Caneyville Volunteer Fire Department v. Green's Motorcycle Salvage, Inc.

рossession proximity of a firearm in close (i.e., CANEYVILLE VOLUNTEER illegal possession narcotics DEPARTMENT, FIRE et

firearm within immediate control al., arrest) Appellants, arrestee at the time suffi- jury create a question cient to on whether v. possessed the firearm was furtherance drug dealing.37 It is that a uncontested SALVAGE, GREEN’S MOTORCYCLE loaded firearm was found under the front INC., al., Appellees. et seat of the Grand Prix that McCloud was No. 2007-SC-000517-DG. driving immediately before his arrest and that McCloud had hidden narcotics on his Supreme Kentucky. Court of Thus, person and in the Grand Prix. draw- ing all inferences favor of the Common- 25, June 2009.

wealth, clearly it was not unreasonable for jury have found guilty McCloud

firearm-enhanced offenses.38

III. CONCLUSION. reasons, foregoing

For the the Jefferson

Circuit Court affirmed. sitting.

All All concur. Commonwealth, offense, here, Campbell v. 260 S.W.3d commission of satisfies ("Furthermore, (Ky.2008) 218A.992.”). proof requirement the 'nexus' of KRS jury was sufficient to create a issue as to the posses- elements of the firearm enhancement: Benham, 38. Commonwealth v. 816 S.W.2d drug sion of a firearm at the time the offenses ("On (Ky.1991) motion for directed possession were committed and of a firearm verdict, the trial court must draw all fair and drug in furtherance of the offenses. Whether reasonable inferences from the evidence gun by bedding, or not the was covered it was favor of the Commonwealth. If the evidence and, thus, Campbell's found in home in his juror to induce a reasonable is sufficient Furthermore, possession. given constructive beyond believe a reasonable doubt that the proximity marijuana, drug para- to the guilty, a defendant is directed verdict should phernalia, methamphetamine manufac- given. purpose ruling not be For the found, turing equipment jury could rea- motion, the trial court must assume sonably infer that it was used in furtherance true, evidence for the Commonwealth is Thus, drag offenses. the trial court reserving jury questions but to the as to properly denied the directed verdict mo- credibility weight given to be to such ...”) (footnote omitted); tion. monwealth, Kotila v. Com- review, testimony. appellate On the test of a (Ky.2003), is, directed verdict if under the evidence as a grounds by Matheney overruled on other whole, clearly Commonwealth, for a would be unreasonable (Ky.2006) 191 S.W.3d 599 ("Thus, jury guilt, only to find then the defendant is possession constructive of a firearm acquittal.”). within a vehicle at entitled to a directed verdict of the time of arrest and the Stivers, N.

Gregory Scott Lau- Donald Kerrick, Stivers, fenberg, Coyle & Van P.L.C., Zant, Green, KY, Bowling B. Jason Bell, Kerrick, Stivers, Zant, Coyle & Van P.L.C., Elizabethtown, KY, for Appellant. Cannon, KY, Leitchfield, Alton L. Appellee.

Christopher Gadansky, Paul David Bowles, LLP, Landrum & Louis- Shouse ville, KY, for Kentucky League of Cities. Opinion by of the Justice Court SCOTT. present appeal comes this Court discretionary by way review from an asserting negligence brought Ap- action Green, pellees, Orville Green Catherine Inc., Motorcycle Salvage, and Green’s against Appellants, Caneyville Volunteer (hereinafter CVFD), However, jurists. and confounded Department Fire Chief, Fire has much City Caneyville complexity analysis CVFD Anthony genuine attempt, with Clark. to do the courts’ time, guesswork over to eliminate outset, City we note that the

At the been determining when has to dismissal. Caneyville was entitled recognized. properly constitutionally Commonwealth, agent CVFD is Naturally, striking appropriate balance having recognized as such been been task. no small KRS 75.070 dе- from suit in tort. Because clared immune endeavor, during propo- At times this departments are thus immune from recipients nents and tort, agents Com- suit Kentucky’s bumped against jural rights monwealth, on a local ba- operating albeit open courts doctrine. While the doctrine sis, municipality there be no attendant can critics, deep-rooted not without firefighting for CVFD’s actions. aspect legal canon. Commonwealth’s Therefore, authority it is not within our to And, legal would liken it to although some arm of impose civil on an the fiction, we are disinclined reach such carrying govern- out such a government (39) Indeed, thirty-nine conclusion. other function. This is also consistent with ment provisions such states contain similar 95.830(2)in this instance. M. their state constitutions. Jonathan immune Additionally, Chief Clark is Hoffman, the Course Law: The Ori- By of as Fire of CVFD. capacity his official Chief gins Open the Courts State Clause of of capacity, In his Clark is individual Chief (1995). Constitutions, 74 Or. L.Rev. qualified immunity entitled to fact, In the traces back genesis doctrine its we discretionary Accordingly, acts. re- his Magna espoused to the Carta was Appeals verse the decision the Court jurist no less than venerated Sir Edward that it to the extent conflicts with these who, significant historically Coke his holdings the rationale articulated Institute, a vehicle Second envisioned it as herein. integrity judicial to “ensure the the justice process stating was not for I. INTRODUCTION sale,” with and to avoid undue interference the Unquestionably, prudent path be- judiciary in the courts law out- rights sovereign immunity jural tween side forces.1 Id. at Over a 1317. legal quagmire is formidable traverse. century penned In- after Coke his Second my colleagues As a number of esteemed stitute, rang the doctrine true with through the bench observed who fraught American Colonies feared years, is area with complexities which have British Crown was in the colonial meddling divided courts states, apparently A 1. clause was taken from Sir tions. few such as "[T]he Montana, Magna Edward Coke's restatement Carta appear to have made certain as- Chapter incorporated 40. It was first into the open sumptions meaning about Rights Declaration of while Delaware adopting revising their courts when clause fought, Revolutionary being War was still well constitutions, they exception. but before the United States Constitution estab- instances, simply adopted the most states judiciary independent lished the federal as an open courts clause wholesale and without dis- government. little branch of There is indica- (internal nota- cussion.” Id. 1284-1285 subject tion that it was the of debate when omitted). tions copied newer their own states into constitu- Thus, Id. at §§54 courts. the doctrine and 241 and ascribed the moniker of way early found its into state jural rights constitutions. doctrine in 1932 in Ludwig v. Johnson, 243 Ky. 49 S.W.2d 347 Nonetheless, upon, we have been called (1932). This is a longstanding common here, Assembly’s to examine the General law principle of nearly years, fourscore recognition in this state’s fire which this Court should defer —unless we which departments, inherently dredges up are strongly compelled otherwise, which sovereign immunity considerations of we are not. Thus, jural rights. the matter is one of interpretation constitutional and common II. BACKGROUND such, application. law As this Court Greens own motorcyclе salvage bound, as it has oft been in past, in Grayson business County outside the plausible articulate a and constitutionally city Caneyville. Their business caught sound solution to an problem 3, 2003, fire on December and CVFD re- respecting jural while the doctrine of sponded to the call to extinguish the fire. rights. That this area of the law com- CVFD is a volunteer fire department undeniable; however, plex this does not provides protection services to mean, minority as the suggests, Caneyville and the surrounding areas. remedy to wipe the slate clean with Despite the department’s attempt regards to history the evolution and fire, contain the along business with common law in this arena. much of inventory was destroyed. Ap- always, As pellees the doctrine of stare subsequently brought suit alleging CVFD, Chief, ever-present decisis remains an guidepost its and City thus the of Caneyville undertaking. our Stare were compels negligent Decisis in failing to every timely us decide case with extinguish that, deference to the fire and as a “Thus, precedent. anything is with but result of this alleged negligence, they suf- a cavalier attitude we broach the sub fered more property severe damage than ject changing they of the ebb and flow of settled otherwise would have if additional while], law we do not measures had [and feel that been taken extinguish compels Appellees doctrine us to fire.2 unquestioningly fol also argued that KRS 95.830(2) prior low 75.070 and decisions when this KRS Court finds were unconstitu- compelled,” itself otherwise we tional. recognize “ ‘stare by decisis the means [is] 75.070, KRS which purports provide which we ensure that the law will not fire departments аnd firefighters with im- merely change erratically, develop but will munity from civil liability, states as fol- ” in a principled intelligible fashion.’ lows: Commonwealth, v. Chestnut (1) A municipal fire department, fire 288, (Ky.2008) (quoting Vasquez v. protection district fire department, and 254, 265-265, Hillery, 474 U.S. 106 S.Ct. volunteer department fire per- and the 617, (1986)). 88 L.Ed.2d each, sonnel of answering any fire alarms, The open provision courts appears performing prevention fire ser- constitution, vices, our Ky. § Const. or duly other emergen- authorized was ratified and was with cy linked services inside and outside Specifically, Appellees assert CVFD and earlier help and called for additional from recognized Chief Clark should have the need surrounding departments. fire combating for further assistance in the fire in the of a employed limits fire to be exercise municipality, of its deemed corporate city.” district, governmental function normally or area protection by department, a volunteer fire served Grayson found KRS The Circuit Court agent an the Com- shall be considered and dismissed the 75.070 constitutional Kentucky, acting monwealth however, prejudice. appeal, case with On ca- solely and alone in a reversed the trial Appeals the Court of municipality, pro- and such fire pacity, court, finding both KRS 75.070 and district, normally area served tection or 95.830(2) for reasons that unconstitutional not department, a volunteer fire shall 14, 54, Ky. §§ com- they violated Const. any omission damages be liable in open or monly jural rights known as the negligence act commission or or reasoning, courts doctrine.3 alarm, answering performing while Appeals found that KRS 75.070’s Court services, prevention duly or other attempt sovereign to confer fire emergency authorized services. firefighters fire was an departments immunity by extension of impermissible (2) municipal department, No fire fire type akin to the fire or protection department district predecessor down our previously struck department answering volunteer fire Erwin, v. 330 S.W.2d 412 Happy Court alarms, any performing preven- fire fire City Lexington, (Ky.1959) Haney depart- tion services or volunteer (Ky.1964). 386 S.W.2d 738 Court corporate ment services inside the limits 95.830(2) held KRS was unconsti- Appeals damages of the district shall be liable in de- Haney previously tutional because had any or or omission act commission only enjoy immunity could termined cities negligence answering returning while or quasi-legislative judicial for real or or func- fire, reported doing fire or tions. performing any prevention work chapter under and virtue of this Chief, the of Ap- As to the Fire Court departments said fire shall consid- peals qualified found he was entitled to agents ered of the Commonwealth of immunity, the but record was insuf- Kentucky, acting solely and and alone ficient to determine whether his acts were governmental capacity. nature, discretionary or ministerial in and the to the trial thus remanded matter back added). 95.830(2) (emphasis is a proceedings. court for further This Court companion dealing statute with use of fire granted discretionary review. apparatus, which to purports mandate city impetus foregoing shall not be man- The of the is that “[t]he liable with apparatus again ner on account of the use of the once this Court is faced any point cоrporate prospect defining permissible outside of the limits city. sovereign immunity of the within apparatus The shall be boundaries inju- jural 3. limit the to be recovered for addition sections 14 and amount death, rights encompasses resulting injuries per- doctrine also ries or for section And, Kentucky property.” Ky. § Constitution. Section 14 son or Const. mandates, "[wjhenever provides, part, open, be and ev- section 241 "[a]ll courts shall ery person injury person the death result from an done him in his shall act, lands, goods, person injury by negligence wrongful reputation, or inflicted or shall then, case, law, remedy by right every damages may due and such course of and sale, death, justice corpora- denial recovered for from the administered without such states, delay.” Ky. causing Ky. persons § 14. Section tions and so the same.” Const. Assembly power § "[t]he General shall have no Const. 241. lengths this and the to wardens to enforce safety Commonwealth rules. Id. immunity may such extend without Volunteer firefighting which can likewise trace its roots impinging upon citizenry’s to colonial America improperly as the vast majority of these early organizations to have right constitutional access to its were by staffed volunteer Spe- citizen-firefighters. courts and to obtain redress therein. During period this same in New Amster- cifically, the task before this Court is to dam, city burghers appointed Caneyville determine whether the Volun- citizens to a Watch,” is, be, “Rattle who volunteered to Department patrol teer Fire or should the city night streets at to alert if governmental immunity afforded from tort citizens they saw a fire organize either virtue of its status аs a bucket brigade extinguish Boston, too, it. Id. quasi-governmental agen- took 75.070, steps to secure cy, or itself from the pursuant danger to KRS at- of fire early as 1631 immunity, already to confer such had a tempts engine remedial fire when city whether that statute is constitutional. was consumed fire in Id. 1676. When the engine proved thwarting ineffective for III. ANALYSIS fire, city subsequently purchased a Interplay Sovereign Immunity The state of the art machine England Rights and Jural whose tank was filled brigade. bucket present requires matter this Court Id. engine brought This about the need for apparent to examine an tension between organized first fire department in the implied two doctrines in the colonies, beginning service on January sovereign immunity jur- Constitution: requiring General Court to seek rights. al The issue is whether the Gener- out twelve men captain and a to man the right, through al has the engine fight fires. Id. legislation, enactment of to confer immuni- many As with things so in the emerging

