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Cox v. Cross

Court of Appeals of Kentucky

June 21, 2019

LELAND COX, INDIVIDUALLY; AND BARNEY JONES, IN HIS OFFICIAL CAPACITY AS SHERIFF OF BARREN COUNTY APPELLANTS
v.
JASON H. CROSS, MITZI R. CROSS, and CHRISTOPHER A. SPRADLIN APPELLEES

          APPEAL FROM BARREN CIRCUIT COURT HONORABLE JOHN R. GRISE, SPECIAL JUDGE ACTION NO. 01-CI-00493

          BRIEFS FOR APPELLANTS: Harlin Parker Bowling Green, Kentucky

          BRIEF FOR APPELLEES: Lee Huddleston Bowling Green, Kentucky

          BEFORE: COMBS, LAMBERT, AND TAYLOR, JUDGES.

          OPINION

          LAMBERT, JUDGE.

         This appeal arises out of an order granting the appellees' motion to vacate the summary judgment which dismissed Deputy Cox in his individual capacity and denying the appellants' motion to dismiss the appellees' amended complaint. The appellants argue that the circuit court exceeded its authority and ask this Court to reverse. We affirm.

         We rely on the summation of facts as given by the Kentucky Supreme Court in its earlier consideration of this case:

A sheriff's deputy seriously injured two Kentucky State Troopers while all three were attempting to capture a fugitive. The questions accepted for discretionary review are whether the sheriff in his official capacity (the office of sheriff) is entitled to official immunity for tortious acts of his deputies, and if so, whether [Kentucky Revised Statute] KRS 70.040 waives that immunity. We opine that the sheriff in his official capacity (the office of sheriff) has official immunity for tortious acts committed by his deputies, but that KRS 70.040 waives said immunity for that office.
On the morning of September 3, 2000, Barren County Deputy Sheriff Leland Cox went to execute an arrest warrant on an evasive David Price. Deputy Sheriff Cox requested assistance from Kentucky State Police Troopers, Jason H. Cross and Christopher A. Spradlin, who both responded in their separate cruisers. All three vehicles were northbound on Kentucky Highway 740 when they learned that Price was approaching from the opposite direction. When Price realized that his southbound path was blocked, he abandoned his vehicle and fled on foot into a grassy field. Both troopers pursued Price on foot, while Deputy Cox drove his cruiser into the open field. As Trooper Cross caught Price, Deputy Cox ran his cruiser over Trooper Cross, leaving tire tracks on his uniform. Somehow, Deputy Cox's cruiser then hit Trooper Spradlin, but missed Price. Not surprisingly, both Troopers sustained injuries.
Subsequently, Trooper Spradlin, as well as Trooper Cross and his wife, Mitzi R. Cross, filed a negligence action against Deputy Cox and his employer, Barren County Sheriff Barney Jones, in both their individual and official capacities, and against their respective insurers. The liability of Deputy Cox and his insurers is no longer an issue. The liability of Sheriff Jones in his individual capacity is still before the trial court and not an issue before this court. The issues ruled on by the trial court and on appeal to this Court are whether the sheriff (the office of sheriff) has official immunity when sued in his official capacity for tortious acts of a deputy, and if so, whether KRS 70.040 waives that immunity.
The trial court held that Sheriff Jones and his insurer were not liable "on the basis of absolute and qualified official immunities." Additionally, the trial court determined that KRS 70.040 did not waive immunity of a sheriff for tortious acts of a sheriff's deputies. The Court of Appeals agreed that a sheriff is entitled to immunity when sued in his official capacity unless said immunity is waived. The Court of Appeals went on to discuss KRS 70.040 and held that the statute was a waiver of the sheriff's official immunity for tortious acts of his deputies. The Court of Appeals, however, declined to address the constitutionality of said statute. This Court granted discretionary review to determine whether a sheriff in his official capacity (the office of sheriff), has immunity for tortious acts of his deputy, and if so, does KRS 70.040 waive that immunity.

Jones v. Cross, 260 S.W.3d 343, 344-45 (Ky. 2008).

         The Supreme Court held:

[T]he legislative waiver of immunity is very clear, and . . . the plain language of KRS 70.040 leaves no room for any other reasonable construction than a waiver of the sheriff's official immunity (the office of sheriff) for the tortious acts or omissions of his deputies. See Grayson County Bd. of Educ. v. Casey, 157 S.W.3d 201 (Ky. 2005), Reyes v. Hardin County, 55 S.W.3d 337 (Ky. 2001), and Withe ...

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