APPEAL FROM EDMONSON CIRCUIT COURT HONORABLE DAVID H. JERNIGAN, SPECIAL JUDGE ACTION NO. 11-CI-00033
The opinion of the court was delivered by: Lambert, Judge:
RENDERED: FEBRUARY 8, 2013; 10:00 A.M.
BEFORE: DIXON, LAMBERT, AND TAYLOR, JUDGES.
This is an interlocutory appeal from the Edmonson Circuit Court's denial of a motion to dismiss by the defendants on the basis of sovereign immunity. Because we agree with the defendants that they are entitled to immunity, we reverse the circuit court's ruling and remand for dismissal of the complaint.
In February 2010, Sharon French, the Edmonson Circuit Court Clerk, slipped and fell on ice while entering the Edmonson County Courthouse, her place of employment. One year later, French filed suit in Edmonson Circuit Court against Edmonson County, Kentucky; Edmonson County Fiscal Court; and the elected members of Edmonson County Fiscal Court, N.E. Reed,*fn1 Bennie Simmons, Willie Lindsey, Clark Wood, Charles E. Rich, Johnny Brooks, and Neil Vincent ("the defendants" or "the appellants"). In her complaint, French alleged that the ice had formed due to dripping water from deficient guttering and drainage, which in turn caused her to fall and become injured. She also alleged that the fiscal court was responsible for maintaining the Edmonson County Courthouse and keeping the premises safe and that the defendants had acted negligently and failed in their duty to her, as a business invitee, to keep the premises in a reasonably safe condition. In their answer, the defendants pled the affirmative defense of sovereign immunity, and to the extent the defendants had been sued in their individual capacities, they stated they were entitled to qualified official immunity. Finally, the defendants specifically denied that N.E. Reed was a member of the Edmonson County Fiscal Court, but rather was the Judge Executive of Edmonson County. Shortly thereafter, the regular sitting judge for the 38th Judicial Circuit Court recused from the case, and a special judge was assigned to preside over this case.
After filing an answer, the defendants filed a motion to dismiss French's case pursuant to Kentucky Rules of Civil Procedure (CR) 12.02 for her failure to state a claim upon which relief may be granted. In the attached memorandum, the defendants argued that the county and the fiscal court were protected by sovereign immunity pursuant to §§ 63, 64, and 65 of the Kentucky Constitution as they are incorporated, political subdivisions of the state, citing several cases including Schwindel v. Meade County, 113 S.W.3d 159 (Ky. 2003), and Moores v. Fayette County, 418 S.W.2d 412 (Ky. 1967). The defendants then argued that to the extent French sued the judge executive and the other members of the fiscal court in their official capacities, they are also entitled to the protection of sovereign immunity, citing Franklin County v. Malone, 957 S.W.2d 195 (Ky. 1997). Finally, the defendants argued that if French did intend to sue the individual members in their individual capacities, they are entitled to qualified official immunity because French did not present any evidence that the individual members acted in a manner that was not within their discretionary authority or that they did not act in good faith. The defendants cited to Moores, supra, in support of this argument.
In response, French contended that the upkeep and maintenance of public buildings is a ministerial act because the county and its officials have no discretion as to whether to keep individuals safe on their property. In reply, the defendants noted that French did not dispute that the county, the fiscal court, and the individual members in their official capacities were all entitled to the protection of sovereign immunity. Regarding the members in their individual capacities, the defendants pointed out that French did not address the Moores decision, which they stated was "on all fours" with this case and mandated dismissal.
The circuit court held a hearing on the motion to dismiss on May 23, 2011. At the hearing, the defendants discussed the holding in Moores, which they continued to argue mandated dismissal of the claim. French argued that the county had a ministerial duty to keep the premises reasonably safe and was not entitled to sovereign immunity. The circuit court discussed the circumstances of this case, noting that the county knew the condition had existed for a long period of time but did nothing about it. The defendants noted that there was no proof in the record at that point in time, and then further discussed the difference between a discretionary act and a ministerial one, arguing that the county was acting in a discretionary manner. If bad faith existed, the defendants conceded there could be a viable claim, but French did not make any allegation of bad faith in her complaint. French went on to argue that the facts of this case are different from Moores because it was not a matter of just snow removal; rather, this was a problem with deficient guttering that the county had permitted to continue for more than a year. The defendants also mentioned that the complaint was unclear as to whether the individual members were named in their individual capacities, or only in their official capacities.
At the conclusion of the argument, the trial court ruled that there was some distinction from the Moores case and that it was uncomfortable about dismissing the case on the pleadings, noting there needed to be a certain amount of discovery. A written order denying the motion to dismiss was entered on May 23, 2011, and this interlocutory appeal now follows.*fn2
On appeal, the appellants continue to argue that the county, the fiscal court, the judge executive, and the individually named members in their official capacities are entitled to the protections of sovereign immunity, and any claims against them should be dismissed. In addition, the appellants argue that French did not name the judge executive or the members of the fiscal court in their individual capacities in her complaint. But if she did make a viable claim against them in their individual capacities, they are nevertheless entitled to the protection of qualified official immunity. In her responsive brief, French argues that the appellants are not entitled to any immunity protection because their acts were ministerial in nature, not discretionary, and that we should liberally construe her complaint to include claims against the judge executive and the members of the fiscal court in their individual capacities.
The circuit court denied the appellants' motion to dismiss pursuant to CR 12.02, which had been premised upon their argument that French had failed to state a claim upon which relief could be granted. In such a case, "[t]he court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim." Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). For purposes of the motion, the facts as pleaded in the complaint are admitted; only the right to relief remains to be challenged. Huie v. Jones, 362 S.W.2d 287, 288 (Ky. 1962). Because the resolution of this ...