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Sovereign Immunity in Kentucky: A Two-Pronged Analysis

Lexington, Ky. (April 12, 2023) – The principle of sovereign immunity has existed since the inception of common law societies to protect the state from tort liability. In the United States, the government is immune from lawsuits in tort unless it consents. The United States Supreme Court has made clear that sovereign immunity likewise applies to state and local governments.

Kentucky broadly maintains sovereign immunity that limits tort liability for governmental agencies within the state. A Kentucky court’s analysis focuses on what qualifies as a governmental agency. While seemingly straightforward, its application is often more nuanced. Clearly, Kentucky’s General Assembly or the Governor’s Office qualify as a governmental agency. However, where does a local school board fit in this analysis? What about a locally incorporated municipality?

Generally, Kentucky law holds that local county governments formed by the state are entitled to sovereign immunity. This likewise applies to progenies that help the local county carry out traditional government functions. For example, Kentucky courts have found that state-funded colleges and local county school boards are shielded by immunity. Kentucky courts have also found that county-funded substance abuse programs, and storm water management plants are not protected by immunity because they are not traditional government functions.

Kentucky is also replete with local municipal corporations that are formed outside the purview of the state or county government. Kentucky law interestingly holds that these municipal corporations are not entitled to government immunity. Often, these municipal corporations behave like a government and rely on other entities to carry out traditional government functions. Kentucky lawyers often rely on the blanket statement of law – that municipal corporations do not enjoy sovereign immunity – without undertaking the full analysis to determine whether a local municipal corporation may actually be entitled to a sovereign immunity defense.

The analysis begins by determining the origins of the entity at issue. Then, the court looks at whether the entity exercises governmental functions integral to state government. This two-prong test is the guiding framework for the court’s analysis of both local entities and their progenies.

For example, Lewis Brisbois’ Lexington, Kentucky office recently obtained a dismissal of a local ambulance service formed by a municipal corporation on immunity grounds. The plaintiff argued that because the parent of the ambulance service was a local municipal corporation, it was not entitled to immunity. However, as stated above, the analysis does not end there. The court agreed that the parent municipal corporation behaved like a local government, and exclusively performed functions of state government. It was not in the business of making profits, and instead did things like collect taxes, maintain public parks, and administer public education. Because the ambulance service’s parent entity was entitled to immunity, despite the blanket rule, the first prong of the test was satisfied.

On the second prong, the Lewis Brisbois team successfully argued that an ambulance service is a function of state government by pointing to a statute that protects local fire departments from liability when performing emergency services. The defense also pointed to decisions where county ambulance services have been deemed immune by virtue of their parent entity. The court analogized the local ambulance service to a local fire department, which is granted blanket immunity by a Kentucky statute. Clearly, it is the intent of Kentucky law to view emergency services as a function of state government. The court found that the ambulance service was immune from a negligence suit.

Takeaway

Generally, when a local ambulance provider, or a city itself is named in a lawsuit, an attorney assumes – based on a city’s status as a municipal corporation, or a local ambulance provider’s relationship to a municipal corporation – that there are no grounds for an immunity defense. However, this falls short of the complete analysis. The more important focus for Kentucky courts’ immunity considerations is on the behavior of the organization at issue, and whether it or its parent performs traditional functions of state government. If so, despite the blanket rule, Kentucky’s local municipal corporations can be entitled to sovereign immunity and shielded from tort liability.

For more information on this topic, contact the author or editor of this alert. Visit our General Liability Practice page for more alerts in this area.

Author:

Bradley S. Fyffe, Associate

Editor:

Andrew J. Weber, Partner

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