RENDERED: NOVEMBER 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-1536-MR
LAURA MCCARTY AS THE ADMINISTRATRIX OF THE ESTATE OF LEAH CARTER APPELLANT
APPEAL FROM MONROE CIRCUIT COURT v. HONORABLE DAVID L. WILLIAMS, JUDGE ACTION NO. 19-CI-00080
JAMES WILLETT AND SCOTT WILLETT AS CO-EXECUTORS OF THE ESTATE OF TOM ROBERT WILLETT, III; RICKY BARTLEY, ROGER DECKARD, ALONZO FORD, KAREN GORDON, MITCHELL PAGE, JAIME VEACH, RICKY GRAVES, AND MARK WILLIAMS, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS MONROE COUNTY MAGISTRATES; LARRY GRAVES, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF THE COUNTY ROADS OF MONROE COUNTY; MONROE COUNTY FISCAL COURT; ARNOLD CONSULTING SERVICES, INC.; AND QK4, INC. APPELLEES OPINION AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE: CETRULO, KAREM, AND MCNEILL, JUDGES.
KAREM, JUDGE: Laura McCarty, as the Administratrix of the Estate of Leah
Carter (“the Estate”), appeals from the Monroe Circuit Court’s findings of fact,
conclusions of law, and order granting summary judgment. McCarty’s daughter,
Leah Carter, drowned after flood waters swept her car from a bridge in Monroe
County. The Estate brought a wrongful death suit against multiple defendants,
including the Monroe County Judge Executive, several members of the Monroe
County Fiscal Court, the Monroe County road supervisor, and the two engineering
companies who designed the bridge. The trial court held that the Monroe County
defendants were entitled to legislative and qualified official immunity. It further
held that the engineering firms were protected by the county’s sovereign immunity
and by qualified official immunity, and that the removal of a portion of the
guardrail on the bridge was a superseding act that absolved them of any potential
liability. Upon careful review, we affirm in part, we reverse in part the grant of
summary judgment, and remand for further proceedings.
-2- BACKGROUND FACTS
In 2012, Monroe County received a $500,000 HUD1 grant to repair
and improve county roads that had been damaged in flooding. The county decided
to use most of the funds to replace the Lyons Road ford over the East Fork of the
Barren River. The ford, which consisted of several pipes covered with gravel,
flooded when it rained and had been deemed unsafe. The Monroe County Fiscal
Court held a special meeting to consider three different consulting firms to oversee
the construction of the bridge; they chose Arnold Consulting Engineering Services,
Inc. (“ACES”). The fiscal court thereafter entered into a contract with ACES to
manage the project. ACES obtained the necessary permits from the Army Corps
of Engineers and the Kentucky Division of Water, performed the surveying and the
hydrologic modeling, and reviewed the bids submitted for construction. ACES
designed the road approaches to the bridge and sub-contracted with QK4, Inc.
(“QK4”) to design the actual bridge structure. Do-All Construction was hired to
build the bridge.
Kent Gilley, the engineer who designed and coordinated the bridge
project for ACES, testified in his deposition that the height of the bridge was
limited by the county’s budget. He explained that constructing a bridge high
enough to withstand a 100-year flood event would have cost $2 million to $3
1 (Department of) Housing and Urban Development.
-3- million and that even a bridge costing $1 million would have been overtopped with
water. ACES provided the fiscal court with several less expensive options. The
County Judge Executive at the time, Tommy Willett, selected a design for a two-
lane prestressed box beam bridge that could possibly withstand a two or five-year
flood event.
Gilley determined where the guardrails would be placed on the
approaches to the bridge. He explained that the guardrail on the right side was
extended to prevent cars from exiting outside of the curve where the stream
widened on the downstream end of the bridge. He testified that this was its
function during normal conditions and that the guardrails were not intended or
designed to keep a motor vehicle on the bridge during flood conditions. He
explained that the bridge was not designed to be driven over at all during flood
events and that this was why advanced warning signs, advising motorists not to
cross in flood conditions, were placed on both ends of the approaches to the bridge.
The plans for the bridge provided for three permanent signs to be
installed on the approach to the bridge: “Flood Area Ahead,” placed at 750 feet
before the bridge; “Impassable During High Water” at 550 feet before the bridge;
and “Do Not Enter When Flooded” at 200 feet before the bridge.
Jeff Arnold, the president of ACES, which he founded in 2006,
testified that the Kentucky Transportation Cabinet had been one of his company’s
-4- bigger clients until three or four years before; more recently, his clients included
the developer of the Dollar General Stores and Realty Link, a company located in
Greenwell, South Carolina, which performs commercial, retail, and residential
work.