ty on fire volunteer departments and fire Union, Benjamin Franklin played pivotal departments, jural rights or whether pre- role in development of the modern-day grant clude this as unconstitu- volunteer department.4 Upon a visit tional. Boston, Franklin ‍‌​‌​‌‌​‌‌‌‌‌​​​​​‌‌‌​‌​​‌‌​​‌‌‌​​‌‌​​‌‌​‌‌​​‌​‌​‍city observed that the Firefighting always inherently been had a far better established infrastructure gover- intertwined with American civil for fighting fire than did his hometown Dating Philadelphia. nance. back to the establishment See The Electric Ben 1607, Franklin, in Philadelphia: Jamestown which was subse- Franklin’s A Jour- later, by fire quently ravaged year ney Through the Franklin’s Philadelphia, threat of fire the need curtail http://www.ushistory.org/franklin/ 1735, pressing philadelphia/fire.htm. threat became a concеrn for the In in an effort fledgling American Firefighting up support colonies. to drum and raise public America, http://www.firefighter organized in Colonial awareness about the need for central.com/history/firefighting_in_ Franklin firefighting, wrote to his own colonial_america.htm. 1648, Gazette, early newspaper, Pennsylvania As as un- Amsterdam, in Governor of New what is der the alias of “old citizen” as to York, present-day appointed New four fire threat of fire: Interestingly, George Washington brigade. History served volunteer The of American Alexandria, Virginia Firefighting, http://www.infobarrel.com/The_ a volunteer fireman in in History_of_American_Fire_Fighting. 1774 and Thomas Jefferson also served on a state, moderniza- Place, cities in the Pre- Like other first as an Ounce of

In the Cure, I increas- technologies population is worth Pound vention tion they ’em to take care how would advise firefighting more advanced begat es soon Shovel, living in a full to be suffer Coals regu- and closer techniques another, out of one Room into carried 1886, obtained Around Winchester lation. Stairs, Warming- unless in a up or down capable engine, steam its first horse-drawn shut; of Fire fall Scraps pan minute, gallons per with 400 dispensing Appearance and make no into Chinks department the fire had your being Midnight; when Stairs until truck, apparently which was hose Webb (as Flames, forced, I you may once in Ken- engines the first motorized one of was) Windows, and leap your out of tucky. Id. being oven- your hazard Necks to avoid Likewise, Frankfort, has capítol city, roasted. since at supported had tax fire service thereafter, 7, 1736, on December Id. Soon additionally early 1820s аnd had least Fire Franklin established the Union Com- during period in effect regulations served as the model for volun- pany, which engineers require fire empowering in the rest of firefighter organization teer lay answering citizens in fire assistance By the the colonies. Id. time of Civil mandating that households alarms and War, departments volunteer fire were every three own one leather bucket emerging and were as an en- widespread purposes in the home for fireplaces found aspect govern- trenched of state and local City of Frankfort house fires. fighting ment. EMS, http://frankfort-ky.gov/fire- Fire and firefighting Kentucky evolution of the Common Coun- and-ems.html. mirrored that of much of the rest of the an ordinance to establish and passed cil and, newly ultimately, colonies formed company and set forth the maintain instance, country. organized firefight- For governed. manner in which it would be ing was first commenced Winchester Id. consisting largely organized buck- Histo- brigades. et Winchester Fire/EMS aforementioned histor- The thrust of the ky.com/history, ry, http winchester ://wfems. develop- ical is to note perspective phtml. gave These remedial tactics soon departments ment of way engine pumps, filled buckets and public the common need of arisen out of 1838, in an pumped by hand. Id. In effort alongside government grown service and force, firefighting city to modernize sup- and financial legislation, regulation, purchase a modern fire levied a tax departments, Fire port of these entities. “Rough the old engine dubbed however, unique in their particularly Ready.” Id. In the General Assem- that, necessity, they have evolution in bly, eаger organization to advance the confined to been forced to maintain roots profession, legislated discipline locality they in which serve. Because the Ready the Fire Rough charter of and involves the need firefighting the nature of city’s so named after the be- Company, virtually instantaneous expeditious for and mandating “duty the of each engine, loved fire, depart- to the scene of a response company, member of said when alarms of in operated and local ments are maintained given, promptly, fire are to meet with their areas, authority the the fact that despite buckets, the engine, apparatus, and other existence arises stems same; shall, cases, from whence their in all render obedi- and legislature. See Id. from the central state company.” ence to the officers of said

