Mason v. City of Mt. Sterling, Ky., 122 S.W.3d 500 (2003) - Municipal Immunity

A nine year old boy drowned when flood waters swept him through a submerged/non-visible storm sewer system which was originally constructed by private landowners but was “cobbled” together by the various construction efforts of both private and municipal entities. The child’s estate filed a wrongful death action against numerous parties, including the city and private neighboring landowners. The estate introduced expert testimony that the city’s catch basin pipe was badly crushed and impeded the flow of water, along with multiple other problems involving both the private and municipal portions of the sewer system. The trial court granted summary judgment in favor of the insurers. The estate appealed and the Court of Appeals affirmed. The Supreme Court granted discretionary review to consider whether the municipality may be liable for privately constructed components of the sewer system. The Supreme Court of Kentucky held even if the municipality did not originally construct the sewer system, if it uses a sewer system for municipal purposes, the municipality’s duty to its inhabitants is the same as if the sewer system had been originally constructed by the municipality. The court held the proper legal standard for determining municipal liability for the maintenance and repair of sewer systems partially located on private property or partially built by private parties is whether the municipality, through use or possession, has converted the private discharge system into a public sewer. Here, by structurally tying the private system into the public system, the city acquired a duty to properly maintain and repair the sewer system as a whole. Although the municipality’s decision to establish or open a sewer system is a legislative function entitled to immunity protections, once the municipality establishes or opens a sewer, it has a ministerial duty to non-negligently construct, maintain, and repair the sewer system.

Jones v. Lathram, Ky., 150 S.W.3d 50 (2004) – Negligence/Qualified Immunity

This case arose from a fatal automobile collision occurring when Kentucky State Police trooper Lathram and the decedent, Mr. Camp collided while trooper Lathram was responding to an emergency call.  Camp’s estate filed a lawsuit against the Commonwealth of Kentucky, Justice Cabinet, Department of State Police, and against trooper Lathram individually.  The trial court dismissed the claims against all defendants except trooper Lathram, based on sovereign immunity.  The trial court then granted summary judgment in favor of trooper Lathram relying upon Franklin County v. Malone, Ky., 957 S.W.2d 195 (1997) (holding individual officers immune for actions within the scope of the authority of office).  The Court of Appeals affirmed.  The estate appealed. 

The Supreme Court considered whether a law enforcement officer’s actions while responding to an emergency call constitute an act which is entitled to qualified civil immunity, or whether his actions were a function which public employees are not afforded qualified immunity. The Supreme Court held summary judgment was not appropriate in this case because whether trooper Lathram was negligent in operating his police cruiser presents a genuine issue of material fact for trial even though he was responding to an emergency call.