Wsp USA Inc. v. Kristina Ives, Individually

• Court: Kentucky Supreme Court
• Decided: April 23, 2026
• Docket: 2024-SC-0291
• Status: Published

Opinion

RENDERED: APRIL 23, 2026 TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0284-DG

HMB PROFESSIONAL ENGINEERS, APPELLANTS INC.; D. PAUL LINCKS; AND HAWORTH-MEYER-BOLEYN PROFESSIONAL ENGINEERS, INC.

ON REVIEW FROM COURT OF APPEALS V. NOS. 2021-CA-1187, 2021-CA-1223, 2021-CA-1264, 2021-CA-1445, & 2021-CA-1501 FAYETTE CIRCUIT COURT NO. 19-CI-00334

KRISTINA L. IVES, INDIVIDUALLY; APPELLEES KRISTINA L. IVES, AS THE NEXT FRIEND FOR THE MINOR CHILDREN, HIRAM MILLER IVES AND JUNE LELIA IVES; AND KRISTINA L. IVES, AS THE PERSONAL REPRESENTATIVE AND ADMINISTRATRIX OF THE ESTATE OF HIRAM DUDLEY IVES, III

AND

2024-SC-0289-DG

HDR ENGINEERING, INC. AND JAMES APPELLANTS L. GUINN

ON REVIEW FROM COURT OF APPEALS V. NOS. 2021-CA-1187, 2021-CA-1223, 2021-CA-1264, 2021-CA-1445, & 2021-CA-1501 FAYETTE CIRCUIT COURT NO. 19-CI-00334 KRISTINA L. IVES, INDIVIDUALLY; D. APPELLEES PAUL LINCKS; HAWORTH-MEYER- BOLEYN PROFESSIONAL ENGINEERS, INC.; HMB PROFESSIONAL ENGINEERS, INC.; JENNINGS L. COPLEY; KRISTINA IVES, AS THE PERSONAL REPRESENTATIVE AND ADMINISTRATRIX OF THE ESTATE OF HIRAM DUDLEY IVES, III; KRISTINA IVES, AS NEXT FRIEND FOR THE MINOR CHILDREN, HIRAM MILLER IVES AND JUNE LELIA IVES; NECTO ARCHITECTURE, PSC; PARSONS BRINCKERHOFF, INC.; SUSAN ROWLAND SLADE, AS PERSONAL REPRESENTATIVE AND EXECUTRIX OF THE ESTATE OF FRANK STEVEN SLADE; AND WSP USA INC.

2024-SC-0291-DG

WSP USA INC.; PARSONS APPELLANTS BRINCKERHOFF, INC.; AND SUSAN ROWLAND SLADE, AS PERSONAL REPRESENTATIVE AND EXECUTRIX OF THE ESTATE OF FRANK STEVEN SLADE

ON REVIEW FROM COURT OF APPEALS V. NOS. 2021-CA-1187, 2021-CA-1223, 2021-CA-1264, 2021-CA-1445, & 2021-CA-1501 FAYETTE CIRCUIT COURT NO. 19-CI-00334

KRISTINA L. IVES, INDIVIDUALLY; D. APPELLEES PAUL LINCKS; HAWORTH-MEYER- BOLEYN PROFESSIONAL ENGINEERS, INC.; HDR ENGINEERING, INC.; HMB PROFESSIONAL ENGINEERS, INC.;

2 JAMES L. GUINN; JENNINGS L. COPLEY; KRISTINA L. IVES, AS THE NEXT FRIEND FOR THE MINOR CHILDREN, HIRAM MILLER IVES AND JUNE LELIA IVES; KRISTINA L. IVES, AS THE PERSONAL REPRESENTATIVE AND ADMINISTRATRIX OF THE ESTATE OF HIRAM DUDLEY IVES, III; AND NECTO ARCHITECTURE, PSC

2024-SC-0295-DG

HMB PROFESSIONAL ENGINEERS, APPELLANTS INC.; D. PAUL LINCKS; AND HAWORTH-MEYER-BOLEYN PROFESSIONAL ENGINEERS, INC.

ON REVIEW FROM COURT OF APPEALS V. NOS. 2021-CA-1187, 2021-CA-1223, 2021-CA-1264, 2021-CA-1445, & 2021-CA-1501 FAYETTE CIRCUIT COURT NO. 19-CI-00334

JENNINGS L. COPLEY; KRISTINA APPELLEES IVES, AS THE NEXT FRIEND FOR THE MINOR CHILDREN, HIRAM MILLER IVES AND JUNE LELIA IVES; KRISTINA IVES, AS THE PERSONAL REPRESENTATIVE AND ADMINISTRATRIX OF THE ESTATE OF HIRAM DUDLEY IVES, III; KRISTINA L. IVES, INDIVIDUALLY; AND NECTO ARCHITECTURE, PSC

OPINION OF THE COURT BY JUSTICE BISIG

AFFIRMING

3 Jennings Copley II and his business partner, Hiram “Dudley” Ives III,

were traveling on Interstate 65 (I-65) near Hart County when their rental

vehicle hydroplaned and was ultimately struck by a tractor trailer. The

accident killed Ives and seriously injured Copley. Ives’ widow, Kristina, on

behalf of herself, her minor children and her husband’s estate, along with

Copley, sued the engineers who designed the widening of I-65 years prior. Ives

and Copley asserted that the engineers negligently designed the highway,

ultimately causing more water to pool on the roadway and thus increasing the

occurrence of hydroplaning incidents. The three engineering firms that

consulted the Kentucky Transportation Cabinet on the highway design strongly

contested these allegations, asserting that their designs complied with the

governing state and federal standards for highways.

The Fayette Circuit Court granted the engineers’ motion for summary

judgment, determining that they were immune from suit. Further, the trial

court held that the claims were federally preempted. The Court of Appeals

reversed, and the Engineers sought discretionary review in this Court. After

granting discretionary review, considering oral arguments, and carefully

reviewing the record, we affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

For nearly fourteen years, the Kentucky Transportation Cabinet (KYTC)

consulted with several engineering firms to collaboratively design a widened

Interstate 65 (I-65) through Hart, Larue, and Hardin Counties. The KYTC hired

WSP USA, Inc., as its lead engineer on the project. WSP then retained HMB

4 Professional Engineers and HDR Engineering as subconsultants (collectively

referred to as the “Engineers”). Because I-65 is part of the National Highway

System (NHS), the final design plan had to be approved by the Federal Highway

Administration (FHWA) pursuant to federal law that requires that all national

highways meet FHWA design standards and criteria. Kentucky highway

designs must also comply with state standards.