799 75.010; §§ generally marily see KRS the health and welfare its of citizens, 95.010-.015 it protected by is a im- sovereign munity, and we specifically that found depart- is It incontrovertible that fire city a fire department is engaged in such perform a paradigmatic ments function of work.”). government in the keeping populous the Indeed, its fire. property

and safe from hard-pressed one would to think of be a sovereign doctrine of immuni representative government more function. ty, 231, § as embodied in Ky. pur Const. Notably, Kentucky longstanding has a tra- ports prohibit claims against gov the of treating firefighting dition as a govern- treasury ernment absent the of consent cloaking mental thereby function and it in the sovereign.5 Sovereign a immunity is Louisville, immunity. See v. Greenwood component bedrock gov of the American (13 Bush) (1877) 226, Ky. (“although 76 *2 ideal, ernmental a and is holdover the from city a power to establish days Commonwealth, earliest having department appoint and to and remove its been brought over com English officers, still it is negli- not liable mon law. The doctrine has been included gence of firemen appointed paid by in all four of the Commonwealth’s constitu it.”); Lebanon, v. City Ky. Davis 108 predates tions and each. Center (“The 688, 691, 471, (1900) 57 S.W. 472 Berns, Corporation the Arts v. 801 appellee [city] by law to es- authorized 327, (Ky.1990). 329 provide prevention tablish and for the fire, extinguishment of it seems that years recent this Court has examined authority may such as a govern- be treated history of sovereign immunity in Ken function.”); mental v. Terrell Louisville Berns, in tucky Yanero and in noting Co., 77, 80, 100, Ky. Water 127 105 S.W. way doctrine made into the Com (1907) (finding firefighting a govern- jurisprudence monwealth’s at ear least as function); ment see also City Louisville Yanero, ly as 1828. See 65 S.W.3d 517- Bridwell, v. Ky. 150 S.W. Harvie, (7 citing Ky. Divine v. T.B. (1912) (“It is true that in maintaining fire Mon) (1828). Thus, our by the time department for the protection the lives effect, second in our Constitution was property city its inhabitants the recognized courts had that the applicable performs public Louisville or governmen- provision constitutional force at law, duty tal imposed upon and for authority time—which manifested that reason it cannot be held liable for Assembly to determine the man injuries resulting.”); Lexington, v. Smith ner in which the be Commonwealth could (“This (Ky.1957) sued—was a voluntary grant ability but [Commonwealth, however, generally state, sue the was theory city committed to that when a state engages activity pri- which relates otherwise immune from suit its own Reyes 5. "As noted in Kentucky, provisions Hardin Memorial Hos but are pital, (Ky.2001)] permit [55 S.W.3d 337 words the General to waive 'sovereign immunity' not found Commonwealth’s inherent either Rather, Kentucky. sovereign Constitution of appropriation money state direct from the (Section 230) concept recog treasury specifying common law and/or nized as an inherent Thus, of the state. attribute where and in what manner the Common 231)." contrary (Section to assertions sometimes found wealth sued Yanero law, Davis, 510, in our case and of (Ky.2001) Sections 230 231 our v. 65 S.W.3d 523-524 (internal omitted). sovereign Constitution are not the source of citations Mon.) (7 New Kentucky: The Divine, Immunity Ky. T.B. See courts. ficial Davis, Ky. v. under Yanero Standard *2-3. 439 at (2002) (internal 635, citations L.J. 646-647 hand, has come to be what the other On omitted). exists as rights doctrine jural known as the counterbalance to sover- operator, re- Happy, the constitutional In truck Kentucky jurispru- immunity. Under in a eign fight call to sponding to a Kentucky dence, the of provisions three was an acci- neighboring city, involved conjunction have been read Constitution injured appellant-bystand- which the dent jural rights whose Therein, canon to assert ap- at the 413. er. S.W.2d af- that citizens are is to ensure purpose argued that an earlier version pellant their causes to have opportunity an forded 95.830(2), grant purported which to prevent to the open court and heard to and mu- firefighters absolute unnecessarily inhibiting from legislature use a fire engaged in the nicipalities Johnson, Ludwig which v. right. that city, was unconsti- apparatus outside three recognize these the first case was the prevented appellant because it tutional the doc- together implementing as sections fire- bringing against alleged suit from trine, found that statute the Court predecessor Our fighter tortfeasor. Court instance review in that under the ver- holding unconstitutional agreed, 95.830(2) as of our Constitution at time spirit violates the in effect sion KRS 14, as in sections grounds as its letter found that the statute was well 54, pur- It was person’s right and 241. the manifest restraint on a impermissible that instrument bring damages person of the framers of for done to pose suit perpetuate the common- at preserve Happy, and See property. injured by the right a citizen ran afoul of (finding law that statute 54). 14, of another to sue to recov- negligent §§ act Ky. Const. damages injury. impera- for his er decision, Happy since the Accordingly, every 14 is of section tive mandate been reasoning typically asserted this his injury him in for an done

person, government agent injured those remedy by course shall have due person, sovereign immuni- proposition for the law. scope. limited in See G. ty should be Johnson, 533, Ky. v. Ludwig Barker, Immunity Thomas Official (1932). 347, 351 under Kentucky: The New Standard Davis, 90 L.J. Ky. as regarded extend- Yanero Happy typically (2002). blush, appear, At it would first reasoning Ludwig giving ing then, cases sover- that the two seminal proffering jural the line of cases rise to jural rights, Yanero immunity’s eign counterar- sovereign rights Happy respectively, are odds with does the case gument, although nowhere immunity. Admittedly, another. these cases sovereign or one mention distinct theo- progeny, espouse two originating Happy line of their “The cases principles. common law im- ries based on provides application of official im- limited, clarify sovereign that an individu- Yanero seeks munity should be qualified govern- munity defense to protected, should be right al’s suit under the com- agents ment are entitled sections Constitution law, jural “Happy, and the aboli- mon while prohibit and 241 serve to overex- protect against doctrine rights remedies legal tion or diminution Barker, legislature.” injuries.” G. Thomas tension personal Of-

801 Barker, Immunity G. Thomas consent or otherwise waived its immu- Official (Sec- Kentucky: nity.” at (citing The New Standard under Id. 517 Restatement ond) 895B(1) (A.L.I. Davis, § of the Law Ky. L.J. of Torts Yanero 1979); Am.Jur.2d, (2002) 412; States, Territories, (citing at Happy, S.W.2d (1974)). 351). § Johnson, Dependencies, Govern- Ludwig v. 49 S.W.2d at is, thus, However, mental a policy-derived these two lines of cases of sovereign immunity offshoot and is law competing principles common need not premised upon protecting government en- represent mutually objectives. exclusive liability. Yanero, tities from civil Indeed, See we be they may believe read to at S.W.3d 519. The pol- constitutional and gether produce compat and harmonized to icy justifications doctrine are root- Namely, may ible be ends. Yanero con separation power, ed notions of strued as providing proper framework principle being that courts should not be in analyzing liability government of a position civil impose gov- on agent, may while Happy construed to ernment engaged entities official func- limit the reach in determining of Yanero tions, disrupt as this would the business of when a statute has extended be id.; government governing. See Ky. Here, yond constitutional constraints. we 27, 28; §§ Const. see also Dalehite v. Assembly’s General recognition believe the 15, 57, United States. 346 U.S. 73 S.Ct. of firefighters departments’ and fire immu (1953) (Jackson, J., 97 L.Ed. 1427 and, therefore, nity was constitutional not dissenting). repugnant jural rights. long This Court has struggled

Organizational Framework with where the permissible limits of sover Immunity Analysis eign immunity extend. “The decision Yanero, junior-varsity high school when the sovereign immunity defense ap player, baseball who was not wearing a plies entity to an by created an act of the helmet, was injured struck in the head and Assembly historically has been baseball thrown teammate dur- Court, resulting troublesome to our in di ing batting practice. 65 at S.W.3d 517. verse decisions difficult to reconcile.” ultimately The batsman brought suit Berns, sure, at 328. To be against the County Jefferson Board of Ed- only positive one [t]he conclusion can ucation, director, the school’s athletic as- draw the various cases is that the coaches, sistant and the High appropriate persons separating line (KHSAA), School Athletic Association al- entities entitled to claim inclusion in the leging negligence for require failure to sovereign immunity Commonwealth’s players wear participat- helmets while not a line which the General ing batting practice. upheld This Court discretion, but prob draw in its defendants, summary judgment favor of lem of constitutional law our Education, the Board of the athletic di- Court must address on a case case KHSAA, rector grounds basis. governmental or sovereign immunity and authority Id. at reigning 329. The on the qualified immunity. Id. (as sovereign immunity matter holds that 231) notes, §

As Yanero sovereign immunity Ky. trump embodied in will “is Const. 241) 14, 54, sovereign jural §§ inherent attribute of a rights (Ky. state Const. that precludes provision suit it is a maintaining specific bеcause Constitution, against the state given general provi- unless the state has rather than a 802 con the direction and However, only “consisting of prong this holds id.

