# Louisville & Jefferson County Metropolitan Sewer District v. Jennifer Albright, Individually and as Administratrix of the Estate of David K. Albright

> Kentucky Supreme Court · March 20, 2025

URL: https://www.frixlaw.com/law-library/cases/10826982

## Case

- **Court:** Kentucky Supreme Court
- **Decided:** March 20, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Lambert
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10826982

## How later opinions describe it (automated extraction)

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- holding that the city of Southgate, Kentucky could not be held liable for the deaths resulting from the Beverly Hills Supper Club fire which were arguably a result of the city’s failure to enforce laws and regulations establishing safety standards for construction and use of b…

## Opinion text

RENDERED: MARCH 20, 2025
TO BE PUBLISHED

Supreme Court of Kentucky
2023-SC-0079-DG

LOUISVILLE & JEFFERSON COUNTY APPELLANT
METROPOLITAN SEWER DISTRICT

ON REVIEW FROM COURT OF APPEALS
V. NO. 2021-CA-0181
JEFFERSON CIRCUIT COURT NO. 18-CI-07082

JENNIFER ALBRIGHT, INDIVIDUALLY, APPELLEE
AND AS ADMINISTRATRIX OF THE
ESTATE OF DAVID K. ALBRIGHT

OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT

AFFIRMING

In this appeal, we address whether the Louisville and Jefferson County

Metropolitan Sewer District (MSD) is entitled to municipal immunity under the

Claims Against Local Governments Act (CALGA) 1 against Jennifer Albright’s

(Albright) claims against it in relation to the death of her minor child. The

circuit court granted summary judgment in favor of MSD after finding that it

qualified for immunity under CALGA, and the Court of Appeals reversed. After

thorough review we hold that MSD, though subject to CALGA, is not entitled to

immunity under the facts of this case. We accordingly affirm the Court of

1 Kentucky Revised Statues (KRS) 65.200-65.2006.
Appeals, vacate the circuit court’s summary judgment opinion and order, and

remand this case to the circuit court for further proceedings.

I. FACTS AND PROCEDURAL BACKGROUND

As this is an appeal from an entry of summary judgment, this Court’s

review provides no deference to the circuit court’s assessment of the record or

its legal conclusions. See Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky.

2010) (citing Malone v. Kentucky Farm Bureau Mut. Ins. Co., 287 S.W.3d 656,

658 (Ky. 2009)). Accordingly, in this section we provide only the facts that are

necessary for context and provide a more thorough discussion of the record in

Section II(C) of this Opinion.

At the time of the events at issue in this case Albright had been living in

a residential subdivision known as Old Dorsey Place 2 in Louisville, Kentucky

with her fifteen-year-old son David Albright (David) and her twelve-year-old son

Maxwell Albright (Max) for six years. David attended Trinity High School and

was an A and B average student who participated in the school’s chorus and

drumline. He also had an afterschool job at a bakery and was involved in the

Boy Scouts.

Sometime around 6:30 p.m. on August 31, 2018, Albright and her

children came home and noticed that the grass covered drainage swale in their

backyard had filled with rain water to approximately ankle-deep. The swale

carried water from right to left across Albright’s backyard at 9805 Melissa Drive

2 Also referred to as Foxboro Estates.

2
and continued across the yard of Albright’s neighbor to the left at 9803 Melissa

Drive. The swale then ended at the property line between 9803 and 9801

Melissa Drive where it emptied into a drainage pipe that was either eighteen

inches or twenty-one inches in diameter, housed within a concrete headwall.

The backyards of the properties on Melissa Drive abutted the backyards of the

homes on Foxfire Drive. Accordingly, the swale simultaneously ran through

the backyards of the homes located at 805, 803, and 801 Foxfire Drive, and the

headwall was also in the backyard of the property at 801 Foxfire Drive. A

concrete pad was in front of the headwall below the pipe entrance. It is

undisputed that the swale and drainage pipe were part of a drainage easement

owned by MSD.

Albright and her children decided they would play in the swale together

for a little while before dinner. At first, Albright did not accompany the boys

outside and instead filmed a video of them playing on her cellphone from inside

her home. A few moments later Albright joined them outside. After a few

minutes of splashing and running around in the swale, the trio moved down to

the headwall. Albright stood on top of the headwall while David and Max

played in the approximately 16-inch-deep water that had pooled at the pipe’s

opening. David, who was barefoot and standing upright, suddenly lost his

footing and was swept feet-first towards the drainage pipe. Albright grabbed

his hands and tried to prevent him from going into the pipe but was unable to

maintain her grasp. David—who was five foot nine and weighed 162 pounds—

was “sucked into” the drainage pipe. That pipe ran for four hundred and thirty

3
feet entirely underground, including two ninety degree turns, and contained no

means for someone to extricate themselves if they became trapped inside.

There were no warning signs in the vicinity of the pipe’s opening, nor were

there any safety measurements in place, such as a trash rack or safety grate

that would have prevented someone from being swept into the pipe during a

rain event. The pipe emptied into a detention pond that was also owned by

MSD. David was located by first responders in that detention pond and was

transported to a hospital where he died from his injuries on September 7,

2018.

In December 2018, Albright filed suit against MSD in both her individual

capacity and as the administratrix of David’s estate alleging negligence,

negligence/failure to warn, negligence per se, attractive nuisance, negligent

infliction of emotional distress, and loss of consortium. Of particular import,

Albright’s negligence claim asserted that MSD negligently maintained the

drainage system and that it knew or should have known of the unsafe,

defective, or dangerous condition created by it, while her claim for failure to

warn contended that MSD failed to fulfill its duty to warn the public of the

unreasonable danger created by the drainage system. Albright’s primary

contention was that MSD was negligent in failing to install a grate over the

entrance to the pipe or, at the very least, for failing to warn the public of the

pipe’s dangers, of which it had or should have had knowledge. MSD’s answer

to Albright’s complaint asserted several defenses including municipal immunity

under CALGA.

4
After roughly one year of pre-trial proceedings that included numerous

depositions, expert reports, and various other items of discovery, MSD filed a

motion for summary judgment. MSD’s motion asserted it was entitled to

summary judgment, in pertinent part, 3 because it was immune from suit

pursuant to CALGA. In particular, under KRS 65.2003, which states that a

local government “shall not be liable for injuries or losses resulting from any

claim arising from the exercise of. . . legislative or quasi-legislative authority.”

KRS 65.2003 then provides a non-exhaustive list of examples that include

“[t]he adoption or failure to adopt any ordinance, resolution, order, regulation,

or rule;” “[t]he exercise of discretion when in the face of competing demands,

the local government determines whether and how to utilize or apply existing

resources;” and the “failure to make an inspection.” KRS 65.2003(3)(a), (d),

and (e).

To support its assertion, MSD pointed to a guideline contained in its

Drainage Manual that stated it would “not place grates on any existing

drainage systems, or allow their use in newly installed drainage systems where

the potential for flooding damage or a safety hazard exists.” MSD claimed that

3 MSD also asserted entitlement to summary judgment based on its assertions

that David was a trespasser on MSD’s drainage easement to whom it owed no duty,
and that the attractive nuisance doctrine did not apply because of David’s age and
intelligence.
Though rendered unnecessary by the circuit court’s finding of immunity under
CALGA, the circuit court found that genuine material of issues of fact existed
regarding whether David was a trespasser or was on MSD’s easement by implied
invitation, whether David interfered with MSD’s easement in such a way that he could
be deemed a trespasser, and whether the attractive nuisance doctrine was applicable.

5
this guideline was implemented because the placement of a grate creates a

potential for flooding during rain events due to debris becoming trapped on the

outside of the grate. This in turn can cause property damage and danger to

any MSD employees or customers who attempt to remove the debris. In

addition, MSD claimed that it also took its limited resources into consideration

when implementing its no-grate guideline. It was undisputed that, pursuant to

this guideline, MSD would flatly refuse to put a grate over any of its pipes,

preexisting or new, under any circumstances.

Albright’s response to MSD’s motion for summary judgment asserted

that MSD did not qualify as a “local government” under CALGA. And, even if it

did, it did not meet CALGA’s requirements for immunity. She argued that the

same section of CALGA cited by MSD also stated that “[n]othing 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.” KRS 65.2003(3). She argued that the common law

and CALGA placed a ministerial duty on municipal corporations such as MSD

to non-negligently construct, maintain, and repair their sewer systems and

that MSD had been grossly negligent in failing to satisfy that ministerial duty.

She contended that the pipe at issue was unreasonably dangerous in a way

that would not be apparent to a lay person based on both its design and

location and that it therefore needed maintenance or repair in the form of a

grate.

6
Albright further argued that MSD blindly followed its no-grate guideline

without considering any of the factors that industry standards required them

to consider, and that those same industry publications provide that a properly

designed grate actually reduces the risk of flooding. Albright asserted that

neither the Drainage Manual nor the no-grate guideline itself had ever been

adopted by MSD’s Board and deposition testimony from multiple MSD

employees clearly showed it was not an MSD “policy.” Further, MSD’s claim

that the no-grate guideline was implemented based on a consideration of

MSD’s resources was demonstrably false, as the Drainage Manual explicitly

says its principles are to be implemented without consideration of MSD’s

resources.

The circuit court found that MSD met the definition of a “local

government” under CALGA and that it was entitled to immunity. It reasoned

the pipe system that killed David was “functioning as intended” and was

therefore not in need of maintenance or repair, and that the industry standards

relied upon by Albright did not impose an absolute, certain, or imperative duty

on MSD to place a grate, but rather only represented best practices. It

concluded that “[t]he decision MSD made to not install grates over existing

drainage pipes [fell] within its discretionary rulemaking authority under

common law [and] CALGA” and that MSD was therefore entitled to immunity

under subsections (a), (d), and (e) of KRS 65.2003(3).

Albright appealed the circuit court’s ruling to the Court of Appeals, and a

unanimous panel affirmed in part, reversed in part, and remanded for further

7
proceedings. Albright v. Louisville & Jefferson Cty. Metro. Sewer Dist., 2021-CA-

0181-MR, 2023 WL 324311 (Ky. App. Jan. 20, 2023). The Court of Appeals

agreed with the circuit court’s determination that MSD met the definition of

“local government” provided in KRS 65.200(3) and was therefore an entity that

could be covered under CALGA. Id. at *5. Nevertheless, it disagreed with the

circuit court’s determination that MSD was entitled to immunity based on the

facts of this case and that its adoption of a guideline forbidding the placement

of grates over its drainage pipes did not arise out of its legislative or quasi-

legislative authority. Id. at *5-*9.

We granted MSD’s subsequent motion for discretionary review to address

whether it is entitled to immunity from Albright’s claims under CALGA.

Additional facts are discussed below where necessary.

