Hazel Welsh v. Mason County Extension District Public Property ( 2021 )

RENDERED: FEBRUARY 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0230-MR
HAZEL WELSH APPELLANT
APPEAL FROM MASON CIRCUIT COURT
v. HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 18-CI-00218
MASON COUNTY EXTENSION
DISTRICT PUBLIC PROPERTY AND
MASON COUNTY EXTENSION
DISTRICT BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Hazel Welsh appeals from the Mason Circuit Court’s
order granting summary judgment to the Mason County Extension District Board
(the Board) and dismissing Mason County Extension District Public Property
(Public Property)1 in her slip and fall case. We affirm.
The germane underlying facts are simple and seemingly uncontested.
In May 2018, Welsh attended a meeting of the Twilight Homemakers’ Group at a
Mason County Cooperative Extension Service facility in Maysville, Kentucky.
Welsh unfortunately fell and fractured her femur, allegedly due to the presence of
water or a similar substance on the floor. A few months later, Welsh sued Public
Property and the Board, among whose listed functions is to “manage and transact
all of the business and affairs” of the county extension service under Kentucky
Revised Statutes (KRS) 164.655(1). The defendants soon sought summary
judgment. Eventually, the trial court concluded the Board was entitled to summary
judgment based on governmental immunity and dismissed Public Property based
on Welsh’s counsel’s prior agreement. Welsh then filed this appeal.
We review a trial court’s decision to grant summary judgment to
ascertain “whether the trial court correctly found that there were no genuine issues
as to any material fact and that the moving party was entitled to judgment as a
matter of law.” Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198
1
Public Property’s true name apparently is the Mason County Extension District Public
Properties Corporation. Because Welsh does not contest its dismissal, we decline to address the
impact, if any, of her not using that full name in the trial court and here.
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(Ky. 2010) (citations omitted). In so doing, we must view the evidence in the light
most favorable to Welsh as the Board was entitled to summary judgment only if it
would have been impossible, in a practical sense, for Welsh to have prevailed at
trial. Id. Because summary judgment involves questions of law, we review the
trial court’s decision de novo. Id.Welsh does not contest the dismissal of Public Property. Her failure
to do so means she has waived, or abandoned, any claim(s) of error therein. See,
e.g., Prescott v. Commonwealth, 572 S.W.3d 913, 927 (Ky.App. 2019) (“Prescott’s
failure to present an argument on this issue on appeal constitutes abandonment
and/or waiver of this argument.”).
We now turn to whether the trial court correctly concluded that the
Board possesses governmental immunity. Determining whether an entity is
entitled to immunity presents a question of law, so we review the trial court’s
decision de novo. Kentucky River Foothills Development Council, Inc. v. Phirman,
504 S.W.3d 11, 14 (Ky. 2016). Though Welsh discusses it, determining immunity
does not require us to discuss the impact on her claims of the recent overhaul of the
open and obvious doctrine undertaken by our Supreme Court.
The Board was created by statute, and the General Assembly
explicitly deemed it to be “an agency of the Commonwealth[.]” KRS 164.655(1).
However, we disagree with the Board’s assertion that it is entitled to sovereign
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immunity. As our Supreme Court recently held, “sovereign immunity is limited to
the Commonwealth itself, as well as counties and governments formed according
to statute.” Bryant v. Louisville Metro Housing Authority, 568 S.W.3d 839, 845
(Ky. 2019) (emphasis original). Therefore, “even as a state agency,” the Board
“would never be entitled to sovereign immunity.” Id. See also Furtula v.
University of Kentucky, 438 S.W.3d 303, 305 n.1 (Ky. 2014). Instead, the
“immunity analysis for [the Board] must turn on the existence or absence of
governmental immunity.” Bryant, 568 S.W.3d at 845.2
Sometimes, governmental immunity is “used interchangeably” with
sovereign immunity, which is not surprising since governmental immunity is “an
extension of sovereign immunity[.]” Id. However, though “related to and flowing
from sovereign immunity,” governmental immunity is “a slightly different
concept.” Furtula, 438 S.W.3d at 305 n.1. “The difference between the two is that
sovereign immunity is absolute and an inherent aspect of the state, whereas a state
agency’s immunity is qualified to the extent that its existence depends on whether
2
There are other types of immunity, such as qualified official immunity, which is afforded
public officers and employees under certain circumstances, including where they were engaging
in discretionary acts. See, e.g., Rowan County v. Sloas, 201 S.W.3d 469, 475-76 (Ky. 2006).
Welsh argues that keeping the floor of the extension district premises free from liquids is a
ministerial act, but we need not address that matter since Welsh did not name any specific
governmental official(s) as defendants, meaning that the immunity determination is not based
upon a ministerial versus discretionary function analysis. Similarly, though Welsh stresses it, the
governmental immunity determination is not impacted by the fact that the extension agency did
not apparently have a retained custodian on the date Welsh was injured.