Prior to construction, this portion of I-65 contained two lanes on each

side with a grass median dividing the north and southbound lanes. The

widening project first involved a determination that the new lanes would be

added to I-65 by replacing the grassy median that divided the two sides of the

interstate with a concrete median barrier wall. The Engineers proposed four

alternative designs to the KYTC at the outset of the project: two designs that

involved maintaining the existing grass median, and two designs that involved

adding a concrete barrier to separate the north and southbound lanes. 1 The

project resulted in a fourteen-foot shoulder next to the concrete barrier wall,

three twelve-foot travel lanes, followed by a twelve-foot right shoulder on each

side of I-65. In short, the Engineers’ design widened the highway from four to

six lanes.

Years after construction was complete, Jennings Copley II was driving a

rental car to Lexington from Western Kentucky with his business partner,

1 Factors contributing to the decision to replace the grassy median with a

concrete barrier wall included: (1) less adverse environmental impacts; (2) reduction in right of way impact; (3) fewer utility impacts; (4) lower construction cost; and (5) reduction in potential for median crossovers and head-on collisions. 5 Hiram “Dudley” Ives III, riding as his passenger. While traveling northbound

on I-65, they encountered a heavy rainstorm. The vehicle hydroplaned and

travelled from the far-left lane across the highway to the right shoulder, where

it struck a guardrail. The vehicle then rolled backwards onto the highway and

was struck by a tractor trailer. The collision killed Ives and seriously injured

Copley. Kentucky State Police responding to the collision listed “water pooling”

as an environmental factor of the accident.

Ives’ widow, Kristina, on behalf of herself, her two minor children, and

Ives’ Estate, filed a wrongful death and negligence suit against Copley in

Fayette Circuit Court. Kristina later amended her complaint to include claims

against WSP, HMB and HDR – the Engineers that consulted on the design of

the widened highway where the accident occurred. Thereafter, Copley filed a

third-party complaint against the Engineers, effectively “joining forces” with

Kristina (Appellees) for the sake of pursuing claims that the Engineers

negligently designed the highway and that the defective design caused the

accident.

Prior to the I-65 widening project, the portion of I-65 where the accident

occurred was designed with the fast lane draining to the left-side grass median

and the slow lane draining to the right shoulder and off the highway.

Importantly, the highway as constructed by the Engineers’ designs requires all

water to travel across the left shoulder and all three travel lanes to exit on the

right shoulder, thereby causing water to flow across all travel lanes. In the

area leading up to the accident site, drainage inlets were placed at the bottom

6 of the concrete barrier wall where water from a portion of the highway and left

shoulder drains into the inlets. The water collected by these inlets then travels

underneath the concrete barrier wall, underneath the highway, and ultimately

exits on the right side of the highway. Therefore, water collected by the inlets

on this portion of I-65 does not travel over the lanes of the highway.

At the accident site, drainage inlets were omitted by the Engineers’

design plan. There are no drainage inlets for the northbound lanes of I-65

beginning past the “point of curvature” (where the highway begins to curve and

the pavement transitions, causing all the water to flow away from the barrier

wall) to past the “point of tangency” (the point where the highway becomes

straight again). Appellees’ expert opined that if the Engineers followed more

appropriate design standards, at least a portion of the left shoulder would have

drained water away from through traffic, thus decreasing the risk of

hydroplaning. Instead, due to a lack of drainage inlets, the Engineers’ design

resulted in more water flowing across the travel portions of the highway, thus

creating an unduly hazardous roadway during expected rainfall, which was a

substantial factor in the accident.

In his deposition, Andre Johannes, Project Manager for KYTC, specifically

admitted that there is a chapter in the Kentucky highway design manuals

regarding slope and water issues, but that he is not a drainage engineer and

typically relies on the engineers hired for a project for drainage design. He

continued to explain that he routinely relies on hired engineers to make sure

the drainage and slope designs are correct.

7 Conversely, the Engineers assert that their plans, including all design

exceptions, were accepted and approved by the KYTC and FHWA, and once

approval was granted by the FHWA, neither the Engineers nor the KYTC had

the ability to deviate from the final design plan. The accident occurred in a

curved section of the interstate and HMB contends that there is a standard

design for curved sections that drains all water from the inside barrier wall to

the outside shoulder. That required design involves utilizing a straight-line

slope from the median to the outside shoulder. HMB explained that once it

was determined that a concrete barrier wall would be added to the highway,

the Engineers were then locked in to utilizing the straight-line slope for the

portion of the highway where the accident occurred. The final design plans for

the widening project contained this standard straight-line slope – a design

utilized in various sections of Kentucky’s interstates according to HMB.

After discovery, the Engineers moved for summary judgment, arguing

that (1) as contractors working for a governmental entity that is immune from

liability, the Engineers were entitled to immunity; and (2) the claims asserted

against the Engineers were preempted by federal law relating to the design of

interstate highways that are part of the National Highway System. In

opposition, the Appellees argued that the Engineers could be held liable for

their negligence, and that their state tort claims were parallel to the applicable

federal requirements and therefore were not preempted.

The Fayette Circuit Court granted summary judgment in favor of the

Engineers, concluding they were immune from litigation. Further, all claims

8 asserted against them were preempted by federal law. Kristina and Copley

appealed, and the Court of Appeals reversed and remanded. In a unanimous

opinion, the Court of Appeals held that the mere fact the Engineers contracted

with KYTC did not transform them into any kind of state actor for immunity

purposes. Further, ultimate government approval of the Engineers’ design

plans could not absolve them from their own design negligence. The Court of

Appeals also held that Kentucky’s negligence and wrongful death actions were

in harmony with federal law, and therefore the claims were not preempted.

ANALYSIS

“The proper standard of review on appeal when a trial judge has granted

a motion for summary judgment is whether the record, when examined in its

entirety, shows there is ‘no genuine issue as to any material fact and the

moving party is entitled to a judgment as a matter of law.” Motorists Mut. Ins.

Co. v. First Specialty Ins. Corp., 706 S.W.3d 120, 124 (Ky. 2024) (citation

omitted). We review the grant of summary judgment de novo. Caniff v. CSX

Transp., Inc., 438 S.W.3d 368, 372 (Ky. 2014).

Here, we agree with the Court of Appeals that the trial court erred in

granting summary judgment on immunity and preemption grounds. First,

under long-standing Kentucky jurisprudence, the Engineers do not enjoy

immunity simply because they served as contractors for a state agency.

Second, the trial court likewise erred in granting summary judgment on

grounds of “immunity” arising from the government’s mandating of the design

used by the Engineers because a genuine issue of material fact exists as to

9 whether that design was in fact governmentally “mandated.” Finally, the trial

court’s finding that Appellees’ claims are preempted by federal law was likewise

in error.

I. The Engineers are not entitled to immunity simply because they contracted with a state agency.

The trial court first found the Engineers are entitled to summary

judgment because they are “immune” from the Appellees’ claims. While the

trial court’s order did not distinguish between sovereign and related derivative

immunities on the one hand, and the exemption from liability for contractors

governmentally mandated to perform in the manner alleged to have been

negligent on the other, it appears its decision was premised on both. In any

event, we consider first the Engineers’ contention that because they contracted

with a state agency, they are entitled to enjoy the same sovereign or related

derivative immunity the state agency itself would enjoy against a negligence

claim.