II. ANALYSIS

A. Standard of Review

The sole issue presented by this appeal is whether the circuit court erred

by granting summary judgment in favor of MSD based on its conclusion that

MSD was entitled to municipal immunity against Albright’s claims under

CALGA.

Summary judgment is only appropriate when “the pleadings, depositions,

answers to interrogatories, stipulations, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact

8
and that the moving party is entitled to a judgment as a matter of law.” CR 4

56.03 “[T]his Court has repeatedly admonished that the rule must be

cautiously applied” and that it “is not a substitute for trial.” Steelvest, Inc. v.

Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). As ruling on a

motion for summary judgment does not require a trial court to make findings

of fact, but rather requires it to examine the record and determine whether a

material issue of fact exists, “we generally review the grant of summary

judgment without deference to either the trial court's assessment of the record

or its legal conclusions.” Hammons, 327 S.W.3d at 448. Moreover, we must

review the record “in a light most favorable to the party opposing the motion for

summary judgment,” in this case Albright, and resolve all doubts in her favor.

Steelvest, 807 S.W.2d at 480.

B. MSD is a “local government” under CALGA.

Although Albright does not challenge the Court of Appeal’s ruling that

MSD meets the definition of a “local government” under CALGA, the guidance

from this Court has been inconsistent on that point and we now clarify the law

regarding the potential availability of municipal immunity for entities like MSD.

CALGA defines “local government” as “any city incorporated under the

law of this Commonwealth, the offices and agencies thereof, any county

government or fiscal court, any special district or special taxing district created

or controlled by a local government.” KRS 65.200(3). Formerly, the General

4 Kentucky Rule of Civil Procedure.

9
Assembly provided a definition of “special district” under KRS 65.005(2)(a),

which stated:

"Special district" means any agency, authority, or political
subdivision of the state which exercises less than statewide
jurisdiction and which is organized for the purpose of performing
governmental or other prescribed functions within limited
boundaries. It includes all political subdivisions of the state except
a city, a county, or a school district.

However, this definition is no longer applicable. Instead, KRS 65.005(1)

provides:

The provisions of this section shall apply prior to July 1, 2014. On
and after July 1, 2014, the provisions of this section shall no
longer apply; instead the provisions of KRS 65A.010 to 65A.090
shall apply. Special districts shall cooperate with the Department
for Local Government and the Auditor of Public Accounts to ensure
an orderly transition from the reporting requirements of this

section to the reporting requirements of KRS 65A.010 to 65A.090.
Notwithstanding the dates established by this subsection, the
provisions of this section and KRS 65A.010 to 65A.090 shall be
administered such that the registration required by KRS
65A.090(1) occurs as required by that subsection, and there is no
gap in reporting by entities subject to this section and KRS
65A.010 to 65A.090 as the transition occurs.

(Emphasis added). Currently, there is no statutory definition of “special

district,” and that term instead appears to have been replaced with “special

purpose governmental entity” as defined by KRS 65A.010(9)(a):

"Special purpose governmental entity" or "entity" means any
agency, authority, or entity created or authorized by statute which:

1. Exercises less than statewide jurisdiction;

2. Exists for the purpose of providing one (1) or a limited number
of services or functions;

10
3. Is governed by a board, council, commission, committee,
authority, or corporation with policy-making authority that is
separate from the state and the governing body of the city,
county, or cities and counties in which it operates; and

4. a. Has the independent authority to generate public funds; or

b. May receive and expend public funds, grants, awards, or
appropriations from the state, from any agency, or authority of the
state, from a city or county, or from any other special purpose
governmental entity.

We conclude that the definition of “special district” under KRS 65.005(2)(a) and

the definition of “special purpose governmental entity” under KRS 65A.010(9)(a)

are substantially similar. Indeed, under KRS 65A.010(9)(c)(7), the General

Assembly gives one such example of a special purpose governmental entity as

“[s]anitation, sewer, waste management, and solid waste services.” It is

therefore indisputable that the General Assembly intended local entities like

MSD that provide sewer services to be considered special purpose

governmental entities.

The General Assembly effectuated these changes by the passage of HB 1 5

in the 2013 regular session. This amendment does not appear intended to

change how these entities are to be treated under CALGA. HB 1 is entitled

“Special Districts―Registers and Registries―Audits and Auditors,” and the

preamble is as follows:

AN ACT relating to special purpose governmental entities, making
an appropriation therefor, and declaring an emergency.

WHEREAS, special purpose governmental entities exist to serve a
public purpose and must be subject to standards of accountability

5 Act of Mar. 21, 2013, ch. 40, 2013 Ky Acts 197 (enacting KRS Chapter 65A).

11
so that the public, other local governmental entities, and state
government can be apprised of their status and activities; and

WHEREAS, for many years it has been impossible to compile a
complete and accurate list of all the special purpose governmental
entities operating in the Commonwealth, or to ascertain basic
information about how those entities are operated, where they
receive their funding, and how they expend their resources; and

WHEREAS, the General Assembly, in 12 RS HCR 53, directed the
Interim Joint Committee on Local Government to study, during the
2012 Interim, special districts' fiscal, administrative, and ethical
issues in light of audits conducted by the Auditor of Public
Accounts; and

WHEREAS, numerous concerns relating to the accountability and
transparency of special purpose governmental entities were
recently highlighted in “Ghost Government A Report on Special
Districts in Kentucky” issued by the Auditor of Public Accounts on
November 14, 2012; and

WHEREAS, the General Assembly intends, by enacting this
legislation, to improve the public accountability and transparency
of all special purpose governmental entities in the Commonwealth,
for the benefit of the people whom these entities serve[.]

We discern from the language of the preamble of HB 1 (2013) that the purpose

of this bill was not to alter, abolish, or remove the term special district from the

protections under CALGA. Rather, it was to institute some financial oversight

over, and encourage greater transparency, from these entities.

We now turn to the caselaw pertaining to whether a sewer district

qualifies as a special district. In Coppage Constr. Co., Inc. v. Sanitation Dist. No.

1, 459 S.W.3d 855 (Ky. 2015), we held that Sanitation District 1 was a special

12
district. 6 Despite our holding that Sanitation District 1 was a special district

under KRS 65.005, our predecessors on this Court found that it was not

entitled to sovereign immunity. 7 In deciding that Sanitation District 1 was not

immune from suit we used the analysis as set forth in Comair, Inc. v.

Lexington―Fayette Urban County Airport Corp., 295 S.W.3d 91 (Ky. 2009).

From Coppage:

In our recent Comair decision, this Court provided guidance for
determining whether a “public” entity is entitled to sovereign
immunity by setting forth a two-prong analysis. 295 S.W.3d at 91.
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]?”
Id. at 99. The second and “more important” inquiry is whether the
entity exercises a “function integral to state government.” Id. at
99.

459 S.W.3d at 859. Ultimately, as to the first prong under Comair this Court

held that Sanitation District 1 was not created by the state nor the counties in

which it operated, rather

it was created pursuant to KRS Chapter 220's predecessor,
Chapter 148 of the 1940 Kentucky Acts “... by petition of about
seventeen incorporated areas and communities located in northern
Kentucky.” City of Covington v. Sanitation Dist. No. 1 of Campbell
and Kenton Counties, 301 S.W.2d 885, 886 (Ky. 1957). And while
[Sanitation District] 1 correctly asserts that such petition must be
approved by the county board of health, KRS 220.040(1), a
sanitation district cannot be created without the “direct solicitation
or ... the free consent” of the affected landowners in the form of a
petition signed by individuals or the governing body of their

6 Sanitation Districts are created through KRS 220, while Metropolitan Sewer

Districts are created through KRS 76. In Coppage, we found this a “distinction
without a difference.” 459 S.W.3d at 863.
7 In Coppage, this Court also took no notice of the change from “special district”

to “special purpose government entity.”

13
municipality. See Comair, 295 S.W.3d at 100. Simply put, no
county can impose a sanitation district upon its citizens under
KRS Chapter 220 (or its predecessor), and none of the counties
involved in this litigation “created” [Sanitation District] 1.

Id. at 861. As to the second prong of the Comair analysis, whether a sanitation

district performs an integral state function, this Court held that sewer services

were a local proprietary function not integral to state government. We based

our decision largely on our holding in a case involving the very same entity in

this case: MSD. In Calvert Invs., Inc. v. Louisville & Jefferson Cty. Metro. Sewer

Dist., 805 S.W. 2d 133 (Ky. 1991), we determined that MSD was not entitled to

sovereign immunity largely because it performs a local function similar to a

private corporation. From Coppage:

[S]ewer districts are established as special districts “to carry out a
limited public purpose in a local area,” id. at 135, and, unlike
counties or school districts, perform “services similar to a private
corporation[.]” Id. at 138. With these characteristics in mind, the
Calvert Court had little difficulty concluding that MSD, a municipal
corporation designated to perform a local function, was not entitled
to sovereign immunity. Id.

459 S.W.3d at 862–63 (discussing Calvert Invs., Inc. v. Louisville & Jefferson

Cty. Metro. Sewer Dist., 805 S.W. 2d 133 (Ky. 1991)).

So, if one were to determine from the caselaw alone whether MSD is

entitled to sovereign immunity in the case at bar, one must answer in the

negative. 8 A curious omission occurred in these line of cases, however. Not

8 Even more recently this Court confirmed in its analysis, that MSD is not entitled

to sovereign immunity but once again did not undertake any analysis regarding
CALGA, instead relying on Coppage and Comair. Louisville & Jefferson Cnty. Metro.
Sewer Dist. v. Hill, 607 S.W.3d 549, 554–55 (Ky. 2020).

14
once in these several cases did this Court undertake an analysis of CALGA, nor

was it even mentioned despite that it was in effect at the time all three cases

were decided. Bearing in mind that CALGA is an abbreviation of Claims

Against Local Governments Act, and that special district is included in the

definition of local government, 9 it is confusing, to say the least, for Calvert,

Comair, and Coppage to cast local governments, which “carry out a limited

public purpose in a local area,” beyond the pale of immunity because they are

not creatures of the state and do not perform an integral state-wide function.

Whatever the reason for this omission, this Court cannot ignore the

implications of CALGA on the present case despite this Court’s previous

jurisprudence and the General Assembly’s duly enacted provisions of CALGA,

having passed each other like ships in the night, seemingly unaware of the

other’s presence.

To add to the confusion surrounding this issue, the Court of Appeals in

one case held that a local water company enjoyed municipal immunity. Siding

Sales, Inc. v. Warren Cty. Water Dist., 984 S.W.2d 490 (Ky. App. 1998). 10 And it

is one of the few cases that analyzed the immunity issue through the lens of

CALGA. Yet, more recently this Court adopted the holding of the Court of

Appeals which held a local water company was not immune from suit. N. K.

