# Withers v. University of Kentucky

> Kentucky Supreme Court · February 27, 1997 · 939 S.W.2d 340

URL: https://www.frixlaw.com/law-library/cases/9775122

## Case

- **Full name:** Michael O. WITHERS, Michael O. Withers as Administrator of the Estate of Emilie M. Withers, Deceased; And Michael O. Withers as Legal Guardian of Joanna May Withers, a Minor, Appellants, v. UNIVERSITY OF KENTUCKY, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** February 27, 1997
- **Citations:** 939 S.W.2d 340; 1997 Ky. LEXIS 29; 1997 WL 86226
- **Precedential status:** Published
- **Opinion:** Concurrence by Stephens
- **Judges:** Cooper, Johnstone, Lambert, Stephens, Wintersheimer, Graves, Stumbo
- **Cited by:** 110 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9775122

## How later opinions describe it (automated extraction)

- explaining that a university medical center performed the same functions as a private hospital but retained governmental immunity due to its teaching mission

## Opinion text

STEPHENS, Chief Justice,
concurring.
While I concur with the majority, I would go further and revisit the two-pronged test we adopted in Kentucky Center for the Arts v. Berns, Ky., 801 S.W.2d 327 (1991), as I believe it went too far and usurped a function squarely within the discretion of the legislature. Section 231 of Kentucky’s Constitution specifically states: “The General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth.” By the very language of this section, sovereign immunity is retained for the Commonwealth until the General Assembly, by statute, expressly waives it.
*347 However, the test annunciated by this Court in Bems, supra, potentially affords operations established, funded, and owned by the Commonwealth no protection of sovereign immunity. This surely does not comport with the purpose the original drafters of our constitution had in mind. Thus, I would leave the determination of what entities should be afforded sovereign immunity where it properly belongs, with the General Assembly.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775122. Public record. Not legal advice.