Municipal Immunity in Kentucky

There has been much talk since 2020 about qualified immunity for police officers. There has not been as much talk of municipal immunity. This legal doctrine, roughly, is for cities what qualified immunity is for cops. Municipal immunity in Kentucky has undergone a significant transformation over the years, influenced by a blend of common law and legislation. The evolving case law in Kentucky reflects the balancing act between shielding local governments from liability and ensuring that municipalities are held accountable when they fail in their ministerial duties, especially in the areas of infrastructure maintenance and public safety.

Early Cases

The history of municipal immunity in this state can be traced back to 1852, with Prather v. City of Lexington. In this case, a mob had caused serious injury to the dwelling of Matilda Prather. Prather sued the City of Lexington, alleging their responsibility. Shouldn’t the city government have some responsibility to protect the property of its residents within its boundaries? Apparently not – the court found in favor of Lexington, writing, “We know of no principle of law that subjects a municipal corporation to responsibility for the safety of the property within its territorial limits (p. 2)”

Municipal immunity popped up again in 1911 in the case of City of Maysville v. Brooks, which also dealt with the maintenance and repair of sewers. In this case, the property of Frances Brooks flooded following significant rainfall, resulting in damage to her furniture and other property. She brought suit against the City of Maysville, arguing that this flooding was the result of negligent sewer construction and maintenance. The sewers in question had been constructed personally by residents of and around Maysville and slowly coalesced into a singular system. The city argued that it had not constructed the sewer and that it had never exercised discretion as to its maintenance. The appellate court found as follows: 

“Although the petition alleges that appellant constructed and maintained the sewer or drain, and that it negligently used it so as to flood appellee’s property, the case has been tried upon the theory that appellant’s responsibility arises from the fact, claimed by appellee to be true, that, although the city had not constructed the sewer, it had taken possession of and used it for municipal purposes, had thereby converted a natural water course into a public sewer, and that its duty to its inhabitants was the same as if the sewer had been originally constructed by appellant” 

In plain English translated from circa 1911 legalese: when a city takes control of something like a sewer, they do have to take care of it responsibly. This was big. Even if cities bore little responsibility to protect your property from mobs – they did bear some when it came to protecting your property from sewage and run-off from their sewers.

Counted with Prather and Brooks among Kentucky’s classic municipal immunity cases is Haney vs. City of Lexington. The facts are slightly less interesting, but the upshot of them is huge. The Haney court wrote in 1964 that “There is probably no tenet in our law that has been more universally berated by courts and legal writers than the governmental immunity doctrine” and they stated that they “recede from prior decisions which hold municipal corporations immune from liability for ordinary torts. We wish to make it plain, however, that this opinion does not impose liability on the municipality in the exercise of legislative or judicial or quasi-legislative or quasi-judicial functions.” (Again in English: judges generally do not like municipal immunity, but they’re willing to uphold it in certain, narrow cases.)

This addition to case law cleared up immense confusion surrounding the doctrine, and the quoted language regarding quasi-legislative and quasi-judicial functions is mirrored in law passed by the General Assembly as you will see in a few paragraphs.

Before we get to that, though, there is one more important case to consider whenever one examines municipal immunity in Kentucky. Gas Service Co., Inc. v. City of London arose when a gas line explosion occurred. Some buildings in London got destroyed, some people got injured, and so some people sued the gas company. The gas company sued the city, and it was alleged that the explosion was a result of negligence on the city’s part as it related to the repair of sewer lines. Thus, the city was argued to have been liable – not the gas company. The Supreme Court of Kentucky wrote 

“At the time of Haney we wrote “[t]he act of constructing a sewer is [regarded as] governmental in nature, with no liability [cases cited], but afterwards, if a negligent act of the city causes the basement of a connecting residence to be flooded, the city is responsible in damages. [Case cited].” 

This was another blow to the doctrine of municipal immunity in the state, weirdly enough another one related to sewers. Basically, if a city wants to construct a sewer, they have immunity for things related to that construction, which is seen as governmental. Once that sewer is finished, though, all that immunity goes away. They’re on the hook to maintain it, and if they do so negligently, they can get sued.

Gas Service is important because it reaffirmed the doctrine of municipal liability as stated in Haney and extended its application to any then-pending and future cases. This was before the Claims Against Local Government Act (hereafter: CALGA).

