Request By:
Mr. Charles L. Miller
Chairman
Jessamine County-City of Nicholasville
Joint Recreation Board
Beaumont Road
Nicholasville, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Jessamine County and the City of Wilmore have established a joint recreation board under KRS 97.035.
You raise questions as to tort liability of the city, the county, the board and its members, arising out of the statutory recreational activities sponsored by the board, and the concomitant question of procuring of insurance.
We pointed out in OAG 79-19, copy enclosed, that the county and park board are immune from liability. We pointed out that whether the city would be liable for tort is for the courts. We also said in the opinion that individual members of the board could be liable individually in tort in certain situations.
You ask whether the county, city and board can purchase liability insurance.
The fiscal court has no authority to procure such insurance. Cf. KRS 67.180, 67.185, and 67.186. As we said, the county is immune from liability in connection with any negligence of the board, its individual members, and board employees.
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967).
A city is generally not immune from tort liability.
Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1965). However, whether the City of Wilmore could be liable for tort in this mixed situation [city-county park board] is a question for the courts. If the courts declare that the city has any area of liability in this situation, then under its general police powers [KRS 86.110(11)], it could procure liability insurance.
George v. City Council of Lebanon, Ky., 424 S.W.2d 588 (1968).
As for the park board, we said in OAG 79-19 that there is substantial logic for the view that the board is immune from tort liability, since the board might be characterized as a political subdivision and an agency of the state [not a branch of the central state government]. However, if the courts ever declare that there is some area of tort liability in the joint park board situation, then the board may procure liability insurance to cover such vulnerable areas of potential liability. The power exists as a reasonably implied power necessary to carry out the board's express powers. See KRS 97.010 to 97.050; and
O'Bryan v. City of Louisville, Ky., 382 S.W.2d 386 (1964) 388.
Members of the board could be individually liable for any negligence attributed to their own failure to perform a statutory duty, which failure results proximately in damages or injury. The board members would not be, generally, liable for the negligence of board employees, if it has employed persons of suitable skill. Any insurance designed to cover such potential areas of personal liability on the part of board members and employees would have to be procured by such individual board members and employees.