Water Dist. v. Carucci, 600 S.W.3d 240 (Ky. 2020). This case overruled a Court

9 See the discussion above regarding special districts and special purpose

governmental entities.
10 It is this case where the Court of Appeals based its opinion that MSD is a

covered entity under CALGA.

15
of Appeals case wherein it decided that the South Woodford Water District did

enjoy immunity. S. Woodford Water Dist. v. Byrd, 352 S.W.3d 340 (Ky. App.

2011). The reasoning behind our decision in Carucci was again based on our

holding in Coppage. We held that the water company did not perform an

integral state function. Carruci, 600 S.W.3d at 244. But absent from Carruci is

any mention or analysis of CALGA.

Despite the considerable weight of the caselaw finding otherwise, this

Court must take CALGA into account, howsoever belatedly, and we now hold

that MSD is a special district or special purpose governmental entity and may

be entitled to municipal immunity under CALGA.

C. Though MSD is a local government under CALGA, it is not entitled to
municipal immunity here.

Before this Court, MSD renews its assertion that its decision to not place

grates over any of the drainage pipes for which it is responsible is entitled to

immunity under CALGA because it arose out of the exercise of its legislative or

quasi-legislative authority. In response, Albright contends her allegation that

MSD failed to non-negligently maintain or repair the pipe at issue is an

assertion that it failed to fulfill a ministerial duty and MSD is therefore not

entitled to immunity against it. For the reasons that follow, we agree with

Albright.

1) MSD has a ministerial duty to maintain and repair its sewer and
water systems.

Any discussion of modern municipal immunity jurisprudence in

Kentucky must begin with Haney v. City of Lexington, 386 S.W.2d 738 (Ky.

16
1964). Prior to Haney, our courts adhered to the rule of municipal immunity

from liability sounding in tort, and our jurisprudence’s sole means to “lessen

the severity of the rule of municipal immunity” to individuals harmed by the

negligence of a municipal corporation was by drawing a distinction between

“functions of the municipal corporation that purportedly were governmental or

public and those thought to be proprietary or private.” Id. at 739-40.

Municipal liability was denied in cases involving a governmental function but

was imposed in situations involving a proprietary action. 11 Id. at 740. Haney

was a sea change, as it separated the doctrine of municipal immunity from

sovereign immunity and abolished it apart from the explicit exceptions of a

municipality’s exercise of its legislative, judicial, quasi-legislative, or quasi-

judicial authority. Id. at 742.

In Haney, the estate of a seven-year-old girl who drowned in a pool

operated by the city of Lexington filed a negligence claim against it. Id. at 739.

The trial court found the city was entitled to municipal immunity from the

claim because its operation of the pool was a governmental function and

entered summary judgment in its favor. Id. at 738-39. In addressing the

estate’s appeal, the Commonwealth’s then-highest court expressed its clear

disdain for the doctrine of municipal immunity which it called a “legal

anachronism” without a rational or constitutional basis that “existed only by

the force of inertia” and stare decisis. Id. at 739-40. It expressed a similar

11 See, e.g., V. T. C. Lines, Inc. v. City of Harlan, 313 S.W.2d 573 (Ky. 1957),

overruled by Haney.

17
contempt for our court system’s attempt to create “escape hatches” from

municipal immunity by distinguishing between governmental and proprietary

functions, which it concluded was “contrived and without sensible basis[,]”

“difficult to understand[,]” and led to incongruous results from one case to

another. Id. at 740.

Accordingly, the Haney Court announced that it was “[receding] from

prior decisions which hold municipal corporations immune from liability for

ordinary torts.” Id. at 742. The sole exception for its new rule of municipal

liability was a municipality’s “exercise of legislative or judicial or quasi-

legislative or quasi-judicial functions.” Id. The Court concluded by adopting

language from a Wisconsin Supreme Court opinion regarding the scope of its

abrogation of municipal immunity:

Perhaps clarity will be afforded by our expression that
henceforward, so far as governmental responsibility for torts is
concerned, the rule is liability—the exception is immunity. In
determining the tort liability of a municipality it is no longer
necessary to divide its operations into those which are proprietary
and those which are governmental. Our decision does not broaden
the government's obligation so as to make it responsible for all
harms to others; it is only as to those harms which are torts that
governmental bodies are to be liable by reason of this decision.

Id. (emphasis added) (quoting Holytz v. City of Milwaukee, 115 N.W.2d 618,

625 (Wis. 1962)). The Court vacated the trial court’s summary judgment order

and remanded for further proceedings. Id.

Twenty-one years after Haney, this Court doubled down on the

abolishment of municipal immunity in favor of municipal liability and

expounded on what qualifies as “the exercise of legislative or judicial or quasi-

18
legislative or quasi-judicial functions” in Gas Service Co., Inc. v. City of London,

687 S.W.2d 144 (Ky. 1985). In that case, a gas company was found to be liable

to several injured plaintiffs after its gas line exploded in the city of London. Id.

at 145. The gas company in turn sought indemnity against the city on the

basis that the city had installed sewer lines in close proximity to the company’s

gas lines and thereafter negligently repaired those sewer lines in a manner that

caused the explosion. Id. The trial court dismissed the indemnity claim on the

basis that the city was entitled to municipal immunity, and the Court of

Appeals affirmed. Id. This Court granted discretionary review to “consider

once again the legal morass that has generated around the subject of

municipal immunity[.]” Id.

The Gas Service Court highlighted that Haney “regarded municipal

immunity as a judicially created monstrosity that should be judicially

destroyed.” Id. at 147. Yet, in the intervening decades since Haney was

rendered, several opinions had “so circumscribed its language that we have. . .

regressed beyond its starting point.” Id. 146-47. In particular, the trial court’s

grant of summary judgment in favor of the city of London in the case before it

demonstrated

that this monstrosity is not only alive and well, but grown to such
proportions that it provides immunity for negligence in repair and
maintenance of sewers, a function previously regarded as one
proprietary in nature and not protected by municipal immunity.
See City of Paris v. Baldwin Bros., 169 Ky. 802, 185 S.W. 144
(1916), City of Frankfort v. Buttimer, 146 Ky. 815, 143 S.W. 410
(1912), Toebbe v. City of Covington, 145 Ky. 763, 141 S.W. 421
(1911) and Town of Central Covington v. Beiser, 122 Ky. 715, 92

19
S.W. 973 (1906), all premising liability for damages on condition of
city sewer facilities.

Id. at 147. See also City of Maysville v. Brooks, 140 S.W. 665, 668 (Ky. 1911)

(holding “the obligation to establish and open sewers is a legislative duty, while

the obligation to keep them in repair is ministerial.”); Prather v. City of

Lexington, 52 Ky. 559, 561 (1853) ("And where a city corporation is bound to

keep the . . . sewers of the city in proper repair, it is liable to damages if any

person be injured by its neglect to have such repairs made.").

In other words, any alleged negligence by a municipality in the

maintenance or repair of its sewer system had always been subject to liability,

even before Haney’s abolishment of municipal immunity. 687 S.W.2d at 147.

Yet, because subsequent cases such as City of Louisville v. Louisville Seed Co.,

433 S.W.2d 638 (Ky. 1968); Frankfort Variety, Inc. v. City of Frankfort, 552

S.W.2d 653 (Ky. 1977); and City of Russellville v. Greer, 440 S.W.2d 269 (Ky.

1968) 12 had retreated from the holding in Haney by attempting to install yet

another arbitrary distinction—this time between whether a given activity is or

is not “an ultimate function of government”—the trial court in Gas Service had

been able to conclude that the city was immune from liability for its alleged

negligence in maintaining or repairing its sewer system. Id. at 148. The Court

went so far as to say that it was

understandable if the movant in the present case should wonder
how we arrived in a situation where he could have recovered for
damages from the city’s negligent maintenance and repair of the
sewer system when municipal immunity was the rule and liability

12 All three cases were overruled by Gas Service.

20
the exception, but can no longer recover now when liability is
supposedly the rule and immunity the exception.

Id. at 147.

Accordingly, the Gas Service Court once again made its intention to

abolish municipal immunity except in very limited circumstances clear:

The concept of liability for negligence expresses a universal duty
owed by all to all. The duty to exercise ordinary care
commensurate with the circumstances is a standard of conduct
that does not turn on and off depending on who is negligent.
With a municipal corporation as with all other legal entities,
the question is not whether such a duty exists, but whether it
has been violated and what are the consequences.
Constitutionally, statutorily, or by court decisions, on occasion we
excuse the nonperformance of this duty, but no purpose is served
by denying its existence.

...

The only line drawn against municipal liability for torts in Haney
was “the exercise of legislative or judicial or quasi-legislative or
quasi-judicial functions.” 386 S.W.2d at 742. Liability in the fact
situations in Louisville Seed Co. and in Frankfort Variety is not
excused by this limited exception. Those cases, and others we
have discussed in this opinion applying municipal immunity
in reliance on them, are overruled. The functions being
carried out by municipal employees in these cases do not
qualify for municipal immunity under the doctrine laid down
in Haney. In such situations if negligence is proved, liability will
follow.

Id. at 148-49 (emphasis added).

Thus, the Gas Service Court effectively held that the municipalities’

actions in Louisville Seed and Greer 13 would not have been entitled to

immunity. Id. at 149. That conclusion is significant to the case now before us

13 Greer was discussed in the Gas Service opinion, id. at 148, and Greer relied

on Louisville Seed to impose municipal immunity. 687 S.W.2d at 270-71.

21
because in Louisville Seed the plaintiff alleged the city was liable for its

“negligence in its failure to install gates in the municipal flood wall system,”

433 S.W.2d at 639, and in Greer the plaintiff alleged that the city’s “negligent

failure to maintain a STOP sign. . . was the proximate cause of [his motor

vehicle] collision.” 440 S.W.2d at 270. These omissions are analogous to

MSD’s alleged negligence in failing to warn of and/or failing to place a grate

over the pipe at issue in this case.

With its dedication to the abolishment of municipal immunity reaffirmed,

the Gas Service Court then went on to address “what activities are excluded

from liability in tort imposed on municipal corporations in Haney by the

exception made for the exercise of. . . quasi-legislative or quasi-judicial

functions.” 687 S.W.2d at 149. The Court identified two cases decided since

Haney that had reasonably classified the acts or omissions at issue as immune

under this limited exception to liability: Commonwealth, Dept. of Banking and

Sec. v. Brown, 605 S.W.2d 497 (Ky. 1980) and Grogan v. Commonwealth, 577

S.W.2d 4 (Ky. 1979). 687 S.W.2d at 149. Brown involved “the alleged

malfeasance of government employees charged with inspection and regulation

of American Building and Loan Association and of Prudential Building & Loan

Association when they defaulted on their obligations to depositors,” while the

Grogan litigation stemmed from “the Beverly Hills Supper Club fire disaster in

the City of Southgate, where city and state employees were charged with

negligent failure to enforce laws and regulations establishing safety standards

for construction and use of buildings.” Id.

