Gas Service Co., Inc. v. City of London

WINTERSHEIMER, Justice,

concurring.

I concur with the result reached by the majority opinion. However, some other valid considerations need to be expressed because more than half of the population of Kentucky has chosen to incorporate into municipalities. To expose half of the taxpayer-supported governments to potential liability while the remainder is immune seems to conflict with the general concept of equal protection of the law.

I fully agree with the philosophy that liability for negligent acts is a universal duty owed by every person or legal entity to every other person or legal entity. The duty to exercise ordinary care under all the circumstances is a standard of conduct that does not depend on the identity or status of the wrongdoer. All governmental organizations, municipal or otherwise, should be responsible and accountable for their conduct.

Any distinction between governmental and proprietary activity is artificial. The victim of the misconduct, provided that the claim is based on fault and duty, is wronged and entitled to redress for such a grievance by way of appropriate damages. There is no legitimate way to distinguish between private and public negligent acts.

The physical functions of government and all the manifestations thereof must be conducted in a safe and proper manner. The only valid exercise of government which should be exempt from tort liability is the purely administrative or legislative decision-making process. Redress from an improper or bad decision or from the exercise of poor judgment is at the ballot box. Compensation for the failure to exercise ordinary care under all the circumstances is obtained by means of damages.

*151Consequently, I do not agree with the exceptions made by the majority in regard to the use of the regulatory function as illustrated by Grogan v. Commonwealth, Ky., 577 S.W.2d 4 (1979), or Commonwealth, Dept. of Banking & Securities v. Brown, Ky., 605 S.W.2d 497 (1980). Although violations of appropriate conduct in the regulatory sector may be an extremely remote possibility for liability, the entire avenue of relief should not be foreclosed. To preserve an exception would foster a return to the case-by-case judicial erosion of the principle of accountability for wrongdoing in the same fashion that the courts have chipped away at the 21-year-old Haney, supra, decision. It seems to border on the inconsistent to permit lingering exceptions. Any classification should be uniform and very narrow and should be made by the legislature in a comprehensive governmental tort claims act. Any wounds should be fully cleansed.

Sovereign immunity is a judicially-created defense. Municipal immunity has been eliminated as part of that broad defense posture. Municipal immunity is closely interwoven with sovereign immunity, and to consider them separately is an exercise in inequality. The people of a community come together to create a local government. The precise form of that government is unimportant to them. The public demands the kind of government most responsive to its needs. Certainly the public does not want any undue liability resulting from selection of a form of government.

Sovereign immunity has been extended to counties and urban county government. See, Hempel v. Lexington-Fayette Urban County Government, Ky.App., 641 S.W.2d 51 (1982). A metropolitan sewer district has been determined to be an instrumentality of the state clothed with sovereign immunity. Gnau v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961). Almost every form of physical function that a city now provides can be delegated to private enterprise except for the ultimate basic pure-governmental decision making and the exercise of judgments connected therewith.

Ultimately the decision as to whether a municipality should be responsible in tort for the failure to provide proper services or the provision of such services in a negligent fashion is best left to the Kentucky General Assembly under the provisions of Section 231 of the Kentucky Constitution and KRS 82.081. A proper resolution of the conflicting public policy choices which the problem of municipal and governmental immunity gives rise to are best left to the legislature. That group after examining the empirical data regarding the potential liability exposure and exploring the availability of methods of defense may well decide that municipal functions are either deserving of protection or may classify them in such a way as to provide appropriate redress to the aggrieved individuals.

Approximately thirty-three states have enacted tort claims acts which in some way provide for an award of damages when there is a breach of duty to exercise ordinary care under all the circumstances. Some states have restored fairly broad immunity to cities. A few states provide for a general rule of liability subject to specific exceptions. Five states have enacted legislation which imposes open-ended liability subject to a dollar limitation in the amount of damages that are recoverable against the city.

Abrogation of the doctrine of governmental immunity only removes the defense of immunity and should not create any new liability for a municipality or other government. The removal of immunity does not impose absolute or strict liability, see Jones v. State Highway Com’n, 557 S.W.2d 225 (Mo., 1977).

In general it must be recognized that there are certain discretionary acts related to the formulation of public activity and public policy.

A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines how or whether to utilize or apply existing resources. Nothing in such a statute should exonerate the public entity for negligence *152arising out of acts or omissions of its employees in carrying out their ministerial function. See, New Jersey Statutes, Annotated, § 59:2-3(d). For an extensive survey of municipal liability and immunity, see, McQuillan on the Law of Municipal Corporations, Volume 18.

Approximately twenty-two states have adopted what is called a “discretionary function” approach to accountability for wrongful acts. Essentially, such discretionary acts have been defined in the statutes as those acts involved in the formulation of policy while ministerial acts have been defined as those related to the execution or implementation of policy. See Rieser v. District of Columbia, 563 F.2d 462 (D.C.Cir.1977).

The General Assembly might aid the people who have incorporated into municipalities by enacting a comprehensive tort claims act which could be applicable to all units of government.