Put simply, the Engineers argue that they are entitled to immunity in

this case – immunity that is co-existent with the immunity held by the

Commonwealth. We disagree. It is of course well-established that sovereign

immunity protects the Commonwealth from suit. Comair, Inc. v. Lexington-

Fayette Urb. Cnty. Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009). In fact—and

with particular relevance to this case—Kentucky Revised Statute (KRS) 12.211

states that the state shall not “be subject to an action arising from

discretionary acts or decisions pertaining to the design or construction of

public highways, bridges, or buildings.” 10 However, the fact that the state itself enjoys immunity from certain

claims arising from the construction of public highways does not mean that

contractors performing such work pursuant to contracts with the state also

enjoy such immunity. To the contrary, nearly 100 years ago this Court’s

predecessor plainly overruled a line of cases holding that an independent

contractor could not be liable in damages to injured third parties for negligence

in prosecuting work performed under contract with the state. Taylor v.

Westerfield, 233 Ky. 619, 26 S.W.2d 557, 561 (1930). Further, the Court held

a state contractor is responsible for damages “just as he would be on private

work.” Id.

In Combs v. Codell Construction Co., the high court again held that

“immunity does not absolve the contractor from negligence in performing his

contract” in a case requiring determination of whether a construction

contractor was liable for damages caused by negligent construction. 244 Ky.

772, 52 S.W.2d 719, 720 (1932). Thereafter, this rule was reaffirmed by Codell

Construction Co. v. Steele, in which a construction company asserted it was an

agent of the state and therefore exempt from liability when a person was

injured while traveling across one of its construction sites. 247 Ky. 173, 56

S.W.2d 955 (1933). The Court explained that the rule in Taylor completely

determined that the construction company was subject to liability for its

negligence. As a result, the jury was entitled to a negligence instruction. Id.

This tenet of Kentucky law was recently reaffirmed in Shadrick v.

Hopkins County, Ky., 805 F.3d 724, 729 (6th Cir. 2015). There, Butler entered

11 the Hopkins County Detention Center to serve a short sentence for a

misdemeanor offense and died three days later from an untreated infection.

Butler’s mother filed suit alleging that Southern Health Partners, Inc. (SHP), a

private for-profit corporation that contracted with Hopkins County to provide

medical services to inmates, was negligent, among other claims. Id. The

federal district court held that SHP was protected by qualified official immunity

from the negligence claim. Id. at 744.

In determining whether SHP was entitled to share the county’s

governmental immunity, the Court of Appeals applied the test enunciated in

Comair: “[t]he immunity inquiry turns on the source of the entity and ‘the

nature of the function it carries out.’” Id. at 745 (citing Comair, 295 S.W.3d at

99). The Comair Court explained that the origin of the entity matters because

the entity’s immunity status depends on whether the parent entity is immune.

Id. The Sixth Circuit in Shadrick concluded that SHP did not satisfy the first

part of the test because Hopkins County did not create SHP as a governmental

agency, nor did it designate SHP as the county’s agent. Id. at 746. SHP is a

private, for-profit company and provides medical services to dozens of prison

facilities in multiple jurisdictions. Id. Despite clearly satisfying the second

prong of the test, and even though SHP contracted to perform a government

function, it nonetheless could not partake in the county’s immunity because it

did not derive its existence and status from Hopkins County. Id.

Importantly, the Comair Court disclaimed any assertion that it was

creating a bright-line rule for application of immunity and instead noted the

12 question of official immunity must be resolved on a case-by-case basis. 295

S.W.3d at 99. In any event, it is well-established under Kentucky law that one

contracting with the state or a state agency does not enjoy immunity from a

negligence claim simply because the state or agency itself would enjoy

immunity. To the contrary, our highest court has long rejected the notion of

any such immunity for contractors with the state. See, e.g., Taylor, 233 Ky.

619. Indeed, this long-held principle was recently affirmed in Shadrick, which

likewise rejected the application of immunity to a private entity that had

contracted with the government. 805 F.3d at 746.

Applying the Shadrick rationale to this case, the Engineers are not state

agencies, but rather private, for-profit companies. Simply providing design

services to the state does not automatically entitle the engineers to official

immunity. 2 In fact, returning to Taylor, 233 Ky. 619, an independent

contractor performing government services is liable for his own negligence and

is “responsible just as he would be on private work.”

While involving construction of a highway, not design, our high court has

held that “[a] contractor constructing a highway without negligence under the

plans of the Highway Commission is not liable for damages resulting from the

obstruction of the stream on the right of way, but he is liable for negligence

in the performance of the contract . . .” H.H. Miller Constr. Co. v. Collins,

269 Ky. 670, 108 S.W.2d 663, 664 (1937) (emphasis added). Likewise, this

2 See Sietsema v. Adams, 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). 13 Court’s predecessor held that a construction company building highways could

be “held responsible to appellee if the injury to him was caused by negligence.”

Hunt-Forbes Constr. Co. v. Robinson, 227 Ky. 138, 12 S.W.2d 303, 304 (1928).

In Hunt-Forbes, the state contracted with a construction company to build a

highway. Id. at 303. The construction required the highway cross through the

plaintiff’s land and, upon completion of the project, plaintiff’s porch collapsed.

Id. at 304. While the court recognized that when a contractor’s performance is

done “without negligence and within the terms of the contract,” it cannot be

liable for damages, it explicitly acknowledged that this general rule would not

prevent a state contractor from being liable where a plaintiff’s injury was

caused by the contractor’s negligence. Id.

While the case before us deals with the design, not construction, of a

highway, the same principles are applicable. Just as a construction worker

implementing designs approved by the Highway Commission is still liable in

negligence for damages caused by faulty construction, engineers who propose

designs can be liable in negligence for injuries caused by those designs, at least

where the designs were not mandated by applicable guidelines. See infra

Section II. Of course, as noted by the Court of Appeals, the KYTC’s and

FHWA’s approval of the final designs as prepared and submitted by the

Engineers may also be admitted to suggest the reasonableness of their

conduct.

The Engineers rely on several cases that predate the court’s holding in

Taylor that a state contractor may be held liable just as he would be for private

14 work. 26 S.W.2d at 561. These cases primarily involve allegations against the

city itself, not a contracting entity. See Teager v. City of Flemingsburg, 60 S.W.

718, 719 (Ky. 1901) (plaintiff sued city for alleged negligence in design of a

sidewalk); Clay City v. Abner, 82 S.W. 276 (Ky. 1904) (involving alleged

negligence on behalf of the city in the design of a street in which a pedestrian

was injured); McCourt v. City of Covington, 143 Ky. 484, 136 S.W. 910, 911

(1911) (involving allegation that city should have adopted a different design

relating to the covering of a catch basin). Further, Portwood v. Hoskins-Squier,

689 S.W.3d 728, 729 (Ky. App. 2024), is distinguishable because in that case,

a pedestrian filed suit against the county government seeking to recover for

injuries sustained when he was struck by a motorist while crossing the road.