Like Gilley, Arnold testified that the Lyons Road bridge was not
designed to be driven over by motorists during flood conditions and that the
guardrails on the bridge were not designed to keep a motor vehicle on the bridge
during flood conditions.
Roger Wade, the chief structural engineer at QK4 who performed the
structural design work on the bridge itself, was asked the following question in his
deposition: “Are guardrails designed and installed on bridges to keep motorists on
the road when the motorist may attempt to pass when water is over the bridge? Is
that the intent or purpose of the guardrails?” He responded, “What I would say is
the intent is to protect the motorists from when they impact, to keep them on the
bridge. I don’t know how – if water is included in that analysis. I’ve never done
one where water was included in the analysis of the impact.” He was then asked,
“If water were over the guardrails, would that keep a motorist from passing – or
from washing off the bridge?” He replied, “It would not.”
Evidence was elicited that modifications were made to the design of
the bridge during construction that were not approved by ACES. Changes were
-5- made to the vertical grade of the bridge and the materials used on the bridge; for
example, ACES’s design called for sloped rock abutments but the bridge was built
using sloped concrete abutments. ACES did not have adequate funding to perform
periodic inspections and consequently the county road supervisor, who was not an
engineer, supervised the construction. Neither ACES nor QK4 had any
involvement with the bridge after it was completed in 2014.
Soon after the completion of the bridge, the county began receiving
complaints that debris and trash were collecting in the guardrail and preventing
water from flowing through. According to Gilley, he had anticipated this problem
and feared that debris would get trapped by the guardrail and damage it. The
county road supervisor had to employ his road crew with backhoes and other heavy
equipment to remove and haul off the debris. This occurred almost every time it
rained and resulted in the road being closed on multiple occasions.
At some point between 2015 and 2017, Willett, the County Judge
Executive at that time, decided that forty feet of guardrail would be removed on the
east approach to the bridge to allow the debris to flow through more freely. Willett
claimed he spoke with Magistrate Alonzo Ford about removing the guardrail,
although Ford did not recall the conversation. Willett did not consult ACES or
QK4, the Transportation Cabinet, or the Army Corps of Engineers regarding the
removal of the guardrail. The road supervisor and his crew shortened the guardrail
-6- by approximately forty feet. Gilley testified that the county officials did not need
his approval to remove that portion of the guardrail, but, if they had consulted him,
he would have told them not to do so.
On December 31, 2018, Leah Carter, who was nineteen years of age,
left her parents’ home at approximately 6:30 p.m. to have New Year’s Eve dinner
with her boyfriend’s family. The accident report states that it had rained that day
and the Lyons Road bridge was flooded. As she drove across the bridge, her car
was carried off the bridge by flood waters. She was able to place distress calls to
911 and to her mother, but first responders were unable to find her or her vehicle
until five days later. Her cause of death was drowning.
At the time Carter approached the bridge, the sign placed 200 feet
before the bridge reading “Do Not Enter When Flooded” had been removed. It is
not known who removed the sign or exactly when the removal occurred. The two
remaining signs – “Flood Area Ahead” and “Impassable During High Water” –
were affixed to one pole rather than separate poles.
The Estate filed a wrongful death action alleging negligence relating
to the design, construction, and maintenance of the Lyons Road bridge and the
adequacy of the warning signs. The defendants included the Monroe County
Fiscal Court; the Monroe County Judge Executive Tommy Willett in his individual
and official capacity (Willett passed away during the proceedings and James
-7- Willett and Scott Willett as the co-executors of his estate were substituted as
parties); eight Monroe County Fiscal Court representatives, in their individual and
official capacities; the Monroe County Road Supervisor, Larry Graves; Do-All
Construction, Inc., QK4; and ACES. During the course of discovery, the Estate
settled its claims against Do-All Construction and an agreed order was entered
dismissing it as a defendant. The Estate named two additional defendants in its
first amended complaint: Norm Fertig and Michael Vickers, both individually and
in their official capacities as inspectors for QK4, as retained by the Kentucky
Department of Transportation.
On November 29, 2022, the trial court granted summary judgment to
all the remaining defendants with the exception of Fertig and Vickers. It
designated its opinion and order as final and appealable, there being no just cause
for delay, in accordance with Kentucky Rules of Civil Procedure (“CR”) 54.02.
The opinion held that the Monroe Fiscal Court was entitled to sovereign immunity,
and the County Judge Executive, the Fiscal Court members and the road supervisor
were entitled to sovereign immunity in their official capacities and qualified
official immunity in their individual capacities. It further held that the County
Judge Executive and Magistrates were entitled to absolute legislative immunity. As
to ACES and QK4, the trial court held that they were cloaked with the county’s
-8- sovereign immunity and that the removal of the guardrail constituted a superseding
cause that absolved them of any liability.