22
The Court acknowledged that Brown and Grogan did not address the

exceptions to municipal liability in the precise context of which it concerned

itself in Gas Service but nevertheless concluded that both were “cases where

the ‘government takes upon itself a regulatory function,’ . . . which is different

from any performed by private persons or in private industry, and where, if it

were held liable for failing to perform that function, it would be a new kind of

tort liability.” Id. It then held:

We deem the limitation expressed in Haney by the terms “quasi-
judicial and quasi-legislative functions” as directed at the type of
regulatory activity represented by [Brown and Grogan]. In these
cases the government was not charged with having caused the
injury, but only with having failed to prevent it by proper exercise
of regulatory functions which have elements appearing quasi-
judicial and quasi-legislative in nature.

Id. The Court accordingly held that the city of London’s alleged negligence in

the repair of its sewer lines was not entitled to immunity and remanded for

further proceedings. Id. at 150.

Former Justice Wintersheimer filed a separate concurring opinion in Gas

Service in which he called upon the General Assembly to enact “a

comprehensive tort claims act which could be applicable to all units of

government.” Id. at 152. In July 1988, three years after Gas Service was

rendered, the General Assembly answered Justice Wintersheimer’s call to

action by enacting CALGA. 14 CALGA directs that

(1) Every action in tort against any local government in this
Commonwealth for death, personal injury or property damages
proximately caused by:

14 KRS 65.200 to KRS 65.2006.

23
(a) Any defect or hazardous condition in public lands,
buildings or other public property, including personalty;

(b) Any act or omission of any employee, while acting within
the scope of his employment or duties; or

(c) Any act or omission of a person other than an employee
for which the local government is or may be liable

shall be subject to the provisions of [CALGA].

KRS 65.2001(1)(a)-(c). CALGA defines "action in tort" as "any claim for money

damages based upon negligence, medical malpractice, intentional tort,

nuisance, products liability and strict liability, and also includes any wrongful

death or survival-type action." KRS 65.200(1). And provides that “[t]he

amount of damages recoverable against a local government for death, personal

injury or property damages arising out of a single accident or occurrence. . .

shall not exceed the total damages suffered by plaintiff, reduced by the

percentage of fault including contributory fault. . . if any.” KRS 65.2002.

The Act further explicitly states that it was not intended to alter or

expand the common law that existed at the time of its enactment, i.e., Gas

Services, Haney, etc., by stating:

Except as otherwise specifically provided in KRS 65.2002 to
65.2006, all enacted and case-made law, substantive or
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.

24
KRS 65.2001(2). Ostensibly based on its desire to codify the common law

rather than modify it, CALGA goes on to provide, pertinent to this case, that

Notwithstanding KRS 65.2001, a local government shall not be
liable for injuries or losses resulting from:
...

(3) Any claim arising from the exercise of judicial, quasi-
judicial, legislative or quasi-legislative authority or
others, exercise of judgment or discretion vested in the local
government, which shall include by example, but not be
limited to:

(a) The adoption or failure to adopt any ordinance,
resolution, order, regulation, or rule;

...

(d) The exercise of discretion when in the face of
competing demands, the local government determines
whether and how to utilize or apply existing resources;
or

(e) Failure to make an inspection.

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.

KRS 65.2003(3)(a), (d)-(e) (emphasis added).

Following the enactment of CALGA, our jurisprudence never retreated

from the tenet that a municipal corporation’s responsibility to non-negligently

construct, maintain, and repair its sewer system is a ministerial duty 15 and

that an alleged failure to fulfill that duty is not entitled to immunity as

15 Ministerial acts are those which require no independent exercise of discretion

or judgment unlike legislative or quasi-legislative acts which require deliberation or
debate. Ministerial Act, BLACK’S LAW DICTIONARY (12th ed. 2024).

25
demonstrated by Mason v. City of Mt. Sterling, 122 S.W.3d 500 (Ky. 2003) and

City of Frankfort v. Byrns, 817 S.W.2d 462 (Ky. App. 1991).

In Byrns, flooding caused damage to the plaintiffs’ home several times in

the 1970s because of a drainage ditch owned by the city of Frankfort that

would overflow during rain events. Id. at 463. Because of the flooding, the city

placed a moratorium on new construction in the area that was lifted in 1980

when the city invested one million dollars into a project to enlarge the capacity

of the drainage system. Id. That drainage project was unsuccessful, and the

plaintiffs’ home continued to sustain flood damage. Id. This prompted them to

file suit against the city alleging “negligence with respect to the installation,

design, and maintenance” of the drainage system that served their subdivision

and that the city “was negligent in allowing excessive commercial and

residential development in the area without providing adequate provisions for

proper drainage.” Id. A jury found in favor of the plaintiffs and the city

appealed arguing that the design and construction of the drainage system, as

well as the decision to build it, were discretionary and therefore entitled to

immunity. Id. at 464.

The Court of Appeals rejected the city’s argument and instead applied

Gas Services and Haney to hold that the plaintiffs’ claims concerned the city’s

ministerial duties and the city was therefore not entitled to immunity. Id. The

court emphasized that Gas Services “severely restricted the rule of immunity

for municipalities[,]” and in doing so “it emphasized again the line of prior

decisions which held cities liable for negligence, including negligence for

26
defective conditions of city sewer facilities.” Id. (citing Buttimer and Beiser,

supra). The Court of Appeals accordingly held that “[o]nce the City of Frankfort

made a decision to design and construct the system in question, a decision

which was within its discretionary capacity, its subsequent actions in

designing and building the system were ministerial” and it was not entitled to

immunity. Id. at 464-65.

Several years later, in Mason, this Court reversed a trial court’s grant of

summary judgment in favor of the city of Mt. Sterling and two private land

owners, Glenn Potts and Denny and Debra Morton, on a claim related to the

death of a nine-year-old boy who died after being swept away by floodwaters

into a submerged and non-visible storm sewer system. 122 S.W.3d at 503.

Potts owned two freestanding apartment buildings that shared a common

parking lot; he had privately constructed a drainage system at the back of the

parking lot that consisted of a headwall with a 30-inch pipe and a 48-inch

pipe. Id. at 503-04. Potts’ parking lot flooded during a heavy rain event and

several children were sliding down a bank into an area of pooled water at the

back of the parking lot. Id. at 503. The decedent had attempted to join those

children and stepped over Potts’ headwall, which was covered by muddy,

opaque water. Id. He was sucked into the 48-inch pipe in the headwall at

which point his body traveled under the parking lot into a privately built

holding chamber which connected to a culvert owned by the city. Id. at 504.

The child’s body then passed through the city’s culvert to another holding

chamber which connected to a privately built pipe on the Mortons’ property.

27
Id.

The child’s estate filed a wrongful death suit against the city, Potts, and

the Mortons. Id. at 503. The estate introduced expert testimony tending to

show that various parts of the drainage system, both the privately and publicly

owned portions, were in disrepair or were otherwise defective in a manner that

exacerbated flooding issues in that area. Id. at 504. The trial court granted

summary judgment in favor of the city and the private landowners, the estate

appealed, and this Court reversed. Id. at 503. The Mason Court first rejected

the city’s contention that since it did not construct the entire sewer system it

could not be held liable, particularly in light of the fact that the decedent was

sucked into a pipe that belonged to a private landowner. Id. at 505. The Court

held that “by structurally tying the private system into the public system, the

City acquired a duty to properly maintain and repair the sewer system as a

whole.” Id. With that established, this Court went on to hold that the city was

not entitled to municipal immunity:

Municipalities in Kentucky are not immune from tort liability,
except in the limited circumstances when they are exercising
legislative or judicial or quasi-legislative or quasi-judicial
functions. See [Gas Service, Haney]; Ashby v. City of Louisville, Ky.
App., 841 S.W.2d 184 (1992). In delineating what constitutes
legislative action, this Court has long held that a municipality's
decision to establish or open a sewer system is a legislative
function entitled to immunity protection. [Brooks, 140 S.W. at
668]. However, once a municipality establishes or opens a sewer,
it has a ministerial duty to non-negligently construct, maintain,
and repair the sewer system. Ibid.

28
Id. at 504-05. The Mason Court concluded that “[w]hether the City met this

duty in a non-negligent manner[,]” as well as a host of other issues in the case,

“[were questions] of fact for the jury.” Id. at 506.

In addition to our post-CALGA adherence to the rule that a municipality

has a ministerial duty to non-negligently maintain and repair its sewer

systems, our courts also continued to apply the definition of acts or omissions

that “arise from the exercise of judicial, quasi-judicial, legislative, or quasi-

legislative” established in Gas Service, i.e., that

[t]he principle of no liability in this narrow and limited area does
not rest upon tort immunity but upon the fact that the
incompetent performance of judicial and legislative acts is not
classified as actionable negligence in the tort system. Tort liability
does not extend to “cases where the ‘government takes upon itself
a regulatory function,’ [Brown, 605 S.W.2d at 498], which is
different from any performed by private persons or in private
industry, and where, if it were held liable for failing to perform that
function, it would be a new kind of tort liability.”

Bolden v. City of Covington, 803 S.W.2d 577, 581 (Ky. 1991). And, “that quasi-

judicial and quasi-legislative functions involve regulatory types of activities as

to which ‘the government was not charged with having caused the injury, but

only with having failed to prevent it by proper exercise of regulatory functions

which have elements appearing quasi-judicial and quasi-legislative in nature.’”

Ashby v. City of Louisville, 841 S.W.2d 184, 188 (Ky. App. 1992), holding

modified on other grounds by Gaither v. Justice & Pub. Safety Cabinet, 447

S.W.3d 628 (Ky. 2014).

In Bolden, this Court held that the city of Covington was immune from

claims arising out of the exercise of its discretion in connection with housing

29
inspections for fire code violations because it was an exercise of discretion that

was quasi-judicial in nature. Bolden, 803 S.W.2d at 581. The regulatory

process utilized by the city was described as follows:

ordinances, reports of safety and fire violations, such as that from
the unidentified tenant in this case, are sent to the City Director of
Housing Development, who then sends inspectors to investigate.
When confirmed, no action can be taken except according to the
“Complaint Procedure” prescribed in § 152.07 of the Housing Code.
The Code provides for the Director to then make administrative
decisions, including whether the “structure is unfit for human
habitation.” In this case, under subparagraph (F) if “the owner
fails to comply with an order to repair ... the Director ... may cause
the structure to be closed ... and placarded,” and under
subparagraph (G), at any point where he makes a further finding
that “conditions ... are an imminent and immediate threat to the
safety of persons occupying the structure,” “he shall cause” the
building to be closed and placarded.