sion. See government/and it the Com- trol of the central state wherein is instances true Thus, the the to which being addressing is sued. second extent who monwealth sovereign entity immuni- which ‘supported by determination was monies crucial whether analysis authority down to: the Commis ty boils are disbursed sovereign, is the its entity being sued of Finance out of the State Trea sioner ” goes Berns, who about busi- agency, or one S.W.2d at 331. Howev sury.’ sovereign’s work. conducting er, accurately ness this be more “test” Therefore, agent if was an CVFD whose analysis, characterized as a factorial Commonwealth, in the Common- engaged deciding if an showing weight will lend work, constitution- KRS 75.070 is wealth’s agency. entity be considered a state should (“These Yanero,6 al. 65 S.W.3d at 520 See primarily are relevant to ] factors [Berns Determining Agency entity properly an determining whether is entity government an is Whether agency.”); see classified as a state also gov- agent is a threshold consideration University Kentucky, Withers However, immunity analysis. ernmental (Ky.1997). The real S.W.2d 342-343 to, the determination of as Bems alludes is the factor that thrust of the “test” third agents to be entities are deemed factors, which to the is Bems adds Gnau has, historically, not government state integral entity whether the out an carries easily forthcoming and is a conclusion been governmental function. for our proven which has troublesome one Thus, building off of Berns and to various tests past, leading courts Gnau, in Autry v. Western Uni conflicting with sometime results. versity, (Ky.2007), we 219 S.W.3d dеtermining whether One such test tried once more to articulate a workable entity agent an of the state is wheth an is test, stating er, whole, entity as a “when viewed immunity extends [g]overnmental carrying integral a function state out agencies perform governmen- state Berns, 332; government.” (i.e., act an arm of the tal functions County, v. Meade also Schwindel see sup- government) central state (Ky.2003). This holistic money ported by from the state trea- entity necessarily requires sev view However, sury. per- unless created to subsidiary considerations underlying, eral function, a form a state governmental “integral func government making agency governmental is not entitled to tion” determination. analysis agen- An of what an immunity. Bems, recognized we that Gnau v. cy actually required to determine does Metropolitan Louisville & Co. Jefferson its status. Dist., (Ky.1961) S.W.2d 754 Sewer es omitted). (internal citations We believe test for determin two-pronged tablished Autry good point reference entity agent provides an an ing whether was meaning analysis recognizing this that there government within the state subsidiary what an inquiry must be a into provision of the Board of the waiver if Act, 44.070, entity “actually with the does” determine first Claims Yanero, limiting entity agent, presently an instead focus which is the seminal Ken- case, distinguishing properly what constitutes tucky immunity expressly ad- did not immunity. sovereign how to determine whether versus dress the issue of government agency immuni- which tend to it with should be entitled associate disassociate it from sovereign.” benefit of a factorial the 32A ty. Recognizing the (2008). § Am.Jur.2d Federal 748 Courts analysis, (1) Among the factors are: considered has utilized a The Sixth Circuit method whether state stаtutes law and case tend analysis adopted of ‍‌​‌​‌‌​‌‌‌‌‌​​​​​‌‌‌​‌​​‌‌​​‌‌‌​​‌‌​​‌‌​‌‌​​‌​‌​‍from the Cir- Third the entity characterize arm of as an the determining cuit whether a govern- state, Industries, PYCA Inc. v. Harrison ... an “arm the entity mental is of Dist., County Waste Water Management state” for Eleventh Amendment [sover- (5th (2) Cir.1996); 81 F.3d 1412 whether eign immunity] purposes: state resources be required satisfy defining law and decisions [L]ocal ing judgments adverse against entity, of the in- agency status and nature Highway State Commission Wyoming of sovereign to the volved its relation Co., 194, v. Utah Const. 278 49 U.S. S.Ct. considered, only be are factors to but 104, (3) (1929); 73 L.Ed. 262 whether the that are signifi- one of a number state has a financial or otherwise relevant factors, Among the no cance. other beneficial interest in litigation affecting the conclusive, perhaps one of which is entity, Martin Sales & Processing, Inc. v. whether, is in the important most Virginia Dept. Energy, West 815 plaintiff prevails, event payment (4) (S.D.W.Va.1993); F.Supp. 940 how the of the will have to made judgment be funded, Industries, Inc., entity Pyca is 81 treasury; significant out of the state (5) 1412; id.; F.3d its level autonomy, here whether the has agency also is Co., Roche v. Lincoln 175 Property Fed. power satisfy or the funds (4th 597, Cir.2006); 2006 WL Appx. 910241 judgment. Other relevant factors are (6) the entity whether primarily deals with agency performing whether Roche, problems, local or statewide 175 function; governmental proprietary 597, 910241; (7) Fed.Appx. 2006 WL how it been incor- separately whether has id.; entity, state treats the Texas law/courts degree over porated; autonomy Housing ept. Community D and Af operations; its whether Assur., Inc., v. Verex 68 F.3d 922 fairs power be to sue and sued and to enter Cir.1995) (5th (8) the ability entity contracts; whether property into name, e.g., sue and sued in its own taxation, state immune from Pitts, F.Supp.2d Bosse v. 455 868 sovereign whether the has immunized (W.D.Wis.2006); (9) entity whether responsibility agen- itself from for the Industries, property, Pyca holds and uses cy’s operations. (10) Inc., 81 the entity F.3d whether County Blackburn v. Bd. Educ. Floyd can sell property, e.g., Tradigrain, take or Adams, By Through F.Supp. 749 Mississippi Inc. v. Authority, State Port v. (E.D.Ky.1990) quoting 161-162 Hall (5th (11) Cir.1983); 701 F.2d 1131 the in Toledo, 742 Medical Ohio at College of dependent authority management (6th Cir.1984). F.2d 302 Assur., Inc., 922, (12) entity, Verex F.3d 68 level, jurisdictions At the federal entity performs whether the divided con- as to which factors should be functions, proprietary Bldg. Au Ohio “determinefing] sidered in whether a state F.Supp. v. thority Corp., Xerox 696 (S.D. 1993); or is agency ego is an alter of the state Ohio Iowa Pe Comprehensive sufficiently cit- independent Underground constitute a Storage troleum Tank Fund Co., izen in its own look right, [however] courts Bd. Amoco 990C80656 Oil (N.D.Iowa (13) 1995); the F.Supp. to the characteristics of the en attributes or Yanero, (citing 72 at 519 status, tion.” e.g., University corporate tity’s States, Am.Jur.2d, Depen Gyp Territories Hampshire v. U.S. System New (D.N.H.1991); (1974)). dencies, Co., proprietary § A F.Supp. sum (14) entity’s property normally engaged type whether the is of the function taxation, England New will like subject corporations to state businesses or Laundry Ass’n v. Housing conducting an Multi-Unit an element of ly include Schwindel, Fi Housing Mortg. Island activity profit. Rhode for See (D.R.I. F.Supp. 1180 Corp., gov nance to the regards at 168. S.W.3d With 1995). test, “when proprietary versus ernmental curtailed, if not municipal immunity was exhaustive, it does list is not While this abolished, Haney City effectively in consid- pertinent characterize some of the (Ky.1964)] and Lexington, [386 S.W.2d upon relied erations federal courts havе Co., City Inc. v. (again) in Service Gas And, federal their classification. while London, many (Ky.1985)], S.W.2d [687 treat- are far uniform in their courts from governmental/proprie assumed that factors, indicating ment of these with some abolished with tary distinction had been factor should be afforded single that no Yanero, This was 65 S.W.3d at 519. it.” more place that do weight, more those recognizes gov that the not so. Yanero single a factor tend to look emphasis on lives on ernmental/proprietary distinction financial nexus between the toward the law, utilized good having been and is still treasury entity and the state and/or Bems, that the which held by this Court entity performs an essential whether (the agency in that instance government Am. function. See 32A governmental Arts) entitled to for the “was not Center § 748. Jur.2d Federal Courts created to immunity because it was not that, al It from our case law appears function,’ and discharge any ‘governmental engaged though the courts integral out a function to ‘carrying was not hodgepodge of a of factorial somewhat ” Yanero, at 65 S.W.3d government.’ state considerations, Kentucky follows the lat Berns, at 801 S.W.2d (quoting weight approach placing greater ter 332). gov have noted that while the We entity to which the en extent imperfect, test is it ernment/proprietary government in an func gages essential provides See, Berns, at e.g., tion. allow- compromise between reasonable (“when whole, entity is viewed as a perform gov- their ing agencies state to state carrying integral out a function to having functions without ernmental Schwindel, 113 government.”); S.W.3d in the context answer for their decisions (“unless 168; Autry, 219 at 717 allowing private litigation, of tort func perform governmental created to pursue legitimate their enterprises tion, agency not entitled to a state is compe- without unfair business interests immunity.”). governmental per- government agencies tition While the initial determination functions forming purely proprietary immunity pur agency, governmental costs and risks inher- without the same troublesome, the subse poses, proven enterprise. ent commercial If quent liability inquiry is well-settled. Id. at 521. entity agency[, “a then is it] state and volun- Certainly, departments fire from tort entitled government departments are govern teer fire performing the extent that op- as mental, engaged governmental, proprietary, agents to a func- opposed as to, functions. The Gen- vice to the posed proprietary population whereby volunteer procedure eral outlines citizens risk life provide and limb to protection fire authority creating public service. departments and volunteer fire districts Looking to the previously factors em creating taxing districts under same ployed by this Court and those considered Chapter KRS 65.182. 75 of the courts, they federal weigh over Revised Statutes outlines the formation of whelmingly in favor of acknowledging that departments protec- volunteer fire and fire departments and volunteer fire de tion districts within this scheme and KRS partments government agents who en governs delegation authority 75.040 (not gage in a proprietary) operate department. Autry, function. 219 S.W.3d at 717. governs KRS 75.020 the manner in Thus, compel “these facts the conclusion protection which a fire district annex that our constitutional fathers would ... property or reduce its land KRS holdings. view this activity as qualifying for sover empowers protection 75.040 fire district eign Berns, immunity.” levy to taxes. KRS 75.050 authorizes a 331. to enter protection

fire district into con- tracts on its own behalf. fire Volunteer Assembly’s The Recognition General departments recognized are and certified Immunity of by Kentucky under 75.410 KRS Com- Appeals Court of found KRS 75.070 mission on Fire Protection Personnel Stan- to be unconstitutional insofar it purport- as dards and Education —which is attached to impart personal ed to immunity upon fire- Department Housing, Buildings of fighters for negligent conduct and because oversight Construction —under the of the departments agents were not of state 75.400(1). State Fire Sig- Marshall. KRS county government.8 or disagree. We nificantly, 75.070 characterizes fire departments fire depart- volunteer departments Fire agents of agent ments as “an of the Commonwealth” the Commonwealth engage who in an es “solely governmen- that acts and alone in a governmental sential in providing function 95A.010(1) capacity.” tal See also KRS safety for the and well-being of its citi (“This chapter apply personnel shall to the zens—and because there likely no more of all fire departments the state whether symbol epitomizing government of func both.”). paid unpaid, they tion—reason dictates must be consid such, an agent sovereign. ered of the departments

