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Carucci v. Northern Kentucky Water District

Court of Appeals of Kentucky

January 18, 2019

KATE CARUCCI APPELLANT
v.
NORTHERN KENTUCKY WATER DISTRICT APPELLEE

          APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE FRED A. STINE, JUDGE ACTION NO. 16-CI-00476

          BRIEF FOR APPELLANT ROBERT POOLE COVINGTON, KENTUCKY

          BRIEF FOR APPELLEE TIMOTHY WALKER LEXINGTON, KENTUCKY

          BEFORE: KRAMER, D. LAMBERT, [1] AND MAZE, JUDGES.

          OPINION

          MAZE, JUDGE

         The issue in this appeal is whether our opinion in South Woodford Water Dist. v. Byrd, 352 S.W.3d 340 (Ky. App. 2011), which held that water districts are entitled to governmental immunity, is still valid law in light of the Kentucky Supreme Court's opinion in Coppage Construction Company, Inc. v. Sanitation District No. 1, 459 S.W.3d 855 (Ky. 2015), which held that sanitation districts providing similar services are not entitled to governmental immunity. After careful review, we hold Byrd cannot be reconciled with Coppage. We therefore reverse the Campbell Circuit Court's order granting summary judgment in favor of Appellee, Northern Kentucky Water District (NKWD).

         I. Background and Procedural History

         NKWD is a special district created pursuant to KRS[2] Chapter 74, in accordance with procedures set forth in KRS 65.805-830, to provide clean water for personal consumption, recreation, agriculture, and commercial use. A brief discussion about how a water district, such as NKWD, is created is necessary for resolving this appeal. First, no less than five resident freeholders of the geographical region sought to be served with water facilities by the proposed district must submit an application to the Public Service Commission of Kentucky for the authority to petition the appropriate county judge/executive for the establishment of a water district. KRS 74.012(1). If the Public Service Commission approves of the application, KRS 74.010 provides that a fiscal court may create a water district in accordance with the procedures for creating any special district. Accordingly, a fiscal court may hold a hearing after a certain number of persons residing in the district sign a petition and present it to the appropriate fiscal court. KRS 65.810(1). After the public hearing, the fiscal court shall provide written findings of fact approving or disapproving of the formation of the water district. KRS 65.810(6). The water district shall thereafter be managed by a board of commissioners selected by the appropriate county judge/executive. KRS 74.020(1). We now turn to the facts pertinent to this appeal.

         Appellant, Kate Carucci, was injured after tripping over an unsecured water meter cover owned by NKWD. She then sued NKWD for negligence. NKWD subsequently moved for summary judgment, arguing it was cloaked in governmental immunity under Byrd. Carucci responded that the Kentucky Supreme Court implicitly overruled Byrd in Coppage. In a written opinion and order, the trial court expressed skepticism that Byrd could be reconciled with Coppage. However, it concluded it was bound to apply existing precedent and granted NKWD's motion for summary judgment. This appeal follows.

         II. Standard of Review

         Summary judgment is proper only when "it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 483 (Ky. 1991). Whether an entity is entitled to governmental immunity is a question of law; therefore, our review is de novo. Louisville Arena Authority, Inc. v. RAM Engineering & Const., Inc., 415 S.W.3d 671, 677 (Ky. App. 2013).

         III. Analysis

         Under the doctrine of sovereign immunity, the Commonwealth, its counties, and urban county governments are absolutely immune from suit unless the state has given its consent or otherwise waived its immunity. Lexington-Fayette Urban County Government v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004). Cities are not immune from suit. Haney v. City of Lexington, 386 S.W.2d 738, 742 (Ky. 1964).

         Governmental immunity, derived from sovereign immunity, is the public policy that limits tort liability on a governmental agency. Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001). The basic policy is that "courts should not be called upon to pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions, because such actions furnish an inadequate crucible for testing the merits of social, political or economic policy." Id. "Thus, a state agency is entitled to ...


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