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Estate of Clark v. Daviess County3/14/2003
TO BE PUBLISHED
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
The Estate of Candice Clark and Linda Mitchell, Clark's mother, appeal from an order of the Daviess Circuit Court granting summary judgment to the defendants in a wrongful death action arising out of an automobile accident that occurred in Daviess County, Kentucky. We initially affirmed, but the Kentucky Supreme Court remanded for us to reconsider our opinion in light of Yanero v. Davis, Ky., 65 S.W.3d 510 (2001). After undertaking a Yanero analysis, we still conclude that the county and the individual defendants acting in their official or representative capacities are immune from suit and affirm that part of the judgment. However, Yanero has ruled that individual defendants sued in their individual capacities are not entirely immune from suit. Consequently, we affirm in part, reverse in part, and remand.
This action arises out of a single-car accident at a curved section of East Marksberry Road in Daviess County. The appellants allege that the absence of a proper warning sign and guardrail caused Candice Clark to lose control of her automobile at this location and to leave the roadway. She was found dead at the scene.
Following the accident, Linda Mitchell, the decedent's mother and the personal representative of her estate, filed this action against: Daviess County; the present and former members of the Daviess County Fiscal Court (each in his official capacity and individually); the Daviess County road foreman (in his official capacity and individually); Daviess County Road Department sign director (in his official capacity and individually); the present and former Daviess County engineer (each in his official capacity and individually); and the assistant engineer of Daviess County (in his official capacity and individually). The complaint alleged that the defendants had failed to exercise ordinary care to provide and to maintain any notice or warning of the curved roadway and/or to provide an appropriate guardrail at the portion of the roadway involved in the accident.
Asserting the defenses of sovereign immunity and official immunity, the defendants (now appellees) moved for summary judgment. The trial court granted the motion with respect to the action against Daviess County; Daviess County Fiscal Court members in their official capacities; and the Daviess County engineers, road foreman, and Road Department sign director in their official capacities. The motion was denied with respect to the acts (or omissions) of the individual employees in their individual capacities. Following a period of discovery, the remaining defendants renewed their motion for summary judgment. After considering the defendants' argument that their individual activities were inherently within the traditional role of government, the trial court granted the motion. This appeal followed.
In an appeal of a summary judgment, our role as a reviewing court is to determine "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." Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 781 (1996) (citations omitted). Our review is de novo: "There is no requirement that the appellate court defer to the trial court since factual findings are not at issue." Id. Whether an immunity defense applies is purely a question of law.
The trial court did not err by granting summary judgment in favor of Daviess County. The Kentucky Supreme Court has emphasized that county governments cannot be held liable for the negligent actions of employees acting in an official capacity. Franklin County v
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