Jennifer Albright, Individually and as Administratrix of the Estate of David K. Albright v. Louisville & Jefferson County Metropolitan Sewer District ( 2023 )

RENDERED: JANUARY 20, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0181-MR
JENNIFER ALBRIGHT,
INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE
OF DAVID K. ALBRIGHT APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 18-CI-007082
LOUISVILLE & JEFFERSON
COUNTY METROPOLITAN SEWER
DISTRICT APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CETRULO, LAMBERT, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Jennifer Albright, individually and as administratrix of the
estate of David K. Albright, (collectively referred to as Albright) brings this appeal
from a November 17, 2020, opinion and order of the Jefferson Circuit Court
rendering summary judgment and dismissing Albright’s tort claims against
Louisville & Jefferson County Metropolitan Sewer District (MSD).1 We reverse
and remand.
Background
The tragic events underlying this appeal occurred on August 31, 2018,
when David Albright, a minor and son of Jennifer Albright, drowned after water
from a rainstorm swept him into a drainage pipe operated and maintained by MSD.
The drainage pipe was twenty-one inches in diameter, was not equipped with a
grate over its entrance, and was located approximately eighty feet from the
Albright’s home. Also, a shallow drainage ditch ran through the backyard of the
Albright’s home and other homes in the subdivision directly to the drainage pipe,
which then descended underground for approximately 430 feet, eventually exiting
into a catch basin.
On the day in question, David and his brother were playing in water
that had collected from a heavy rain in the drainage ditch located directly behind
their home. Their mother, Jennifer, was watching and videotaping the pair. At
some point, David and his brother moved down the drainage ditch and were
playing in water closer to the drainage pipe. It appears that David was suddenly
swept feet first into the drainage pipe; at this time, Jennifer grabbed David’s arm
1
Jennifer Albright’s Kentucky Rules of Civil Procedure 59.05 Motion to Alter, Amend or
Vacate the opinion and order granting summary judgment was denied by order entered January
29, 2021.
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but was unable to hold him against the extreme force of the water entering the
drainage pipe. David was later found by first responders in the catch basin. David
ultimately died as a result of his injuries on September 7, 2018.
On December 7, 2018, Albright filed a complaint against MSD.
Relevant herein, Albright raised the following claims:
COUNT I – NEGLIGENCE
10. That the Defendant, Metropolitan Sewer
District, owned, developed, constructed, maintained
and/or modified the storm drainage system.
11. That the storm drainage system was
negligently designed, maintained and constructed by
Defendant Metropolitan Sewer District and constituted
an unreasonably dangerous condition.
12. That the Defendant, Metropolitan Sewer
District, its agents, employees, contractors,
representatives or its officers knew or should have known
of the existence of the unsafe, defective or dangerous
condition created by the storm drainage system because
the action or inactions of the Defendant, Metropolitan
Sewer District, through its agents, employees,
contractors, representatives, or officers, caused the
unsafe, defective or dangerous condition.
13. That Requests had been made upon Defendant,
Metropolitan Sewer District, over past years to place
grates or bars over the storm drain pipes in the storm
drainage system located in the Old Dorsey Place
subdivision which the Defendant, Metropolitan Sewer
District, refused. Had grates or bars been placed on the
drain pipes as requested or other appropriate remedial
action been taken by Defendant, Metropolitan Sewer
District, this tragic incident would not have occurred.
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14. That as a direct and proximate result of
Defendant’s negligence, Davey Albright was violently
pulled into the storm drain pipe causing his serious
injuries and death.
COUNT II – NEGLIGENCE/FAILURE TO WARN
15. That the Defendant, Metropolitan Sewer
District, had a duty to warn members of the public,
including, the Plaintiff and her decedent, Davey Albright,
of the unreasonably dangerous condition of the storm
drainage system.
16. That the Defendant, Metropolitan Sewer
District, knew or should have known about the dangerous
and hazardous condition created by the defective design,
maintenance and construction of the storm drainage
system and negligently failed to provide adequate
warnings of the hazards and dangers known to them, to
the public, including Plaintiff and her decedent, Davey
Albright[.]