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the agency is performing a governmental or proprietary function.” Id. Though
recent decisions have taken pains to avoid laxly jumbling the concepts, as a
practical matter if the state agency “is performing a governmental function” then
“its governmental immunity is functionally the same as sovereign immunity.” Id.Our Supreme Court has developed a two-prong test to determine
whether governmental immunity exists:
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]?” The second and “more
important” inquiry is whether the entity exercises a
“function integral to state government.”
Coppage Construction Company, Inc. v. Sanitation District No. 1, 459 S.W.3d
855, 859 (Ky. 2015) (quoting Comair, Inc. v. Lexington-Fayette Urban County
Airport Corp., 295 S.W.3d 91, 99 (Ky. 2009)). The second prong encompasses
two parts: “whether the entity’s function is governmental as opposed to
proprietary, and whether it is a matter of statewide concern. These distinctions are
important because not every public purpose qualifies as an integral state function.”
Id. at 862 (quotation marks omitted).
The Board readily satisfies the first prong. The General Assembly
statutorily authorized county extension districts (KRS 164.620) and extension
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boards to govern each extension district. KRS 164.630. Hence, the Board was
created by the state, which is cloaked with inherent immunity.
The first element of the second prong requires us to determine
whether the Board performs a governmental or proprietary function. “A
proprietary function is of the type normally engaged in by businesses or
corporations and will likely include an element of conducting an activity for
profit.” Bryant, 568 S.W.3d at 847 (citations omitted).
The Board’s statutory function is to “manage and transact all of the
business and affairs of its [extension] district[,]” which entails “cooperat[ing] with
the extension service and the extension council in conducting an extension
program in agriculture, home economics, youth work and related subjects in the
extension district.” KRS 164.655(1), (5). The purpose of an extension district is to
“provide for aid in disseminating among the people of Kentucky useful and
practical information on subjects relating to agriculture, home economics, and rural
and community life and to encourage the application of the same in the several
counties of the Commonwealth[.]” KRS 164.610. Similarly, Heather Cheek, the
family consumer science extension agent at the Mason County Cooperative
Extension Service, testified in her deposition that the purpose of the extension
office is to “provide research[-]based knowledge from the University [of
Kentucky] to people in rural communities.” And Cheek testified that she
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“provide[s] educational programming in seven (7) different areas that relate back
to basic like [sic] skills” and serves as an advisor to twelve Homemaker groups
totaling about 300 members in Mason County. Thus, the Board and the extension
district perform governmental functions.
The second element of the second prong of the governmental
immunity test requires us to undertake the “complex endeavor” of ascertaining
whether the Board serves an integral statewide function. Bryant, 568 S.W.3d at
848. The fact that the Board undeniably serves a public purpose does not
inevitably mean it serves an integral statewide function. Id. In determining
whether an entity serves an integral statewide function, a court must “consider the
balance of the entity’s functions, not just the particular action at issue in the case.”
Transit Authority of River City v. Bibelhauser, 432 S.W.3d 171, 174 (Ky.App.
2013). This requirement is important because Welsh stresses all the extension
district really did for her group was provide meeting space. But the extension
district’s broad educational mandate encompasses more than providing meeting
space, which some proprietary entities in Kentucky also provide. Also
undercutting Welsh’s proprietary argument is Cheek’s seemingly unrebutted
deposition testimony that the extension district provides access to its facilities for
homemaker groups without charge and that she serves as an advisor to those
groups.
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To demonstrate that it serves an integral statewide function, the Board
must make two showings: first, that it “addresses state level governmental
concerns that are common to all of the citizens of this state” because “[s]erving
purely local concerns is insufficient.” Id. (quotation marks and citations omitted).
Second, the Board “must show that it serves a function that is integral to
addressing that state level concern[,]” which means its actions “must be necessary,
an essential part of carrying out that state-level government function.” Id.(quotation marks and citations omitted).
Because “the General Assembly, to a certain extent, must have the
legislative prerogative to enunciate what is integral to the state’s function[,]” the
General Assembly’s expressed purposes may help a court determine whether a
government agency’s function is integral. Bryant, 568 S.W.3d at 849 (emphasis
original). The General Assembly created extension districts and the boards thereof
“to provide for aid in disseminating among the people of Kentucky useful and
practical information on subjects relating to agriculture, home economics, and rural
and community life[.]” KRS 164.610. In other words, the core purpose of creating
an extension district, governed by a board, is educating the residents of our
Commonwealth. Indeed, the work of extension districts is “carried on in
cooperation with the University of Kentucky College of Agriculture and Home
Economics [UK.]” Id. And Cheek testified that she applied to UK for her
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position, was hired by UK, underwent training provided by UK, and she and the
other full-time extension district employees are paid by UK. The extension district
and board address statewide concerns on a local level.