This appeal by the Estate followed.2
STANDARD OF REVIEW
In reviewing a grant of summary judgment, our inquiry focuses on
“whether the trial court correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as a matter of
law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); CR 56.03. The trial
court is required to view the record “in a light most favorable to the party opposing
the motion for summary judgment and all doubts are to be resolved in his favor.”
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
On the other hand, “a party opposing a properly supported summary judgment
motion cannot defeat it without presenting at least some affirmative evidence
showing that there is a genuine issue of material fact for trial.” Id. at 482. “An
appellate court need not defer to the trial court’s decision on summary judgment
and will review the issue de novo because only legal questions and no factual
findings are involved.” Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705
(Ky. App. 2004).
2 The Estate filed a notice of appeal which included Fertig and Vickers as named appellees. It subsequently filed an amended notice of appeal deleting these names, presumably to reflect the fact that the trial court’s grant of summary judgment did not apply to these defendants.
-9- ANALYSIS
As a preliminary matter, the Estate does not challenge the trial court’s
ruling that the Monroe County Fiscal Court, Judge Executive, Magistrates, and
road supervisor are entitled to sovereign immunity in their official capacities. The
trial court’s judgment is affirmed in this respect.
I. The trial court erred as a matter of law in granting summary judgment to the Judge Executive and Magistrates on the basis of legislative immunity
The trial court ruled that the Monroe County Judge Executive and
Magistrates are entitled to absolute legislative immunity, in their official and
individual capacities. The Estate argues that (1) these appellees waived the
defense of absolute legislative immunity by failing to plead it as an affirmative
defense in a timely manner; (2) absolute legislative immunity does not apply to
county officials; and (3) even if legislative immunity does apply, the actions of
these appellees were not legislative in character.
“As a general rule, a party’s failure to timely assert an affirmative
defense waives that defense . . . unless the circuit court allowed it to be presented
later.” American Founders Bank, Inc. v. Moden Investments, LLC, 432 S.W.3d
715, 722 (Ky. App. 2014) (citing Bowling v. Kentucky Dep’t of Corrections, 301
S.W.3d 478, 485 (Ky. 2009)); CR 8.03).
The Estate filed its complaint on September 27, 2019, and its first
amended complaint on February 21, 2020. The Monroe County appellees did not
-10- raise the affirmative defensive of legislative immunity in their answers. In the
memorandum supporting their motion for summary judgment, filed on September
2, 2021, the Monroe County appellees argued for the first time that they were
entitled to legislative immunity. In its sur-reply filed on October 20, 2021, the
Estate disputed the availability of legislative immunity. The Estate filed a motion
for leave to file its second amended complaint on October 15, 2021. The Monroe
County appellees filed an answer to the second amended complaint on February
28, 2022, asserting the affirmative defense of legislative immunity. The trial
court’s order granting summary judgment was entered on November 29, 2022.
Upon careful consideration, we conclude that the Monroe County
appellees did not waive the affirmative defense of legislative immunity. Although
the defense was only asserted for the first time in their motion for summary
judgment, the Estate was given an adequate opportunity to respond to the assertion
of the defense and the trial court allowed it to do so.
Legislative immunity applies to members of Congress and to
members of the Kentucky General Assembly, under the terms of the United States
Constitution and the Kentucky Constitution.
Legislative immunity is derived from the Speech or Debate clause found in the U.S. Constitution, Article I, Section 6. See also Tenney v. Brandhove, 341 U.S. 367, 372-73, 71 S. Ct. 783, 786, 95 L. Ed. 1019 (1951). The U.S. Supreme Court has determined that the clause immunizes congressmen from suits for either prospective
-11- relief or damages. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502-503, 95 S. Ct. 1813, 1821, 44 L. Ed. 2d 324 (1975). The purpose of this immunity is to insure that the legislative function may be performed independently without fear of outside interference. In other words, to preserve legislative independence, “legislators engaged ‘in the sphere of legitimate legislative activity’ should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.” Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S. Ct. 1425, 1428, 18 L. Ed. 2d 577 (1967) (quoting Tenney, 341 U.S. at 376, 71 S. Ct. at 788).
Similarly, Section 43 of the Kentucky Constitution explicitly protects “any speech or debate” of members of the General Assembly that is made within the confines of the Senate or House of Representatives. Kentucky Revised Statutes (KRS) 83A.060(15), formerly KRS 84.050(5), further states: “For anything said in debate, legislative body members shall be entitled to the same immunities and protections allowed to members of the general assembly.” Thus, our General Assembly intended to grant an absolute privilege to “legislative body members” while performing the functions of the office.