17. That as a direct and proximate result of
Defendant’s negligent and reckless failure to warn of the
dangers presented by the storm drainage system, Davey
Albright was violently pulled into the storm sewer drain
pipe causing serious injuries and death.
....
COUNT IV – ATTRACTIVE NUISANCE
20. That because of the hidden and latent dangers
and hazards created by the storm sewer system, it
constituted an “attractive nuisance” which Defendant
Metropolitan Sewer District negligently created and
failed to correct or give warning of to the public,
including, Plaintiff and her decedent, Davey Albright.
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21. That the Defendant, Metropolitan Sewer
District, knew or should have known that children living
in the Old Dorsey Place subdivision, including Plaintiff’s
decedent, Davey Albright, could and likely would come
into close proximity to the storm drainage system
including 24” drain pipes, while playing in their
backyards and the backyards of their neighbors and that
the danger associated with the storm drainage system
would not be recognized or appreciated by those
children.
22. That as a direct and proximate result of this
“attractive nuisance” Davey Albright unknowingly
encountered the hidden and latent danger and hazard
associated with the storm drainage system when he came
in proximity to the storm sewer drain pipe in question
and was violently pulled into same, causing his serious
injuries and death.
Complaint at 3-5. Albright sought both compensatory and punitive damages.
MSD filed an answer and claimed entitlement to immunity under the
Claims Against Local Government Act (CALGA) and particularly Kentucky
Revised Statutes (KRS) 65.2003. Eventually, MSD filed a motion for summary
judgment. In pertinent part, MSD argued that it was immune from tort liability
under KRS 65.2003. Particularly, MSD maintained:
There is no dispute that “MSD is a local government
under the definition of CALGA.” Accordingly, pursuant
to CALGA, MSD is not liable for injuries or losses
resulting from: (1) the exercise of its discretion when, in
the face of competing demands, MSD determines
whether and how to utilize or apply existing resources;
(2) MSD’s adoption or failure to adopt any ordinance,
resolution, order, regulation, or rule; or (3) MSD’s failure
to perform an inspection.
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....
MSD has also described, in the Drainage Manual,
its decision in the face of competing risks and resources,
not to install grates on existing drainage systems. . . . In
applying its principles and utilizing its resources, MSD
concluded in the Drainage Manual that “MSD will not
place grates on existing drainage systems. . . [.]”
Here, Plaintiff’s claims are simply an objection to
these discretionary decisions by MSD. The crux of
Plaintiff’s claims is that MSD is liable for David’s death
because MSD was negligent in not placing a grate over
the storm sewer pipe at issue, which had been in place
since approximately 1984. However, as described above,
there is no requirement for MSD to do so. In support of
her position, Plaintiff cites a statement from the
American Society of Engineers (“ASCE”) recommending
a “case by case” evaluation of whether to install grates
over pipes. . . . However, a mere evaluation of whether
or not to utilize a grate is a far cry from a mandate for
MSD to install grates in general, and it is certainly not a
legal mandate that requires a grate over the pipe at issue.
Indeed, the statement from ASCE is discretionary on its
face as it permits one to decide not to install a grate after
an evaluation. Accordingly, it is undisputed that MSD is
not required to install grates over storm sewer pipes in
general, and there is no requirement, statutory or
otherwise, mandating that MSD place a grate over the
piping system at issue in this case.
Due to the lack of a mandate, MSD exercised its
discretion in adopting the policies and practices set forth
in the Design Manual, the Drainage Manual, and the
Plan. . . .
MSD’s decision not to implement a program to
install grates over pipes does not solely involve the
weighing and prioritization of resources; it also involves
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MSD’s weighing of public safety risks. MSD determined
that grates create a substantial risk to personal safety and
property damage because they become clogged and
exacerbate flooding. . . .
....
Therefore, MSD concluded “that if you put a grate in
front of a headwall in Jefferson County, you’re
increasing the risk of blockages and you’re increasing the
risk of flooding at those locations.” And MSD evaluated
these risks. As stated, MSD has thousands of piping
structures throughout Jefferson County. MSD evaluated
its system and it concluded that the flooding risks caused
by grates is substantial enough that grates should not be
used in MDS’s system. . . .