The Kentucky Local Governmental Liability Act

On July 15^th, 1988, the Claims Against Local Governments Act (CALGA) became effective in the Commonwealth of Kentucky. The act was passed by the General Assembly in order to codify elements of municipal immunity into state law. It consists of KRS 65.2001-2006. CALGA’s provisions, particularly KRS 65.2003, exempt local governments from liability in certain situations, including claims arising from the exercise of judicial, quasi-judicial, or legislative discretion. However, CALGA also clarified that local governments would still be liable for acts of negligence in carrying out their ministerial functions.

The statute is clear in KRS 65.2003 that “Nothing contained in this subsection shall be construed to exempt a local government from liability for negligence arising out of acts or omissions of its employees in carrying out their ministerial duties.” This provision ensured that while local governments had immunity for discretionary functions, they could not escape liability for neglecting clear, non-discretionary duties.

Another provision, however, makes it clear that CALGA does not erase all the history and common law we’ve already discussed., KRS 65.2001 says: 

“Except as otherwise specifically provided in KRS 65.2002 to KRS 65.2006, all enacted and case-made law, substantive and procedural, concerning actions in tort against local governments shall continue in force. No provision of KRS 65.2002 to 65.2006 shall in any way be construed to expand the existing common law concerning municipal tort liability as of July 15, 1988 nor eliminate or abrogate the defense of governmental immunity for county governments.”

There is no reason to believe that Pranther v. City of Lexington or City of Maysville v. Brooks are in any way diminished by CALGA. Instead, we should understand CALGA to preserve them. As preserved, they remain to indicate the inapplicability of CALGA to the maintenance of sewers, which these cases make clear to be a ministerial function regardless of who constructed the sewers and dependent only upon their ownership by some sort of municipal entity. 

Early Developments in CALGA: The Discretionary vs. Ministerial Distinction

The foundational concept of municipal immunity in Kentucky revolves around the distinction between discretionary (quasi-legislative or quasi-judicial, such as passing an ordinance or approving a plan) and ministerial functions.  As quoted a few paragraphs above, CALGA, in KRS 65.2003 makes it clear that ministerial functions are exempt from at least some of the immunity provisions it gives: “Nothing contained in this subsection shall be construed to exempt a local government from liability for negligence arising out of acts or omissions of its employees in carrying out their ministerial duties.” Basically what the sewer maintenance cases all go to show ist that when local governments do “government things” like passing laws or building infrastructure, they get immunity – in legalese, these sorts of things are often called discretionary acts because they  involve judgment and policy decisions. Liability does apply when city governments are doing ministerial tasks – tasks that administer/administrate their discretionary actions. For instance, if building a sewer is discretionary, taking care of it is ministerial.

One of the first significant Kentucky cases to address this distinction was City of Frankfort v. Byrns (1991). In this case, the City of Frankfort sought immunity, arguing that it had exercised its discretionary capacity in designing and constructing a storm drainage system. However, the appellate court ruled that “the actions of the appellant [City of Frankfort] were ministerial in nature and therefore, were not clothed in immunity.” Once the city made the decision to design and construct the system, its subsequent actions, including the actual construction and maintenance, were considered ministerial. This early case laid the groundwork for the idea that municipalities cannot claim immunity for negligence when performing ministerial duties, even if the original decisions about those duties involved discretionary actions.

Municipal Negligence and Infrastructure Maintenance: The Case Law Evolves

In the years following the passage of CALGA, Kentucky courts addressed numerous cases involving municipal negligence, particularly in the area of public infrastructure maintenance. One notable case was Madden v. City of Louisville (2004), which involved the Jefferson County Metropolitan Sewer District (MSD). The plaintiff, Stanley Madden, sued MSD for negligent failure to maintain a stormwater drainage system after his basement was flooded by rainwater flowing from Iroquois Park. MSD claimed that maintaining the drainage system was a discretionary act, but the Court of Appeals of Kentucky disagreed. In this case, the court emphasized that “once a municipality establishes or opens a sewer, it has a ministerial duty to non-negligently construct, maintain, and repair the sewer system.”

