Harry B. O'donnell, IV v. louisville/jefferson County Metro Government

• Court: Court of Appeals of Kentucky
• Decided: January 26, 2023
• Docket: 2021 CA 000330
• Status: Unknown

Opinion

RENDERED: JANUARY 27, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0330-MR

HARRY B. O’DONNELL IV APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NO. 20-CI-004260

LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT APPELLEE

OPINION AFFIRMING

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BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MCNEILL, JUDGES.

MCNEILL, JUDGE: On July 26, 2019, Appellant, Harry O’Donnell IV (Harry),

sustained injuries after he tripped over a defect in a sidewalk owned and controlled

by Appellee, Louisville/Jefferson County Metro Government (LMG). He sued

LMG for negligence. LMG filed a motion for summary judgment on the basis of sovereign immunity, which was granted by the circuit court. Harry now appeals to

this court as a matter of right.

A motion for summary judgment should be granted “if the pleadings,

depositions, answers to interrogatories, stipulations, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” CR1 56.03. “Because no factual issues are involved and only a legal issue is

before the court on the motion for summary judgment, we do not defer to the trial

court and our review is de novo.” Univ. of Louisville v. Sharp, 416 S.W.3d 313,

315 (Ky. App. 2013) (citation omitted). With these standards in mind, we turn to

the applicable law and the facts of the present case.

Harry argues that “LMG does not have sovereign immunity under

existing Kentucky law and precedents as it is a form of City Government.” He

correctly states that the circuit court based its decision in part on

Louisville/Jefferson County Metro Government v. Cowan, 508 S.W.3d 107, 109

(Ky. App. 2016) (observing that LMG is “a classification of county government

and thus an arm of the Commonwealth entitled to sovereign immunity”).

Therefore, Harry asserts that “a threshold issue in this appeal is if this Court can

overrule its own prior precedent in Cowan.” Harry does not contend that the

1 Kentucky Rules of Civil Procedure.

-2- circuit court improperly applied Cowan. Rather, his issue before this Court is that

Cowan was wrongly decided. He specifically argues that only counties are entitled

to sovereign immunity and that because Louisville is a city, the creation of LMG

does not confer immunity on Louisville.2 We acknowledge Harry’s candor to the

Court and his understanding of the value and weight afforded its precedent. And

of course, the Court of Justice is open to good faith arguments that the law should

be changed. Nevertheless, we decline to revisit our holding in Cowan.

LMG is a consolidated local government established by KRS3 Chapter

67C. The General Assembly also expressly endowed LMG with sovereign

immunity. KRS 67C.101(2)(e). At the heart of Harry’s argument, is that these

statutory grants are unconstitutional under the Kentucky Constitution. However,

there is no indication in the record that Harry properly preserved this issue by

notifying the Attorney General of his constitutional challenge. See KRS 418.075.

Therefore, we decline to review Harry’s constitutional challenges. Moreover, our

decision in Cowan was preceded by similar precedent. See Jewish Hospital

Healthcare Services, Inc. v. Louisville/Jefferson County Metro Government, 270

S.W.3d 904, 907 (Ky. App. 2008) (“[LMG] is entitled to sovereign immunity.”);

2 He also argues that LMG cannot be considered a unified government because it did not incorporate all other pre-existing Jefferson County municipalities. 3 Kentucky Revised Statutes.

-3- and Lexington-Fayette Urban County Government v. Smolcic, 142 S.W.3d 128,

132 (Ky. 2004) (holding that the Lexington-Fayette Urban County Government

was entitled to sovereign immunity). Having considered the record and the law,

we affirm the circuit court’s summary judgment.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Harry B. O’Donnell IV Roy C. Denny Louisville, Kentucky Louisville, Kentucky

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