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C ommonwealth O f K entucky C ourt O f A ppeals
NO. 2000-CA-002476-MR

STEVEN P. CUNDIFF

APPELLANT

v.

APPEAL FROM OLDHAM CIRCUIT COURT HONORABLE DENNIS A. FRITZ, JUDGE ACTION NO. 00-CI-00011

VICTOR J. PEAK

APPELLEE

OPINION REVERSING IN PART AND REMANDING ** ** ** ** ** BEFORE: BUCKINGHAM, KNOPF, AND McANULTY, JUDGES. Steven Cundiff appeals from a summary judgment of

KNOPF, JUDGE:

the Oldham Circuit Court, entered September 21, 2000, dismissing his complaint for damages against the Oldham County Fiscal Court and Victor Peak, one of the Fiscal Court's employees. Cundiff

alleged that on January 9, 1999, Peak negligently caused a snowplow he was operating on behalf of the County to collide with Cundiff's vehicle, thereby injuring Cundiff, his person and his property. Ruling that both defendants enjoy sovereign immunity, Cundiff

the trial court dismissed the complaint in its entirety.

has not sought review of the dismissal of his complaint against the Fiscal Court. He contends that the trial court misapplied

the doctrine of sovereign immunity to Peak. to disagree.

We are constrained

In light of recent Supreme Court authority,

however, it is necessary for the trial court to consider, or to reconsider, whether the immunity Peak asserts should be deemed waived. Accordingly, we reverse in part and remand. As the parties observe, the well established rule in Kentucky is that counties share the state's sovereign immunity.1 Counties are subject to suit for damages, therefore, only if and only to the extent that the General Assembly waives their immunity.2 Noting this rule, and noting the holdings in Franklin

County v. Malone3 and Withers v. University of Kentucky,4 to the effect that no waiver of sovereign immunity is to be inferred from statutes that merely authorize or mandate an immune entity's purchase of insurance, the trial court ruled that the Fiscal Court was immune from Cundiff's suit and that KRS 67.180--which authorizes counties of Oldham County's class to purchase insurance "for the protection of the public and its employees . . . covering vehicles operated by the county," and which expressly contemplates "[s]uits instituted on such policies,"--did not

Franklin County v. Malone, Ky., 957 S.W.2d 195 (1997); Hempel v. Lexington-Fayette Urban County Government, Ky. App., 641 S.W.2d 51 (1982).
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Franklin County v. Malone, supra. Id. Ky., 939 S.W.2d 340 (1997). -2-

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effect a waiver of that immunity.5

Accordingly, the trial court

dismissed Cundiff's suit against the Fiscal Court. The trial court also dismissed Cundiff's suit against the Fiscal Court's employee, Peak. A snow-plow operator, Peak

had been assigned by the county to clear snow from the roads in certain sub-divisions. At the time of the accident, apparently,

Peak was not actually plowing but was driving between subdivisions on State Road 3222. During the proceedings, it was

suggested that the right side of Peak's vehicle may have gone off the edge of the pavement, and, as Peak attempted to steer back onto the road, the left edge of his plow crossed the center line of the highway and collided with Cundiff's on-coming vehicle. any event, there was a damaging collision between the two vehicles, which, Cundiff alleges, resulted from Peak's negligence. Again relying on Franklin County v. Malone, the In

trial court ruled that, because Peak had been engaged at the time in a "basic" county function (keeping open the roads), the county's immunity shielded him from Cundiff's suit. this ruling that Cundiff has appealed. Cundiff contends that the trial court's reliance upon Franklin County v. Malone was inappropriate. In that case, a It is from

state trooper was accused of having negligently searched an arrestee, who subsequently committed suicide using a knife the

As we discuss more fully in the text below, our Supreme Court's recent opinion in Reyes v. Hardin County d/b/a Hardin Memorial Hospital, No. 1999-SC-00889 (rendered August 23, 2001)(pet. for reh. denied October 17, 2001), requires a different construction of KRS 67.180. This fact has no bearing, however, on the trial court's unappealed judgment dismissing Cundiff's complaint against the fiscal court. -3-

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trooper had failed to discover.

Our Supreme Court agreed with

the plaintiff that the routine search was one of the trooper's ministerial duties, and thus, apparently, that the trooper was not entitled to assert the common-law doctrine of official immunity.6 He was entitled, however, our Supreme Court ruled, to

assert the state's sovereign immunity. Although prior to our Supreme Court's opinion in Malone, an employee of an immune entity was generally held, both in Kentucky and elsewhere, not to be shielded by sovereign immunity for his own acts of negligence merely because he was acting within the scope his employment,7 there were some exceptions. Sovereign immunity had been held to apply to suits

only nominally against individuals but in fact against the immune entity. And it had been applied to suits genuinely against

individuals, but in which a judgment for the plaintiff could

According to that doctrine, public officials and employees enjoy a qualified immunity for job-related acts that require the exercise of a significant degree of discretion or that involve policy making. Speck v. Bowling, Ky. App., 892 S.W.2d 309 (1995); Ashby v. City of Louisville, Ky. App., 841 S.W.2d 184 (1992). See Dobbs, The Law of Torts, p. 735 (2001): More generally, officers and employees are said to enjoy qualified immunity for discretionary acts, but not for ministerial acts. The discretionary immunity is qualified or conditional because it is usually lost if the officer is guilty of bad faith, malice, corruption, wanton misconduct or the like. [Footnotes and citations omitted]. The greater the discretion (the more judicial or quasi-judicial the function) or the broader the policy-making authority (the more legislative or quasi-legislative the function) the more nearly absolute the immunity can become. See McCollum v. Garrett, Ky., 880 S.W.2d 530 (1994) (discussing the scope of the prosecutor's immunity). Under that doctrine, however, immunity does not shield most administrative employees' tortiously performed ministerial acts. KEAHAM Contracting, Inc. v. Floyd County Development Authority, Ky., 37 S.W.3d 703 (2000). University of Louisville v. O'Bannon, Ky., 770 S.W.2d 215 (1989); Happy v. Erwin, Ky., 330 S.W.2d 412 (1960). -47

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operate to control or to interfere significantly with the immune entity's principal functions.8 In ruling that the individual state trooper was protected by sovereign immunity, the Malone court expressed similar concerns. It noted that basic police work such as

searches and arrests has traditionally occupied a central role in government, suggesting that immunity was not lightly to be denied in that area. It noted, too, that the trooper's search in that

case had apparently been in accord with then current police standards. The attack on the officer, therefore, was, to an

extent unacceptable to the Court, an attack on the office. Permitting the suit, the Court seems to have believed, risked exposing police-department policy making to inappropriate judicial review. Because the allegation of garden-variety

negligence in this case does not involve a police officer and does not otherwise implicate any such extraordinary concern as the Malone Court faced, Cundiff argues that Malone should not be construed as extending the county's immunity to Peak.9 Although

this argument has strong appeal, we agree, particularly in light of our Supreme Court's recent opinion in Yanero v. Davis.10 In Yanero, which involved a claim, among others, against public high-school baseball coaches in their individual

Cf. Currie v. Lao, 592 N.E.2d 977 (Ill. 1992); Trommater v. State of Michigan, 316 N.W.2d 459 (Mich. App. 1982); 63C Am. Jur. 2d, "Public Officers and Employees,"

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