Case law establishes that in the absence of a
mandate to install grates over pipes, MSD’s decision not
to install grates, in the face of other competing demands
and MSD’s evaluation of the public safety risks, is a
discretionary one and MSD is immune from liability
under CALGA. . . .
....
[I]t is undisputed that MSD is not required by any statute,
regulation or other requirement to place grates over any
storm sewer pipe in its system, nor is there a requirement
for MSD to place a grate over the specific storm sewer
pipe at issue. Furthermore, the storm sewer pipe at issue
in this case is not an outlier in MSD’s system–there are
thousands of storm pipes in MSD’s storm sewer system.
MSD has weighed its choices and concluded that grates
will lead to flooding in its system. Therefore, if MSD
were to install grates in its system, then there are
potentially thousands of new locations that may be
subject to flooding, resulting in more risks to public
safety. In the absence of a mandate, MSD’s evaluation
of the competing risks associated with grates and the
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other substantial issues with MSD’s system, the
prioritization of those risks, and MSD’s decision on how
to allocate its limited resources to address these issues, is
a discretionary act involving official judgment and policy
choices that are protected by CALGA.
The record is also undisputed that MSD, through
its Design Manual, exercised its discretion on the
applicable design criteria and does not require grates.
Furthermore, the Drainage Manual documents MSD’s
development of its practice, in the face of other
competing demands posed by the system it inherited, not
to install grates. . . .
....
[T]his type of determination by MSD to utilize its
resources to manage competing risks posed by storm
water is precisely the type of discretionary decision that
is protected by CALGA. As a result, MSD is entitled to
summary judgment because it is immune from liability
under CALGA.
Memorandum in Support of MDS’s Motion for Summary Judgment at 15-20, 22,
23 (citations omitted) (Record, 591-596, 598-599).
In response, Albright argued that MSD was not entitled to immunity
under CALGA. Initially, Albright maintained that MSD was not a local
government within the meaning of KRS 65.200(3) and, thus, was not immune
under CALGA. However, if MSD qualified as a local government, Albright
claimed that its policy or decision as to the installation of safety grates on drainage
pipes did not constitute a legislative, judicial, quasi-legislative, or quasi-judicial
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function per KRS 65.2003(3). As a result, Albright believed that MSD was not
entitled to immunity.
By opinion and order entered November 17, 2020, the circuit court
concluded that MSD was a special district and qualified as a local government per
KRS 65.200(3). The court also determined that MSD was immune from Albright’s
tort claims:
The cases of Mason v. City of Mt. Sterling, 122
S.W.3d [500 (Ky. 2003)] and City of Frankfort v. Byrns,
817 S.W.2d 462 [(Ky. App. 1991)], do not convince the
Court that MSD breached a ministerial duty by failing to
repair or maintain the pipe. As noted, these cases
involved instances where the utilities failed to design or
maintain the drainage systems so negligently that they
did not function as intended and, as a result, caused
compensable harm. In the instant case, the drainage pipe
in which David Albright drowned was, apparently, fully
functional, so functional that the force of the water
flowing through it caused David Albright to be swept
away. David did not drown, then, because MSD failed to
repair or maintain the grate. Rather, according to Dr.
[Andrew] Earles and Ms. Albright’s allegations, MSD
failed to prevent the drowning by putting a rule in place
that mandated that grates would not be installed over
existing drainage pipe entrances. See Byrns at 149.
Also, like the government inspectors who failed to
uncover wrongdoing in Com., Dept. of Banking &
Securities v. Brown, supra, 605 S.W.2d 497 (Ky. 1980)
and Grogan v. Commonwealth, supra, 577 S.W.2d 4[(Ky. 1979)], both analyzed in Byrn[s], MSD cannot be
held liable for failing to inspect and recognize what Ms.
Albright characterizes as a safety issue. Byrns at 149.
Along these same lines, CALGA also shields local
governments from liability for “failing to make an
inspection.” KRS 65.2003(3)(e).
