Louisville & Jefferson County Metropolitan Sewer District v. Simpson

730 S.W.2d 939, 1987 Ky. LEXIS 211

• Court: Kentucky Supreme Court
• Decided: April 30, 1987
• Status: Published

Opinions

STEPHENSON, Justice.

The trial court granted the Louisville and Jefferson County Metropolitan Sewer District a partial summary judgment on the basis of sovereign immunity. The Court of Appeals reversed for a trial on the merits. We granted discretionary review and reverse the decision of the Court of Appeals.

The Metropolitan Sewer District maintains storm and sanitary sewer facilities for the City of Louisville and Jefferson County. The District was created pursuant to KRS 76.010 which provides:

In the interest of the public health and for the purpose of providing adequate sewer and drainage facilities in and around each city of the first and second classes and in each county containing such city, there may be created and established a joint metropolitan sewer district under the provisions of KRS 76.010 to 76.210, having the powers, duties and functions as herein prescribed, to be known by and under the name of. (Name or city of the first or second class) and.(Name of county) metropolitan sewer district, which district under that name shall be a public body corporate, and political subdivision, with power to adopt, use, and alter at its pleasure a corporate seal, sue and be sued, contract and be contracted with, and in other ways to act as a natural person, within the purview of KRS 76.010 to 76.210. (Enact. Acts 1946, ch. 104, § 1; 1968, ch. 152, § 50.)

In accordance with the provisions of KRS 76.090(2), the District finances its public health responsibilities through user charges approved by both the county and the city. It is governed by a Board jointly appointed by the county and the city under authority of KRS 76.170.

The District constructed a facility in southwest Jefferson County with sluice gates which open to allow water to be diverted to the Ohio River during heavy rainfall. This lawsuit was occasioned by flooding of appellees’ property when the sluice gates failed to open after a heavy rainfall. The appellees allege that the District negligently designed, maintained, and operated the sluice gates, the result of which caused damage to their property by flood waters. The trial court dismissed the claims of the appellees against the District on the basis of sovereign immunity. The Court of Appeals reversed for a trial on the merits, relying upon Gas Service Co., Inc. v. City of London, Ky., 687 S.W.2d 144 (1985). We are of the opinion that the holding in Gas Service does not apply to the present case. Gas Service held that a city (municipal corporation) is no longer immune from suit for tort liability. The line of cases overruled in Gas Service involved cities. The District here is not a city. In Gnau v. Louisville and Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961), we held that the District was an agency of the state with the immunity of the Commonwealth. Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967), held that Jefferson County is a political subdivision of the Commonwealth and, as such, is an arm of the state government and that it, too, is clothed in sovereign immunity.

The legislature, by statute, has declared the District to be a political subdivision. It is, at least, partially an arm of the county. Whatever the District may be, it is not a city, and we are of the opinion Gas Service should not be extended to cover the District and strip it of immunity to tort liability.

As a matter of policy, the long-standing immunity of the District will not be disturbed by this court in the absence of a change in policy by the legislature.

The decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.

STEPHENS, C.J., and GANT, STEPHENSON and VANCE, JJ., concur. LAMBERT, LEIBSON and WINTERSHEIMER, JJ., dissent and file separate dissenting opinions.