Request By:
Don R. McCormick, Commissioner
Department of Fish & Wildlife Resources
#1 Game Farm Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winston, Assistant Attorney General
This formal opinion of the Attorney General is in response to your request made of this office by letter dated 27 July 1990, in which you asked:
Is any legal liability incurred by the Commonwealth of Kentucky in general, or the Department of Fish and Wildlife Resources in particular, when deer as members of the Commonwealth's wildlife population cause personal injury or property damage such as to motor vehicles or crops?
Your question was apparently prompted by the fact that deer "occasionally cross roadways resulting in collisions with motor vehicles, or go onto farms or gardens to feed," as you stated in your letter.
Opinion of the Attorney General
Kentucky is protected against lawsuits by the immunity provided it by Section 231 of its Constitution which states that: "The General Assembly may, by law, direct in what manner and in what courts suit may be brought against the Commonwealth." Therefore, it is the prerogative of the Legislature to statutorily provide any waiver of the Commonwealth's immunity from suit. See :
University of Kentucky v. Guynn, Ky., 372 S.W.2d 414 (1963). Absent such a waiver, Kentucky's common law immunity from suit is absolute and unqualified.
Board of Councilmen of City of Frankfort v. State Highway Commission, 236 Ky. 253, 32 S.W.2d 1008 (1931).
The Kentucky Legislature has enacted no statute that specifically allows a civil action to be maintained against the Commonwealth to recover for damages caused by wild deer crossing roadways or entering onto private lands. 1 The Legislature, however, has created a statutory mechanism which waives immunity to a limited degree, making the Commonwealth amenable to suits for its acts of negligence. This is known as the Board of Claims. KRS Chapter 44. Such an action for negligence appears to be the only potential way recovery may be had from the Commonwealth for damages caused by wild deer if, indeed, recovery may be had at all.
Negligence, at common law, in order to rise to the level of an actionable tort must include a duty, a violation thereof, and consequent injury.
M & T Chemicals, Inc., v. Westrick, Ky., 525 S.W.2d 740 (1975). The element of duty consists in the obligation to avoid inflicting injury or to protect the aggrieved party from injury. W. S. Haynes, Kentucky Jurisprudence , § 30-3, at 339 (1988). A consideration of the legal relationship between the Commonwealth of Kentucky, Department of Fish and Wildlife Resources, the wild deer inhabiting Kentucky, and the public at large must be examined in order to discover whether such a duty is born out of that relationship. If the Commonwealth does in fact bear a duty to avoid injuries from being caused by wild deer, a cause of action against the Commonwealth via the Board of Claims would grow out of that duty if joined with its breach and a consequent injury.
Animals are classified as either wild (ferae naturae) or domestic (domitae naturae) . 4 Am.Jur.2d, Animals , § 2. Fish and game are classified in the law as wild animals. 35 Am.Jur.2d, Fish and Game , § 1. Kentucky has codified this principle at KRS 150.010(36).
The United States Supreme Court has held that:
The wild animals within its [a state's] borders are, so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of all its people.
LaCoste v. Dept. of Conservation of the State of Louisiana, 263 U.S. 545, 68 L. Ed. 437, 44 S. Ct. 186 (1924).
Thus, the Commonwealth has no such proprietary ownership interest in the wildlife as a rancher or farmer has in livestock, but has an interest in wildlife only as trustee for the people to whom the wildlife actually belong.
Cummings v. Commonwealth, 255 S.W.2d 997 (1953). Therefore, a state's sovereign interest in the wildlife is solely for the purpose of regulation and preservation of the resource for the common use. See :
Commonwealth v. Masden, 295 Ky. 861, 175 S.W.2d 1004 (1943); 4 Am.Jur.2d Animals , § 14.
It is as a result of the public, or common, ownership of the wildlife resource, and the people reposing in the Commonwealth a trusteeship for its management that there exists KRS Chapter 150, Fish and Wildlife Resources. That chapter provides for a Department of Fish and Wildlife Resources to "protect and conserve the wildlife of this Commonwealth." KRS 150.015. This is the essential duty of the Commonwealth as trustee of a public resource. The Commonwealth's duty to "protect and conserve" wildlife does not include a common law duty to safeguard the public against damages that result from wild deer crossing roadways or marauding crops. Indeed, the latter duty is quite antagonistic to the former. The Iowa Supreme Court, in a suit against that state for damage caused by a deer on a highway, well reasoned and stated:
To hold the state liable for all the conduct of its wild animals in every situation would pose intractable problems, and intolerable risks to the ultimate ability of the state to administer its trust. The heritage of wildlife beauty and splendor the state seeks to preserve for future generations might well be lost.
Metier v. Cooper Transport Co., Inc., Ia., 378 N.W.2d 907, 914 (1985).
We are reminded by the words of the Iowa Supreme Court that despite all the regulatory schemes the institutions of law may affect, and after all else that humankind may say, do or write, wildlife remain, by nature, wild.
There being no legislative waiver of the Commonwealth's immunity from suit for damage by wild deer, and there being no legal duty of the Commonwealth to prevent wild deer from damaging persons or property such as would give rise to a Board of Claims action sounding in negligence, it is the opinion of the Attorney General that the Commonwealth of Kentucky, Department of Fish and Wildlife Resources, incurs no legal liability as a result of wild deer injuring persons or damaging property.
Footnotes
Footnotes
1 The Legislature in 1942 waived the Commonwealth's immunity from suit only for a single instance of crop damage by deer. See : Ky. Act., 1942, ch. 297. That waiver made possible the case of Commonwealth v. Masden, 295 Ky. 861, 175 S.W.2d 1004 (1943).