FROM CAMPBELL CIRCUIT COURT HONORABLE FRED A. STINE, JUDGE
ACTION NO. 16-CI-00476
FOR APPELLANT ROBERT POOLE COVINGTON, KENTUCKY
FOR APPELLEE TIMOTHY WALKER LEXINGTON, KENTUCKY
BEFORE: KRAMER, D. LAMBERT,  AND MAZE, JUDGES.
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).
Background and Procedural History
a special district created pursuant to KRS 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.
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.
Standard of Review
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).
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).
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 ...