Request By:
Billy G. Wellman
Major General, KYNG
The Adjutant General
Department of Military Affairs
Boone Center
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; John H. Gray, Assistant Attorney General
Thank you for your letter concerning liability that might arise from an emergency response exercise.
Your letter asks the following questions:
1. If during an exercise, a private citizen is injured or property is damaged or destroyed, is the local government liable? If the organization conducting the exercise is affiliated with the government but privately incorporated, is either the government or the organization liable?
If the local government unit is a county government it is clothed with sovereign immunity and cannot be held liable.
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967)
If the local government unit is not a county government but is engaged in an activity that involves an ultimate function of government, the governmental unit is not subject to liability unless the governmental unit was dealing with the injured party on an individual basis.
City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638 (1968).
This office is of the opinion that conducting emergency response exercises is an ultimate function of government, in that such exercises are essential for the protection of the health, safety and welfare of the citizens of the community in the event of an actual emergency. Therefore, because an emergency response exercise is an ultimate function of government, this office feels that local governments would be shielded from liability for property damage and personal injury resulting from such an exercise.
Privately incorporated organizations affiliated with a local government, however, are not shielded by the cloak of sovereign immunity and may, therefore, be held accountable for damage and injury they cause.
Happy v. Erwin, Ky., 330 S.W.2d 412 (1959).
2. If an emergency simulation is conducted without prior publicity and the resulting of activity by ambulances, fire trucks, and police vehicles causes a private citizen mental distress or other such reaction such as a heart attack, is the exercise unit liable? If the exercise is publicized and there is such an occurrence, is there any liability?
An exercise unit would only be liable for mental distress or other such reaction if the exercise unit conducted the exercise in a negligent or unauthorized manner. Prior publicity would not shield the unit from liability if its acts were negligent or unauthorized.
3. If an announced exercise causes spontaneous evacuation of a business such as a restaurant, may the owner of that business seek damages for loss of income?
No. An owner of a business would not be entitled to damages for loss of income if an announced exercise causes the evacuation of this business.
The owner of the business could not seek damages from the municipality because of sovereign immunity. Neither would privately incorporated organizations affiliated with state government, nor duly designated emergency evacuation personnel be liable unless it could be shown that they were somehow negligent in the performance of their duties or that they failed to act in good faith within the scope of their authority.
4. If a school, church, civic center or other such facility is damaged while being used as evacuation shelter, who is liable for the cost of repair?
As mentioned earlier, the Louisville Seed Company cases holds that sovereign immunity would protect the local government from liability for damages unless the local government was dealing with the injured party on an individual basis (such as through a contractual arrangement). The Jefferson County case indicates that a county government would not be liable in any event. Private organizations affiliated with local government and emergency personnel would be subject to liability for damage resulting from their negligence.