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It is undisputed that the then City of Louisville and
Jefferson County and, later, upon merger of City and
County governments, the Louisville Metro Council, by
ordinances, delegated to MSD the authority to determine
“the manner in which storm sewers, ditches, channels,
and other storm water facilities are to be designed,
installed, adjusted, altered, or otherwise changed,” Metro
Ordinance 50.73(A), and delegated MSD the authority to
prescribe the manner in which the drainage systems are
operated. Id. at (C). MSD exercised this authority in its
Design and Drainage manuals and it is also undisputed
that these manuals comply with state and federal law. It
is evident from the many references to these and other
documents MSD has cited in its brief, and from the
testimony of Dave Johnson, MDS’s Development and
Storm Water Services Director, that MSD considered the
impact installing grates would have on its storm water
drainage systems, on its budget, and on public safety.
MSD could have decided to place grates over existing
pipes or could have decided not to do so, and either
decision would have been lawful under existing statutes
and regulations. See [Gaither v. Justice and Public
Safety Cabinet, 447 S.W.3d 628, 633-34(Ky. 2014)].
The decision MSD made to not install grates over
existing drainage pipes therefore fell within its
discretionary rulemaking authority under the common
law. Id.; and CALGA at KRS 65.2003(3). MSD, then, is
free from liability for adopting or failing to adopt a rule
under KRS 65.2003(3)(a), is free from liability for
deciding how to utilize or apply existing resources under
subsection (3)(d), and free from liability for failing to
make an inspection under subsection (3)(e).
Opinion and order at 17-18. Upon finding immunity for MSD, the circuit court
rendered summary judgment dismissing Albright’s tort claims. This appeal
follows.
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Albright contends that the circuit court erred by rendering summary
judgment dismissing the tort claims against MSD under CALGA. Albright asserts
that the circuit court erroneously concluded that MSD is an immune entity under
CALGA. Albright also infers that MSD is not a local government agency and,
thus, does not constitute a “local government” within the meaning of CALGA
(KRS 65.200(3)). Regardless, Albright’s primary argument in this appeal is that
MSD is not immune from tort liability under the facts of this case and summary
judgment was improperly granted.
Standard of Review
Our standard of review upon appeal of an order granting summary
judgment is “whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing
Kentucky Rules of Civil Procedure 56.03). Upon a motion for summary judgment,
all facts and inferences in the record are to be viewed in a light most favorable to
the nonmoving party and “all doubts are to be resolved in his favor.” Steelvest,
Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 481 (Ky. 1991). Thus, if
there are no factual issues, our review of a summary judgment looks only to
questions of law whereupon we review a trial court’s decision to grant summary
judgment de novo. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016)
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(citation omitted). See also Peterson v. Foley, 559 S.W.3d 346, 348 (Ky. 2018).
Our review proceeds accordingly.
Analysis
The relevant provision of CALGA is KRS 65.200(3), which provides:
‘Local government’ means any city incorporated under
the law of this Commonwealth, the offices and agencies
thereof, any county government or fiscal court, any
special district or special taxing district created or
controlled by a local government.
Applicable herein, KRS 65.200(3) clearly defines a local government as any
special district created or controlled by a local government. A special district
created by a local government pursuant to statutory law has been recognized as a
local government under KRS 65.200(3). Siding Sales, Inc. v. Warren Cnty. Water
Dist. No. 1, 984 S.W.2d 490, 493 (Ky. App. 1998). As a special district created by
a local government, we agree with the circuit court’s conclusion that MSD falls
within the definition of “local government” under CALGA.
Albright thus asserts that the circuit court erred by concluding that
MSD, as a local government, was immune from her tort claims under CALGA. In
essence, Albright argues that under KRS 65.2003, MSD only enjoys immunity
from tort liability for judicial, quasi-judicial, legislative, or quasi-legislative
functions. Albright maintains that MSD’s failure to place a safety grate over the
pipe constituted a ministerial function, and as such, MSD is afforded no immunity
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from tort liability under CALGA. Albright cites to cases holding that a
municipality’s duty to maintain and repair a sewer/drainage system constitutes a
ministerial function to which no immunity attaches. Mason v. City of Mt. Sterling,
122 S.W.3d 500, 504 (Ky. 2003); City of Maysville v. Brooks, 140 S.W. 665, 668
(Ky. 1911). For the following reasons, we agree with Albright and are of the
opinion that the circuit court erroneously concluded that MSD was immune from
Albright’s tort claims under CALGA.