Id. Based on this process, the Court held that

Legal liability flowing from the existence of these fire and safety
violations rests on the owner or other person in possession and
control of the building. The duties assigned by the ordinances to
the Director and city inspectors are to find or confirm violations,
and to decide what needs to be done, whether repairs or placarding
the building. The judicial nature of these decisions is underscored
by the fact that there are avenues of appeal from the decision of
the Director to a reviewing authority and to the courts. There is no
more legal liability in this situation for the City than there would
be where a judge fails to make a decision or makes a wrong one.
The trial court's decision that the City must respond in tort in this
situation was in error, not because the City enjoys immunity from
tort liability, but because the incompetent performance of decision-
making activity of this nature by a governmental agency is not the
subject of tort liability.

Id. But, in Ashby, the Court of Appeals held that city police officers were not

entitled to immunity based on their failure to, inter alia, serve an arrest

warrant in a domestic violence situation which resulted in the decedent being

30
murdered by her estranged partner. 841 S.W.2d at 185-86. The Ashby Court

reasoned that “[a]lthough police officers certainly investigate facts, their duties

do not include regulatory functions such as those involved in Bolden, supra,

including the holding of hearings, the weighing of evidence, or the exercise of

judicial discretion and adjudication of parties' rights.” Id. at 188.

Significantly, the Court rejected the officers’ reliance on KRS 65.2003(3)(b) to

argue that their “failure to enforce any law” was an example of a type of claim

that was immune from liability. Id. The court reasoned that “[t]hat example

clearly applies only to situation which arise out of ‘the exercise of judicial,

quasi-judicial, legislative or quasi-legislative authority,” and not to those which

arise out of the exercise of other types of authority.” Id. (emphasis added).

Based on the foregoing discussion, the legal standards applicable in this

case are clear. It is crucial to note as a threshold matter that municipal

immunity is a very different animal than sovereign immunity. Sovereign

immunity “is an inherent attribute of a sovereign state that precludes the

maintaining of any suit against the state unless the state has given its consent

or otherwise waived its immunity.” Yanero v. Davis, 65 S.W.3d 510, 517 (Ky.

2001). Stated differently, because sovereign immunity inherently belongs to

the Commonwealth by virtue of its existence, the presumption is that it always

applies unless it is explicitly waived by our General Assembly. See Ky. Const.

§§ 230, 231. But municipalities do not share in the Commonwealth’s inherent

immunity, and municipal immunity is instead wholly a creature of judicially

made law. It is thus the inverse of sovereign immunity: we start from the

31
presumption that municipal immunity is not applicable, and a municipality

must prove its entitlement to it. In addition, our case law demonstrates that

municipality has never been entitled to immunity against a claim that it

negligently maintained or repaired its sewer or water system. And, finally,

entitlement to immunity only arises in the limited and narrow circumstances

wherein a municipality “takes upon itself a regulatory function,’ . . . which is

different from any performed by private persons or in private industry, and

where, if it were held liable for failing to perform that function, it would be a

new kind of tort liability.” Gas Service, 687 S.W.2d at 149.

To support her claims before the circuit court, Albright primarily relied

upon the expert opinions and peer-reviewed report of Dr. Andrew Earles, P.E.,

D.WRE. In his report, Dr. Earles discussed that the amount of rainfall that

occurred on August 31, 2018, corresponded to an approximately “1-year storm

event,” i.e., an amount of rainfall that could be expected at least once a year in

the area in which it occurred. Dr. Earles explained that

the depths and velocities in the swale were modest and in a range
that generally would present a relatively low hazard. However,
closer to the pipe entrance, depth and velocity increased, and once
[David’s] body began to enter the pipe and obstruct flow, the forces
acting on him increased substantially due to the blockage.

He calculated the forces of the water based on its depth at the time of the

incident and concluded that, once David’s body began to obstruct the pipe

entrance, the water would have exerted approximately six hundred and sixty

32
pounds of force against his body. 16 He deduced that “[t]he average layperson

would not have been expected to know this to be a hazardous situation based

on the depth and velocity of runoff in the swale.” Moreover, the drainage pipe

itself is not a simple culvert that spans a few feet from one end to the other:

from its entry point to its exit into a detention pond, this pipe runs for four

hundred and thirty feet—well over the full length of a football field—completely

underground, including two ninety degree turns, with absolutely no means of

escape.

Albright alleged that the pipe’s inherent dangerousness was compounded

by its location: both the swale and the opening of the pipe are in a residential

area. The swale runs through the backyards of no less than six homes within

the same subdivision, and the entrance to the drainage pipe is likewise in the

backyards of three plots. Yet nothing about the pipe itself or a warning sign,

indicated the level of danger it posed during a rain event and there was nothing

covering its entrance, such as a grate, that would prevent an individual from

being swept into it.

The record further demonstrated that MSD had knowledge that this pipe

was in a residential area where children were present; although, given David’s

stature of five foot nine and 162 pounds, we do not mean to imply that this

pipe could not also be dangerous to an adult. The record contains no less than

16 Dr. Earles conducted the same calculations with the assumption that a grate

had been placed over the pipe and that David’s body became pinned against the grate.
This resulted in the water exerting a force of only 20 pounds.

33
fourteen MSD service requests spanning from January 1995 to April 2018

showing that MSD was in this subdivision many times over the course of

several years. One service request, dated January 1995, listed a complaint

made by a customer living at 806 Foxfire Drive as follows: “Caller states the

drainage ditch runs between several houses in the rear of the address then

goes underground. Caller is requesting MSD place grate over the drain where

it goes underground as several children play in this area.” MSD’s response to

that complaint was to send the customer a form letter stating its practice of not

installing grates over pipes.

A service request from March 1995 shows a complaint from a resident

living at 801 Foxfire Drive about a “cave-in” that occurred next to a catch

basin. The customer was “requesting the area to be secured ASAP due to

children in the area.” Years later, in May 2010, a resident at 804 Foxfire Drive

filed a service request stating that 10-15 basketballs were in a catch basin on

the street in front of their home. The resident noted “this is not the first time

that kids have gotten into the basin and have placed10-15 basketballs down

the sewer line. . .customer requests that the grate be tar (sic) or caulked down.”

Finally, Dr. Earles provided and discussed excerpts from several industry

publications including the 1992 American Society of Civil Engineers (ASCE)

and the Water Environment Federation (WEF) Manual of Practice which

directed:

The engineer is obligated to consider the advantages and
disadvantages of debris racks on a case-by-case basis.

34
...
Culverts normally run short distances beneath roads, railroads,
etc. In cases where drainage ditches transition to drainage pipes
that run for hundreds or even thousands of feet (common in the
Midwest), a safety rack at the pipe entrance is recommended
because of the consequences of debris blockage within the pipe
and for public safety.
It was Dr. Earles’ opinion that MSD’s no-grate guideline was “out of date and

inconsistent with the national standard of practice[,]” “contrary to the

protection of public health, safety and welfare[,]” and “ignorant of modern

design criteria for safety grates and the widely accepted fact that a properly

designed safety grate actually decreases flood risk[.]”

Thus, Albright alleged that MSD failed to fulfill its ministerial duty to

non-negligently maintain and repair the drainage system at issue and

presented evidence to support her claim that the drainage system constituted

an unreasonably dangerous condition created by MSD, that MSD knew or

should have known of the dangers the pipe posed to the public, that the

dangers the pipe posed would not be readily apparent to a layperson, and that

MSD’s stance on the use of grates was inconsistent with long-standing

industry standards.

Based on the discussion of our jurisprudence supra, it has clearly always

been the law of this Commonwealth, since well before Haney and continuing

long after CALGA, that entities such as MSD have a ministerial duty to non-

negligently maintain and repair the sewer and water systems for which they are

responsible. Albright’s allegation that MSD failed to fulfill that duty is precisely

the type of claim that we have long held may subject a municipality to liability.

35
A jury may or may not agree with Albright’s assertion that MSD’s failure to

place a grate or warning signage was a negligent failure to satisfy its ministerial

duty, but such a claim must nevertheless go to a jury. The circuit court’s

summary judgment in favor of MSD on the basis that it was immune was

accordingly error.

2) MSD’s decision not to install a grate and/or warn of potential
dangers was not an exercise of its legislative, judicial, quasi-
legislative, or quasi-judicial authority.

The circuit court further erred in finding that the no-grate guideline

relied upon by MSD arose out of MSD’s exercise of its legislative or quasi-

legislative authority. As discussed, that conclusion would require a finding

that the MSD ‘“[took] upon itself a regulatory function,’ . . . which is different

from any performed by private persons or in private industry, and where, if it

were held liable for failing to perform that function, it would be a new kind of

tort liability.” Gas Service, 687 S.W.2d at 149. Providing sewer and water

services may be a regulatory function, but it is not a function that could not be

performed by a private industry. It is therefore a clearly distinguishable

function from, for example, the enforcement of laws and regulations

establishing safety standards for the construction and use of buildings held to

be immune in Grogan, or the enforcement of a city’s housing code held to be

immune in Bolden. Grogan, 577 S.W.2d at 5; Bolden, 803 S.W.2d at 581.

Furthermore, if MSD were held liable for failing to non-negligently perform that

regulatory function it would not “be a new kind of tort liability.” Gas Service,

687 S.W.2d at 149. Rather, it would be the nearly ancient basis for tort

36
liability that we have discussed ad nauseum herein: the failure of a

municipality to maintain and repair its sewer systems.

None of MSD’s assertions to the contrary convince us otherwise. MSD

argues, citing KRS 65.2003(3)(a), (d),and (e), that “in the absence of any

governing legal or industry minimum standards governing the use of grates

over stormwater drainage pipes” it “determined how to use its limited resources

considering the competing demands and public safety risks” and “adopted a

rule implementing its decision and did not make an inspection of the pipe at

issue consistent with that rule.”

To begin, it is true that the General Assembly has not passed a statute

mandating that grates be placed when certain risk factors are present. But

that does not absolve MSD of its duty to consider doing so in some cases. As

we have discussed extensively herein, municipalities have had a ministerial

duty for over 100 years to ensure that their sewer systems are properly

maintained and repaired.

