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Harry B. O'donnell, IV v. louisville/jefferson County Metro Government ( 2023 )


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  •                  RENDERED: JANUARY 27, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0330-MR
HARRY B. O’DONNELL IV                                                APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v.               HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 20-CI-004260
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT                                                       APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MCNEILL, JUDGES.
MCNEILL, JUDGE: On July 26, 2019, Appellant, Harry O’Donnell IV (Harry),
sustained injuries after he tripped over a defect in a sidewalk owned and controlled
by Appellee, Louisville/Jefferson County Metro Government (LMG). He sued
LMG for negligence. LMG filed a motion for summary judgment on the basis of
sovereign immunity, which was granted by the circuit court. Harry now appeals to
this court as a matter of right.
A motion for summary judgment should be granted “if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR1 56.03. “Because no factual issues are involved and only a legal issue is
before the court on the motion for summary judgment, we do not defer to the trial
court and our review is de novo.” Univ. of Louisville v. Sharp,
    416 S.W.3d 313
    ,
315 (Ky. App. 2013) (citation omitted). With these standards in mind, we turn to
the applicable law and the facts of the present case.
Harry argues that “LMG does not have sovereign immunity under
existing Kentucky law and precedents as it is a form of City Government.” He
correctly states that the circuit court based its decision in part on
Louisville/Jefferson County Metro Government v. Cowan,
    508 S.W.3d 107
    , 109
(Ky. App. 2016) (observing that LMG is “a classification of county government
and thus an arm of the Commonwealth entitled to sovereign immunity”).
Therefore, Harry asserts that “a threshold issue in this appeal is if this Court can
overrule its own prior precedent in Cowan.” Harry does not contend that the
1
Kentucky Rules of Civil Procedure.
-2-
circuit court improperly applied Cowan. Rather, his issue before this Court is that
Cowan was wrongly decided. He specifically argues that only counties are entitled
to sovereign immunity and that because Louisville is a city, the creation of LMG
does not confer immunity on Louisville.2 We acknowledge Harry’s candor to the
Court and his understanding of the value and weight afforded its precedent. And
of course, the Court of Justice is open to good faith arguments that the law should
be changed. Nevertheless, we decline to revisit our holding in Cowan.
LMG is a consolidated local government established by KRS3 Chapter
67C. The General Assembly also expressly endowed LMG with sovereign
immunity. KRS 67C.101(2)(e). At the heart of Harry’s argument, is that these
statutory grants are unconstitutional under the Kentucky Constitution. However,
there is no indication in the record that Harry properly preserved this issue by
notifying the Attorney General of his constitutional challenge. See KRS 418.075.
Therefore, we decline to review Harry’s constitutional challenges. Moreover, our
decision in Cowan was preceded by similar precedent. See Jewish Hospital
Healthcare Services, Inc. v. Louisville/Jefferson County Metro Government,
    270 S.W.3d 904
    , 907 (Ky. App. 2008) (“[LMG] is entitled to sovereign immunity.”);
2
He also argues that LMG cannot be considered a unified government because it did not
incorporate all other pre-existing Jefferson County municipalities.
3
Kentucky Revised Statutes.
-3-
and Lexington-Fayette Urban County Government v. Smolcic,
    142 S.W.3d 128
    ,
132 (Ky. 2004) (holding that the Lexington-Fayette Urban County Government
was entitled to sovereign immunity). Having considered the record and the law,
we affirm the circuit court’s summary judgment.
ALL CONCUR.
BRIEF FOR APPELLANT:                    BRIEF FOR APPELLEE:
Harry B. O’Donnell IV                   Roy C. Denny
Louisville, Kentucky                    Louisville, Kentucky
-4-