D.F. Bailey, Inc. v. GRW Engineers, Inc., 350 S.W.3d 818, 821 (Ky. App. 2011).
Legislative immunity has been extended to city officials by KRS
83A.060(15), which states: “For anything said in debate, [city] legislative body
members shall be entitled to the same immunities and protections allowed to
members of the General Assembly.”
There is no comparable statute extending legislative immunity to
county officials. The Monroe County appellees rely on Bogan v. Scott-Harris, 523
-12- U.S. 44, 118 S. Ct. 966, 140 L. Ed. 2d 79 (1998), which holds that “[l]ocal
legislators are entitled to absolute immunity from [42 United States Code
(“U.S.C.”)] § 1983 liability for their legislative activities.” 523 U.S. at 54, 118 S.
Ct. at 972. The Bogan Court reasoned that, “[r]egardless of the level of
government, the exercise of legislative discretion should not be inhibited by
judicial interference or distorted by the fear of personal liability.” Id. at 52, 118 S.
Ct. at 971. But Bogan, by its own terms, applies only to federal § 1983 actions, not
to Kentucky tort claims.
Whether county officials are protected by legislative immunity or not,
the defense is not available to the Monroe County Judge Executive and Magistrates
because their actions were not legislative in nature. “[L]egislative immunity
applies if an act is both legislative in form and legislative in substance.” 4th Leaf,
LLC v. City of Grayson, 425 F. Supp. 3d 810, 823 (E.D. Ky. 2019). “Legislative
immunity attaches [only to] actions taken ‘in the sphere of legitimate legislative
activity.’” Bogan, 523 U.S at 54, 118 S. Ct at 972. Recently, the Kentucky
Supreme Court cautioned that legislative immunity is not unlimited:
Broad though the ambit of protection for the legislative sphere has become, it does not cover everything lawmakers do. Legislative immunity does not apply to activities that are casually or incidentally related to legislative affairs but not part of the legislative process itself. For instance, even under the broad scope of the federal speech or debate clause, legislative immunity does not protect the political activities of legislators, nor
-13- does it protect legislators engaged in criminal activity, even if the criminal activity is committed in furtherance of legislative activity.
Stivers v. Beshear, 659 S.W.3d 313, 324 (Ky. 2022) (internal quotation marks and
citations omitted).
The Fiscal Court serves as the legislative body for Monroe County, as
established pursuant to Kentucky Constitution, Section 144 and KRS 67.040 et
seq. but that does not mean that every action or decision its officials take is
legislative in character. See Lincoln Trail Grain Growers Association, Inc. v.
Meade County Fiscal Court, 632 S.W.3d 766, 768 (Ky. App. 2021). In other
words, the Monroe County Judge Executive and Magistrates are not entitled to
legislative immunity simply by virtue of being elected officials.
In the federal context, “[i]t is the defendants’ burden to establish the
existence of absolute legislative immunity.” Canary v. Osborn, 211 F.3d 324, 328
(6th Cir. 2000). The Estate’s claims against the County Judge Executive and
Magistrates concern their alleged failure to get the requisite approval for
modifications of the bridge, to maintain required signage at the bridge, and their
decision to remove a section of the guardrail. These actions or omissions do not
exhibit “all the hallmarks of traditional legislation.” Grayson, 425 F. Supp. 3d at
823. There is no evidence that the Fiscal Court as a body ever discussed any of
these actions or held a formal vote on them. Willett’s decision to remove a portion
-14- of the guardrail was apparently made after an informal, personal conversation with
one of the Magistrates, who did not remember the interchange.
The trial court held that the appellees’ actions were inherently
legislative based on KRS 67.080, which gives the fiscal court the power, among
other things, to “cause the construction, operation, and maintenance of all county
buildings and other structures, grounds, roads and other property[.]” KRS
67.080(2)(b). But these duties are not purely legislative; they are executive and
administrative. The fiscal court exercises legislative and ministerial powers as
well as powers quasi-judicial in their nature. Shelton v. Smith, 284 Ky. 236, 144
S.W.2d 500, 501 (1940). KRS 67.080 does not bestow blanket immunity on the
appellees for every action taken in connection with the construction, operation, or
maintenance of the bridge.
Based on the evidence before us, the County Judge Executive and
Magistrates’ alleged failure to get requisite approval for the modifications of the
bridge, failing to maintain signage at the bridge, and removing a section of the
guardrail do not qualify as legislative acts and, consequently, the trial court erred
as a matter of law in holding that these acts were protected by legislative
immunity.