Next, MSD has consistently argued that it exercised its discretionary

rulemaking authority over its sewage and drainage systems to create the

guideline at issue. The two primary documents it relies upon are its Design

Manual and its Drainage Manual. The “Introduction” section to the Design

Manual explicitly states that its purpose is to be “a guide for the planning and

design of storm water systems. . . for [MSD]” and further states that “[t]he

guidelines and general design procedures in this manual are approved by the

MSD Board.” MSD argues that the Design Manual does not require the use of

37
grates over culvert pipes, but it fails to acknowledge that it does not forbid

them either. In fact, the entirety of the Design Manual’s guidance on culvert

pipes states:

10.3.3. Culverts
10.3.3.1 Design Methodology/Design Storm
A method as described in the Kentucky Transportation
Cabinet Drainage Guidance Manual should be used. 17 The
design methodology used must be submitted for review.
Rather, it is MSD’s Drainage Manual that forbids the use of grates; again, it

states that “MSD will not place grates on any existing drainage systems, or

allow their use in newly installed drainage systems where the potential for

flooding damage or a safety hazard exists.” But, unlike the Design Manual, the

Drainage Manual was not approved by MSD’s Board: the manual itself contains

no statement that it was approved by MSD’s Board, and the deposition

testimony of David Johnson, MSD’s Storm Water Services Director, made it

clear that the guidance contained within the Drainage Manual is not MSD

“policy” adopted by its Board. 18

17 It does not appear that the Transportation Cabinet’s Drainage Guidance

Manual was included in this voluminous record.
18 He testified:

Q: And you wouldn’t [place a grate for safety reasons] because this is
your standard policy for throughout the whole county?
A: I wouldn’t call it a policy. It’s a practice guideline.
Q: Okay. And—
A: And the reason I don’t call it a policy is because policies are board
approved. And we don’t have a whole lot of policies. The polices are a
higher level, and then there’s all these documents that go underneath

38
Molly Jones, a former MSD employee, explained the nebulous origin of

the no-grate guideline in her deposition. In 1994 or 1995 she was contracted

by MSD’s Director of Engineering to put together a comprehensive manual that

would explain to MSD employees how they should make decisions for the

stormwater drainage program. Up to that point, MSD did not have such a

document which in turn led to inconsistencies in how MSD employees were

addressing various issues. The Drainage Manual was created solely to create

consistency in the MSD employees’ decision-making process. To compile the

Drainage Manual, Jones met every week with six to seven people representing

different MSD departments. The group that met did not create the guidelines

themselves, rather, they simply wrote down the “best practices” that MSD had

already been following. Jones further testified, contrary to MSD’s assertion,

that the purpose behind the no-grate guideline was not to create a blanket rule

for which no exception was ever made:

Q: But you don’t—you did not intend to draft a blanket rule stating
that a safety grate shall never be utilized, did you?

those policies, but each policy—I mean, each procedure or guideline or
practice that we do aren’t necessarily board approved.
Q: Okay. So would—well, let me start at the beginning. First, there is no
policy with regard to when grates should be placed over storm drain
pipes.
A: There’s no policy.
Q: Right.
A: That’s correct.
Q: Okay. And no request for such a policy has ever been presented to
the MSD board for its consideration?
A: Not to the best of my knowledge.

39
A: I mean, no, because as with any one of these, you could always
go in and give it a particular case review.

Q: Right. And this provision was not drafted with the intent of
preventing that type of independent review was it?

A: No. Nothing in here was intended to prevent a review. And
maybe that review happened. I don’t know.

...

Q: Was the [guideline] intended to exclude MSD from exercising
discretion in the utilization of the grate over a drainage pipe where
the situation was such that the safety of children was significant
and the possibility of flooding was minimal?

A: I would only answer that the [guideline] never precluded MSD
from using discretion, period. I’m not going to add any other little
factors in there. This didn’t preclude them from exercising
discretion.

MSD also asserts that its no-grate guideline was based on two

discretionary considerations: one, its limited resources, and two, that the

placement of grates causes an increased risk of flooding. On that point we only

note that the Drainage Manual itself clearly refutes MSD’s claim that its

guideline was arrived at based on a consideration of its limited resources.

Section II of the Drainage Manual, which contains the guideline against placing

grates, has an “Introduction” paragraph which states:

MSD’s responsibility as a stormwater utility is based on its
responsibility to deal with problems involving public water in its
drainage service area. In filling this role, MSD has developed
Principles to be used when reviewing drainage service requests to
determine whether MSD should accept responsibility for
addressing a particular drainage service need. . . .

Although these Principles address MSD’s responsibility within the
drainage program, they do not speak to resource constraints,

40
and MSD’s ability to address any request or type of request
within a particular time frame. These Principles have
intentionally been drafted so as to be blind to MSD resource levels.
It is MSD’s position that accepting responsibility for a drainage
need is foremost; resource constraints come into play in
establishing the timing of the request resolution. A method for
establishing the timing of request resolution has been developed
and must be used in conjunction with these Principles. The
method is included in the section of this manual entitled
“Prioritization of Requests.”

(Bolding in original, italicization added). The guideline was therefore clearly not

adopted based on a consideration of MSD’s resources, as the very document

that contains the guideline states that it was “drafted so as to be blind to MSD

resource levels” and that “resource constraints only come into play in

establishing the timing of [a] request resolution.”

Finally, MSD asserts that it did not make an inspection of the pipe at

issue because of its no-grate guideline. MSD was given authority over its

systems in 1986 pursuant to an interlocal agreement between the City of

Louisville and the Fiscal Court of Jefferson County. That interlocal agreement

was later adopted essentially verbatim under Chapter 50 of the Louisville-

Jefferson County Metro Government’s Ordinances. Given that MSD claims it

had the discretion not inspect the pipe at issue based on its non-Board

adopted guideline, two sections from that ordinance are notable:

§50.71 RESPONSIBILITY FOR DRAINAGE SERVICES.

MSD shall have responsibility for operation and maintenance of
public storm drainage facilities. . . including, but not limited to:

...

41
B. MSD shall monitor the design, operation, maintenance,
inspection, construction and use of all storm sewers, storm
drains, and storm water facilities in the drainage service area.
MSD shall have exclusive jurisdiction for the design and
construction of public storm water facilities in the drainage service
area and shall inspect, operate and maintain such facilities.

...

§ 50.72 ROUTINE AND REMEDIAL MAINTENANCE.

MSD shall provide for inspection and routine maintenance of
storm and surface water drainage facilities. Maintenance may
include catch basin cleaning, grating, and casting repair, inlet and
outlet structure repair, channel clearing, erosion repair, and other
incidentals. MSD shall provide for remedial maintenance of
facilities based upon the severity of Storm Water problems and
potential hazard to the public.

(Emphasis added). Thus, in addition to the ministerial duty imposed under the

common law and CALGA, the very documents that establish MSD’s authority

over its sewage and drainage systems impose upon it a mandate to monitor

and inspect its storm water facilities and provide “remedial maintenance” if

those facilities pose a “potential hazard to the public.”

In sum, there is simply nothing in this record, the common law, or

CALGA that convinces this Court that MSD should not be subject to liability for

its alleged negligent failure to properly maintain and repair the drainage

system at issue.

At least one other state supreme court, Florida’s, has reached a similar

conclusion to the one we reach herein. Like Kentucky, Florida generally

distinguishes between ministerial duties and discretionary acts for the

purposes of determining whether the government is immune for its acts or

42
omissions, though it utilizes the term “operational-level functions” instead of

ministerial duties and the term “planning-level functions” instead of

discretionary acts. See Commercial Carrier Corp. v. Indian River Cty., 371 So.

2d 1010, 1021-22 (Fla. 1979).

The Supreme Court of Florida applied these doctrines to facts that are

substantially similar to the ones we confront in this case in City of St.

Petersburg v. Collom, 419 So. 2d 1082 (Fla. 1982). In Collom, the plaintiff’s wife

and daughter were walking across private property during a heavy rainstorm

and “unknowingly stepped into a storm sewer drainage ditch located on a city

drainage easement, and were sucked into a pipe and drowned.” Id. at 1084.

The plaintiff filed a wrongful death action against the city alleging that the “city

failed to guard the opening to the storm sewer by failing to place screens, bars,

or other protective devices” over the opening of the pipe and that the city

further “failed to warn of a hazardous condition so that human beings would

not be dragged into the sewer during heavy rains and storms.” Id. The trial

court granted summary judgment for the city, and the Second District Court of

Appeal reversed. Id.

Before the Florida Supreme Court, the city asserted that the “adoption of

a drainage system plan entails judgmental, planning level decisions on the part

of government officials who designed the system” and that “decisions

concerning when and in what manner to build a drainage system should not be

subject to second-guessing by a judge or jury.” Id. The plaintiff argued in

response that “once the city’s decision-making process is complete, liability

43
may attach to the manner in which such plans are implemented” and that

“once the city had notice of the hazardous condition. . . an operational-level

function arose, requiring the city to remedy or give notice of the hazard, and its

failure to do so establishes liability.” Id.

Florida’s highest court agreed with the plaintiff, noting that “defects in

the overall plan for an improvement, as approved by the governmental entity,

are not matters that in and of themselves subject the entity to liability[,]” and

therefore “[t]he judicial branch can neither mandate the building of expensive

and fail-safe improvements, nor otherwise require expenditures for such

improvements.” Id. at 1085-86. Nevertheless, the Court concluded that

“without substantially interfering with the governing powers of the coordinate

branches, courts can require: (1) the necessary warning or correction of a

known dangerous condition; (2) the necessary and proper maintenance of

existing improvements. . . and (3) the proper construction or installation and

design of the improvement plan.” Id. at 1086. Accordingly, the Collom Court

held that:

once a governmental entity creates a known dangerous
condition which may not be readily apparent to one who could
be injured by the condition, and the governmental entity has
knowledge of the presence of people likely to be injured, then
the governmental entity must take steps to avert the danger
or properly warn persons who may be injured by that danger.
The failure of government to act in this type of circumstance
is, in our view, a failure at the operational level. We find that a
governmental entity may not create a known hazard or trap and
then claim immunity from suit for injuries resulting from that
hazard on the grounds that it arose from a judgmental, planning-
level decision. When such a condition is knowingly created by a
governmental entity, then it reasonably follows that the

44
governmental entity has the responsibility to protect the public
from that condition, and the failure to so protect cannot logically
be labelled a judgmental, planning-level decision. We find it
unreasonable to presume that a governmental entity, as a matter
of policy in making a judgmental, planning-level decision, would
knowingly create a trap or a dangerous condition and intentionally
fail to warn or protect the users of that improvement from the risk.
In our opinion, it is only logical and reasonable to treat the
failure to warn or correct a known danger created by
government as negligence at the operational level.

. . . To illustrate, if a governmental entity plans a road with a sharp
curve which cannot be negotiated by an automobile traveling more
than twenty-five miles per hour, the entity cannot be liable for
building the road because the decision to do so is at the
judgmental, planning level. If, however, the entity knows when it
builds the road that automobiles cannot negotiate the curve at
more than twenty-five miles per hour, then an operational-level
duty arises to warn motorists of the hazard.

Id. (internal citation omitted) (emphasis added).

