Concurring in Result Only:
I concur with the majority’s conclusion that the CVFD enjoys immunity because it is performing a governmental function and not a proprietary function. Yanero v. Davis, 65 S.W.3d 510, 520-21 (Ky.2001). I also agree with the result reached by the majority in which neither Chief Clark nor the City of Caneyville will be liable in this action, but I do not agree with the majority’s methodology or reasoning.
Immunity, sovereign and otherwise, has been made into a difficult area of the law, full of rules with subsets. Before delving into the details of this case, I feel compelled to say that we should endeavor to drain this judge-made swamp. Said simply, my view of immunity is this: the Commonwealth enjoys inherent immunity by virtue of its status as a sovereign state. As such, the Commonwealth may choose to lend its immunity to its arms and agents, whether those arms and agents are organizations like the CVFD or individuals like Chief Clark. And I would eliminate, or at least reduce, the arbitrary differentiations that have grown up in this Court around the concept of immunity and its various subsets (e.g., sovereign, official, qualified official, etc.) and the various tests that we have formulated in this area over the years (e.g., premising qualified official immunity of a state actor based upon whether the acts in question were ministerial or discretionary in nature).
The Commonwealth, speaking through the General Assembly, is forbidden by Section 2 of our Constitution from acting arbitrarily in lending its immunity (ie., the Commonwealth may not lend its immunity to non-state actors). But absent some specific constitutional prohibition, I believe the General Assembly is free to declare if, when, or how the Commonwealth lends its immunity to its arms and agents. With those general principles in mind, I turn to the facts of this case.
Under our current precedent, a governmental employee receives qualified official immunity for his or her discretionary acts but receives no immunity for the performance of ministerial acts. Id. at 522. So it is possible for the employee of an arm of the Commonwealth to have personal liability for actions taken in the scope of, and in furtherance of, the employee’s job performance. Unlike the majority, I believe the General Assembly has the power to grant immunity to state actors in their individual capacity. In fact, I believe the General Assembly did just that in KRS 75.070(1).
KRS 75.070(1) provides, in relevant part, that a “volunteer fire department and [its] ... personnel ..., answering any fire alarms ... shall be considered an agent of the Commonwealth of Kentucky, and acting solely and alone in a governmental capacity, and ... shall not be liable in damages for any omission or act of com*814mission or negligence while answering an alarm.... ” (Emphasis added.) The statute is straightforward and uses language broad enough to demonstrate the General Assembly’s intent to provide as much immunity and protection as possible, both to fire departments and to their employees answering fire alarms. But the majority construes the statute to limit immunity to Chief Clark and similarly situated firefighters in their official capacities and holds that the firefighters’ individual-capacity liability depends upon whether the acts in question were discretionary or ministerial. The artificial distinction between discretionary and ministerial functions appears nowhere in the wording of KRS 75.070(1). So I believe the majority has judicially amended the statute effectively to provide that fire departments and the personnel of fire departments are not liable in damages for “any omission or act of commission or negligence while answering an alarm provided that the omission or act of commission or negligence is a discretionary, not ministerial act.” I refuse to graft such a restriction on an otherwise clear statute. Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky.1994) (“[We are] not at liberty to add or subtract from legislative enactment or to discover meaning not reasonably ascertainable from language used.”).
My reading of KRS 75.070(1) causes me to conclude that the General Assembly intended to grant immunity to fire department employees to the same extent enjoyed by fire departments themselves. So I would hold that Chief Clark enjoys immunity in both his official and individual capacity. And although overruled by Yanero, our precedent once followed that precise line of reasoning. Franklin County, Kentucky v. Malone, 957 S.W.2d 195, 202 (Ky.1997) (“As long as the police officer acts within the scope of the authority of office, the actions are those of the government and the officer is entitled to the same immunity....”).
My conclusion runs contrary to our precedent. More particularly, my conclusion regarding Chief Clark’s liability runs headlong into the often-cited jural rights theory, under which Sections 14,10 54,11 and 24112 of our Kentucky Constitution are jointly interpreted to mean that “any common law right of action existing prior to the adoption of the 1891 Constitution is sacrosanct and cannot be abolished.” Williams v. Wilson, 972 S.W.2d 260, 272 (Ky.1998) (Cooper, J., dissenting). But I consider the jural rights theory to be a judicially created legal fiction to which we should no longer cling. Rather, as Professor Thomas Lewis convincingly declared, “the formal jural rights doctrine is founded on a misconception of Kentucky’s 1891 *815[Constitution. It should be abandoned.” Thomas P. Lewis, Jural Rights Under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky.L.J. 953, 985 (1991-92).
The jural rights theory first appeared in Kentucky in 1932. Ludwig v. Johnson, 243 Ky. 533, 49 S.W.2d 347 (1932). But the case that has the most direct bearing on the one at hand dates to 1959. That 1959 case involved the potential immunity of an employee of a municipal fire department. Happy v. Erwin, 330 S.W.2d 412 (Ky.1959). Although it did not expressly use the term “jural rights,” a majority of our predecessor court concluded in Happy that the General Assembly lacked the constitutional power to enact a statute that provided that a city employee could not be liable for operating a fire apparatus outside the city limits. Id. at 413-14. Specifically, our predecessor court opined that “[cjlearly the statute violates sections 14 and 54 of the Kentucky Constitution (and would violate section 241 if death were involved.)” Id. at 413. Following the logic in Happy would lead to the conclusion reached by the majority in this case — i.e., that the General Assembly could not constitutionally enact a statute that provided that Chief Clark and all similarly situated firefighters are immune in their individual capacities for both discretionary and ministerial acts. But because I place no stock in the jural rights theory, I conclude that Happy was erroneously decided and should be overruled.