The plaintiff asserted that the government and its employees negligently failed

to install pedestrian crosswalks. Id. Thus, the case involved suit against the

government and its employees, not an independent government contractor.

Caselaw clearly indicates that an independent government contractor

may nonetheless have to defend a negligence claim resulting from alleged

deficient performance of its duties. As such, the trial court erred in holding the

Engineers immune from suit simply because they contracted with a state

agency.

II. Summary judgment on grounds of “immunity” allegedly arising from the mandated nature of the Engineers’ work was not appropriate because a genuine issue of material fact exists as to whether such work was in fact mandated.

We next consider the Engineers’ contention that the trial court correctly

granted summary judgment because they cannot be held liable for work they 15 were mandated by the state to perform. While our case law recognizes such an

exemption from liability, it was improperly applied here given the existence of

genuine issues of material fact. Indeed, the Engineers’ immunity argument is

predicated on a disputed issue of material fact: whether the final design plans

amount to state approval and mandating of the shoulder design defects alleged

by Appellees.

Citing Rigsby v. Brighton Engineering Co., 464 S.W.2d 279 (Ky. 1970), the

Engineers claim they are immune because their design plans were approved—

and thus mandated—by the KYTC and the FHWA and prepared in accordance

with their design criteria, as established by AASHTO. In Rigsby, Brighton

Engineering consulted the Kentucky Department of Highways in designing the

Bluegrass Parkway. The Kusza family was traveling on the Parkway when their

vehicle collided head-on with a bridge pier, killing all five family members. Id.

Brighton designed bridge piers, which are vertical supports for bridges, and

was sued by the family’s estates for negligent design, among other claims. Id.

at 280. The Estates specifically alleged that Brighton failed to recommend that

a guardrail be constructed to prevent vehicles from colliding with the bridge

pier. Id.

In an affidavit, the assistant project manager for the Kentucky

Department of Highways stated that the design criteria did not require

installation of guardrails around bridge piers, and that hired engineers are

required to comply with standard design criteria. Id. “They have no discretion

to alter, change or deviate therefrom in any material respect.” Id. Despite

16 competing evidence from an expert engineer who opined that recommending

guardrails at this location was reasonably necessary, the trial court granted

Brighton’s motion for summary judgment. Id. On appeal, the state’s high

court concluded that the Department of Highways adopted criteria that was

binding on Brighton, and that a recommendation that guardrails be installed

would have been futile. Id. at 281. Therefore, the Court held that Brighton

could not be held liable for the alleged failure to recommend guardrails. Id.

Similarly, in City of Louisville v. Padgett, 457 S.W.2d 485, 486 (Ky. 1970),

Padgett sued the city, a construction company, and Metropolitan Sewer District

for injuries she sustained when a vehicle she was riding in hydroplaned and

wrecked. Padgett claimed the parties were negligent in the construction and

maintenance of the drainage system of the road where the incident occurred.

Id. The Court held that “[o]rdinarily one contracting with the sovereign

Commonwealth of Kentucky who performs his contract in conformity with the

plans and specifications of the contract will not be held liable for injury to the

public in the absence of a negligent . . . or a wilful [sic] tortious act . . . .” Id. at

488. Because the construction company was told what to do by highway

department officials, the construction company could not be held liable. Id. at

490.

While unpublished, and clearly not binding, we also consider the Court

of Appeals’ decision in McCarty v. Willett, in which a young girl drowned after

flood waters swept her car from a bridge in Monroe County. 2023 WL

7931118, at *1 (Ky. App. Nov. 17, 2023). McCarty, as administratrix of her

17 daughter’s estate, filed suit against several parties, including the two

engineering companies that helped design the bridge. Id. The trial court held

that the engineering firms were protected by the county’s sovereign immunity

and by qualified official immunity. Id.

The appellate court first determined whether the engineers were an agent

of the Commonwealth, pursuant to Comair, 295 S.W.3d at 99. The court

reasoned that the status of the engineers was analogous to the status of SHP in

Shadrick – the engineers were private, for-profit companies with numerous

commercial clients. McCarty at *8. Therefore, the engineers were not entitled

to immunity. Id. Additionally, the engineers argued that, in addition to being

cloaked in the same immunity as the county, they were further entitled to

immunity because the county approved its bridge design. Id. The Court of

Appeals reasoned that the engineers’ argument ignored the distinction between

immunity and common law liability for negligence. Id.

The Court of Appeals declined to grant the engineers “derivative

sovereign immunity” or “government contractor immunity.” Id. at *9. Instead,

the appellate court pointed to Rigsby, 464 S.W.2d at 281, for its

straightforward application of a negligence analysis that does not extend

sovereign or governmental immunity to the contractor. Id. Because issues of

material fact existed, the court determined that summary judgment was

inappropriate and remanded the case for further proceedings. Id. at *9, *11.

In this case, the Engineers argue that Rigsby mandates that they be held

immune from liability for following the KYTC design requirements. They assert

18 that, like in Rigsby, the KYTC and FHWA approved the design and any attempt

to deviate from that design would have been futile. Importantly, both the trial

court and this Court’s predecessor in Rigsby couched their analysis in terms of

negligence, not immunity. In fact, the Court made no mention of immunity.

Further, in Rigsby, the plaintiffs were attempting to impose liability on

consulting engineers for failing to adopt an alternative design that did not

comply with Kentucky Department of Highways directives. Those plaintiffs

alleged the engineers should have deviated from required standards. However,

it was undisputed that the Rigsby engineers had no authority to deviate from

the required standards. In this case, the Engineers were specifically hired to

develop a highway design consistent and compliant with all federal and state

standards. The Engineers’ purported failure to comply with governing

standards resulted in an allegedly negligent shoulder design, thus forming the

basis for the Appellee’s claims and potentially subjecting the Engineers to

liability.

Moreover, in this case, the Appellees present evidence – admittedly

controverted by the Engineers’ competing evidence, but evidence all the same –

that the government did not mandate the design of the highway, but rather

simply required that certain guidelines be followed. That evidence could

support a finding that the Engineers were not hired to implement plans that

were already prepared, but rather for their design knowledge and expertise,

and to exercise their independent judgment and knowledge of the AASHTO

standards. Further, the Engineers were paid over four million dollars, surely

19 not to rubber-stamp generic or standard plans, but to make certain the design

complied with AASHTO and the geographic landscape of the area.

The FHWA is responsible for assuring that the NHS is developed and

maintained according to current approved design standards. Generally, the

government has broad latitude concerning the design of public highways.

Sturgill v. Commonwealth, Dep’t of Highways, 384 S.W.2d 89, 91 (Ky. 1964).

