KENTUCKY COURTS WEIGHING SCOPE OF SOVEREIGN IMMUNITY

  • Mar 26, 2019
Ky attorney Matthew Cook
Attorney Matt Cook

On January 18, 2019, a three-judge panel of the Kentucky Court of Appeals held that the doctrine of sovereign immunity did not shield a county-created water district from a resident’s negligence claim.  Specifically, in Carucci v. Northern Kentucky Water District, 2019 WL 254518 (Ky. App. Jan. 18, 2019), the Court found that the water district’s duty of providing “clean water for personal consumption, recreation, agriculture and commercial use” was not an integral part of state government sufficient to invoke a county entity’s customary entitlement to sovereign immunity.

In reaching this conclusion, the Court of Appeals relied on the recent decision of the Kentucky Supreme Court in Coppage Construction Company, Inc. v. Sanitation District No. 1, 459 S.W.3d 855 (Ky. 2015), which held that sanitation districts were not entitled to governmental immunity.  In that case, the Supreme Court acknowledged the sanitation district’s services were “critically important within the counties it serves,” but that it played no special role which would distinguish it from a metropolitan sewer district which traditionally has been denied immunity (because it is created by a municipality as opposed to a county).  Id. at 864.

The Northern Kentucky Water District has filed a motion for discretionary review with the Kentucky Supreme Court in the Carucci case, asking it to review the decision of the Court of Appeals.  (See Case No. 2019-SC-000105).  If the motion is granted, the Court will have the opportunity to better define the governing parameters of sovereign and governmental immunity in Kentucky.  Until the Supreme Court provides additional guidance on this issue, there will be questions about what governmental and quasi-governmental entities enjoy immunity protection from tort lawsuits.  For example, the Carucci decision is at odds with the holding in South Woodford Water District v. Byrd, 352 S.W.3d 340 (Ky. App. 2011), which expressly found that water districts are entitled to governmental immunity.  This variance in holdings may prompt the Supreme Court to grant discretionary review in Carucci and provide a definitive ruling for lower courts to follow.  We will watch the resolution of this case and update this post when there is news to report.

Kerrick Bachert regularly provides advice and representation to governmental entities in Kentucky.  Please contact Attorneys Tom Kerrick (tkerrick@kerricklaw.com) or Matt Cook (mcook@kerricklaw.com) if you have questions about a governmental law issue.

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