Request By:
Mr. Fred Greene
Attorney at Law
Clark Building
Russellville, Kentucky 42278
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your letter of April 19 you requested the opinion of this office as to the liability of Logan County for the tortious or negligent conduct of its employees. You expressed particular interest in the impact of the "Beverly Hills" cases on this area of sovereign immunity.
It is the opinion of this office that inasmuch as none of the "Beverly Hills" cases have attained a dispositive status the area of sovereign immunity, as applied to county liability for tortious or negligent acts of its employees, is still governed by Kentucky Constitution § 231 as interpreted and applied in the leading case Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967), rationale reaffirmed in George M. Early Co. v. Jefferson County, Ky., 551 S.W.2d 572 (1977).
Kentucky Constitution § 231 reads as follows:
"The General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth."
In Cullinan the court reaffirmed the principle that counties, as political subdivisions of the Commonwealth, are arms of the state government, and as such, fall within the purview of the sovereign immunity granted by the Kentucky Constitution § 231.
The court, in Cullinan, interpreted § 231 as meaning the power to grant authority to sue a county is vested in the legislative power of the General Assembly. Where the General Assembly has not exercised that power, sovereign immunity continues to operate as a bar to suits against the county for the negligence or tortious acts of its employees. In Moores v. Fayette County, Ky., 418 S.W.2d 412 (1967) the court also held that members of the fiscal court are not individually liable for the negligent or tortious conduct of county employees if they have employed persons of suitable skills.
The court, in Cullinan, goes on to point out that the General Assembly has granted a remedy for certain tortious acts of government employees or agents through KRS 67.180 and 67.186, granting relief against the negligent conduct of county employees in the operation of motor vehicles and hospitals and protection against compensation claims, and KRS 160.310, granting relief against the negligent operation of motor vehicles owned or operated by a board of education. Further, the General Assembly has provided for a limited waiver of immunity in KRS 44.070 et seq. which establishes a Board of Claims for the purpose of determining tort suits against the Commonwealth, its departments and agencies, and any employees acting within the scope of their employment in these divisions. KRS 44.070 was held to apply only to those public agencies directly administered by the central state government in Gnau v. Louisville and Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961).
Therefore, with the exception of those situations listed above, it is the opinion of this office that pursuant to § 231 of the Kentucky Constitution a county is not liable for the tortious or negligent conduct of its employees who, within the scope of their employment, are performing a governmental function of the county.