-15- II. The Monroe County appellees were not entitled to qualified official immunity because the maintenance of the signs and guardrail was a ministerial duty
The Estate argues that the trial court erred in ruling that the Monroe
County appellees were entitled to qualified official immunity in their individual
capacities from the negligence claims stemming from the removal of a portion of
the guardrail on the bridge and failure to maintain the signage leading up to the
bridge.
Qualified official immunity applies to shield only “the negligent
performance by a public officer or employee of (1) discretionary acts or functions,
i.e., those involving the exercise of discretion and judgment, or personal
deliberation, decision, and judgment . . . ; (2) in good faith; and (3) within the
scope of the employee’s authority[.]” Yanero v. Davis, 65 S.W.3d 510, 522 (Ky.
2001) (citations omitted). “[A]t their core, discretionary acts are those involving
quasi-judicial or policy-making decisions.” Marson v. Thomason, 438 S.W.3d
292, 297 (Ky. 2014). Immunity is provided for discretionary acts because the
“courts should not be called upon to pass judgment on policy decisions made by
members of coordinate branches of government in the context of tort actions,
because such actions furnish an inadequate crucible for testing the merits of social,
political or economic policy.” Yanero, 65 S.W.3d at 519.
-16- By contrast, immunity from tort liability is not afforded to
government officials “for the negligent performance of a ministerial act.” Patton
v. Bickford, 529 S.W.3d 717, 724 (Ky. 2016), as modified on denial of rehearing
(Aug. 24, 2017). “[A] duty is ministerial ‘when the officer’s duty is absolute,
certain, and imperative, involving merely execution of a specific act arising from
fixed and designated facts.’” Id. (citation omitted). “[A] government official
performing a ministerial duty does so without particular concern for his own
judgment; . . . the act is ministerial ‘if the employee has no choice but to do the
act.’” Id. at 724 (citations omitted). “Of course, whether a ministerial act was
performed properly, i.e., non-negligently, is a separate question from whether the
act is ministerial, and is usually reserved for a jury.” Marson, 438 S.W.3d at 297.
The trial court ruled that the removal of a portion of the guardrail was
a “judgment call” made in response to numerous complaints about the
accumulation of debris and trash and concluded on that basis that it was a
discretionary act. The trial court further held that the record was clear that
advanced warning signs were present on the date of the accident to warn motorists
not to cross the bridge during heavy rains and, for this reason, the Estate’s claim of
inadequate warning failed as a matter of law.
-17- Under our case law, the removal of the portion of the guardrail and the
failure to replace the missing warning sign were ministerial acts or omissions for
which the Monroe County defendants are not afforded qualified official immunity.
In Estate of Clark ex rel. Mitchell v. Daviess County, 105 S.W.3d 841,
846 (Ky. App. 2003), the Court held that the alleged failure of county employees to
replace a missing highway warning sign was ministerial in nature. If a case
“involves the maintenance or repair of existing sections of roadway, rather than a
decision to erect signs or guardrails on same, such action or inaction may be
considered ministerial.” Hammers v. Plunk, 374 S.W.3d 324, 330 n.3 (Ky. App.
2011). The maintenance of county roads and bridges is ministerial rather than
discretionary. Shearer v. Hall, 399 S.W.2d 701 (Ky. 1965). The Monroe County
defendants had a ministerial duty to maintain the guardrail once it was put in place
and, consequently, they are not entitled to qualified official immunity for claims
relating to its partial removal.
Similarly, they had a ministerial duty to maintain the warning signs
once those signs were put in place. The trial court’s holding that the claim of
inadequate warning fails as a matter of law because the advanced warning signs
were present on the date of the accident does not accurately reflect the evidence in
the record. The “Do Not Enter When Flooded” sign was missing on the date of the
accident and the other two signs were affixed to one pole, rather than to separate
-18- poles placed at different distances from the bridge. The Estate claims that this
arrangement was in violation of the Manual on Uniform Traffic Control Devices
for Streets and Highways, the requirements of the design plans, and the standard of
care for the industry. This argument is supported by the opinions of the Estate’s
expert witnesses. Therefore, the trial court erred in dismissing the claim relating to
the adequacy of the warning signs as a matter of law because genuine issues of
material fact remain about the number and placement of the signs.