Because I-65 is part of the National Highway System, all construction and lane

widening projects must comply with FHWA standards, in cooperation with

KYTC standards, such as the Highway Design Guidance Manual. 3 The FHWA

standards are those proffered by the American Association of State Highway

and Transportation Officials (AASHTO). This book of standards is commonly

referred to as the Green Book, and the FHWA has adopted this manual as their

own through federal regulations that require AASHTO resources to be

consulted on all projects within the NHS. Exceptions to these guiding

standards are not allowed unless an approved design exception is granted by

the FHWA. Ultimately, a final design plan for the widening project, called the

Design Executive Summary, was prepared, and approved by both KYTC and

the FHWA.

In this case, WSP contracted with KYTC as the prime design consultant

and provided the overall roadway expansion design. In its contract with KYTC,

WSP was paid $4,387,009, of which $4,200,856.05 was specifically designated

3 Kentucky Transportation Cabinet, Highway Design Guidance Manual (Jan.

2006) https://transportation.ky.gov/Highway- Design/Highway%20Design%20Manual/General%20Information.pdf. 20 as “Roadway Design Lump Sum.” WSP then contracted with HMB and HDR.

HMB provided design plans for water flow and drainage, which WSP

incorporated into the final design. As part of its contract with WSP, HMB

agreed to secure professional liability insurance with limits of at least $1

million, and agreed to indemnify, defend, and hold harmless WSP and the

KYTC from any claims arising out of its negligent acts or omissions. HDR had

a limited role with the section of the project where the accident occurred and

primarily designed schematics for maintenance of traffic for use during the

construction project. WSP paid HMB $1,724,516 to provide “field surveys and

engineering services.” Importantly, all engineering entities involved in this

project stamped the final design plans with their seals of approval.

If “FHWA’s controlling criteria are not met on an NHS project, a design

exception must be prepared.” A design exception is defined by the FHWA as “a

documented decision to design a highway element or a segment of highway to

design criteria that do not meet minimum values or ranges established for that

highway or project.” 4 At the time of design, the FHWA delineated thirteen

controlling criteria that require formal approval for design exceptions when

criteria are not met: (1) design speed; (2) lane width; (3) shoulder width; (4)

bridge width; (5) structural capacity; (6) horizontal alignment; (7) vertical

alignment; (8) grade; (9) stopping sight distance; (10) cross slope; (11)

4 Federal Highway Administration, Mitigation Strategies for Design Exceptions

(July 2007) https://wsdot.wa.gov/publications/fulltext/ProjectDev/Manuals/MitigationManual.p df. 21 superelevation; (12) vertical clearance; and (13) horizontal clearance. The only

way to obtain exceptions to the minimum standards set forth in AASHTO is a

design exception, which only the FHWA can grant pursuant to 23 Code of

Federal Regulations (C.F.R.) § 625.3(f). Requested design exceptions are

thoroughly analyzed and reviewed by a technical team. If a design exception is

not obtained, the minimum standards set forth in AASHTO must be met. Here

the experts agree that shoulder slope is not a controlling criterion for which a

design exception can be requested.

As for state standards, the KYTC implemented the Highway Design

Guidance Manual to provide uniformity in the interpretation and

administration of laws, regulations, policies, and procedures applicable to

highway design. The KYTC dictates the project from start to finish. Engineers

are routinely hired by the KYTC to design road projects in the Commonwealth,

including NHS projects, through a rigorous and competitive qualification

process that includes selection by a committee consisting of professional

engineers. For federal highway projects, the Kentucky Model Procurement

Code requires KYTC to utilize this type of qualified-based selection process

when procuring engineering design services for federal highway projects. The

KYTC Design Manual explicitly adopts the AASHTO guidelines, requiring

engineers to work within those parameters to propose plans and alternatives

that meet minimum federal standards.

The Highway Design Guidance Manual specifically acknowledges that

engineering judgment must be used in the design process:

22 This manual has been prepared to provide guidance to personnel of the Transportation Cabinet and primarily to the road designer. . . . This Highway Design Guidance Manual places an emphasis on flexibility. The goal is to be permissive by default and explicit where needed. Sufficient flexibility should encourage independent designs tailored to particular situations. This manual should not supersede the application of sound engineering principles by experienced design professionals. 5

(Emphasis added).

Early in the design process, the FHWA, KYTC, and the Engineers

determined that adding lanes to I-65 would be accomplished by replacing the

existing grassy median that divided the two sides of the highway with a

concrete median barrier wall. According to HMB, the FHWA and KYTC

examined two proposed alternatives that did not involve replacement of the

grassy median with a barrier wall, but those alternatives were ultimately

rejected. HMB asserts that once the concrete median alternative was selected,

it was then required to implement a design which required all water to drain

from the concrete median barrier wall to the outside shoulder utilizing a

straight-line slope that drains water to the outside shoulder, thus across all

travel lanes.

Additionally, the Engineers notified KYTC of a preexisting issue with the

accident scene – a sag vertical curve – that did not meet FHWA standards for

minimum stopping sight distance. Because of this issue, along with six other

sag vertical curves, the Engineers sought and obtained a design exception,

5 Kentucky Transportation Cabinet, Highway Design Guidance Manual (Jan.

2006) https://transportation.ky.gov/Highway- Design/Highway%20Design%20Manual/General%20Information.pdf. 23 approved by the FHWA. The final design plans noted that the sag vertical

curves were in a slight curvature section with low superelevation. Therefore,

the plans asserted the drainage issues were of limited concern and were

addressed in the design.

This exception was solely based on vertical alignment, which implicated

only the reduction of the line of sight on the highway while traveling. This

means the FHWA approved the stopping sight distance to be reduced from

AASHTO’s minimum standard of 730 feet to 652 feet at the area where this

accident occurred, and in 6 other unrelated locations on I-65. No parties

assert that the reduction of stopping sight distance contributed to the accident.

Therefore, the contention that the design exception for vertical alignment

resulted in FHWA approval for utilizing a straight-line shoulder slope with no

rollover is misplaced, because the exception solely pertained to stopping sight

distance. After the KYTC and FHWA approved the final design, a construction

contractor added the new lanes, installed the concrete median barrier wall, and

“superelevated” the curved sections of the roadway so that all lanes sloped in

one direction, pursuant to the Engineers’ design.

Returning to the applicable summary judgment standard, genuine issues

of material fact exist as to the appropriateness of the Engineers’ design,

including whether it satisfies the governing standards, whether an exception

should have been obtained, or whether the exception obtained sufficiently

addressed the purported issues at the scene of the accident. Appellees’ expert,

James Valenta, is a highway safety engineer with over 47 years of experience in

24 traffic safety research and highway design. In his opinion, the failure to

include appropriate drainage inlets and slope a portion of the highway so that

water drained into the drainage inlets, and not across the entire shoulder and

travel lanes, failed to meet the minimum standards required by the KYTC and

the FHWA. According to Valenta, the required design standards of the KYTC

and FHWA call for at least a portion of the shoulder area to be drained away

from the through traffic lanes. Therefore, he opined that the Engineers did not

follow this design requirement, thus creating an unduly hazardous roadway

during rainfall events, which was a substantial factor causing the accident.

