Request By:
Mr. C. Allen Muncy
Leslie County Judge/Executive
Courthouse
Hyden, Kentucky 41749
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On July 5, 1978, a member of the Leslie Circuit Court Grand Jury, while leaving the courthouse, fell on a steep, paved incline behind the courthouse and sustained injuries (a broken arm) . You ask: Is the fiscal court liable for her medical bills? The answer is "no".
The county, as a political subdivision of the Commonwealth and as an arm of state government, is clothed with the same sovereign immunity from tort liability.
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967);
George M. Eady Co. v. Jefferson County, Ky., 551 S.W.2d 571 (1977) 572; and § 231, Kentucky Constitution. A fiscal court may take out liability insurance covering the operation of county motor vehicles. KRS 67.180 and 67.185. But that is permissive only. We know of no statute permitting fiscal court to procure comprehensive or general tort liability insurance to cover this kind of county building problem.
The next question: Could the juror file a claim with the State Board of Claims? The answer is "no".
The Board of Claims will entertain claims involving the alleged negligence of the Commonwealth, any of its departments or agencies, or any of its officers, agents and employees, while acting within the scope of their employment. KRS 44.070. This statute will not cover any acts of alleged negligence of the county, any of its departments or agencies, or any of its officers, agents and employees. Thus the board has the power to investigate, hear proof, and compensate persons for damages sustained either to person or property as a proximate result of negligence on the part of the "Commonwealth", as explained and defined above.
The term "Commonwealth agency", as it appears in KRS 44.070 was interpreted in
Gnau v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961) 755, to merely describe agencies administered by the central state government. Thus a county or a metropolitan sewer district are not arms or branches of "central state government." (Emphasis added). The court makes it clear that only those agencies of central state government are included in the waiver of the Commonwealth's immunity from liability for negligence under KRS 44.070. The statute does not create causes of action against the Commonwealth. Its effect is to waive the defense of sovereign immunity by providing a remedy for a particular character of claim.
Commonwealth, Dept. of Parks v. Bergee Bros., Inc., Ky., 480 S.W.2d 158 (1972) 159. Although § 231 of the Kentucky Constitution authorizes the General Assembly to direct the manner and in what courts suits may be filed against the Commonwealth, the courts have apparently upheld for a long time the constitutionality of KRS 44.070, which permits a state administrative agency, the board of claims, to provide an award administratively short of court action unless an appeal is taken from the decision of the board. See KRS 44.140 [appeals to circuit court from board] and 44.130 [enforcement of awards of board]. In view of the symbiotic but symmetrical integration of the two processes, the administrative board and the courts as a remedial matter, undoubtedly the courts apparently believe that KRS 44.070 does no violence to § 231 of the Constitution. See Commonwealth, Dept. of Parks v. Bergee Bros., Inc., above, wherein the court apparently assumes the remedy in KRS 44.070 is consonant with the authority of § 231 in saying that the legislature can prescribe what suits may be brought. Here the situation involving KRS 44.070 is always pregnant with the possibility of appellate review; and the judiciary enforces the decisions of the board.
The answer to your second question is simply that the board of claims has no jurisdiction, since the state or its officers or agents are not responsible for the building maintenance or any structural defect thereof. Indeed, the fiscal court is responsible for the maintenance and operation of all county buildings, grounds and other county properties. KRS 67.130. But remember, the county is immune from any tort liability otherwise arising out of the operation and maintenance of county buildings.
Next, you raise this question: "In general, what is the fiscal court's liability in such injuries happening on county property, i.e., courthouse and grounds, county roads and bridges?
The fiscal court is the governing body of the county and as such is immune from liability. However, the individual members of fiscal court could have an individual or personal liability.
The fiscal court has the responsiblity of causing the construction, operation and maintenance of all county buildings and other structures, grounds, roads and other property. KRS 67.080(2)(b) and 67.083(3)(p) and (t). Implicit in this overall responsibility is the responsibility of the fiscal court members to keep all such county buildings, grounds, roads an bridges in a proper and safe state of repair and maintenance.
The court, in
Shearer v. Hall, Ky., 399 S.W.2d 701 (1966) 705, pointed out that public officers may be held liable for negligence or deliberate wrongdoing. The court, citing from another case, wrote this at page 705:
"'It seems to us that in order to impose personal liability there should be some element of personal fault on the part of the officer or agent, such as negligence or deliberate wrongdoing. The ordinary rule is that a public officer when acting in good faith within the scope of his authority is not personally liable for damages sustained by a member of the public as a result of his action, unless he acted negligently, that is, failed to meet the standard of the ordinarily prudent man."
Thus individual members of the fiscal court may be held liable in tort in connection with the operation of county buildings [such as this one], grounds, roads and bridges, depending upon the factual situation as determined by the courts. Thus if an injury is shown to have resulted from the negligence of the members of fiscal court, and that such members failed to meet the standard of the ordinarily prudent man in connection with their responsibility to adequately maintain such county property [and which condition caused the injury], the courts could find liability in a particular case. We can't answer your question definitvely since it would be properly one for the courts. Any personal liability as to members of fiscal courts would be predicated on some actual element of personal fault on the part of such members, such as negligence or deliberate wrongdoing. It would not be based upon imposing liability upon an officer simply because there is no liability of the government.