III. Private contractors are not entitled to sovereign or qualified immunity simply because they are performing work for a county and QK4 and ACES are not entitled to sovereign immunity under the facts of this case
The Estate challenges the trial court’s ruling that the two private
contractors, ACES and QK4, were entitled to the same immunity as the county
itself. KRS 322.360(1) provides that “Neither the state nor any of its political
subdivisions shall engage in the construction of any public work involving
engineering, unless the plans, specifications, and estimates have been prepared and
the construction executed under the direct supervision of a professional engineer or
a licensed architect.” Because Monroe County does not have its own civil or
structural engineer, due to the scarcity of engineering professionals in rural
counties, it engaged ACES and its subcontractor QK4 to develop the plans,
specifications and estimates for the bridge design. The trial court reasoned that, as
-19- the county’s appointees, ACES and QK4 were entitled to the same sovereign
immunity as the county itself.
In determining whether an entity is an arm, agent, or alter ego of a
county in order to share in its immunity, we consider the origins of the entity and
the nature of the function it carries out. Comair v. Lexington-Fayette Urban
County Airport Corp., 295 S.W.3d 91, 99 (Ky. 2009). For example, in Autry v.
Western Kentucky University, SLF Inc., which owned a dormitory at Western
Kentucky University (“WKU”), was held to be an alter ego of WKU because it
existed only to serve the university and consequently was entitled to share its
immunity. 219 S.W.3d 713 (Ky. 2007). The Court explained, “WKU is a
governmental agency fulfilling the public purpose of higher education by
providing residence halls to its students which it manages and controls. It uses
SLF as an agent to own property for WKU’s purposes. This is all that SLF does.
Thus, while SLF is an incorporated entity, it exists only to serve WKU, and derives
its immunity status through WKU.” Id. at 719.
By contrast, Monroe County did not create ACES or QK4 as a
governmental agency, nor did it designate either of them as the county’s agent or
alter ego. See Shadrick v. Hopkins County, Ky., 805 F.3d 724, 746 (6th Cir. 2015).
These entities are private, for-profit companies that do not exist only to serve
Monroe County. The president of ACES testified that the company has numerous
-20- clients including commercial companies like Dollar General and Realty Link. The
status of ACES and QK4 is analogous to that of Southern Health Partners, Inc.
(“SHP”), a for-profit company providing medical services to jails and detention
centers, including the Hardin County Detention Center (“HCDC”). After an
inmate brought a medical negligence claim against HCDC, this Court held in an
unpublished opinion that SHP and its nurses were not entitled to qualified official
immunity because SHP is a private corporation that operates in twelve different
states and does not exist solely to serve the HCDC and is not its alter ego.
Sietsema v. Adams, No. 2013-CA-001159-MR, 2015 WL 4776304, at *7 (Ky.
App. Aug. 14, 2015), reversed on other grounds by Adams v. Sietsema, 533
S.W.3d 172 (Ky. 2017). The Court’s analysis of SHP’s status, although not of
precedential value, applies equally to ACES and QK4:
SHP was not created by the state of Kentucky or any of its agencies, but is a private, for-profit corporation. Simply because it provides services to a state agent does not automatically entitle it to official immunity. In fact, Kentucky and Federal case law find that an independent contractor who performs services for the government is liable for his own negligence and is “responsible just as he would be on private work.” Taylor v. Westerfield, 233 Ky. 619, 26 S.W.2d 557, 561 (1930). See also Richardson v. McKnight, 521 U.S. 399, 117 S. Ct. 2100, 138 L. Ed. 2d 540 (1997) (prison guards employed by a private company are not entitled to immunity); McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012) (a psychiatrist employed by an independent, non- profit organization who worked part-time for a county prison is not entitled to qualified immunity); Harrison v.
-21- Ash, 539 F.3d 510 (6th Cir. 2008) (nurses employed by a private medical provider to provide medical services in a jail are not entitled to qualified official immunity).
Sietsema, 2015 WL 4776304, at *7. The fact that the county is required by statute
to employ an engineer or architect in the construction of public works does not
extend governmental immunity to that individual or entity; under KRS 441.045,
detention facilities are required to provide medical care for inmates but entities like
SHF which provide these services are not cloaked with governmental immunity.
ACES and QK4 are not entitled to governmental immunity and consequently their
officials are not entitled to qualified official immunity.
ACES argues that it was entitled to summary judgment on other than
immunity grounds. It contends that because it designed the bridge as a reasonable
engineer would under similar circumstances, its design does not violate the
applicable standard of care, and that the standard of care may be relaxed on
projects such as this one where funding is limited. “[A]n expert witness is required
to establish the standard of care in professional negligence cases in Kentucky,
unless the standard is within the general or common knowledge of laypersons.”
Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 686 (Ky. App.
2009). The design of a bridge and its approaches is certainly not within the
common knowledge of laypersons. These factual determinations preclude the
grant of summary judgment to ACES.