CALGA was passed by the General Assembly in 1988, and the
disposition of this issue centers upon two provisions of CALGA – KRS 65.2001
and KRS 65.2003. KRS 65.2001 reads:
(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.
(2) Except as otherwise specifically provided in KRS
65.2002 to 65.2006, all enacted and case-made law,
substantive or procedural, concerning actions in tort
against local governments shall continue in force. No
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provision of KRS 65.2002 to 65.2006 shall in any
way be construed to expand the existing common law
concerning municipal tort liability as of July 15, 1988,
nor eliminate or abrogate the defense of governmental
immunity for county governments.
KRS 65.2003 provides:
Notwithstanding KRS 65.2001, a local government shall
not be liable for injuries or losses resulting from:
....
(3) Any claim arising from the exercise of judicial, quasi-
judicial, legislative or quasi-legislative authority or
others, exercise of judgment or discretion vested in the
local government, which shall include by example, but
not be limited to:
(a) The adoption or failure to adopt any ordinance,
resolution, order, regulation, or rule;
(b) The failure to enforce any law;
(c) The issuance, denial, suspension, revocation of, or
failure or refusal to issue, deny, suspend or revoke
any permit, license, certificate, approval, order or
similar authorization;
(d) The exercise of discretion when in the face of
competing demands, the local government
determines whether and how to utilize or apply
existing resources; or
(e) Failure to make an inspection.
Nothing contained in this subsection shall be
construed to exempt a local government from
liability for negligence arising out of acts or
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omissions of its employees in carrying out their
ministerial duties.
CALGA plainly applies to torts against local governments for death or personal
injury caused by a defect/hazardous condition of public property per KRS
65.2001(1). And, importantly herein, KRS 65.2001(2) expresses legislative intent
that CALGA shall not “be construed to expand the existing common law
concerning municipal tort liability.” Thereafter, KRS 65.2003(3) states that a local
government shall not be liable for “[a]ny claim arising from the exercise of
judicial, quasi-judicial, legislative, or quasi-legislative authority or others, exercise
of judgment or discretion vested in the local government[.]” KRS 65.2003(3) then
lists five examples (subsections (a)-(e)) of immune functions, which include the
adoption of rules, exercise of discretion on how to utilize resources when faced
with completing demands, and failure to make an inspection.
The proper interpretation and scope of KRS 65.2003(3) was addressed
by the Court of Appeals in Ashby v. City of Louisville, 841 S.W.2d 184 (Ky. App.
1992). The Court of Appeals initially recognized that the Kentucky Supreme
Court “repeatedly . . . held that municipal immunity from liability for ‘ordinary
torts’ exists only in situations involving ‘the exercise of legislative or judicial or
quasi-legislative or quasi-judicial functions’” at common law. Id. at 186 (quoting
Haney v. City of Lexington, 386 S.W.2d 738, 742 (Ky. 1964). Rejecting the
argument that KRS 65.2003(3) expanded upon common-law immunity, the Court
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of Appeals viewed municipal immunity under KRS 65.2003(3) and under the
common-law as identical:
[T]hey interpret KRS 65.2003(3) as pertaining not only
to the exercise of judicial, quasi-judicial, legislative or
quasi-legislative authority, but also to any other “exercise
of judgment or discretion vested in the local
government,” including any “failure to enforce any law.”
We disagree with their argument.
Quite frankly, we are unable to determine the
legislative intent embodied in the portion of KRS
65.2003(3) which refers to “the exercise of judicial,
quasi-judicial, legislative or quasi-legislative authority or
others, exercise of judgment or discretion vested in the
local government” (emphasis added). In this context, the
term “others,” followed by a comma, is ambiguous as it
does not logically modify the phrases which immediately
either precede or follow it in the statute. In the face of
such ambiguity, we must construe the statute in view of
the circumstances as a whole. See City of Owensboro v.