Additionally, Valenta consulted Brent Slone, another engineering expert,

who provided accident reconstruction services and performed an analysis of

the accident data at the crash site both before and after construction. Slone

calculated that the construction resulted in an increase in wet pavement

accidents of 466% and was a result of designing stormwater runoff to drain

across the through lanes of traffic. Slone noted that from May 16, 2011, to

September 16, 2014, six wet pavement accidents occurred in the area,

averaging 1.8 accidents per year. This period was prior to or during the design

of the widened highway. After the designs were implemented and the highway

was reconstructed, between July 31, 2017, and November 20, 2020, 34 wet

pavement accidents were reported, which averages 10.2 accidents per year.

Slone appropriately adjusted his calculations to account for an increase in road

traffic and increase in precipitation days. Notably, two “slippery when wet”

signs have been added to the accident site since this accident occurred.

25 The AASHTO standards state that in areas with a depressed median, all

shoulders should be sloped to drain away from the traveled way on a divided

highway. A depressed median, like the median that existed prior to the

highway widening in this case, is lower than the road and is utilized for

superior drainage and preventing head-on collisions given the wide separation

between the directions of the interstate. 6 Conversely, a raised narrow median

involves a concrete barrier elevated above the road, which prevents crossover

collisions. 7 This type of median was added through the widening project.

“With a raised narrow median, the median shoulders may slope in the same direction as the traveled way. However, in regions with snowfall, median shoulders should be sloped to drain away from the traveled way to avoid melting snow draining across travel lanes and refreezing. All shoulders should be sloped sufficiently to rapidly drain surface water, but not to the extent that vehicular use would be restricted.” 8

Using images from the final design plans, Valenta points out that a

straight-line slope was recommended at the accident site, draining water from

the concrete median barrier to the right-side shoulder. He notes that there is

no shoulder break as required by the KYTC Highway Design Guidance Manual,

6 Georgia Department of Transportation, Improving Safety and Reducing Costs

(last visited Feb. 27, 2026) https://www.dot.ga.gov/GDOT/pages/Medians.aspx#:~:text=Medians%20are%20porti ons%20of%20the%20roadway%20that,/suburban%20areas%20*%20Increase%20cap acity%20by%2030%25.

7 Id.

8 A Policy on Geometric Design of Highways and Streets, AASHTO, “Shoulder

Cross Sections,” § 4.4.3.

26 and that the full shoulder drains across the travel lanes which is not

recommended by the National Highway System design standards. In his

deposition, he explained that it was a mistake for the Engineers to incorporate

the typical section for a superelevated portion of the roadway that featured a

straight-line slope from the concrete median all the way across the highway.

Superelevation relates to the amount of cross slope needed on a horizontal

curve to help counterbalance the centrifugal force of a vehicle traveling the

curve based on the design speed. 9 Valenta asserted that the highest point

should have been the line between the 14-foot shoulder and the new widened

lane.

Valenta explained the perceived slope issue as follows:

Defendant engineers incorrectly designed the highway with a 2.8% straight line slope from the concrete median barrier across the 14 foot left shoulder where the barrier wall begins and the 2.8% slope continues across three (3) lanes of travel and exits after traveling over the right shoulder. By the defendant engineers improperly designing the highway where the accident occurred, there is extra stormwater from the 14 foot shoulder, together with an additional travel lane of pavement (as compared to pre-construction) which has placed more stormwater on the highway causing hydroplaning of vehicles.

Instead, Valenta opined that there should have been a slope to drain

water from the left shoulder to the barrier wall and then into a drain, meaning

the design should have included the highest point to be the line between the

fourteen-foot shoulder and the new widened lane. That high point would have

9 Design Exceptions, Texas Department of Transportation (last visited Feb. 27,

2026) https://www.txdot.gov/content/txdotoms/us/en/manuals/des/rdw/chapter- 1--general-guidance/1-2-design-exceptions--design-waivers--design-vari/1-2-1- design-exceptions.htm. 27 created a slope to the left, thus draining water off the left shoulder, instead of

sloping to the right as shown in the Design Executive Summary. In sum,

Valenta opined that the design standards of the KYTC and the FHWA call for at

least a portion of the shoulder area to be drained away from the through traffic

lanes, and this design requirement was not followed by the Engineers.

On the other hand, HMB contends the 2.8% straight line slope design

was compliant with the AASHTO standards. Andre Johannes, Project Manager

for KYTC, testified in his deposition that the Engineers complied with both

KYTC and AASHTO standards with respect to the design where the accident

occurred. He further stated the area in which the accident occurred was a

curve, so “[f]or drainage purposes, this results in super-elevation rather than a

crown point.” 10 The Engineers explain his opinion to mean that because the

area was a curve, the Engineers were required to utilize a straight-line slope

and could not deviate from that requirement by adding a crown point. To the

extent the Engineers or their experts disagree with Valenta, this is a question

of fact with respect to how the Engineers designed the highway and whether

such designs met the applicable standard of care.

Based on the foregoing, summary judgment was improper. Whether the

Engineers complied with the applicable standards is clearly contested. The

10 We acknowledge that in Rigsby, exemption from liability was found where the

plaintiff presented only evidence that the particular design feature at issue was “necessary” but did not contradict the defendant’s showing that the state forbade such a feature. Here, in contrast, Appellees meet the Engineers’ proof that the state would not have allowed the desired design feature with competing expert proof that such a feature in fact was allowable.

28 parties submitted evidence demonstrating that there are genuine issues of

material fact, thus precluding summary judgment.

III. The Appellees’ claims are not federally preempted.

The trial court also found summary judgment warranted on grounds that

Appellees’ claims are federally preempted. Again, we disagree. There is no

evidence presented in this case that Kentucky law requires a higher standard

for this roadway design issue than the FHWA.

The Engineers argue that because the FHWA has complete and exclusive

control over the design of interstate highways that are part of the NHS,

Appellees’ negligence claims are preempted by federal law. Federal preemption,

derived from the supremacy clause of the United States Constitution, directs

that a state law that conflicts with federal law is without effect. Niehoff v.

Surgidev Corp., 950 S.W.2d 816, 820 (Ky. 1997). Preemption can be express,

when the preemption language is found in the explicit language of federal law,

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), or implied. “Implied

preemption occurs when the state law actually conflicts with federal law or

where the federal law so thoroughly occupies the legislative field that it may be

reasonably inferred that Congress left no room for the state to supplement it.”

Niehoff, 950 S.W.2d at 820.

Congress has charged the FHWA with overseeing the design,

construction, and maintenance of the NHS. See 49 United States Code (U.S.C.)