-22- QK4 argues that, in addition to being entitled to the same immunity as
the county, it was further cloaked with immunity when the county approved its
structural design. QK4 contends that when the Monroe County Fiscal Court
approved the bridge design, the fiscal court immunized QK4 from any personal
injury claims. It contends that QK4 could not make the legislative decision for the
fiscal court as to which design to implement based on the limited budget available
and that QK4’s design achieved the objectives of supporting traffic and staying
standing during a flood. QK4 argues that there is no evidence of any kind that its
design did not meet Kentucky engineering standards and perform as Monroe
County had intended.
QK4’s argument elides immunity derived from a governmental body
with common law liability for negligence. Its contention that consulting engineers
are protected by “derivative sovereign immunity” based on the “government
contractor defense” is not in our case law. As we have already determined, QK4 is
not entitled to governmental immunity derived from the county. The case upon
which QK4 relies, Rigsby v. Brighton Engineering Company, 464 S.W.2d 279, 281
(Ky. 1970), contains a straightforward negligence analysis that does not extend
sovereign or governmental immunity to the contractor. In designing a bridge for
the Kentucky Department of Highways, Brighton Engineering was required to
comply with the Department’s binding criteria that guardrails would not be
-23- installed around the bridge piers. A motorist and his family were killed when they
struck one of the piers. The Court held that Brighton was not liable for the absence
of guardrails, stating:
The Commonwealth, Department of Highways has a staff of engineers with wide experience and expertise in the design and construction of highways. It had adopted criteria which were binding upon Brighton. It appears a recommendation that guardrails be installed at this point would have been futile as well as contrary to the directions of the Commonwealth. Under these circumstances it cannot be said that Brighton's failure to recommend guardrails was negligent.
Rigsby, 464 S.W.2d at 281.
In McCabe Powers Body Company v. Sharp, 594 S.W.2d 592 (Ky.
1980), another case cited by QK4, a worker was injured after he fell out of the
open side of a cherry picker. He filed a personal injury suit against the
manufacturer, McCabe, alleging that the bucket was unreasonably dangerous.
McCabe had constructed this aerial boom in exact accordance with the specifications of the Kentucky Division of Purchases contained in the invitation to bid. The specifications were detailed and complete with a warning to the bidders that a departure from the specifications would result in no payment and refusal of delivery. The specifications specifically required that the bucket on the boom have one open side. It was through this open side that [the worker] fell when he slumped unconscious in the bucket.
Id. at 593. The Court affirmed the trial court’s grant of summary judgment to
McCabe on negligence principles, not immunity: “We conclude that ordinarily
-24- where a product is manufactured according to plans and specifications furnished by
the buyer and the alleged defect is open and obvious, the manufacturer is protected
from liability for injuries occasioned by use of the product.” Id. QK4 may
certainly invoke this defense against liability, but the fact that QK4 was employed
by ACES, a contractor for the county, does not create a form of derivative
sovereign immunity that absolutely shields QK4 from liability for negligence.
As with ACES, an expert opinion is required in order to determine
whether QK4 performed its work negligently and consequently summary judgment
is not appropriate at this stage. QK4 argues that the structural elements of the
bridge were not “causative” of Leah Carter’s injuries, but this has not been
definitively established. The Estate argues that QK4 designed a bridge that should
have been closed to the traveling public when water overtopped it, yet never
communicated this expectation to those who would be responsible for protecting
the public – the fiscal court, judge executive, and/or county road supervisor.
Whether this argument has merit or not, it creates an issue of material fact which
precludes summary judgment at this stage.
IV. Issues of fact remain as to whether the removal of a portion of the guardrail was a superseding act absolving ACES and QK4 of liability
Finally, the Estate challenges the trial court’s ruling that the removal
of a portion of the guardrail by the county was a superseding act that absolved
ACES and QK4 of any liability for Carter’s death. In the trial court’s view, even if
-25- ACES or QK4 were negligent in any way in their design of the bridge and its
approaches, the removal of the guardrail was a superseding cause absolving them
of any liability. A superseding cause “breaks the chain of causation so that an
otherwise negligent actor is relieved from liability. While the act of a third-party
may be an intervening cause, it is a superseding cause only when the act is
‘extraordinary’ and of an ‘unforeseeable nature.’” Howard v. Spradlin, 562
S.W.3d 281, 287 (Ky. App. 2018) (citation omitted). A superseding cause has the
following characteristics:
1) an act or event that intervenes between the original act and the injury;
2) the intervening act or event must be of independent origin, unassociated with the original act;
3) the intervening act or event must, itself, be capable of bringing about the injury;
4) the intervening act or event must not have been reasonably foreseeable by the original actor;
5) the intervening act or event involves the unforeseen negligence of a third party [one other than the first party original actor or the second party plaintiff] or the intervention of a natural force;
6) the original act must, in itself, be a substantial factor in causing the injury, not a remote cause. The original act must not merely create negligent condition or occasion; the distinction between a legal cause and a mere condition being foreseeability of injury.
