Jones v. Cross

Opinion of the Court by

A sheriffs deputy seriously injured two Kentucky State Troopers while all three were attempting to capture a fugitive. The questions accepted for discretionary review are whether the sheriff in his official capacity (the office of sheriff) is entitled to official immunity for tortious acts of his deputies, and if so, whether KRS 70.040 waives that immunity. We opine that the sheriff in his official capacity (the office of sheriff) has official immunity for tortious acts committed by his deputies, but that KRS 70.040 waives said immunity for that office.

On the morning of September 3, 2000, Barren County Deputy Sheriff Leland Cox went to execute an arrest warrant on an evasive David Price. Deputy Sheriff Cox requested assistance from Kentucky State Police Troopers, Jason H. Cross and Christopher A. Spradlin, who both responded in their separate cruisers. All three vehicles were northbound on Kentucky Highway 740 when they learned that Price was approaching from the opposite direction. When Price realized that his southbound path was blocked, he abandoned his vehicle and fled on foot into a grassy field. Both troopers pursued Price on foot, while Deputy Cox drove his cruiser into the open field. As Trooper Cross caught Price, Deputy Cox ran his cruiser over Trooper Cross, leaving tire tracks on his uniform. Somehow, Deputy Cox’s cruiser then hit Trooper Spradlin, but missed Price. Not surprisingly, both Troopers sustained injuries.

Subsequently, Trooper Spradlin, as well as Trooper Cross and his wife, Mitzi R. Cross, filed a negligence action against Deputy Cox and his employer, Barren County Sheriff Barney Jones, in both their individual and official capacities, and against their respective insurers. The liability of Deputy Cox and his insurers is no longer an issue. The liability of Sheriff Jones in his individual capacity is still before the trial court and not an issue before this court. The issues ruled on by the trial court and on appeal to this Court are whether the sheriff (the office of sheriff) has official immunity when sued in his official capacity for tortious acts of a deputy, and if so, whether KRS 70.040 waives that immunity.

The trial court held that Sheriff Jones and his insurer were not liable “on the basis of absolute and qualified official immunities.” Additionally, the trial court determined that KRS 70.040 did not waive *345immunity of a sheriff for tortious acts of a sheriffs deputies. The Court of Appeals agreed that a sheriff is entitled to immunity when sued in his official capacity unless said immunity is waived. The Court of Appeals went on to discuss KRS 70.040 and held that the statute was a waiver of the sheriffs official immunity for tortious acts of his deputies. The Court of Appeals, however, declined to address the constitutionality of said statute. This Court granted discretionary review to determine whether a sheriff in his official capacity (the office of sheriff), has immunity for tortious acts of his deputy, and if so, does KRS 70.040 waive that immunity.

Sovereign immunity is a concept from common law “that precludes the maintaining of any suit against the state unless the state has given its consent or otherwise waived its immunity.” Yanero v. Davis, 65 S.W.3d 510, 517 (Ky.2001). Governmental immunity is derived from sovereign immunity and applies to tort liability of governmental agencies. Therefore, “a state agency is entitled to immunity from tort liability to the extent that it is performing a governmental, as opposed to a proprietary, function.” Id. at 519 (emphasis added). Official immunity protects governmental officials or employees from tort liability for performance of their discretionary functions. Id. at 521. Furthermore, official immunity is absolute when an official’s or an employee’s actions are subject to suit in his official capacity. Id.1

The first step in our analysis requires us to apply the above concepts to the first part of our question — whether a sheriff, in his official capacity, is entitled to official immunity for tortious acts committed by his deputies. Because the county is a political subdivision of the state, it is “cloaked” with sovereign or governmental immunity. Lexington-Fayette Urban County Gov’t v. Smolcic, 142 S.W.3d 128 (Ky.2004). The sheriff is recognized as the chief law enforcement officer of the county. Shipp v. Rodes, 196 Ky. 523, 245 S.W. 157 (1922). Thus, we conclude that absent a waiver thereof, a sheriff, as a county official, has absolute official immunity at common law for torts (by him or his deputies) when sued in his official capacity. See Yanero, 65 S.W.3d at 517.

Although common law recognizes that a sheriff has absolute official immunity for tortious acts and omissions of his deputies, the next question is whether KRS 70.040 waives that immunity. Statutes in derogation of the state’s sovereign immunity will be strictly construed in favor of the state unless the intention of the legislature to do otherwise is clearly expressed in the statute. Lexington-Fayette Urban County Bd. of Health v. Bd. of Trs. of the Univ. of Ky., 879 S.W.2d 485, 486 (Ky.1994). KRS 70.040 provides:

The sheriff shall be liable for the acts or omissions of his deputies; except that, the office of sheriff, and not the individual holder thereof, shall be liable under this section. When a deputy sheriff omits to act or acts in such a way as to render his principal responsible, and the latter discharges such responsibility, the deputy shall be liable to the principal for all damages and costs which are caused by the deputy’s act or omission.

*346A literal or plain reading of the statute clearly imposes' liability on the sheriff in his official capacity for acts committed by his deputies. In construing a statute, words must be given their literal, usual, and ordinary meaning unless they have acquired a technical meaning. KRS 446.080(4); Alliant Health Sys. v. Kentucky Unemployment Ins. Comm’n, 912 S.W.2d 452, 454 (Ky.App.1995); Revenue Cabinet v. JRS Data Sys., Inc., 738 S.W.2d 828, 829 (Ky.App.1987). Unless the statute is ambiguous, a court does not consider the legislative intent or the legislative history of a statute. Cummings v. Covey, 229 S.W.3d 59 (Ky.App.2007); Turner v. Turner, 908 S.W.2d 124 (Ky.App.1995); Newport Benevolent Burial Ass’n v. Clay, 170 Ky. 633, 170 Ky. 633, 186 S.W. 658 (1916). Applying these principles, we opine that the legislative waiver of immunity is very clear, and that the plain language of KRS 70.040 leaves no room for any other reasonable construction than a waiver of the sheriffs official immunity (the office of sheriff) for the tortious acts or omissions of his deputies. See Grayson County Bd. of Educ. v. Casey, 157 S.W.3d 201 (Ky.2005), Reyes v. Hardin County, 55 S.W.3d 337 (Ky.2001), and Withers v. Univ. of Ky., 939 S.W.2d 340 (Ky.1997) for examples of “limited” waivers of liability.

Accordingly, we affirm the opinion of the Court of Appeals which reverses the trial court’s dismissal and remands for further proceédings.