§ 104, 23 U.S.C. § 315. The applicable standards for interstate design are

expressly set forth in 23 C.F.R. § 625. The purpose in adopting federal

29 guidelines for interstate design is to “[a]dequately serve the existing and

planned future traffic of the highway in a manner that is conducive to safety,

durability, and economy of maintenance . . . .” 23 C.F.R. § 625.2(a)(1). An

explicit goal of the FHWA is to provide the highest practical and feasible level of

safety for people traveling on the NHS and to reduce hazards and “the resulting

number and severity of accidents.” 23 C.F.R. § 625.2(c). Further, the

regulations specify the design standards to be utilized, but the standards are

not absolute, and exceptions are permitted so long as the appropriate approval

is received. 23 C.F.R. § 625.3(f)(1).

The Engineers assert that they designed the particular section of I-65

where the accident occurred in accordance with FHWA and KYTC

requirements, therefore following the correct procedure as mandated by 23

C.F.R. § 625. Neither the enabling statutes nor the regulations contain an

express statement of preemption, thus directing our analysis to implied

preemption.

The Supreme Court has explained that it addresses claims of preemption

“with the starting presumption that Congress does not intend to supplant state

law.” N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,

514 U.S. 645, 654 (1995). The Engineers assert that federal regulations would

have no significance if a jury were simply allowed to second-guess the FHWA’s

approval of a design and determine at some time later that the FHWA made a

mistake. The Engineers’ position that state law negligence claims in Kentucky

30 cannot coexist with federal highway design standards is simply unsupported by

the law.

In Russell v. Johnson & Johnson, Inc., 610 S.W.3d 233, 238 (Ky. 2020), a

patient and his wife filed state law tort claims against a medical device

manufacturer after a catheter perforated the patient’s pulmonary vein, causing

life-threatening issues. The federal Medical Device Amendments (MDA),

applicable to the patient’s claims, contains a limited preemption clause

preempting states from establishing requirements for medical devices that are

different from or in addition to any requirement applicable to the device under

federal law. Id. at 238-39.

Citing several federal cases, the Court made clear that “limited federal

preemption only applies to the extent Kentucky’s parallel tort claims seek to

impose a higher standard than federal law; our claims must be in harmony

with federal regulations.” Id. at 240. The Court held that “[i]f a state tort

standard imposes a higher duty than federal regulations, the state standard is

only preempted to the extent it imposes a more stringent duty . . . .” Id. “[A]s

long as the state cause of action seeks to vindicate a claim within the

boundaries of the federal regulation, it survives.” Id.

The Engineers emphasize that federal law requires the Engineers to

comply with standards when designing a national highway and those

standards were satisfied. Further, they assert that Appellees’ claims that the

design should have been different from the design required by federal

standards conflicts with the federal requirements.

31 In CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 661 (1993), a

man was killed when a train operated by CSX collided with his truck at a

railroad crossing. His widow pursued a wrongful death action, alleging CSX

was negligent under Georgia law for failure to maintain adequate warning

devices at the crossing and operating the train at an excessive speed. Id. The

Court was tasked with determining the extent to which the Federal Railroad

Safety Act (FRSA) preempted the state law claims. Id. The FRSA permits states

to adopt laws or regulations relating to roadway safety “until such time as the

Secretary has adopted . . . a regulation . . . covering the subject matter of such

State requirement.” Id. at 662. Thus, the Court explained that to prevail on

the preemption claim, the petitioner had to establish more than that the

regulations “touch upon” or “relate to” the maintenance and operation of trains

at crossings. Id. at 664. The Court reasoned that “covering” indicated that

preemption “will lie only if the federal regulations substantially subsume

the subject matter of the relevant state law.” Id.

The FHWA dictates that states must employ warning devices that comply

with its Manual on Uniform Traffic Control Devices for Streets and Highways

(MUTCD), and regulations specify that warning devices must be installed at

grade crossings. Id. at 666. As part of its ultimate holding that the state law

negligence claims were not preempted, the Court held that the requirement

that states comply with the MUTCD “does not cover the subject matter of the

tort law of grade crossings.” Id. at 668. In so reasoning, the Court explicitly

recognized that the MUTCD states: “[i]t is the intent that the provisions of this

32 Manual be standards for traffic control devices installation, but not a legal

requirement for installation.” Id. at 669. The enactment of the regulatory

scheme for grade crossings did not rewrite traditional negligence law. Id. at

668. Therefore, the negligence claims regarding the grade crossing design were

not preempted. Id. at 676.

Likewise, in this case, the FHWA requires that the design of highways

part of the NHS, like I-65, comply with certain requirements. The parties agree

that the highway design had to comply with A Policy on Geometric Design of

Highways and Streets, published by AASHTO and commonly referred to as the

“Green Book.” The Green Book explicitly states:

[t]he intent of this policy is to provide guidance to the designer by referencing a recommended range of values for critical dimensions. Good highway design involves balancing safety, mobility, and preservation of scenic, aesthetic, historic, cultural, and environmental resources. This policy is therefore not intended to be a detailed design manual that could supersede the need for the application of sound principles by the knowledgeable design professional. Sufficient flexibility is permitted to encourage independent designs tailored to particular situations. 11

(Emphasis added). One of HMB’s experts, Taylor Kelly, opined that the

AASHTO standards are only a “guidance manual” used as a tool to inform

decisions.

The Engineers argue that adoption of these federal standards preempt

state tort law claims trying to impose different standards in the design of

interstate highways. To the contrary, the state tort law claim – that the design

defects at issue did not comply with the applicable FHWA standards – seek to

11 6th ed., p. xli (2011).

33 impose the same standards as federal law requires. While the federal

government has clearly opted to regulate highway construction and design

through imposition of the AASHTO standards, we fail to see how the negligence

claims conflict with federal law.

Here, state law does not conflict with federal law. There is no conflict

between the federal regulations governing highway design and requiring

professional engineers, who were paid considerable sums for their design

expertise, to exercise ordinary care under general principles of negligence.

CONCLUSION

For the foregoing reasons, we affirm the Court of Appeals.

All sitting. Lambert, C.J.; Conley, Goodwine, and Keller, JJ., concur.

Nickell, J., dissents by separate opinion which Thompson, J., joins.

NICKELL, J., DISSENTING: Respectfully, I dissent. In my view, the

Engineers were entitled to summary judgment based on the governmental

contractor defense. Therefore, I would reverse the decision of the Court of

Appeals and reinstate the judgment of the trial court.

Kentucky law has long recognized a form of the governmental contractor

defense which our predecessor Court formulated as follows:

Ordinarily, one contracting with the sovereign Commonwealth of Kentucky who performs his contract in conformity with the plans and specifications of the contract will not be held liable for injury to the public in the absence of a negligent or a wilful tortious act or he is engaged in an ultra-hazardous activity such as blasting, which is treated as trespass.

City of Louisville v. Padgett, 457 S.W.2d 485, 488 (Ky. 1970).

34 Under Padgett, a governmental contractor “is not chargeable with

negligence” when the work is performed in strict “conformity with the . . .

specifications of the Department of Highways.” Id. Similarly, in Rigsby v.