Noffsinger, Ky., 280 S.W.2d 517 (1955).
As noted above, KRS 65.2003(3) includes several
examples of the types of claims against which cities are
immune from liability. Each one of those examples
pertains to the use of judgment or discretion in the
exercise of judicial, quasi-judicial, legislative or quasi-
legislative authority and not, as appellees assert, to some
“other” exercise of judgment or discretion by the local
government. Indeed, the interpretation of the statute
urged by appellees would be inconsistent with KRS
65.2001, which was enacted simultaneously with KRS
65.2003 and which provides that “[n]o provision of KRS
65.2002 to 65.2006 shall in any way be construed to
expand the existing common law concerning municipal
tort liability as of July 15, 1988.” . . .
....
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Moreover, we do not agree with appellees’
assertion that a finding in their favor is compelled by the
fact that KRS 65.2003 lists the “failure to enforce any
law” as an example of the type of claim against which a
local government would be immune from liability. That
example clearly applies only to situations which arise out
of “the exercise of judicial, quasi-judicial, legislative or
quasi-legislative authority,” and not to those which arise
out of the exercise of other types of authority. . . .
Ashby, 841 S.W.2d at 187-88. Therefore, under KRS 65.2003(3), a local
government is immune from tort liability only as to judicial, quasi-judicial,
legislative, and quasi-legislative functions. And, the examples set forth in KRS
65.2003(3)(a)-(e) apply only where they arise from underlying judicial, quasi-
judicial, legislative, or quasi-legislative functions. Ashby, 841 S.W.2d at 188.
For over 100 years, the Kentucky Supreme Court has held that a
municipality possesses a “ministerial duty to non-negligently construct, maintain,
and repair the sewer system” at common law. Mason v. City of Mt. Sterling, 122
S.W.3d at 505; see also City of Maysville v. Brooks, 140 S.W. 665, 668 (Ky.
1911). In so doing, the Kentucky Supreme Court recognized that a municipality’s
construction, maintenance, and repair of sewer systems are not judicial, quasi-
judicial, legislative, or quasi-legislative functions. Mason, 122 S.W.3d at 505.
As the immunity provided local governments under KRS 65.2003
(CALGA) is identical to that afforded under common-law, it follows that MSD is,
likewise, burdened with a ministerial duty to nonnegligently construct, maintain,
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and repair the sewer/drainage system, to which it enjoys no immunity. MSD has
attempted to transform this century-old, nonimmune duty into an immune one by
reclassifying same as quasi-legislative.
MSD points to a drainage manual, which was adopted by its Board.
Therein, MSD states that it is “focusing its limited resources on resolving the most
serious and widespread problems first.” And, in the drainage manual, Section 8
provides:
8. GRATE INSTALLATON OVER CULVERT PIPES
MSD will not place grates on existing drainage systems,
or allow their use in newly installed drainage systems
where the potential for flooding damage of a safety
hazard exists.
MSD Drainage Manual at II-8. MSD argues that the adoption of Section 8 of the
Drainage Manual converts its duty into a quasi-legislative act to which immunity
attaches per KRS 65.2003(3). Thus, MSD maintains it is entitled to immunity
against Albright’s tort claims.
In determining what are quasi-legislative or quasi-judicial functions,
we are guided by the Kentucky Supreme Court’s decision in Gas Service Co., Inc.
v. City of London, 687 S.W.2d 144 (Ky. 1985).2 Therein, the Supreme Court
2
In Gas Service Co. v. City of London, 687 S.W.2d. 144 (Ky. 1985), the Supreme Court
concluded that the City of London was not immune for its negligent repair of a sewer line.
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elucidated the meaning of the terms quasi-legislative function and quasi-judicial
function, within the context of municipal immunity:
Haney [v. City of Lexington, 386 S.W.2d 738, 742 (Ky.
1964)] abolished municipal immunity “for ordinary
torts.” . . .
....