We see no reason why the principles established by the Collom Court

should not have equal application in the Commonwealth. MSD cannot be

permitted to place or leave be an allegedly unreasonably dangerous drainage

system in a location where it will inevitably be encountered by the public, do

nothing to warn or protect the public against its dangers, and then cloak itself

in municipal immunity by claiming that its decision not to protect or warn the

public was the result of its exercise of its legislative or quasi-legislative

authority. If this Court were to adopt MSD’s reasoning that it is entitled to

municipal immunity simply because it made a decision, then it is difficult to

envision a circumstance when a municipality could ever be subjected to

liability for its alleged negligence. This, in turn, would regress our

45
jurisprudence back into a place we have been trying to avoid since Haney in

which immunity is the rule and liability is the exception.

III. CONCLUSION

Based on the foregoing, we affirm the Court of Appeals’ holding that MSD

is a “local government” under CALGA and further affirm its holding that MSD

is not entitled to municipal immunity from Albright’s claims under CALGA, as

the alleged negligent acts are ministerial in nature. We hereby vacate the

Jefferson Circuit Court’s opinion and order granting summary judgment in

favor of MSD and remand for further proceedings.

All sitting. Goodwine, J.; concurs. Keller, J. concurs in result only by

separate opinion, in which Thompson, J., joins. Thompson, J.; concurs in

result only by separate opinion. Conley, J., concurs in part and dissents in

part by separate opinion, in which Bisig and Nickell, JJ., joins.

KELLER, J., CONCURRING IN RESULT ONLY: I agree with much of the

Majority’s well-written opinion—chiefly that MSD is a “local government” within

the meaning of KRS 65.200(3), and that it is not entitled to statutory immunity

pursuant to CALGA in this instance. See KRS 65.200–2006. I write separately,

however, to clarify—for the bench, bar, and the General Assembly—what I

believe to be the proper analytical framework for assessing claims of immunity

under CALGA. Whether MSD had any so-called “ministerial” obligation here is

of no import. Rather, MSD is not entitled to immunity from Albright’s claims

because its decision to forgo the installation of a grate on the drainage pipe

46
near Albright’s home is not the kind of “judicial, quasi-judicial, legislative or

quasi-legislative” decision immunized by CALGA.

As the Majority aptly recognizes, it was this Court that first created and

determined the bounds of the common law doctrine of municipal immunity. In

1988, however, the General Assembly supplanted and codified our previous

holdings with its enactment of CALGA. I agree with the Majority that the

General Assembly likely did not intend to drastically alter the then-existing

doctrines of municipal immunity and liability by enacting CALGA. That does

not mean, however, that this Court is free to analyze claims of statutory

immunity under CALGA without adhering to the plain text of CALGA’s

provisions.

To determine whether a “local government” is statutorily immune from

tort liability pursuant to CALGA, the General Assembly has instructed that a

court must consider whether the plaintiff’s claim arises from the local

government’s “exercise of judicial, quasi-judicial, legislative or quasi-legislative

authority or others, exercise of judgment or discretion vested in the local

government[.]” KRS 65.2003(3). The Majority, while initially acknowledging this

plain language, instead incorrectly asks whether the plaintiff’s claim arises

from the local government’s alleged failure to fulfill some “ministerial” duty.

According to KRS 65.2003(3), that is plainly not the correct standard by which

to assess claims of statutory immunity under CALGA.

While the dichotomy between “ministerial” and “discretionary” acts is

perhaps familiar to this Court, that framework has been reserved only for

47
assessing claims of common law “qualified official immunity” as applied to tort

claims against government employees in their individual capacities—not tort

claims directly against local governments themselves. See, e.g. Haney v.

Monsky, 311 S.W.3d 235 (Ky. 2010); Meinhart v. Louisville Metro Gov’t, 627

S.W.3d 824 (Ky. 2021). Indeed, the General Assembly expressly recognized that

distinction in KRS 65.2003(3) when it wrote 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 portion of CALGA both acknowledges the doctrine of

qualified official immunity, and ensures that local governments cannot escape

vicarious liability for the negligent acts of their employees.

As aforementioned, the proper framework to assess whether a “local

government” is immune from tort liability under CALGA is to ask whether the

plaintiff’s claim arises from the local government’s “exercise of judicial, quasi-

judicial, legislative or quasi-legislative authority or others, exercise of judgment

or discretion vested in the local government[.]” KRS 65.2003(3). CALGA’s plain

text makes clear that the General Assembly intended to insulate municipalities

and other local governments from tort liability arising from the types of high-

level decisions that only local governments can make—those that are legislative

or judicial in nature. Indeed, the purpose of municipal immunity is not to

elevate every one of a municipality’s routine decisions above scrutiny. If that

were the case, virtually no act or omission could be the basis for liability, and

48
immunity would be the rule, not the exception. Cf. Haney v. City of Lexington,

386 S.W.2d 738, 742 (Ky. 1964).

Here, Albright alleges that MSD negligently designed, maintained, and

constructed its storm drainage system in a manner that rendered it

unreasonably dangerous. More specifically, Albright alleges that the

installation of bars or grates over the system’s drain pipes would have

prevented her son’s tragic death. However, the routine and ordinary design,

construction, and maintenance of municipal infrastructure does not require

the kind of “judicial, quasi-judicial, legislative or quasi-legislative” decisions

immunized by CALGA. Indeed, deciding whether or not to install bars or grates

over a particular drainage pipe does not implicate a municipality’s inherent

judicial or legislative authority; such an act does not require deliberation,

debate, policymaking, or judicial reasoning. Accordingly, CALGA does not

immunize MSD from Albright’s claims sounding in tort.

In short, while the Majority reaches the correct result in this case, it does

so while failing to employ the correct analytical framework to assess claims of

statutory immunity pursuant to CALGA. Whether Albright’s claims arise from

MSD’s alleged failure to fulfill its so-called “ministerial” duties is of no

importance. Accordingly, I concur in result only.

Thompson, J., joins.

THOMPSON, J., CONCURRING IN RESULT ONLY. I concur with the

majority opinion that local, municipal, quasi-governmental entities like the

Louisville & Jefferson County Metropolitan Sewer District (MSD) are not

49
immune under the Claims Against Local Governments Act (CALGA) from

liability when they are negligent in the construction, maintenance or repair of

the facilities, properties or projects which fall within their control.

I write separately, however, because I do not believe the majority opinion

goes far enough in drawing a clear, binary, distinction between when municipal

or quasi-governmental entities are immune from liability for activities within

their discretionary “legislative or quasi-legislative authority” and, contrastingly,

when they are liable for injuries caused by their actions or decisions. Kentucky

Revised Statutes (KRS) 65.2003.

I consider MSD’s inaction here, in deciding to create a policy, wherein it

would refuse to ever consider putting a grate on this particular inlet pipe or

any drainage system, to have been a clear derogation of, and complete

abandonment of, all of its duties and constitutes reckless conduct for which it

cannot be absolved of responsibility or accountability.

In his concurring opinion in Caneyville Volunteer Fire Depart. v. Green’s

Motorcycle Salvage, Inc., 286 S.W.3d 790, 813 (Ky. 2009), Chief Justice Minton

described the doctrine of sovereign and governmental immunity as a “difficult

area of law, full of rules and subsets” in which he was “compelled to say that

we should endeavor to drain this judge-made swamp.” That is as true today as

it was sixteen years ago.

This present circumstance calls for a “brighter line” in our decision-

making and MSD, albeit unintentionally, offers one. The line I propose is this:

When a municipal agency makes decisions which create unreasonably and

50
objectively hazardous conditions for citizens, and which naturally result in

death, then such decisions cannot be granted immunity because they are

allegedly “the exercise of. . . legislative or quasi-legislative authority” under any

statutes including CALGA.

The logic underlying such “line” of demarcation is simple: Our General

Assembly could never have intended for CALGA to grant immunity to local

governments for decisions which create (instead of attempt to regulate) hazards

to our citizens or evince a wanton or reckless disregard for the lives of the

citizens of the Commonwealth.

In this case MSD has argued when it made the decision to publish

guidelines in its Drainage Manual to “not place grates on any existing drainage

systems, or allow their use in newly installed drainage systems where potential

for flooding or a safety hazard exists[,]” it was exercising discretionary authority

in its role as a “local government” under CALGA. In sum, even if it was wholly

negligent, MSD argues that it is immune because it made the decision to be

negligent. As stated in Bolden v. City of Covington, 803 S.W.2d 577, 581 (Ky.

1991): “The principle of no liability . . . does not rest upon tort immunity but

upon the fact that the incompetent performance of judicial and legislative acts is

not classified as actionable negligence in the tort system.” (Emphasis added).

The standard for liability I now propose has roots in this Court’s earlier

decision in Gas Service Co., Inc. v. City of London, 687 S.W.2d 144 (Ky. 1985).

That opinion presciently noted that our caselaw, to date, concerned itself with

injuries caused by a regulatory failure to prevent an injury, rather than a

51
governmental action which directly caused an injury which is what MSD has

done. In Gas Services the Court noted, “[i]n these cases[19] the government was

not charged with having caused the injury, but only with having failed to

prevent it by proper exercise of regulatory functions which have elements

appearing quasi-judicial and quasi-legislative in nature.” Id. at 149 (emphasis

added).

In the matter before this Court, MSD created, controlled and maintained

the very structure which, as alleged by Albright, was “inherent[ly]” and

“unreasonably” dangerous. The pipe into which young David was swept was

not a common drainage pipe. It is not an exaggeration to describe the system

into which David was sucked as a “death trap.” I would add that MSD’s policy

to never place grates on drainage system — regardless of repeated warnings

and regardless of the extreme hazard and probability of death some of its pipe

inlets pose — demonstrates such an extreme and wanton indifference to

human life that it cannot be considered to have been the result of any

“discretionary” governmental decision making. MSD’s policy means that it has

taken the position that no matter how much information it has about how

dangerous one of their pipes may be during and after a period of rainfall, it

19 Com., Dept. of Banking & Securities v. Brown, 605 S.W.2d 497 (Ky. 1980)

(holding that the Commonwealth was not liable for the dereliction of its bank
examiners in the performance of a regulatory function); Grogan v. Commonwealth, 577
S.W.2d 4 (Ky. 1979) (holding that the city of Southgate, Kentucky could not be held
liable for the deaths resulting from the Beverly Hills Supper Club fire which were
arguably a result of the city’s failure to enforce laws and regulations establishing
safety standards for construction and use of buildings).

52
refuses to ever even consider taking any remedial action, such as installing

grating or posting warning signage. Despite David’s death clearly establishing

the danger this pipe poses to human life, MSD argues its policy justifies a

permanent rejection of taking any corrective action.

I find MSD’s excuses for this uniform policy to be so absurd as to not

merit consideration as quasi-legislative. MSD asserted that during heavy

rainfall debris may build up at grate coverings and cause flooding. However, it

is certainly easier to remove debris from grates outside the storm water system

than having to remove debris from deep within pipes and underground basins.