Fire all kinds receive As they are cloaked in funding immunity from suit in government from taxes and back- entity tort. When an ing.7 They goods govern do not sell nor conduct is entitled to immunity, ment Assembly their with an toward the Generаl eye making business sure, profit. very legislation recognizing To be term “vol- draft that im department” munity. unteer sovereign immunity attests their “Where ex provide constitution, a gratuitous task: ser- ists of the reason the Gen they Assembly clearly 7. That receive some contributions from General was within its citizenry is no different than the tolls authority acknowledge constitutional charge building park- which states often depart- to the Commonwealth's fire ways. agents ments because these entities are of the sovereign engage locally necessary who only logical depart- It would seem that fire government functions. Here, agent are an ments of one or the other. Assembly may grant municipal limit on a immuni- premised eral extend or waiver fit, constitutionally it but where ty. Happy sees no Nor does it offend as it does protected sovereign immunity attempt grant immunity, exists not absolute Assembly cannot statute create recognizes but rather and extends waiver Berns, Thus, it.” 801 S.W.2d at 829. as in only out in a acts carried KHSAA, where we Yanero found that the government capacity. agent as an of the Board of Moreover, stat- considering present Education, was immunity, entitled to so ute, the General has articulated too should the CVFD be afforded immuni public policy a clear determination —as

ty agent as an Commonwealth passage legisla- manifested of such Yanero, Kentucky. See 65 S.W.3d at 530. depart- tion—that for all fire intends ments, departments, volunteer fire

It is an axiomatic rule of statu from tort firefighters be immune liabili- tory interpretation that when this Court ty for their or official acts. statute, constitutionality considers ignore would be rеmiss to We directive all we must draw fair and reasonable infer-' clearly purview which is so within the upholding validity enees favor of legislature. this See, Commonwealth’s e.g., the statute. Posey Common wealth, (Ky.2006). In City Louisville v. Louisville Seed Kentucky, a statute carries with it the Co., 638, (Ky.1968) 433 S.W.2d 640-641 presumption of constitutionality; there (overruled Co., by City Gas Service Inc. v. fore, it, when we consider are ‘obligat “we London, 144), 687 wherein S.W.2d the of it, give ed to if possible, interpretation efficacy Haney constitutional deci- ” upholds which validity.’ its constitutional challenged, attempted sion was this Court Halsell, 552, Commonwealth v. 934 S.W.2d to come to terms with how to deal with the (Ky.1996) (quoting 554 American Truck important public provid- of service Com., Cab., ing v. Transp. Ass’n police departments ers such as fire and in 785, (Ky.1984)) S.W.2d (emphasis add post-municipal immunity judicial a land- ed). To the extent that there is reason Therein, scape. we noted: able doubt as to a statute’s constitutionali agencies in engage Public activities of a ty, presumptions all in will be favor of scope variety far beyond that of statute, the upholding deferring to the private business. These activities affect people “voice of the expressed through as larger a much the segment public the legislative department government.” private than do the activities of business. Bindner, v. Walters 435 S.W.2d Private business carries on no activities (Ky.1968). A infringement constitutional remotely comparable city even to a “clear, complete must be and unmistak system street many which cover able” order to render the statute uncon thousands of miles and is used Kentucky Utility stitutional. Industrial public. pri- entire rare exceptions, With Customers, Inc. v. Utilities vate business carries on no function as Company, 983 (Ky.1998). S.W.2d exacting hazardous or detail as the below, Opinion

In its Ap- city police department the Court of work or peals to Haney Happy cited for the inherently These activities are so dan- proposition that gerous private KRS 75.070’sextension of that business would hesi- immunity to municipal departments tate to undertake them ... are so [but] however, Haney, health, was unconstitutional. important safety is to the and wel- inapplicable public they because KRS 75.070 not fare of the that cannot prop- And, be eiiy be abandoned. it can have held that pub establishment of “[t]he readily appreciated imposition that lic policy granted to the legislature liability upon broad standards tort alone. is beyond power It of a court might extremely them be burdensome legislature vitiate ‍‌​‌​‌‌​‌‌‌‌‌​​​​​‌‌‌​‌​​‌‌​​‌‌‌​​‌‌​​‌‌​‌‌​​‌​‌​‍an act of the possibly their curtail- could grounds that public policy promulgated force ment even abandonment to the detri- contrary therein is to what the court con the general public. ment For this siders be in public interest.” Com reason, compromise some reasonable Wilkinson, monwealth ex rel. Cowan must reached-one will permit be that (Ky.1992). Through grievous isolated citizen to recover 75.070, its enactment of KRS the General injustices imposed him a upon negli- Assembly public has articulated the policy gent society, yet protect society firefighters fire departments from what could cumulate into ruinous within the Commonwealth should not claims. liable negligent acts good committed in Co., Seed Louisville 433 S.W.2d at 641 faith emergency situations while en added) (overruled (emphasis by Gas Ser- gaged fighting a fire to a responding Inc., 144). Co., vice Conse- call. quently, attempted the Court to fashion otherwise, Stated statute rule, was, incidentally, mutation question confers test, government/proprietary whereby departments qualified to fire city not would be liable tort for risks firefighters engaged in discre by agencies undertaken such as fire and Thus, tionary fully functions. the statute police grounds departments on the comports with constitutional law. Unless all they public served members gen- prohibited erally opposed dealing persons with Federal Constitutions on an capacity. individual Id. enacting legislation, such it to must be free noted, previously recognize As we do so. See Boone County v. Town of subsequently Louisville Seed Co. was over- Verona, 430, 432, Ky. 190 227 S.W. ruled by govern- Gas Service Co. and the (1921). Here, 805 it is not so prohibited. ment/proprietary test the prevailing is still And, Bems, noted in in present rule; however, it significant to note the matter, independent justifi constitutional motivation and reasoning behind the for- exists, immunity cation for as KRS 75.070 represent mulation such a rule sound Ky. § does not conflict with 231. Const judicial policy acknowledge must we Berns, See S.W.2d at that consistently our courts have been aware of and alarmed need to dis- Accordingly, we KRS con- hold 75.070 is tinguish amongst agencies those which re- governmental im- stitutional confers quire liability insulation from in to order munity fire upon municipal departments, ensure their continued survival. While protection fire fire departments district policy generally beyond determinations are departments. аnd volunteer fire CVFD purview judiciary, they are governmental therefore entitled to immu- squarely the legislative province. within nity. Thus, response in to the concerns of the the public, courts and the General Assem- Qualified Official and Official bly KRS enacted 75.070. Immunity below, opinion Ap-

Shaping public policy is the exclu Court of sive domain of the Assembly. peals unconstitutional We found 75.070 attempted immunity governmental capacity, confer alone in it to

insofar as protection fire dis- personal capaci municipality, in his and such to Clark Fire Chief trict, However, normally or area volun- Appeals deter served ty. Court in similarly department, teer fire shall not liable Clark and situ mined that Chief damages to or act of com- firefighters qualified were entitled omission ated they immunity negligence answering the extent that mission or while official alarm, discretionary performing prevention rather than ser- engaged were vices, Ashby City duly emergency duties. or other authorized ministerial Cf. services.”) added); Louisville, (emphasis (Ky.App. see also 1992) School, (holding municipal policemen Municipal, County, Am.Jur.2d (2008) Liability § qualified official and State Tort were entitled (Second) (recognizing jurisdictions which as set forth Restatement 895D(3)). predicate tort on liability distinguishing Believing § Torts that the rec ord, however, discretionary and between ministerial was insufficient determine functions, a fire department’s decision negligent action of which whether fight give how to fire does not rise to was premised Chief was accused Clark liability.). functions, discretionary upon or ministerial Appeals the Court of remanded the matter Moreover, therе ways “if are two pro back the circuit court for further statute, reasonably up construe one ceedings. holding validity other render unconstitutional, we ing adopt ‘must agree Ap the Court of We with construction sustains the constitu peals’ logic to the extent KRS 75.070 ” tionality of the Flynt statute.’ v. Com not be construed to issue a blanket should monwealth, (Ky.2003) grant upon firefighters 555). Halsell, (quoting 934 S.W.2d at capacity. Kentucky, them “In personal Thus, we are bound to construe KRS personal public for a officer’s or acknowledging 75.070 as negligent performance employee’s immunity of departments and the offi depends part duties on whether qualified cial and of fire powers question or duties were ministe fighters. Ashby, rial in nature.” discretionary at (citing Thompson S.W.2d Autry, succinctly S.W.3d at and

