Moore v. Commonwealth , 1992 Ky. App. LEXIS 191 ( 1992 )

JOHNSON, Judge,

dissenting.

I respectfully dissent. It is generally true that the Cabinet’s supervision of parolees falls within the zone of quasi-legislative or quasi-judicial activities referred to in prior cases. See Cabinet for Human Resources v. Poore, Ky.App., 711 S.W.2d 498 (1986); cf. Bolden v. City of Covington, Ky., 803 S.W.2d 577 (1991); Com., Dept. of Banking & Securities v. Brown, Ky., 605 S.W.2d 497 (1980); Grogan v. Commonwealth, Ky., 577 S.W.2d 4 (1979). Thus, in the ordinary case, the Cabinet will not be liable in damages simply because á parolee commits a tort. This is true even in these cases where the Cabinet supervises parolees who are likely to commit torts. See Poore, 711 S.W.2d at 498.

However, this case involves much more than negligent supervision. The form filed with the Board of Claims in this case reads, in part, as follows: “[Question:] In what way to (sic) you believe the state agency or employee was at fault? [Answer:] Corrections Cabinet Officer should have known thru supervision duties that Tommy Irvin’s operator’s license was suspended, DUI and speeding convictions and should not have recommended him for truck driving employment.” [Emphasis added.] Appellant has made it clear that the gist of his complaint is that the Corrections Officer acted tortiously when he took an active part in helping an alcoholic with no driver’s license get a job driving a truck. The Claim Form clearly alleges a negligent misrepresentation by the Corrections Officer. Neither the Board of Claims nor the Majority Opinion addresses this point. I fail to see how such misrepresentations can possibly be classified as quasi-legislative or quasi-judicial.

In Grogan, the Supreme Court discussed the possibility of municipal liability for negligent failure to enforce laws and regulations.¹

There is, of course, the familiar principle that one who undertakes the care of another, or of his property, even though it be voluntary and without consideration, owes him the duty of reasonable care. But in the enactment of laws designed for the public safety a governmental unit does not undertake to perform the task; it attempts only to compel others to do it, and as one of the means of enforcing that purpose it may direct its officers and employes to perform an inspection function. The failure of its officers and employes to perform that function “does not constitute a tort committed against an individual who may incidentally suffer injury or damage, in common with others, by reason of such default.” City of Russellville v. Greer, Ky., 440 S.W.2d 269, 271 (1969).

Grogan, 577 S.W.2d at 5.

The court explained itself further in Brown, saying:

When the governmental entity is performing a self-imposed protective function ..., the individual citizen has no right to demand recourse against it though he is injured by its failure to efficiently perform such function.

Brown, 605 S.W.2d at 499.

Nevertheless, the Supreme Court has also said that “[i]n the well-known words of former Chief Justice John Palmore, ‘sovereign immunity should be limited strictly to what the Constitution demands, for the simple reason that in a civilized society it is morally indefensible.’ [Citations omitted.]” Calvert Investments v. Sewer Dist., Ky., 805 S.W.2d 133, 138 (1991).

It seems clear that the supervisory functions of the Corrections Cabinet are akin to the investigatory and regulatory functions discussed in Grogan and Brown, supra. See Poore, 711 S.W.2d 498; cf. Bolden, 803 S.W.2d 577. However, the issue in this case is whether the representations made by the Corrections Officer to Tommy Irvin’s prospective employer can realistically be said to be a part of a “self-imposed protective function,” as in Brown, supra, or alternatively, whether the representations were part of an attempt to compel others to comply with the law, as in Gro-gan, supra. I do not believe that the representations can be so construed. To the contrary, in this case the Commonwealth’s agent undertook, without regard for public protection or compliance with the law, to assist in procuring employment as a driver for one who was obviously unsuited for such employment.

Although a government agency can issue regulations and conduct investigations in an utterly foolish and haphazard fashion and incur no liability, see Grogan, supra, if the agency undertakes to do something which persons in the private sector also do, and acts negligently, it will be liable. Gas Service Co., Inc. v. City of London, Ky., 687 S.W.2d 144 (1985); Calvert Investments, supra. Here, the Corrections Cabinet cannot be liable for its failure to enforce its regulations prohibiting parolees from violating the law. Nevertheless, the Corrections Cabinet, like an employment agency, can be liable for making negligent misrepresentations in the course of helping to procure employment for Tommy Irvin. See Restatement (Second) of Torts § 311 (1965); 2 F.V. Harper & F. James, Jr., The Law of Torts § 7.6 (1982). (“Where misrepresentations entail the foreseeability of physical harm and such harm in fact results, the ordinary rules of negligence have for some time been applied. [Footnote omitted.]”); Prosser & Keeton, The Law of Torts §§ 33, 105, 107 (1984); Garcia v. Superior Court, 50 Cal.3d 728, 268 Cal.Rptr. 779, 789 P.2d 960 (1990) (parole officer, having chosen to communicate information about parolee, was under duty to use reasonable care); Gutzan v. Altair Airlines, Inc., 766 F.2d 135 (3rd Cir.1985) (employment agency which made negligent misrepresentations in referring an employee who was a convicted rapist could be liable for that employee’s rape of plaintiff co-employee); Freeman v. United States, 509 F.2d 626 (6th Cir.1975) (where air traffic controller negligently misrepresented the location of an airplane, the government and the controller could be liable for the deaths of the parachutists killed because of such negligence); cf., Grayson Fraternal Order of Eagles v. Claywell, Ky., 736 S.W.2d 328 (1987) (every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury-club which served alcohol to intoxicated patron liable to person later driven into by patron); Graham v. John R. Watts & Son, 238 Ky. 96, 36 S.W.2d 859 (1931) (one making false representations intended to be acted on when he-should know truth is liable for resulting damages). In any case, the decision as to whether alleged governmental misconduct should be classified as quasi-legislative or quasi-judicial should not be made “until the proof is in.” See Calvert Investments v. Sewer Dist., supra at 138-139. I would reverse and remand so that the Board of Claims could hear the evidence in the case and make an informed decision.

1 . The Commonwealth, under the Board of Claims Act, enjoys the same status as municipalities under the common law of this state. Brown, 605 S.W.2d at 499.