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Sanitation District No. 1 v. Mccord Plaintiffs

January 25, 2013

SANITATION DISTRICT NO. 1
APPELLANT
v.
MCCORD PLAINTIFFS
APPELLEES



APPEAL FROM KENTON CIRCUIT COURT HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 10-CI-02847

The opinion of the court was delivered by: Taylor, Judge:

RENDERED: JANUARY 25, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

BEFORE: KELLER, TAYLOR, AND THOMPSON, JUDGES.

Sanitation District No. 1 brings this interlocutory appeal from February 3, 2011, and April 12, 2011, orders denying Sanitation District No. 1's motion to dismiss based upon sovereign immunity. We affirm in part, reverse in part, and remand.

Sanitation District No. 1 currently operates in the Kentucky counties of Boone, Campbell, and Kenton. Appellees are a group of homeowners who received sanitation services from Sanitation District No. 1. On two occasions, raw sewage from sanitary and storm sewers overflowed and invaded appellees' homes causing damage.

Consequently, appellees filed a complaint against, inter alios, Sanitation District No. 1 alleging negligence, nuisance, trespass, and inverse condemnation. Thereupon, Sanitation District No. 1 filed a motion to dismiss based upon the doctrine of sovereign or governmental immunity. By orders dated February 3, 2011, and April 12, 2011, the circuit court denied the motion to dismiss and reasoned:

[Sanitation District No. 1] is just that type of in-between entity which the Comair court test addresses. [Sanitation

District No. 1] has different parent entities from which flow the different functions it has now taken under its authority. The ministerial functions of exercising reasonable care in the maintenance and repair of a sewer system such as are involved in the case currently before the court and in numerous cases, going back a century in Kentucky case law as set forth in the prior order of the court, have held not to be entitled to immunity.

This interlocutory appeal follows.*fn1 Sanitation District No. 1 contends that the circuit court erred by concluding that it was not entitled to sovereign or governmental immunity. For the following reasons, we believe that Sanitation District No. 1 is protected by the cloak of sovereign immunity but only is entitled to summary judgment dismissing appellees' claim of negligence.

In its order denying Sanitation District No. 1's motion to dismiss, the circuit court specifically stated that it "reviewed the pleadings of the parties . . . and the entire record of this case." As matters outside the pleading were admittedly considered by the circuit court, our review proceeds under the summary judgment standard. See Ferguson v. Oates, 314 S.W.2d 518 (Ky. 1958). Thereunder, summary judgment is proper where there exists no material issue of fact and movant is entitled to judgment as a matter of law. Kentucky Rules of Civil Procedure (CR) 56; Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). Our review proceeds accordingly.

In this Commonwealth, the law of immunity is often thought of as a quagmire defying both common sense and reasonable explanation. Our Courts have repeatedly struggled to set forth with clarity and finality the legal principles of immunity. Invariably, new legal principles of ...


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