Shearer v. Hall , 1965 Ky. LEXIS 31 ( 1965 )

MONTGOMERY, Judge

(dissenting).

I think that the majority opinion is wrong in holding that the duties as set forth therein of the individuals composing the two fiscal courts are ministerial. Under the definition of ministerial and discretionary duties quoted from the Clinton County case, I think that the duties should be classified as discretionary. The establishment, maintenance, and operation of the county road system require the exercise of judgment and discretion on the part of the fiscal court members as to what shall be done in this respect in regard to any particular road or part thereof, having consideration for many factors, including the money available with which to do so. The members of the fiscal court constitute the management of the county government. The amnorities cited say that an official is not liable for judicial or discretionary acts.

Further, the majority opinion does not clearly define whether liability is based on ordinary negligence or wanton negligence.

For these reasons I respectfully dissent.

STEWART, J., concurs.