Huecker, (Ky.App.1977)). 559 S.W.2d 488 accurately sets forth the current status of regards law in to and official

We do not believe that the lan- simply qualified immunity: official 75.070(1) guage attempts to confer immunity enjoys The that an is agency immunity personal expressly as it refer- extended to the official of its offi- acts solely ences alone “acting govern- and However, cers and when added). employees. capacity.” (emphasis mental officers employees such or are sued for Thus, following immediately reference negligent capaci- acts in their individual to ... municipality “such district or area” ties, they qualified official immuni- ais clear reference and limitation to its ty- Id. acting “government[al] capacity.” in a added). Indeed,

(emphasis Qualified applies this an en- official is tirely reading language public employees of the or if their ac- rеasonable officers (i.e., (“[Firefighters discretionary involving therein. id. tions are contained See deliberation, departments personal and fire shall be considered decisions and agents faith acting solely judgment) good of the and are made in Commonwealth] authority their or scope and within the knows should have known that his actions, nature, even though official in employment. pro- or This is intended to violate rights would constitutional or employees tect officers or maliciously who injury, intends cause liability good faith judgment immunity. has no legally environment. calls uncertain “discretionary” (internal omitted). An merely act is not be- citations deciding judgment cause some is used Therefore, Autry as portends, on the means or used. Howev- method recognizes KRS 75.070 the official immuni er, an act discretionary, even if is there ty by enjoyed firefighters engaged in their immunity if is no it violates constitution- acts; not, however, it should al, statutory, clearly or other established construed to immunity upon confer fire rights, willfully or if it is done or mali- fighters sued in their personal capacity, harm, ciously with intent to or if is such a subsidiary quali turns on with a motive corrupt committed immunity analysis.9 fied official See Au plaintiff bad faith. burden try, 219 S.W.3d at 717.

to show public that the official or em- Here, agent CVFD was an ployee good not acting was faith. state engaging both virtue of its in a If the negligent public acts of officers Berns, government, function essential ministerial, employees are there is no (which at inherently was An immunity. act is ministerial if the governmental as opposed proprietary in absolute, certain, duty imperative, and nature, Yanero, 519) and of a involving specific mere execution act Assembly’s recogni virtue of If designated based on fixed and facts. authority tion of its historical as such. See ministerial acts are then the proper, (“[a] depart KRS 75.070 volunteer fire public officer or employee has official personnel ment and the of each ... shall qualification. Any without act agent be considered an of the Common by public employee done officer or who wealth Kentucky, acting solely and discretionary particular weighing “The distinction between each case after such fac by government employee duties, ministerial acts the nature tors as official’s directly correlated to what he will policymaking to which the acts involve extent enjoy negligent in the event he has been in his professional expertise or the exercise of failing In actions or in to act. addition judgment, likely consequences examining applicable definitions of ‘dis addition, withholding immunity. noting cretionary’ and ‘ministerial’ acts or functions that the distinction between ministerial determining whether an officer’s or em made, discretionary has not acts is often but immune, ployee’s act or function is other fac proved entirely satisfactory, it said has been tors are considered the courts. In this important types point is that certain regard, been it has stated that the determina cars, activity, driving posting of such as warn tion as to whether an official has acted in his ing signs, moving or are the office furniture capacity, or her discretion or and is therefore types activity of for which serves no fixed, immunity, subject entitled to is not to a purpose, types worthwhile while other of ac rule, requires invariable but a instead discern tivities, evaluating reports employ such as or ing inquiry into whether of the contributions performances deciding upon parole ees’ or government par to effective in the release, qualified immunity in warrant at least outweigh perhaps ticular context recur objec importance public order to advance ring harm to individual citizens. Further government tives: effective administered more, that, expressed the view has been in the government 63C skilled officials.” Am.Jur.2d analysis, final a decision as to whether (2008) Employees § public Public and 327 discretionary official’s acts are or min Officers omitted). (internal isterial must determined the facts citations

810 Sumner, 295, v. capacity.”). ing a Maciariello 973 F.2d alone in (4th Cir.1992)). Therefore, Accordingly, to its offi in order extends 298 liability, employees charge complainant who sued their not cers and capacity. Autry, merely allege injury, point 219 S.W.3d at but must to “a official 717; Yanero, at 521- causally also of a see related Violation constitution- Thus, instance, to present al, clearly in the statutory, or other established ” Sloas, in his extent that Chief Clark was sued 201 right,’ (quoting S.W.3d 475 enjoys Yanero, 523), he official immuni capacity produce 65 S.W.3d at some that the action was not ty- proof faith,” “good at 717. Autry, Here, cor Appeals the Court There often clear distinction between rectly noted that Clark was named Chief negligent of a act and proof proof to the suit both his official and individu prompted bad it. faith he capacities. capacity al In his officiаl Thus, not engaged Clark was Chief However, Appeals the Court of immune. Appellants ministerial function and also the record below was believed brought any allegations not forth of bad insofar it to articulate insufficient as failed such, faith. court proper As the trial was how for what precisely and actions/omis in its ruling Appellees CR 12.02 motion negli allegedly personally was sions Clark negligence to dismiss this action. Thus, noted, previously as the court gent. to the trial court remanded matter timely and of immu- Judicious resolution such further determinations. nity purpose claims bears a twofold particular importance social in ensuring brief, their pleadings Ap- and government agents and officials are allege argue that Clark pellees and Chief needlessly protracted not ensnared in liti- negligent was because CVFD lacked suffi gation preventing incurrence of equipment personnel cient combat trial expense parties. excessive both not the fire and Clark did seek assistance expenses These social costs include the until neighboring departments litigation, diversion of official en- However, it was too late. should be noted issues, ergy from pressing public by a judgment that a call fire chief as to of able from ac- how, assistance, deterrence citizens with what what ceptance public Finally, office. there extinguish very manner to a fire is the danger of being that fear sued will discretionary of a definition act. More the ardor of all but the most over, dampen fight a decision to how to resolute, irresponsible [pub- most necessarily subsequent does not rendеr de officials], in unflinching discharge lic 57 Am. terminations ministerial. See School, their duties. Municipal, County, Jur.2d 454; City § Liability State Tort see also Britton, 574, v. U.S. Crawford-El Cataldi, Hammond N.E.2d n. S.Ct. L.Ed.2d 759 (Ind.Ct.App.1983). (1998) (internal omitted). citation Therefore, recognized part recognizing that Chief parcel to the offi acts were qualified discretionary scheme Clark’s and that allegation, public suggestion, cial is the notion that there is no or “ faith, not his was in officials will be held liable ‘bad decision Clark was bad ” immunity in guesses gray County qualified in areas.’ Rowan entitled his Sloas, (quot- (Ky.2006) capacity. individual 95.830(2) fighters

KRS would have been immune to the they extent were sued in their official ca- Moving now to the constitutionali Therefore, pacity. though Happy does not 95.830(2), Appeals ty of KRS Court expressly much, indicate as it must be recognized rely that the trial court did not presumed predecessor that our Court was decision, in upon rendering the statute its troubled about extending immunity to fire- principally nor was the statute addressed in fighters personal their capacity for min- Yet, it appeal. employed the rationale actions, isterial i.e. actions that involve (which Happy struck down an earlier merely following through on the orders numeration) bearing statute the same in others or executing duty preexist- under determining present version of facts, ing and accordingly struck down the 95.830(2) KRS was unconstitutional. We Sloas, statute for that reason. Cf. disagree for reasons that the statute does 478; S.W.3d at Yanero 65 S.W.3d at 522. jural rights. not offend However, in Happy Court also 95.830(2) The former version of KRS premised its in finding, part, on the conclu- stated: sion that provision jural violated city Neither the nor its officers or em- rights. It does Ky. § not. Const. any be liable in ployees shall manner on states, “the General Assembly shall have account of the apparatus use of the at no power to limit the amount to be recov- any point corporate outside of the limits injuries death, ered for in resulting or for city. apparatus of the The shall be injuries person or property.” This sec- in employed deemed to be the exercise tion has since come to interpreted as governmental city. of a function of the meaning legislature may not take 95.830(2) present The version of KRS away a cause of action which existed as of states: inclusion this section into Ken- constitution, tucky’s city