What its policy, in effect, means is that MSD would rather risk people dying

than to pay employees to inspect and clear grated storm water pipes. In Hilen

v. Hays, 673 S.W.2d 713, 718 (Ky. 1984), this Court stated: “To those who

speculate that [it] will cost more money . . . we say there are no good economies

in an unjust law.” (Emphasis in original). Such reasoning applies here as well.

Outright, and knowing, disregard for the lives of citizens cannot be

countenanced as either a discretionary or regulatory function entrusted to a

municipal entity under CALGA when the only excuses one can find boil down

to saving a few dollars.

I must also take issue with the notion that a “hard and fast” uniform

policy like MSD’s no-grates rule can be considered “discretionary” in this legal

context. The record in this case does not evidence MSD considering any of the

unique and dangerous characteristics of the drainage pipe into which David

was swept or the deadly nature of the structures existing after the inlet. The

53
dangers posed by this particular structure was not even considered by MSD

under its policy of “a pipe is a pipe.” MSD maintains maps and schematics for

all their systems in Jefferson County and should be able to readily identify

flood-prone areas and those storm sewer inlets that pose a danger of death to

the public during rainfalls.

“Discretion” must include at least some consideration of unique

circumstances. MSD did not partake in any discretionary function regarding

this system. We have consistently ruled that discretionary acts involve “the

exercise of discretion and judgment, or personal deliberation, decision, and

judgment[.]” Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001) (emphasis added).

When entities like MSD expect broad protections from liability, there is

an implication that the Commonwealth has afforded them that luxury because

the decisions they make, on matters in which they are specialists, should not

later be second guessed by ill-informed courts and juries. Decisions on the

proper safety precautions to be taken regarding flooding and drainage are ones

which inherently require conscious evaluation of risks, alternatives, and entail

significant judgment. The decisions made in such an environment are

discretionary. When no such deliberations are conducted, we have a wholesale

abandonment of discretion and immunity should not be granted.

Amongst the definitions of “discretion” are “the quality of having or

showing discernment or good judgment” and the “ability to make responsible

54
decisions.” 20 When there has been no “judgment” exhibited or “decision” made

regarding the significant risk of death posed by this particular drainage system,

there has been a wholesale abandonment by MSD of its duties. When MSD

discusses costs and maintenance issues attendant to its decision to never

install grates, it evidences a complete failure to consider the attendant risks to

human life when grates are not present at structures where death is the

natural outcome of a grate’s absence.

Accordingly, I concur with the majority’s ultimate result, but I

respectfully assert that we can go further in clarifying standards that both

properly limit the breadth of immunity available under CALGA and are easier

to grasp by both our courts and the affected entities.

CONLEY, J., CONCURRING IN PART AND DISSENTING IN PART.

Respectfully, I dissent. The loss of a child is a tragedy, and since ancient times

it has been understood as evil that a parent should ever bury their child, as it

is in an inversion of Nature. Herodotus, The History 74 (Grene, David, trans.)

(University of Chicago Press 1987). I am quite sympathetic to Jennifer

Albright’s loss, but I cannot agree that the Metropolitan Sewer District (MSD) is

not entitled to immunity. I concur with the Court that CALGA applies to MSD,

but I disagree with its conclusion that MSD violated a ministerial duty to keep

the sewer in good repair. Instead, I conclude MSD exercised its discretionary

decision-making power and elected not to install grates on its sewers because it

20 See Discretion, Merriam-Webster Dictionary, https://www.merrian

webster.com/dictionary/discretion.

55
determined such a practice would alleviate flooding. In brief, there was a choice

made between two practices, each of which could lead to bad results. That is

quintessentially a legislative or quasi-legislative exercise of power. Therefore, I

conclude MSD is entitled to municipal immunity under CALGA.

CALGA provides immunity from claims “arising from the exercise of

judicial, quasi-judicial, legislative or quasi-legislative authority or others,”

including those scenarios “when in the face of competing demands, the local

government determines whether and how to utilize or apply existing

resources[.]” KRS 65.2003(3)(d). The Court relies upon Albright’s expert, Dr.

Andrew Earles, to suggest MSD’s practice is contrary to industry standards or

outdated. At the trial court and to this Court, MSD points to its drainage

manual to illustrate that placing safety grates on drainage pipes is a policy

decision. In the introduction of the drainage manual, it emphasizes the

problem of flooding in Jefferson County and the area it is responsible for.

Quoting from the manual:

When MSD assumed the responsibility for our community’s public
drainage system in 1987, it inherited a large backlog of problems
that had been accumulating for more than 200 years, and have
been accelerating rapidly since World War II. Some problems are a
natural part of Jefferson County’s geography: Numerous areas
were previously swamplands, and many of the hilly areas dump
torrents of water into our streams during heavy rains. In fact,
many of the County’s areas should never have been developed for
homes and businesses. MSD has studied these problems in depth.

Unfortunately, our community still has homes that are flooded
during heavy rains and entire neighborhoods that do not have any
effective drainage systems. MSD is focusing its limited resources
on resolving the most serious and widespread problems first, based
on engineering studies, community priorities and available funds.

56
MSD has undertaken extensive drainage improvement projects to
deal with the worst of these problems.

MSD emphasizes in this introduction that it operates in a flood prone

environment with limited resources. Specifically, to the issue of safety grates,

the drainage manual provides: “MSD will not place grates on existing drainage

systems, or allow their use in newly installed drainage systems where the

potential for flooding damage or a safety hazard exists.” The fact that the MSD

Board never formally adopted this as policy is a trifle compared to the

consistent practice of MSD these last forty years. The MSD Board obviously

knew and approved of the practice. Nor is the Court’s holding that this practice

was not justified by resource allocation conclusive, since KRS 65.2003(3) states

its list “shall include by example, but not be limited to . . . .” Therefore, KRS

65.2003(3) is non-exhaustive, and the pertinent question is whether the

challenged action is legislative or quasi-legislative.

As explained by David Johnson—who, at the time of his deposition, was

MSD’s Chief Engineer, and formerly MSD’s Development and Stormwater

Services Director—

We don’t allow those [safety grates] in our system. We don’t put
grates in front of pipes. . . . It’s just a common practice. It’s a
practice that we don’t do, and we do it because they lead to
blockages, which leads to flooding. Flooding leads to damaged
properties, it leads to safety risks for people around the flooded
area, at least the flooded roadways. It leads to risks for our
employees to have to go out there and clean those. It also leads to
a risk even for the customers because a lot of times when
customers see a system backing up with water, they want to go in
there and clean it out themselves. They take that responsibility
out. So that’s – that’s why we don’t have those grates in front of
systems is because they lead to blockages, which lead to flooding.

57
Thus, MSD confronted an inherently legislative or quasi-legislative decision:

should grates be installed, thereby securing the safety of those persons who

may be endangered by coming too close to the drainage pipes? Or not install

grates, to alleviate the potential dangers and costs of flooding? The Court has

cited several other pieces of evidence from MSD that would purport to negate

my conclusion. But all the Court has demonstrated to my mind is that the

decision is a multifaceted one without any precise legal or industry guidance.

That only confirms the issue is one of a legislative or quasi-legislative

character; hence, purely discretionary and subject to CALGA’s cloak of

immunity.

Finally, the Court’s conclusion is further undermined by its analysis of

case law. The Court clearly approves and reaffirms the decisions of Mason v.

City of Mt. Sterling, 122 S.W.3d 500 (Ky. 2003) and City of Frankfort v. Byrns,

817 S.W.2d 462 (Ky. App. 1991). Therefore, the practical result of today’s

decision will be that a grate is going to be installed over the drainage pipe

where David Albright died. Undoubtedly, several other grates will be installed

at numerous other locations throughout MSD’s coverage area, but it is also

likely that grates will not be installed in several potential areas where one could

be. MSD is now going to be potentially liable for every one of those decisions.

Where a safety grate is installed and flooding results, the residents of the area

effected will have a viable claim against MSD for negligent maintenance and

repair of the sewer system. Where a safety grate is not installed—and should

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another individual die in a similar manner to David Albright—then that

person’s family and the deceased’s estate will have claims against MSD for

negligent maintenance and repair of the sewer system. It is a classic “damned if

you do, damned if you don’t” situation.

CALGA’s cloak of immunity for legislative and quasi-legislative decision-

making is tailored precisely for such circumstances. Legislative decision-

making inherently involves consideration of any number of factors and

interests, several or all of which could need expert advice, and all of which

must be balanced and weighed, with any decision made having the potential

for adverse outcomes. As CALGA states, there can be no claim against a local

government when the action taken is legislative or quasi-legislative in nature.

KRS 65.2003(3). As Justice Wintersheimer said, “[t]he only valid exercise of

government which should be exempt from tort liability is the purely

administrative or legislative decision-making process.” Gas Serv. Co., Inc. v.

City of London, 687 S.W.2d 144, 151 (Ky. 1985) (Wintersheimer, J.,

concurring). That is what we have here. It is lamentable that David Albright

perished, but how many homes were spared, how many lives were uninjured or

even saved from flooding, by the decision not to install the grate? That is the

other side of the balancing scales which the Court wholly ignores, but one

which local governments cannot. In weighing the scales and making a decision,

it is an unfortunate reality that sometimes evil but unintended consequences

occur—nevertheless, “it is not a tort for government to govern.” Yanero v. Davis,

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65 S.W.3d 510, 519 (Ky. 2001) (quoting Dalehite v. United States, 346 U.S. 15,

57, 73 S.Ct. 956, 979, 97 L.Ed. 1427 (1953) (Jackson, J., dissenting)).

Thus, I conclude CALGA intended to shield MSD from tort claims for

decision making such as occurred in this case. I would hold MSD entitled to

municipal immunity, reverse the Court of Appeals, and affirm the trial court

Bisig and Nickell, JJ., joins.

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COUNSEL FOR APPELLANT:

John W. Bilby
Carolyn Christine Ely
Adam Tanner Goebel
Eric Michael Weihe
Stoll Keenon Ogden PLLC

Kenneth Williams, JR.
Williams, Hall & Latherow, PSC

Dustin Chadwick Haley
Kinkead & Stilz PLLC

COUNSEL FOR APPELLEE:

Leroy E. Sitlinger
Sitlinger Law

COUNSEL FOR AMICUS, KENTUCKY LEAGUE
OF CITIES:

Bryan H. Beauman
Sturgill, Turner, Barker & Moloney, PLLC

COUNSEL FOR AMICUS, SANITATION
DISTRICT NO. 1 OF NORTHEN KENTUCKY
WATER DISTRICT AND NORTHERN KENTUCKY
WATER DISTRICT:

Jeffrey Charles Mando
Adams Law, PLLC

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10826982. Public record. Not legal advice.