Kestler v. Transit Authority of Northern Kentucky , 1988 Ky. LEXIS 63 ( 1988 )

LEIBSON, Justice,

concurring.

I concur in the Majority Opinion so far as it goes, but it does not go far enough.

This is a plain, old, garden-variety motor vehicle collision, occurring on the streets of this Commonwealth between a truck and a bus. It so happens that the bus company operating this particular bus, rather than being privately owned, is a municipal corporation organized pursuant to KRS Chapter 96A, which permits local authorities, cities and counties, alone or in combination, to engage in this proprietary activity.

The idea that such a bus company should enjoy sovereign immunity would have been viewed as ludicrous by our constitutional forbearers who authored the Kentucky Constitution, §§ 230 and 231, controlling the expenditure of “money [which] shall be drawn from the State Treasury” and “suits [which] may be brought against the Commonwealth.”

The principle that public corporations organized in this fashion are municipal corporations is one of longstanding. Rash v. Louisville & Jefferson County Met. S. Dist., 309 Ky. 442, 217 S.W.2d 232, 236 (1949). Louisville Metro. Sewer Dist. v. Simpson, Ky., 730 S.W.2d 939 (1987) is an aberration of this principle, confusing sovereign immunity with the former concept of municipal immunity in the exercise of a governmental function.¹ The idea that a bus company operating in Northern Kentucky, whether a private or public corporation, should be immune from responsibility for injuries tortiously inflicted on others using the public highways, that it should be protected by state sovereign immunity, is an alien philosophy unsuited to the jurisprudence of government in a responsible democracy.

The Board of Claims Act provides limited relief through an administrative agency for citizens injured by the negligent acts of state agencies. It authorizes payments from the State Treasury for injuries negligently inflicted by persons “acting within the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus or agencies.” The concept of relief in the Board of Claims Act is coextensive with the concept of state sovereign immunity. The Act does not cover the liability of TANK, or indeed of any other local entity or municipal corporation. If we afford such local entities the privilege of state sovereign immunity, the result is a large body of public corporations providing the same services and conducting the usual activities of private corporations which are licensed to inflict injury upon the public with impunity. This is not a result mandated by the Kentucky Constitution, but the meaning we ascribe to it. It is our Court, not the Kentucky Constitution, that arbitrarily and unreasonably extends sovereign immunity to public corporations simply because their existence is authorized by state statute.

On the contrary, the idea that a victim in a case such as the present one would have no recourse anywhere, were it not for a statute requiring TANK to “provide for insurance” (KRS 96A.180), should not be subscribed to by our Court, even implicitly.

The Dissenting Opinion by Justice Vance comments prematurely on the meaning and effect of KRS 44.072, which we state in our Opinion that we do not consider because, in any event, it would have no “retroactive” application. There is much about KRS 44.-072 which should give this Court pause. For instance, it states in part that:

“The board of claims shall have exclusive jurisdiction to hear claims ... against the Commonwealth ... or any of its officers, agents or employes while acting within the scope of their employment. ...”

This seemingly seeks to extend state sovereign immunity to employees. In Happy v. Erwin, Ky., 330 S.W.2d 412 (1959), in an earlier, happier age of enlightenment, striking down a statute professing to extend the immunity enjoyed by the governmental agency to the personal liability of its employees, we stated:

“Clearly the statute violates §§ 14 and 54 of the Kentucky Constitution” (and would violate § 241 if death were involved.) 330 S.W.2d at 413.

Happy v. Erwin holds that “these two sections” (§§ 14 and 54) effectively deny “authority in the legislature to extinguish a right of action” involving the personal liability of a government employee acting within the scope of his employment for an agency enjoying sovereign immunity. Id.

There are questions regarding the meaning, the effect, and the constitutionality of newly enacted KRS 44.072, which remain to be considered by our Court in a proper case where the issues are before us. Certainly our present Opinion should not imply a rush to judgment in these matters.

LAMBERT, J., joins in this concurring opinion.

1 . A concept now discredited: Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964); Gas Service Co., Inc. v. City of London, Ky., 687 S.W.2d 144 (1985).