Turning to whether the Board’s function is integral, the parties have
not cited, nor have we independently located, authority resolving whether
extension districts and the governing boards thereof are entitled to governmental
immunity. But there is a host of published authority stating that public education is
an important state function. See City of Louisville v. Commonwealth, 134 Ky. 488,
121 S.W. 411, 412 (1909) (“In this state the subject of public education has always
been regarded and treated as a matter of state concern.”); Comair, Inc. 295 S.W.3d
at 99 (holding that when determining if a function is integral to state government
“[t]he focus . . . is on state level governmental concerns that are common to all of
the citizens of this state, . . . include[ing], public education[.]” Coppage
Construction Company, Inc., 459 S.W.3d at 864 (“Sewage disposal and storm
water management systems are not a traditional and necessary state function such
as those functions performed by the state police, our public schools, the corrections
system, and public highways and airways.”). Indeed, our Supreme Court has
explicitly held in Furtula, 438 S.W.3d at 305, that “the state universities of this
Commonwealth, including the University of Kentucky, are state agencies that
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enjoy the benefits and protection of governmental immunity except where it has
been explicitly waived by the legislature.”
Obviously, an extension district is not the same as a traditional public
school or university. But extension districts similarly provide public education in
areas like agriculture and home economics to Kentuckians. Indeed, the extension
district is a part of UK, and the memorandum of agreement between UK and the
Board provides that the extension program is funded by Mason County and UK—
each of which possess immunity. In short, the extension district, and thus its
governing Board, serve integral public education-based functions.
Welsh’s argument to the contrary notwithstanding, Coppage
Construction, Company, Inc., supra, does not afford her relief. In that case, our
Supreme court determined that a public sewer utility did not possess governmental
immunity because it did not perform “a traditional and necessary state function[.]”
Coppage Construction Company, Inc., 459 S.W.3d at 864. Education is patently
different than providing sewer services; Coppage Construction Company, Inc.
itself recognized that “public schools” served necessary state functions. Id.
Welsh argues, seemingly as a fallback position, that the Board’s
purchase of liability insurance operates as a waiver of immunity. We disagree.
KRS 67.180(1), heavily relied upon by Welsh, provides in relevant
part that, except for Jefferson County, a county’s fiscal court may, “in its discretion
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. . . appropriate county funds to purchase policies of insurance . . . covering
vehicles operated by the county, and compensation insurance covering employees
of the county receiving injuries arising out of and in the course of employment.”
But Welsh’s injuries did not involve a Mason County vehicle, and she was not
injured in the course of employment by Mason County. We held in Knott County
Fiscal Court v. Amburgey, 439 S.W.3d 754, 757 (Ky.App. 2013) that KRS 67.180
did not waive immunity when the case was “not about injuries related to an
automobile accident involving vehicles owned by the county” but instead involved
“the alleged negligence for failure to remove mud and debris from the roadway and
failure to warn of the hazardous condition.” The same conclusion applies here.
Moreover, Welsh’s arguments are contrary to KRS 49.070(14), which
provides in relevant part that “the purchase of liability insurance” by a state agency
“for a government-related purpose or duty shall not be construed as a waiver of
sovereign immunity or any other immunity or privilege thereby held.” See also
Jenkins Independent Schools v. Doe, 379 S.W.3d 808, 811 (Ky.App. 2012) (“We
also hold that the trial court erred when it found that the school board waived its
immunity by purchasing liability insurance. Our Supreme Court has held that a
school board’s liability insurance does not represent a waiver of immunity.
Grayson County Bd. of Educ. v. Casey, 157 S.W.3d 201 (Ky. 2005). This court
ruling has been reaffirmed and codified by the General Assembly: ‘the purchase of
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liability insurance . . . shall not be construed as a waiver of sovereign immunity or
any other immunity or privilege thereby held.’”). In short, the extension district’s
purchase of insurance did not waive its immunity.3
For the foregoing reasons, the Mason Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Thomas K. Herren John Jay Ellis
Lexington, Kentucky Morehead, Kentucky
3
Welsh’s reliance upon our decision in Noel v. Welch, No. 2018-CA-000187-MR, 2019 WL
1213253 (Ky.App. 2019) (unpublished), is misplaced because the Kentucky Supreme Court
granted discretionary review of that decision in August 2019, over five months before Welsh
filed this appeal. The Supreme Court has not yet rendered its decision in Noel, but its granting of
discretionary review rendered our Opinion inoperative.
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