concurring in part and dissenting in part.
I agree with so much of the decision as affirms the dismissal of the claim against the Louisville and Jefferson County Metropolitan Sewer District and Holloway & Son Construction Company, Inc. I would, however, go further and dismiss the complaint as to W. George Keat, Jr., and Kentucky Engineering Company.
The majority opinion places great weight upon the report of David T. Y. Kao and David K. Blythe. The argument advanced and further supported by another expert, David L. Daugherty, is that the culvert was improperly designed by W. George Keat, Jr. I read these reports differently. I further believe that because the trial court did not rely upon them in making his determination, we should not give them the credence that the majority opinion gives them. These reports are unsworn, and the witnesses have not been cross-examined. I believe that it is too early to reach the conclusion that there was a defect in the design of the culvert.
The record shows that Keat, an employee of Kentucky Engineering, was the initial design engineer for the project. This design prepared by Keat was approved by Louisville and Jefferson County Metropolitan Sewer District before the construction of the culvert began. With this approval by the Sewer District, I believe that any liability on the part of Keat individually for negligent design was extinguished. Responsibility for the design now rests with *606the Sewer District. At this point, Keat is entitled to any defense available to the Sewer District, including governmental immunity.
The record goes even further, and establishes that not only was Keat not paid for his engineering services, but he did not supervise any of the construction in the project. The reports indicate that if, in fact, the design of the culvert was defective, the construction of the culvert also was defective. Because Keat had no opportunity to supervise the installation and construction of the culvert and lines leading into the culvert, I do not believe that we can hold him as the only defendant. As pointed out in City of Louisville v. Padgett, Ky., 457 S.W.2d 485 (1970), changes made during construction at the direction of the public agency for whom the work is being done does not constitute negligence on the part of the contractor.
The court in Sherman v. Miller Construction Co., 90 Ind.App. 462, 158 N.E. 255, 256 (1927), best answered the dilemma which we now face in the present case:
. It would, indeed, be a strange rule of law which would excuse the act of the official in passing upon said plans and adjudging them sufficient, and yet would hold the person who drew such plans liable in damages, because of an alleged incompleteness therein, to some person who might be injured as a result of a building having been built according to such incomplete plans, .
I would, therefore, affirm the judgment of the trial court or, in the alternative, remand the case to the circuit court to resolve the issue of design negligence.