Brown v. City of Louisville , 1979 Ky. App. LEXIS 441 ( 1979 )

WILHOIT, Judge,

dissenting.

I respectfully dissent from the majority opinion. Based upon the record before us I do not believe that the City of Louisville, at this point, can be said as a matter of law to be free from liability to the appellant. The law in this jurisdiction with respect to the tort liability of municipalities has been in a state of flux for the past few years, but I believe it has now crystallized into one rule of liability for municipalities where the injury is caused by a nonfeasance and another where the injury is caused by a misfeasance. It seems to me the majority has applied the rule for cases of a nonfeasance to this case which is clearly a case of a misfeasance.

Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964) abolished the doctrine of municipal immunity as it had previously existed and set out the principle that thenceforward liability would be the rule and immunity the exception except when a municipality was exercising a legislative or quasi-legislative function or a judicial or quasi-judicial function. City of Louisville v. Chapman, Ky., 413 S.W.2d 74 (1967) followed affirming Haney and observing:

Municipal functions have become so varied and extensive that public safety demands that municipal employees be held to the same safety standards as other citizens. Private citizens voluntarily and for good economic reasons insure themselves against tort liability. Why shouldn’t a collection of citizens classified as a municipality do likewise? City of Louisville v. Chapman, supra at 77.

Then came a series of cases which constituted if not a retreat certainly a thoughtful “strategic withdrawal” from Haney and Chapman.

Beginning with City of Louisville v. Louisville Seed Co., Ky., 433 S.W.2d 638 (1968) down to the most recent decision in Grogan v. Commonwealth, Ky., 577 S.W.2d 4 (1979) the Court expounded the rule that in providing fire, police or flood protection a municipality does not owe an individual member of the general public the duty of doing everything that could or should be done to avoid injury to that individual’s person or property.¹ Failure tó do all that could or should have been done in such cases does not constitute actionable negligence unless in its failure to act the municipality has somehow singled out and dealt with the injured party as an individual or his injury is isolated from that of the general public. City of Louisville v. Louisville Seed Co., supra; City of Russellville v. Greer, Ky., 440 S.W.2d 269 (1968); Frankfort Variety, Inc. v. City of Frankfort, Ky., 552 S.W.2d 653 (1977).

This then, is the rule where a city through its officers or employees has failed to act or omitted to do all it could or should have done. The case before us, however, involves not a failure to act or an omission but an alleged positive act of negligence, a misfeasance rather than a nonfeasance. In such cases the rule in Haney and Chapman still applies. Both the practical and theoretical considerations are much different from those in “failure to act cases.”

1 . Admittedly, Fryar v. Stoval, Ky., 504 S.W.2d 701 (1974), fits this rule in result only, but if the “singling out” standard applies to misfeasance cases I cannot see how Fryar was any more singled out than Frankfort Variety.