Request By:
Mr. Damon Surgener
Assistant Executive Director
Kentucky Port and River
Development Commission
Capital Plaza Tower
24th Floor
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Kentucky Port and River Development Commission requests our opinion on this question: "Are the port authority directors liable for their acts and decisions while conducting official riverport business?"
A riverport authority, as established pursuant to KRS 65.520, is a body politic and corporate. It is a public or governmental agency with specifically assigned duties and powers relating to clearly defined public purposes. The basic duties and purposes of such authority are outlined in KRS 65.530.
Acting within the frame of its statutory powers, the port as a public corporation is autonomous in nature. However, the very nature and functions of a port authority mean that the members of a riverport authority are consequentially and necessarily "public officers" for the purpose of applying rules relating to tort liability.
The general rule as to such liability is stated in
Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962) 36:
"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."
However, the converse of Spillman was stated in
Carr v. Wright, Ky., 423 S.W.2d 521 (1968) 522.
"Conversely, it follows that he is liable for damages resulting from negligence or deliberate wrongdoing, regardless of whether he was acting within the scope of his authority."
The port authority members would not be, generally, liable for the negligence of port authority employees, if the authority has employed persons of suitable skill. The rule is stated in
Moores v. Fayette County, Ky., 418 S.W.2d 412 (1967) 414:
"The rule is that public officers are responsible only for their own misfeasance and negligence and are not responsible for the negligence of those who are employed by them if they have employed persons of suitable skill.
Stone v. Arizona Highway Commission, 93 Ariz. 381 P.2d 107;
Coldwater v. State Highway Commission, 118 Mont. 65, 162 P.2d 772;
Fernelius v. Pierce, 22 Cal.2d 226, 138 P.2d 12;
Corliss v. Van Duzer, 132 Or. 265, 285 P. 253.
"The rule was recognized in
Whitt v. Reed, Ky., 239 S.W.2d 489, 32 A.L.R.2d 1160, wherein public officers were held liable for their failure to exercise ordinary care in selecting subordinates who were known to them to be unsatisfactory to perform the task which they negligently performed, and in the execution of which it was reasonable to infer that disastrous consequences would result. In
Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 2 A.L.R.3d 814, it was pointed out that there must be 'some element of personal fault on the part of the officer or agent, such as negligence or deliberate wrongdoing. '"
In summary these major principles or rules emerge as relates to tort liability as applied to such public officers.
(1) A public officer 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.
(2) A public officer is liable for damages resulting from his negligence or deliberate wrongdoing, regardless of whether he was acting within the scope of his authority.
(3) Public officers are responsible for their misfeasance and negligence and are not responsible for the negligence of their employees if the public officers have employed persons of suitable skill.
It will be left to the good judgment of authority members as to the necessity for their procuring liability insurance designed to cover any of the potential areas of liability, as outlined above. At least this opinion should enable them to get their potential liability and non-liability into a sharper focus.