The which was in shall not be liable man- ratified 1891. ner on account of the appara- use of the any point corporate tus at outside (13 Bush) Greenwood, In Ky. city. apparatus

limits of the The shall *2, 226 at our recognized city courts that a be deemed to be employed the exer- could not be liable for the negligence of its cise of a function of the Thus, firefighters. no cause of action ex- city. against city isted negligent for the acts primary such, at firefighters distinction between the stat- that time. As 95.830(2),in grant present utes is the city offi- former manifes- tation, statute, away does not take employees right cers and the former to suit whereas, present enjoyed by citizenry statute limits immu- 1891 and does nity only. Ky. Thus, § to the not offend city Const. to the otherwise, says extent Happy Happy, principal justification for incorrect. rendering the former version of KRS 95.830(2) unconstitutional was that it at- Haney compel Nor does a different con- clusion, tempted city to confer officers Haney departed only pre- employees in their personal capacity. vious common law decisions of this Court. (“We Happy, Haney, See 330 S.W.2d at 414. At the See must enjoyed time of the decision change cities still make a choice as to whether the Thus, municipal immunity. as the ‍‌​‌​‌‌​‌‌‌‌‌​​​​​‌‌‌​‌​​‌‌​​‌‌‌​​‌‌​​‌‌​‌‌​​‌​‌​‍such a rule [concerning municipal Court immuni- noted, Appeals correctly municipal ty] legislature fire- should be made that fall fighters departments of the court and fire majority [in us. The V.T.C. Harlan, Lines, to the City lending Inc. v. 313 S.W.2d short in their efforts of aid that (Ky.1957)] change public. Truly, entirely plausible it is believe[d] legislative many persons longer itself to discretion such would no contin- addressefd] only that we must content ourselves ue to volunteer their services in this en- with of the rule which we have deavor and that these institutions as a criticism survive, think in created. We we were incorrect whole would be unable to mone- [previously] taking position. tarily, litigation. Extrapo- such the effects of very upon which an atti- conjecture foundation such late this further and one must very tude is based is not a solid one. this pause danger We but to see real poses public no reason to believe that the members of to the in both actual and legislature approve existing all com- financial terms. actions; concerning mon law tort rules 95.830(2) Further, we also find KRS fact, many body, members of that when reasons, be constitutional. For these we acting capacities lawyers, in individual hereby reverse the decision of the Court of forceably have rather indicаted in [sic] Appeals and affirm the decision of the petitions briefs that rehearing they Court, albeit, Grayson in- Circuit some do not. It seems to that an equally us stances, for different reasons. assumption reasonable legisla- might expect ture courts themselves VENTERS, J., sitting. All concurs unjust judicial- correct an rule which was separate opinion. (internal omitted)). ly quotations created.” MINTON, C.J., only concurs in result Haney attempt did not to assert con- by separate opinion, in which right stitutional of this Court to override SCHRODER, JJ., CUNNINGHAM i.e., legislature’s prerogative, that of join. legislative § power. Ky. Const.

ABRAMSON, J., only concurs result IV. CONCLUSION by separate opinion. sum, we hold KRS 75.070 constitu- NOBLE, J., only. concurs result a permissible recognition, by

tional as Assembly, VENTERS, Justice, immu- Concurring: nity departments of fire volunteer opinion. I concur with Justice Scott’s departments; to fire- extending already At the risk of fighters representative sued in their capac- I lengthy opinions, series of submit that and, ity; consequently, qualified official regardless the Ap- issue firefighters per- sued their pellee’s complaint does not a claim state capacity sonal engaged good but faith granted. only which relief Its discretionary functions. asserting liability basis for is the claim observation,

As a matter of Appellants negligently expe- cannot be “failed to otherwise, extinguish overlooked that were we to the fire” ditiously Appellee’s hold very survival profession, of a vital We are informed Appellee’s business. itself, which predates argument only the Commonwealth at oral counsel act significantly would be question. Caneyville called into or omission of the VFD deemed Onе momentarily pause must but to con- that it negligent Appellees was lacked sider the substantial ramifications of sufficient manpower equipment as- to de- sessing financial on volunteer fire- feat the blaze. The same could be said of any fire any department eliminate, where Chief Clark. And I would or at reduce, damaged. allega- There is no least property arbitrary differentiations grown that have Caneyville up tion that members VFD this Court around the concept immunity any injury damage Appellee, and its caused various (e.g., official, sovereign, subsets qualified the fire. A beyond damage caused etc.) official, and the various tests department not insure that we property does formulated this area over losses, years duty owners from fire and it has no (e.g., premising qualified official immunity property property. to a owner to save his of a state actor based upon whether the nothing The record before us consists of question acts in were ministerial or discre- complaint, more than the the motion to nature). tionary in dismiss, the trial ruling, court’s and the appellate pleadings. No answer was even Commonwealth, speaking through scrap jural rights filed. We should not Assembly, the General is forbidden by Sec- major doctrine or undertake a re-evalua- tion of our Constitution from acting arbi- governmental immunity tion of on what I trarily lending (ie., immunity its is an insufficient claim perceive and an may Commonwealth not lend its immunity exceedingly sparse depart- record. A fire actors). to non-state But absent some failing, ment is not liable for due to its lack specific prohibition, constitutional I believe equipment manpower, “expedi- Assembly if, General is free to declare tiously extinguish fire.” when, or how the Commonwealth lends its immunity to its arms agents. With

MINTON, Justice, Concurring in Chief general mind, those principles in I turn to Only: Result the facts of this case. majority’s

I concur with the conclusion precedent, Under our current a govern- enjoys immunity CVFD because it mental employee qualified receives performing governmental function and immunity for his or her discretionary acts not a proprietary function. Yanero v. but receives no immunity perform- for the Davis, (Ky.2001). 520-21 I ance of ministerial acts. Id. at 522. So it agree also with result reached possible for the employee of an arm of majority in neither Chief Clark nor personal Commonwealth to have liabil- City Caneyville be liable in will this ity of, scope actions taken in the and in action, I agree majori- but do not with the of, furtherance the employee’s job per- ty’s methodology reasoning. formance. majority, Unlike the I believe Assembly the General power has the otherwise, Immunity, sovereign and grant immunity to state actors in their law, been made into difficult area of the fact, capacity. individual I believe the full of rules with subsets. Before delving just did in KRS case, into the details of I this feel com- 75.070(1). pelled say that we should endeavor to 75.070(1) judge-made drain swamp. provides, this Said sim- part, in relevant ply, my view of is this: that a “volunteer fire department and [its] ..., enjoys Commonwealth inherent ... personnel answering any fire sovereign virtue of its status as a state. alarms ... shall be an agent considered such, As the Commonwealth choose to the Kentucky, Commonwealth of act- lend agеnts, ing solely its arms and alone in a agents organi- capacity, whether those arms and and ... shall not be liable in zations like the CVFD or individuals like damages omission or act of com- 75.070(1) My me negligence answering reading mission or while an causes ” added.) Assembly to conclude that the General (Emphasis alarm.... The stat grant immunity depart to to fire intended language and straightforward ute is uses employees to the same extent en ment enough to demonstrate the General broad joyed by departments themselves. So Assembly’s provide intent to as much im enjoys im I would hold that Chief Clark munity protection possible, and both to munity in both his official and individual departments employees and to their capacity. although And overruled answering majority fire alarms. But the Yanero, precedent our once followed that the statute to limit construes line precise reasoning. Franklin Coun similarly Chief Clark and situated fire Malone, 195, v. ty, Kentucky 957 S.W.2d fighters capacities in their official and (“As (Ky.1997) long police as the offi the firefighters’ holds that individual-ca scope authority cer within the acts pacity liability depends upon whether the office, gov the actions are those of the question discretionary acts were or min ernment and the officer is entitled to the isterial. The artificial distinction between immunity....”). same discretionary ap and ministerial functions My contrary conclusion runs to our pears nowhere in the of KRS wording precedent. particularly, my More conclu- 75.070(1). I majority So believe the regarding sion Chief Clark’s runs judicially effectively amended the statute headlong jural into the often-cited rights provide that fire deрartments and the 14,1054,11 theory, under which Sections and personnel departments of fire are not lia 24112 of our Constitution in damages “any ble omission or act of jointly interpreted “any to mean that com- or negligence answering commission while right existing prior mon law of action an alarm provided that the omission or act adoption of the 1891 Constitution is or negligence commission is a discre sacrosanct and cannot be abolished.” tionary, not ministerial act.” I refuse to Wilson, Williams graft such a restriction on an otherwise J., (Ky.1998) (Cooper, dissenting). But I clear statute. Beckham v. Board Edu jural rights theory consider the abe cation County, 873 S.W.2d judicially legal of Jefferson created fiction to which we (“[We (Ky.1994) liberty not at are] Rather, longer cling. should no as Profes- legislative to add or subtract from enact declared, sor Thomas convincingly Lewis meaning ment or to discover not reason jural rights “the formal doctrine is founded used.”). ably ascertainable from language misconception Kentucky’s on a provides person Section courts shall Whenever the death of a shall "[a]Il result open, every person injury injury by negligence done from an inflicted or lands, act, then, case, goods, person reputation, him in his wrongful every such dam- law, remedy by death, shall have due ages course may be recovered for such sale, right justice administered without persons corporations causing so delay.” law, denial or provided same. Until otherwise damages recover action to such shall in all provides prosecuted by personal repre- 11. Section 54 cases be ”[t]he power person. shall have no to limit the sentative of the deceased The Gen- injuries resulting Assembly may provide amount to be recovered for eral how recov- death, injuries person proper- or for ery go belong; shall to whom and until ty." made, provision such the same shall form personal part of the estate of the deceased provides person. 12. Section 241 that: By It be abandoned.” at 523-24. specifically stating should [Constitution. Lewis, Rights Jural firefighters Thomas P. Under KRS 75.070 that are not Kentucky’s “any” Realities liable for acts that during Constitution: occur Myth, Ky.L.J. duties, 985 course of their firefighting Grounded I con- (1991-92). clude that the Assembly General ex- has pressed its intention completely to immu- jural rights theory appeared The in first nize similarly Chief Clark and all situated Johnson, in Kentucky Ludwig 1932. v. firefighters. majority But the in Happy, (1932). 243 Ky. 347 But proceeding the jural rights theory, under the case that has the most direct bearing essentially Assembly held that the General on the at one hand dates to 1959. That authority lacked the to refuse to waive the potential case involved the immunity of state the Actually, actors. employee municipal of an of fire depart- a Happy court went so far as to hold that Erwin, Happy ment. 330 S.W.2d 412 the elected representatives of the of people (Ky.1959). it did Although expressly not this Commonwealth—the General Assem- use “jural rights,” majority the term a of bly declare, power the as a predecessor our in Happy court concluded —lacked public policy, matter of public that ser- Assembly that the lacked General the con- vants are immune suit. power stitutional to enact a that statute provided employee that a city could not be Specifically, Happy opined the as court liable for a fire operating apparatus out- “It argued follows: of city side at Specif- the limits. Id. 413-14. public public servants is matter policy ically, predecessor opined our court that for legislature the to determine. Howev- the “[cjlearly violates statute sections 14 er, public policy legislature the of the can- (and Kentucky and 54 Constitution not supersede public policy peo- would violate 241 if section death were ple expressed of this Commonwealth involved.)” Following Id. logic at 413. their Constitution.” 330 S.W.2d at 414. Happy would lead to the conclusion But convincingly as Professor Lewis has i.e., by reached majority this case— argued, jural “the formal doctrine is rights Assembly that the General not could con- Kentucky’s on a misconception founded stitutionally provided enact statute that Lewis, Ky.L.J. 1891 constitution.” similarly that Clark all Chief and situated Although opin- I will not belabor this firefighters are in their immune individual ion recapping the results his scholar- capacities for both discretionary and minis- research, ly convincing Professor Lew- terial I place acts. But because no stock history is traces the adoption jural rights theory, in the I conclude that 14, 54, Kentucky Sections and 241 of the Happy erroneously was decided and Constitution and arrives at the conclusion should be overruled. that the framers of our did Constitution enjoys Commonwealth not tort intend all laws extant in words, simply as a history virtue of its existence sover- to be inviolable. other state; eign the General caused Profеssor Lewis that to declare nonsense, governmental body jural constitutionally rights theory opin- au- was an if, when, thorized to determine ion how shared former Justice William Coo- Yanero, per.13 that will waived. we Tellingly, have been cited Williams, Constitution], (Cooper, 13. See 972 S.W.2d at 275 set [of and 241 J., (“[T]he dissenting) analysis historical forth in ... reveals Professor Lewis's article origins purposes implication not Sections even that those sections power, that instead recognize refused to Professor Lewis’s disputes

