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Bryant v. Louisville Metro Housing Authority

Supreme Court of Kentucky

March 14, 2019



          COUNSEL FOR APPELLANT: David J. Guarnieri Jason Hollon McBrayer, McGinnis, Leslie & Kirkland, PLLC Robert Martin Guarnieri

          COUNSEL FOR APPELLEES: Patricia Colleen Le Meur John F. Parker, Jr. Nicholas Hart Phillips Parker Orberson 85 Arnett, PLC Richard H. Nash, III Law Office of Richard H. Nash, III



         This case arises out of the tragic death of three-year-old Davion Powell. His mother, Rodericka Bryant, took him with her to visit her friend, Terrah Love, at Love's apartment building, The 550 Apartments (Apartments). Roderick Moss, who was involved in an ongoing feud with Love and others, came to the complex and began shooting. One of the stray bullets hit Davion and he ultimately died from the injuries.[1] Bryant then sued Louisville Metro Housing Authority (LMHA), the owner and property management company of Apartments, and Juanita Mitchell, the properly manager, for their failure to evict Love, thereby negligently causing Davion's death. Both the circuit court and the Court of Appeals held that LMHA was cloaked in governmental immunity, and Mitchell was shielded by qualified official immunity; thus, Bryant's case was dismissed. Although we find the events of this case troubling and heartbreaking, we must affirm both courts and hold that LMHA and Mitchell are both protected by the immunity doctrine.

         I. BACKGROUND

         In 2003, the City of Louisville and Jefferson County merged to form Louisville/Jefferson County Metropolitan Government (Louisville Metro), pursuant to Kentucky Revised Statutes (KRS) Chapter 67C.[2] Louisville Metro is entitled to sovereign immunity as a matter of statute.[3] As part of this merger, the former Housing Authority of Louisville and the former Housing Authority of Jefferson County were also merged into a new entity: LMHA. LMHA is governed pursuant to KRS Chapter 80, which provides that authorities can be created "for the purpose of providing adequate and sanitary living quarters for individuals or families[.]" KRS 80.020(1).

         As part of that purpose, LMHA owns, operates, and manages thousands of units available for low-income housing throughout Jefferson County. Most of LMHA's budget comes from federal funding and grants but LMHA also utilizes some state and local government funds. LMHA owns and operates Apartments as subsidized, public housing for low-income individuals and families pursuant to this purpose. Juanita Mitchell served as Apartments' property manager.

         Terrah Love became a tenant at Apartments in February of 2008. Her rent was $45 per month. In September 2008, Mitchell sent Love a "30 Day Lease Termination Letter with 'No Right to Cure*', citing "Material Non-Compliance with the Rental Agreement or Resident Rules." In that letter, Mitchell specifically cited to Section 7 of the Lease Agreement, which provided that the Resident and the Resident's guests and visitors must refrain from "conduct which ... [i]s unlawful, unsafe, irresponsible, disorderly or violent or a hazard to the safety of any persons or property, including Resident, Household members, visitors, neighbors or Management staff[.]" According to Mitchell, this violation arose from an allegation that Love was allowing persons not listed on the lease to live in the apartment. On April 13, 2010, a forcible detainer judgment was entered against Love; however, no further action was taken, and Love remained a tenant at Apartments.

         On February 3, 2011, Love was cited with a "Warning Letter" from Apartments. The letter stated that Love had violated the lease by harboring pit bulls and creating a disturbance for neighbors through loud noise and music. On February 8, 2011, the Louisville Metro Police Department responded to a report of violence between Love and a boyfriend in front of her children. Love was initially charged with assault, fourth degree, however, it appears that her charges were later dismissed. In April, Love was sent a "14 Day Lease Termination Letter." Mitchell once again cited to Section 7 of the Lease. Love attempted to pay her rent in April, but Mitchell sent the payment back to Love, stating that because of the 14-day termination, Mitchell and Apartments could not accept the payment.

         Mitchell also completed what was called a Form A, which states grounds for eviction in relation to a certain tenant. Mitchell stated that she had filled out such a document regarding Love and reported that LHMA had been notified that Love had been involved in "shootings and physical fights with other residents." Mitchell retired on April 30, 2011. Mitchell's successor also completed Form A as to Love and LMHA filed a forcible detainer action against Love on May 12, 2011.

         However, before Love was evicted, tragedy struck. Love had been in an ongoing feud with another woman, Taneisha, over a man they were both seeing. It seems that Moss was friends with Taneisha and decided to take matters into his own hands. He approached Love's apartment on May 13, 2011. Love and several friends were gathered outside the apartment complex while the children, including Davion, were inside playing. Moss took out a gun and began shooting. As a result, Davion was shot in the head and succumbed to his injuries three days later.


         "The issue of whether a defendant is entitled to the defense of sovereign or governmental immunity is a question of law." University of Louisville v. Rothstein, 532 S.W.3d 644, 647 (Ky. 2017) (citing Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (citing Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824, 825 (Ky. 2004))). This Court reviews questions of law de novo. See Rothstein, 532 S.W.3d at 647 (citing Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007)).

         III. ANALYSIS

         A. The Immunity Analysis Framework

         Although the field of immunity is an oft-confusing one, "[t]he one clear thing is that pure sovereign immunity, for the state itself, has long been the rule in Kentucky." Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009). However, *[t]he reach of sovereign immunity becomes more complicated when dealing with governmental and quasi-governmental entities and departments below the level of the Commonwealth itself." Id. Although LMHA appears to have argued at some point in the courts below that it was entitled to sovereign immunity, that argument must fail as sovereign immunity is limited to the Commonwealth itself, as well as counties and governments formed according to statute. Thus, while Louisville Metro maintains sovereign immunity, LMHA, even as a state agency, would never be entitled to sovereign immunity. The immunity analysis for LMHA must turn on the existence or absence of governmental immunity.

         Governmental immunity is itself an extension of sovereign immunity, thus exhibiting why the terms are often used interchangeably. It is based in the concept that "sovereign immunity should 'extend ... to departments, boards or agencies that are such integral parts of state government as to come within regular patterns of administration organization and structure."' Id. at 99 (quoting Kentucky Center for the Arts v. Berns, 801 S.W.2d 327, 332 (Ky. 1990) (internal quotation marks omitted)). Thus, in Comair, this Court developed and attempted to clarify a "test" to determine whether the sovereign immunity of the state should be extended to a governmental entity:

First, the courts must look to the origin of the public entity, specifically: "was [the entity in question] created by the state or a county [which are entitled to immunity], or a city [which is not entitled to immunity except in the legislative and judicial realms]?" ... The second and "more important" inquiry is whether the entity exercises a "function integral to state government."

Coppage Construction Co., Inc. v. Sanitation District No. 1, 459 S.W.3d 855, 859 (Ky. 2015) (citing Comair, 295 S.W.3d at 99). We also recognize that "while the state enjoys immunity from suit, a level of constraint must be exercised in its application to other entities in order to respect both constitutional and important public policy limitations." Coppage, 459 S.W.3d at 859 (citations omitted). However, even administering the test with such restraint, we hold that LMHA is a governmental agency of the Commonwealth and is entitled to the protection of governmental immunity.

         B. LMHA is entitled to ...

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