Brighton Engineering Co., 464 S.W.2d 279, 280-81 (Ky. 1970), our predecessor

Court held an engineering consultant was not negligent in failing to

recommend the placement of guardrails around a bridge pier because it had

followed the design criteria and standards mandated by the Department of

Highways and it had “no discretion to alter, change or deviate therefrom[.]”

In Kentucky, the governmental contractor defense is based on principles

of derivative sovereign immunity. Hunt-Forbes Constr. Co. v. Robinson, 12

S.W.2d 303, 304 (Ky. 1928). Our predecessor Court explained:

The state is the sovereign and is not suable without its consent. It has not given its consent. Therefore the state could not be sued by appellee for the damages, if any, caused him by the construction of this road. It is contended, therefore, that appellant could not be held responsible for any damages occasioned in the performance of the contract made with the state if that performance was without negligence and within the terms of the contract. That seems to be the general rule in this state.

Id.

By comparison, in the federal context, the governmental contractor

defense is an affirmative defense based on principles of preemption which is

legally and conceptually distinct from the defense of derivative sovereign

immunity. 12 Al Shimari v. CACI Int’l., Inc., 679 F.3d 205, 218 (4th Cir. 2012).

12 An affirmative defense generally “operates in confession and avoidance,

meaning that even assuming the plaintiffs[’] allegations to be true, he is nonetheless not entitled to recover.” St. Joseph Catholic Orphan Soc’y v. Edwards, 449 S.W.3d 727, 737 (Ky. 2014). By contrast, immunity relieves a defendant from the costs and 35 The preemption rationale “aim[s] at protecting governmental policy decision-

making against collateral attack in the courts in products liability litigation.”

63A Am. Jur. 2d Products Liability § 1272 (2026). I perceive the policy

considerations underlying the preemptive component of the federal rule to be

consistent with both Kentucky caselaw on the governmental contractor defense

and public policy as articulated in KRS 177.240 which provides that design

approval by a highway authority “shall be final[.]”

In my estimation, Rigsby is controlling here and cannot be meaningfully

distinguished from the present appeal. The standards and criteria for the

widening and reconstruction of an interstate highway are mandated by federal

law and any such design plans are subject to the approval of the Federal

Highway Administration in cooperation with the various state departments of

transportation. See 23 U.S.C. § 315; 49 U.S.C. § 104; 23 C.F.R. § 625.1; §

625.3; § 625.4.

Moreover, in the present appeal, the entire highway project, including the

work of the Engineers, was subject to the evaluation, supervision, and final

decision-making authority of the Transportation Cabinet. Kentucky

Transportation Cabinet, Highway Design Guidance Manual (March 2017), at §

HD-203.1; HD-205.7. 13 The Transportation Cabinet is authorized to make key

decisions throughout the project including the determination of the project’s

burdens of litigation, including discovery, in addition to protection from liability. Rowan Cnty. v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006).

13 Available at: https://transportation.ky.gov/Organizational- Resources/Policy%20Manuals%20Library/Highway%20Design.pdf 36 purpose and need; consideration of the range of alternative designs; and the

selection of a preferred alternative. Id., at § HD-203.2. Once the

Transportation Cabinet approved the selection of its preferred alternative

design, which was approved, in turn, by the Highway Administration, the

Engineers had no discretion to deviate from the Transportation Cabinet’s

chosen design. In other words, the criteria adopted by the Highway

Administration and Transportation Cabinet were binding on the Engineers.

Rigsby, 464 S.W.2d at 281.

On the present record, there is no genuine dispute of material fact

pertaining to whether the Engineers’ design complied with the federally

mandated standards and criteria for the widening and reconstruction of the

interstate. In addition, there is no genuine dispute of material fact relative to

whether the proposed design was approved by the Highway Administration and

Transportation Cabinet in accordance with the applicable procedures dictated

by federal and state law. Thus, under Rigsby, the Engineers cannot be held

liable for negligence because the mandated design specifications were followed.

464 S.W.2d at 281. Mere disagreement with a government approved and

legally compliant highway design is not sufficient to send a claim of negligence

to the jury. Id.

The governmental contractor defense, as firmly established under both

federal and Kentucky law, operates “to prevent judicial ‘second-guessing’ of

legislative and administrative decisions grounded in social, economic, and

political policy through the medium of an action in tort.” United States v. S.A.

37 Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814

(1984). Based on the foregoing, I would reject the imposition of any additional

legal duty upon a governmental contractor where the approved design work is

indisputably compliant with binding federal and state design mandates.

To hold otherwise would undermine the final and exclusive authority of

the Highway Administration and Transportation Cabinet to determine and

approve the appropriate design for highway projects. Stated differently, the

imposition of tort liability upon a governmental contractor for a compliant and

approved highway design based on post-hoc third-party opinion is tantamount

to an impermissible collateral attack on the highway authorities’ ability to

regulate and set policy. The resultant infringement on discretionary

governmental functions and the danger of inconsistent verdicts is manifest. I

am convinced Rigsby controls here to prevent such an outcome. Therefore, I

respectfully dissent and would reinstate the judgment of the trial court.

Thompson, J., joins.

38 COUNSEL FOR HMB PROFESSIONAL ENGINEERS, INC.; D. PAUL LINCKS; AND HAWORTH-MEYER-BOLEYN PROFESSIONAL ENGINEERS, INC.:

John D. Clay, Jr. Denise Michelle Motta Gordon Rees Scully Mansukhani LLP

COUNSEL FOR HDR ENGINEERING, INC. AND JAMES L. GUINN:

John Wickliffe Hays Mary Lancaster Bryson Kenneth Bradley Oakley Jackson Kelly PLLC

COUNSEL FOR WSP USA INC.; PARSONS BRINCKERHOFF, INC.; AND SUSAN ROWLAND SLADE, AS PERSONAL REPRESENTATIVE AND EXECUTRIX OF THE ESTATE OF FRANK STEVEN SLADE:

Bethany A. Breetz William G. Geisen Michael D. Risley Cassandra L. Welch Megan K. George Stites & Harbison PLLC

COUNSEL FOR KRISTINA L. IVES, INDIVIDUALLY; KRISTINA L. IVES, AS THE NEXT FRIEND FOR THE MINOR CHILDREN, HIRAM MILLER IVES AND JUNE LELIA IVES; AND KRISTINA L. IVES, AS THE PERSONAL REPRESENTATIVE AND ADMINISTRATRIX OF THE ESTATE OF HIRAM DUDLEY IVES, III:

Benjamin Kessinger, III Mason Moore Kessinger Kessinger Law Group, PLLC

COUNSEL FOR JENNINGS L. COPLEY AND NECTO ARCHITECTURE, PSC:

Bartley K. Hagerman Erik D. Peterson Mehr Fairbanks Trial Lawyers, PLLC

COUNSEL FOR AMICUS CURIAE, AMERICAN COUNCIL OF ENGINEERING COMPANIES OF KENTUCKY:

Mitchel T. Denham McBrayer PLLC