KNOTT COUNTY FISCAL COURT, KENNY DYER, AND CHRIS CONLEY, APPELLANTS
GARY AMBURGEY, APPELLEE
APPEAL FROM KNOTT CIRCUIT COURT. HONORABLE KIM C. CHILDERS, JUDGE. ACTION NO. 10-CI-00012.
BRIEFS FOR APPELLANTS: Daniel Stratton, Pikeville, Kentucky.
BRIEF FOR APPELLEE: Adam P. Collins, Hindman, Kentucky.
BEFORE: CAPERTON, COMBS, AND NICKELL, JUDGES. ALL CONCUR.
REVERSING AND REMANDING
The Knott County Fiscal Court appeals from the denial of its motion for summary judgment based on sovereign immunity against the negligence action filed by Gary Amburgey for failure to remove mud and debris from the roadway and failure to warn of the hazardous condition. After a thorough review of the parties' arguments, the record, and the applicable law, we agree with the Fiscal Court that its sovereign immunity was not expressly waived by Kentucky Revised Statutes (KRS) 67.180; therefore, it was entitled to summary judgment. Accordingly, we reverse and remand this matter for an order entering summary judgment in favor of the Fiscal Court.
Amburgey was injured in a single vehicle accident in which he was a passenger in Knott County, Kentucky. Amburgey brought suit against the Knott County Fiscal Court alleging negligence for failure to remove mud and debris from the roadway and failure to warn of the hazardous condition. Amburgey alleged that county employees left the mud and debris on the roadway after cleaning out a ditch line, causing the accident and failing to provide a warning of the hazardous condition. The Fiscal Court filed a motion for summary judgment arguing that it was entitled to sovereign immunity. Amburgey responded that the Fiscal Court did not have sovereign immunity, and even if it did, it had been waived by KRS 67.180. After considering the parties' arguments, the trial court summarily denied the Fiscal Court's motion for summary judgment on April 11, 2011. It is from this denial that the Fiscal Court now appeals.
Generally, our appellate jurisdiction is restricted to final judgments. Ordinarily, an appeal from the denial of a motion for summary judgment would not be permitted because it is regarded as interlocutory. Nevertheless, in Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009), the Kentucky Supreme Court recognized an exception to the general rule that a denial of a motion for summary judgment constitutes an interlocutory order when it stated " that an order denying a substantial claim of absolute immunity is immediately appealable even
in the absence of a final judgment." Prater at 887. Consequently, we have jurisdiction to review the trial court's denial of summary judgment in this case.
The standard of review of a trial court's denial of summary judgment is de novo. See Scifres v. Kraft, 916 S.W.2d 779, 781, 43 1 Ky. L. Summary 17 (Ky.App. 1996). Summary judgment is appropriate when there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Id. The trial court must 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 v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is proper only " where the movant shows that the adverse party could not prevail under any circumstances." Id. However, " a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial." Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992), citing Steelvest, supra. See also O'Bryan v. Cave, 202 S.W.3d 585, 587 (Ky. 2006); Hallahan v. The Courier Journal, 138 S.W.3d 699, 705 (Ky.App. 2004). Pertinent to the case sub judice, whether an immunity defense applies is purely a question of law. Estate of Clark ex rel. Mitchell v. Daviess County, 105 S.W.3d 841, 844 (Ky.App. 2003). With this in mind we turn to the parties' arguments.
On appeal, the Fiscal Court argues that the trial court erred in denying its summary judgment motion because it is entitled to sovereign immunity, which has not been expressly waived by statute. In contrast, Amburgey argues that the Fiscal Court's sovereign immunity was expressly waived by KRS 67.180 and that this suit alleges that county employees were negligent in the operation of county vehicles. With these arguments in ...