nothing that then, jural cling to the fictitious preferring cling do we Why, scholastic research. no theory theory. basis rights legal Accordingly, I history the law? the General recognizing I also see that along with all the Happy, concluded wide-reaching power this Assembly’s and suc- jural preceded cases that rights potential area creates abuse it, unsupportable. ceed public deci- policy result unwise well article, to Professor Lewis’s Referring public poli- sions. But formulation of memorably opined Cooper former Justice unwise, the sole cy, whether wise more less nothing “is nor jural rights Assembly, not the province of aof traditional judicial usurpation than a Williams, judicial 972 S.W.2d branch. See Williams, legislative prerogative.” J., (Cooper, dissenting). at 275 J., I (Cooper, dissenting). S.W.2d at my regarding of conclusions Application of ourselves agree. should disabuse We leads inevit- jural rights theory to the the pow- return jural theory and the rights the 75.070(1), that under KRS able conclusion of public policy the area er to “formulate per- for actions Chief Clark has Assembly. to the General tort law” scope employ- within the of his formed J., Williams, (Cooper, at 275 972 S.W.2d ment, regardless of whether those actions short, abdicate we should dissenting). discretionary. Although are ministerial or “[w]e, that like public policy the crown I agree reasoning, I its do do not with placed upon ... our own Bonaparte, have conclu- majority’s with the ultimate agree And if abdicate our self- head.” Id. we is not liable in either sion that Chief Clark of of control this area imposed position capacity. or his official individual law, that recognize tort will the General we Finally, my approach, City the of under when, if, it may choose and how Assembly extinguished would be Caneyville’s Be- actors. will waive for state nor Clark because neither CVFD Chief in the of KRS nothing cause there is words potential liability. any would 75.070(1) intent that evidences an to waive City also of majority concludes that any immunity oppo- for Chief Clark—-the But Caneyville should not be liable. since site, fact, appears removal —then reasoning than that of the my is different theory leaves no jural rights the fallacious I be- briefly why I will address majority, enjoying im- impediment to Chief Clark’s City not be lieve the should liable. munity capacity, regard- in his individual question under- less of whether acts dec predecessor court overturned Our are deemed lying complaint the Greens’ when precedent it declared ades discretionary. ministerial or public municipalities that policy grounds Haney longer enjoy immunity. no v. could abolishing jural that recognize I (Ky. 386 S.W.2d 738 City Lexington, in the theory will result rights logically believe, however, 1964). strongly I Assembly having the discretion Assembly the General employees “exempt public all officers body public рolicy that should make any type liability.” Happy, municipalities, as to whether But decision S.W.2d at 414. the General are, all, closely governed by simply all after along. had We have power legisla- respect cy to tort law from the intended with that the framers interrelated them, separately or judiciary.”). all of read ture to the public poli- together, power over to transform Assembly,14 enjoy correctly the General should not While Justice Venters controversy whatsoever and thus discus- 1985) J., (Wintersheimer, concurring). municipal immunity, sions of jural rights Therefore, I leav Haney, would overrule and, indeed, the constitutionality of KRS ing the matter of municipal immunity from beyond 95.830 are the scope of the contro- Assembly. tort to General versy view, my before this In Court. The Assembly expressly General county-authorized is a taxing CVFD dis- 75.070(1) stated KRS a municipality that trict and whether light viewed that not damages “shall be liable in any through “agent of the Commonwealth” omission or act negligence” occurring status accorded it in KRS 75.070 it has answering while fire alarm. I be- And sovereign immunity. majority is cor- lieve we must defer to the General Assem- rect Chief Clark in his official capacity bly’s policy municipalities, decision that is entitled to same as the City Caneyville, such as the not should capacity CVFD. Discussions of individual damages be liable in in cases like the one qualified claims and the at hand. doctrine, view, again my beyond are scope discussed, controversy the Ap- this because For reasons I with concur result, pellees capaci- did not state individual majority’s respect- ultimate but sum, ty against claims Clark. I Chief fully disagree reasoning. with its majority believe that is correct properly the trial court dismissed case SCHRODER, JJ., CUNNINGHAM and I disagree but with its rationale. join.

ABRAMSON, Justice, Concurring In Only:

Result

I respectfully concur in result only. necessary incorporate 14. Section 156a of the proceedings Constitution (KRS 81.050) provides Assembly "may pro- city that the General and has classified cites into Therefore, government, vide for the ... creation func- it is six classes. manifest tions, and Assembly’slegislative fingerprints officers of Under cities." its con- classification, creation, duties, authority, stitutional has, the General all over the example, designating powers enacted statutes cities. notes political that the record us afforded other sub before is “exceedingly Caneyville sparse,” the agents Volunteer Fire De- divisions Commonwealth. partment’s representation to this Court re- Our learned former Don colleague, Justice garding legal status has been unchal- Wintersheimer, well ald said it when he lenged. ‍‌​‌​‌‌​‌‌‌‌‌​​​​​‌‌‌​‌​​‌‌​​‌‌‌​​‌‌​​‌‌​‌‌​​‌​‌​‍The CVFD notes that “contrary opined “[mjunicipal immunity is close to the Appellees’ assertion that [CVFD] ly sovereign immunity, interwoven with agent the city, volunteer fire dis- consider them exer separately is an through tricts are created special taxing meaning cise in inequality[,]” that “[u]lti- County up districts set under KRS mately the as decision to whether a munic Thus, 75.010 and KRS agen- 65.182. these ipality responsible should be in tort for the cies are appropriately more characterized to provide proper failure services or the agents county protected provision of such services a negligent sovereign immunity.” (emphasis in the fashion is best left to the Kentucky Gener original). Indeed, say fair Co., Assembly....” al Gas Service Inc. City Caneyville legal has no role in this London, City (Ky.

Case Details

Case Name: Caneyville Volunteer Fire Department v. Green's Motorcycle Salvage, Inc.

Court Name: Kentucky Supreme Court

Date Published: Jun 25, 2009

Citation: 286 S.W.3d 790

Docket Number: 2007-SC-000517-DG

Court Abbreviation: Ky.