-26- Id. (quoting NKC Hospitals, Inc. v. Anthony, 849 S.W.2d 564, 568 (Ky. App.
1993)).
In Howard v. Spradlin, supra, Spradlin frequently left his truck in a
grocery store parking lot after hours. His wife worked at the store and Spradlin
was a friend of the store operators, the Howards. A third party broke into his truck
one night, stole some firearms, ammunition, and a toolbox, then burned the truck to
cover the crime. The grocery store caught fire and the building was destroyed.
The Court held that Spradlin was relieved of any liability: “Even if we assume
Spradlin breached any duty owed to the Howards, the intervening and superseding
intentional or criminal acts of the unknown third-party broke whatever weak chain
of causation the Howards could establish.” Id. at 289. The Spradlin Court held
that the criminal acts of the unknown third party were an intervening and
superseding act because they were not reasonably foreseeable. Id.
The Estate argues that the removal of the guardrail was not a
superseding cause because, unlike the truck break-in and fire, it was reasonably
foreseeable. But the real difficulty here relates to the third characteristic listed
above: the intervening act or event must, itself, be capable of bringing about the
injury. In Spradlin, there was no doubt that the truck fire caused the grocery store
to burn down. In the record before us, issues of material fact remain as to whether
the removal of the guardrail brought about Carter’s injury.
-27- The Estate’s experts opined that the guardrail would have kept
Carter’s car from being swept from the bridge. In his report, Dr. Blackler opined
that
the maximum depths over the bridge during the peak of the storm were less than 3 feet. The guard rail that was cut, was designed to be 2 feet 4 inches tall (2.33 feet). Had this guard rail been in place, it would have been able to keep the vehicle from sliding off the road during overtopping and able to keep the car on the road through the duration of the storm event.
Dr. Dorothy’s report opined that
Guardrails are specifically designed to contain and redirect vehicles under conditions of significantly greater force than would be experienced by a vehicle sliding against the guardrail during an overtopping event. As such, it would clearly have had a positive impact of containing a vehicle on the approach and bridge until water reached a depth sufficient to either topple, slide, or float the vehicle over the guardrail. Since the depth of the water in the subject incident was not sufficient to do this, if the guardrail that had been designed and installed as part of the Lyons Bridge construction had been present at the time of the subject incident, it is more likely than not that Ms. Carter’s vehicle would have been contained on the bridge, allowing the rescue of Ms. Carter in a timely fashion, as opposed to the fatal result that befell Ms. Carter due to the unwarranted removal and foreshortening of the guardrail.
On the other hand, Kent Gilley and Jeff Arnold of ACES testified that
the guardrail was not intended to keep cars on the bridge in the event of a flood.
Roger Wade, the designer of the bridge, had never considered water in his analysis
-28- of the function of the guardrails and testified that if the flood water was over the
guardrails, it would not keep a vehicle from washing off the bridge.
Based on this contradictory evidence, issues of material fact exist as to
whether the removal of the guardrail was a substantial factor in causing Leah
Carter’s death such as to render it an intervening, superseding cause. The trial
court erred in granting summary judgment to ACES and QK4 on this basis.
CONCLUSION
The Monroe County Fiscal Court, County Judge Executive,
Magistrates, and road supervisor are entitled to sovereign immunity in their official
capacities. The County Judge Executive and Magistrates are not entitled to
legislative immunity; the County Judge Executive, the Magistrates, and the County
Road Supervisor are not entitled to qualified official immunity; ACES and QK4
are not entitled to sovereign, governmental, or qualified official immunity; and
finally, disputed issues of material fact remain as to whether a superseding act
absolved ACES and QK4 of potential liability. Consequently, the trial court’s
grant of summary judgment is affirmed in part, reversed in part, and the case is
remanded for further proceedings.
ALL CONCUR.
-29- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES MONROE COUNTY DEFENDANTS : J. Dale Golden Laraclay Parker Charles E. English Jr. Alexandra DeMoss-Campbell Aaron C. Smith Lexington, Kentucky J.A. Sowell Bowling Green, Kentucky
BRIEF FOR APPELLEE ARNOLD CONSULTING AND ENGINEERING SERVICES, INC.:
B. Scott Jones Louisville, Kentucky
BRIEF FOR APPELLEE QK4, INC.:
John D. “Chip” Clay Louisville, Kentucky
-30-