[T]here are two cases decided since Haney that do
classify as immune under a reasonable interpretation of
the qualifying language of Haney which exempts quasi-
judicial and quasi-legislative activities as well as the
official acts of judges and legislative bodies. They
are Com., Dept. of Banking & Securities v. Brown, Ky.,
605 S.W.2d 497 (1980), the alleged malfeasance of
government employees charged with inspection and
regulation of American Building and Loan Association
and of Prudential Building & Loan Association when
they defaulted on their obligations to depositors, and
Grogan v. Commonwealth, Ky., 577 S.W.2d 4 (1979),
the Beverly Hills Supper Club fire disaster in the City of
Southgate, where city and state employees were charged
with negligent failure to enforce laws and regulations
establishing safety standards for construction and use of
buildings.
The question is what activities are excluded from
the liability in tort imposed on municipal corporations
in Haney by the exception made for “the exercise of . . .
quasi-legislative or quasi-judicial functions.”? “Quasi,”
when used as an adjective, is defined in Webster’s Third
New International Dictionary (unabr. ed. 1971), as
“having some resemblance (as in function, effect, or
status) to a given thing.”
Our research has failed to produce cases where this
terminology is used in the precise context with which we
are presently concerned. But Grogan v. Commonwealth,
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the Beverly Hills nightclub fire and Com., Dept. of
Banking & Securities v. Brown, the building and loan
association collapse, are cases where the “government
takes upon itself a regulatory function,” Brown, supra at
498, which is different from any performed by private
persons or in private industry, and where, if it were held
liable for failing to perform that function, it would be a
new kind of tort liability. We deem the limitation
expressed in Haney by the terms “quasi-judicial and
quasi-legislative functions” as directed at the type of
regulatory activity represented by Com., Dept. of
Banking & Securities v. Brown and Grogan v.
Commonwealth. In these cases the government was not
charged with having caused the injury, but only with
having failed to prevent it by proper exercise of
regulatory functions which have elements appearing
quasi-judicial and quasi-legislative in nature.
Gas Service Co., Inc., 687 S.W.2d at 148-49.
In this case, MSD’s implementation of a rule forbidding the
placement of grates on drainage pipes does not constitute a regulatory function
different from any performed by private industry and would not create a new kind
of tort liability.3 See Gas Service Co., Inc., 687 S.W.2d at 149; Siding Sales Inc., v.
Warren Cnty. Water Dist. No. 1, 984 S.W.2d 490, 493 (Ky. App. 1998). Rather,
MSD’s rule preventing placement of grates on drainage pipes squarely deals with
the repair of its drainage system, which has been long regarded as a nonimmune
3
A private corporation providing drainage services could promulgate a rule forbidding
placement of grates on drainage pipes. And, the private corporation could, likewise, be liable if
its failure to place a grate on a particular drainage pipe was negligent. Such does not constitute a
new kind of tort liability; rather, it is the ancient tort of failure to maintain or repair a
sewer/drainage system.
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function of local government. A drainage pipe located close to homes in a
residential subdivision that presents significant safety risks to those in its
immediate vicinity could reasonably be viewed as needing “repair.”
Moreover, as the failure to properly maintain or repair the drainage
pipe by MSD does not constitute a quasi-legislative function, MSD is not entitled
to claim immunity under subsections (a)-(e) of KRS 65.2003(3). See Ashby, 841
S.W.2d at 188 (holding that subsection (b) of KRS 65.2003(3) applied only “to
situations which arise out of ‘the exercise of judicial, quasi-judicial, legislative and
quasi-legislative authority’ and not to those which arise out of the exercise of other
types of authority.”). To trigger immunity under KRS 65.2003(3)(a)-(e), the
underlying authority or function must be judicial, quasi-judicial, legislative, or
quasi-legislative, and in this case, it is not.
In sum, we conclude that MSD is not entitled to immunity under
CALGA and KRS 65.2003 and that the circuit court erred by concluding
otherwise. Consequently, we reverse the November 17, 2020, opinion and order
granting summary judgment in favor of MSD and dismissing Albright’s tort
claims.
For the foregoing reasons, the opinion and order of the Jefferson
Circuit Court is reversed and remanded for proceedings consistent with this
Opinion.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Lee E. Sitlinger Adam T. Goebel
Louisville, Kentucky Eric M. Weihe
John W. Bilby
Louisville, Kentucky
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