This decision reinforced the principle that municipalities, once they take on the responsibility of constructing or maintaining infrastructure, cannot claim immunity when they fail to properly maintain or repair that infrastructure. The court highlighted that the duty to maintain the system was not a discretionary decision but rather a ministerial function, thereby opening the door for liability in cases of negligence.

Punitive Damages and Municipal Immunity

The issue of punitive damages introduces another layer of complexity to the application of municipal immunity. In cases where municipalities are accused of egregious or willful misconduct, plaintiffs often seek punitive damages to deter future bad conduct. However, the question remains whether municipalities, as distinct from individuals, can be held liable for punitive damages. Obviously, if a city or municipal entity was assigned punitive damages, the people on the hook for them would be the taxpayers. Although it makes sense to want to assign punitive damages when things do go wrong, one rarely wants to increase anyone’s tax burden.

The U.S. Supreme Court’s ruling in City of Newport v. Fact Concerts, Inc. (1981) is particularly influential in shaping the application of punitive damages here. In that case, the Court ruled that municipalities are immune from punitive damages under 42 U.S.C. § 1983, a civil rights statute. The Court noted that “Nothing in the legislative history suggests that, in enacting § 1 of the Civil Rights Act of 1871, Congress intended to abolish the doctrine of municipal immunity from punitive damages.” This landmark decision solidified the principle that punitive damages are generally not applicable to municipal governments, primarily because municipalities do not have personal wealth in the same way that people and private entities do. Such damages could place undue strain on public resources.

This line of reasoning was later echoed in the case Center for Bio-Ethical Reform, Inc. v. City of Springboro (2005), where municipal immunity was upheld in the context of a claim for punitive damages. In the case, a pro-life group sued the City of Springboro after a lengthy encounter with cops that had to do with graphic images of abortions, bulletproof vests, and more.  In the court’s reasoning, it cited City of Newport and reiterated that municipalities are immune from punitive damages. This precedent has continued to influence the interpretation of municipal immunity in Kentucky, especially in cases where claims for punitive damages are brought against local governments. This is significant because it shows a court other than the Supreme Court baking the reasoning in City of Newport even deeper into common law.

Deliberate Indifference and Accountability: Moving Beyond Immunity

Despite the general immunity from punitive damages, there are circumstances where a municipality’s failure to address known risks could rise to the level of deliberate indifference. This concept has been particularly significant in cases involving public safety and infrastructure maintenance.

Municipal immunity is not all about sewers and gas lines. Sometimes it is about that and other things. In one tragic case, it had to do with a child’s death. In Albright v. Louisville and Jefferson County Metropolitan Sewer District (2023), the court considered the failure of the MSD to place a safety grate over an open sewer pipe. The plaintiff, a mother whose son drowned after being swept into the open sewer, argued that MSD had a ministerial duty to grate the sewer and that the agency should not be immune from liability for negligently failing to do so. The court agreed, stating, “Albright maintains that MSD’s failure to place a safety grate over the pipe constituted a ministerial function, and as such, MSD is afforded no immunity from tort liability under CALGA.”

The court went further, citing the longstanding principle that municipalities have a “ministerial duty to non-negligently construct, maintain, and repair the sewer system.” It also recognized that “failure to carry out such duties could, in some cases, be considered deliberate indifference”—especially when the municipality is aware of the risks and neglects to take action. This decision emphasized that the immunity provided by CALGA does not apply to cases where municipal actions rise to the level of deliberate indifference or gross negligence.

Conclusion: The Ongoing Evolution of Municipal Immunity in Kentucky

Kentucky’s municipal immunity doctrine has evolved significantly over the past two centuries, from early distinctions between discretionary and ministerial acts to the contemporary application of CALGA. While municipalities remain immune from liability in some cases, courts have increasingly recognized that local governments can be held accountable for negligent acts, particularly when those acts involve the maintenance of public infrastructure or the failure to address known risks. The distinction between ministerial and discretionary functions, along with the consideration of deliberate indifference, continues to shape Kentucky’s approach to municipal liability.

As cases like Madden and Albright illustrate, municipalities in Kentucky can no longer hide behind immunity when their failure to maintain infrastructure or ensure public safety causes harm. The doctrine of municipal immunity, though still in place, is no longer an absolute shield against accountability, especially when the negligence or indifference of local officials leads to harm that could have been prevented through reasonable care and maintenance.