky Medical Center for health care sciences.

Numerous other statutes contained in KRS 164 establish unmistakably that the University of Kentucky operates under the direction and control of central state government and that it is funded from the State Treasury. The immune status of the University of Kentucky was expressly recognized in Frederick v. University of Kentucky Medical Center, Ky.App., 596 S.W.2d 30 (1980), a case involving the same statutory provision here under review, and likewise recognized in the leading case, Dunlap v. University of Kentucky Student Health Services Clinic, Ky., 716 S.W.2d 219 (1986). Even appellant virtually concedes the immune status of the University of Kentucky. Thus, on the basic question of whether the University of Kentucky is entitled to sovereign immunity, we have no reluctance to answer in the affirmative.

Appellants seek to avoid the blanket of immunity by reference to Gross v. Kentucky Board of Managers, 105 Ky. 840, 49 S.W. 458 (1899), a case from the last century which holds that not every corporation created by the state is entitled to sovereign immunity. Gross was relied upon in Kentucky Center for the Arts v. Berns, Ky., 801 S.W.2d 327 (1991), in making a distinction between a governmental function and a proprietary function performed by an entity having governmental roots. Relying on the "change in performance location" example found in Berns, 801 S.W.2d at 330-31, appellants contend that in a major aspect, the University of Kentucky Medical Center is nothing more than a hospital which is in full competition with and performs the same function as private hospitals. As such, they argue that in this respect, the University should be stripped of its immunity.

The answer to this contention is simple. The operation of a hospital is essential to the teaching and research function of the medical school. Medical school accreditation standards require comprehensive education and training and without a hospital, such would be impossible. Medical students and those in allied health sciences must have access to a sufficient number of patients in a variety of settings to insure proper training in all areas of medicine. ² Such is essential to the mandate of KRS 164.125(1)(c).

Moreover, and even if we were so inclined, there would be no authority for a decision of this Court whereby we refused to accord an immune entity its protection under the law. Sovereign immunity is "deeply implanted in the law of the Commonwealth through Section 231 of the Kentucky Constitution." Kestler v. Transit Authority of Northern Kentucky, Ky., 758 S.W.2d 38 (1988). Once it has been determined that an entity is entitled to sovereign immunity, this Court has no right to merely refuse to apply it or abrogate the legal doctrine. Fryman v. Harrison, Ky., 896 S.W.2d 908 (1995); Calvert Investments, Inc. v. Louisville & Jefferson Metropolitan Sewer District, Ky., 805 S.W.2d 133 (1991).

While the decisions of Kentucky appellate courts have not at all times been entirely consistent as to which entities are entitled to immunity derived from Section 231 of the Constitution of Kentucky, Kentucky Center for the Arts v. Berns, supra, states the proper standard for such determination and we reiterate that standard here.

The line between what is a state agency and what is a municipal corporation ³ is not divided by whether the entity created by state statute is or is not a city, but whether, when viewed as a whole, the entity is carrying out a function integral to state government. We use by analogy the language in Kentucky...