The Commonwealth enjoys immunity simply by virtue of its existence as a sovereign state; and the General Assembly is the governmental body constitutionally authorized to determine if, when, and how that immunity will be waived. Yanero, 65 S.W.3d at 523-24. By specifically stating in KRS 75.070 that firefighters are not liable for “any” acts that occur during the course of their firefighting duties, I conclude that the General Assembly has expressed its intention completely to immunize Chief Clark and all similarly situated firefighters. But the majority in Happy, proceeding under the jural rights theory, essentially held that the General Assembly lacked the authority to refuse to waive the immunity of state actors. Actually, the Happy court went so far as to hold that the elected representatives of the people of this Commonwealth — the General Assembly — lacked the power to declare, as a matter of public policy, that public servants are immune from suit.
Specifically, the Happy court opined as follows: “It is argued that the liability of public servants is a matter of public policy for the legislature to determine. However, the public policy of the legislature cannot supersede the public policy of the people of this Commonwealth expressed in their Constitution.” 330 S.W.2d at 414. But as Professor Lewis has convincingly argued, “the formal jural rights doctrine is founded on a misconception of Kentucky’s 1891 constitution.” Lewis, 80 Ky.L.J. at 985. Although I will not belabor this opinion by recapping the results of his scholarly and convincing research, Professor Lewis traces the history of the adoption of Sections 14, 54, and 241 of the Kentucky Constitution and arrives at the conclusion that the framers of our Constitution did not intend for all tort laws extant in 1891 to be inviolable. In other words, history caused Professor Lewis to declare that the jural rights theory was nonsense, an opinion shared by former Justice William Cooper.13 Tellingly, we have been cited to *816nothing that disputes Professor Lewis’s scholastic research. Why, then, do we cling to a legal theory that has no basis in history or the law? Accordingly, I have concluded that Happy, along with all the jural rights cases that preceded and succeed it, are unsupportable.
Referring to Professor Lewis’s article, former Justice Cooper memorably opined that jural rights “is nothing more nor less than a judicial usurpation of a traditional legislative prerogative.” Williams, 972 S.W.2d at 272 (Cooper, J., dissenting). I agree. We should disabuse ourselves of the jural rights theory and return the power to “formulate public policy in the area of tort law” to the General Assembly. Williams, 972 S.W.2d at 275 (Cooper, J., dissenting). In short, we should abdicate the public policy crown that “[w]e, like Bonaparte, have placed ... upon our own head.” Id. And if we abdicate our self-imposed position of control in this area of tort law, we will recognize that the General Assembly may choose when, if, and how it will waive immunity for state actors. Because there is nothing in the words of KRS 75.070(1) that evidences an intent to waive any immunity for Chief Clark — -the opposite, in fact, appears — then the removal of the fallacious jural rights theory leaves no impediment to Chief Clark’s enjoying immunity in his individual capacity, regardless of whether the acts in question underlying the Greens’ complaint are deemed ministerial or discretionary.
I recognize that abolishing the jural rights theory will logically result in the General Assembly having the discretion to “exempt all public officers and employees from any type of liability.” Happy, 330 S.W.2d at 414. But the General Assembly had that power all along. We have simply refused to recognize that power, instead preferring to cling to the fictitious jural rights theory.
I also see that recognizing the General Assembly’s wide-reaching power in this area creates a potential for abuse and may well result in unwise public policy decisions. But the formulation of public policy, whether wise or unwise, is the sole province of the General Assembly, not the judicial branch. See Williams, 972 S.W.2d at 275 (Cooper, J., dissenting).
Application of my conclusions regarding the jural rights theory leads to the inevitable conclusion that under KRS 75.070(1), Chief Clark has immunity for actions performed within the scope of his employment, regardless of whether those actions are ministerial or discretionary. Although I do not agree with its reasoning, I do agree with the majority’s ultimate conclusion that Chief Clark is not liable in either his official or individual capacity.
Finally, under my approach, the City of Caneyville’s liability would be extinguished because neither the CVFD nor Chief Clark would have any potential liability. The majority also concludes that the City of Caneyville should not be liable. But since my reasoning is different than that of the majority, I will briefly address why I believe the City should not be liable.
Our predecessor court overturned decades of precedent when it declared on public policy grounds that municipalities could no longer enjoy immunity. Haney v. City of Lexington, 386 S.W.2d 738 (Ky.1964). I strongly believe, however, that the General Assembly is the governmental body that should make the public policy decision as to whether municipalities, which are, after all, closely governed by *817the General Assembly,14 should not enjoy the immunity afforded other political subdivisions and agents of the Commonwealth. Our learned former colleague, Justice Donald Wintersheimer, said it well when he opined that “[mjunicipal immunity is closely interwoven with sovereign immunity, and to consider them separately is an exercise in inequality[,]” meaning that “[u]lti-mately 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....” Gas Service Co., Inc. v. City of London, 687 S.W.2d 144, 151 (Ky.1985) (Wintersheimer, J., concurring). Therefore, I would overrule Haney, leaving the matter of municipal immunity from tort to the General Assembly.
The General Assembly has expressly stated in KRS 75.070(1) that a municipality “shall not be liable in damages for any omission or act of negligence” occurring while answering a fire alarm. And I believe we must defer to the General Assembly’s policy decision that municipalities, such as the City of Caneyville, should not be liable in damages in cases like the one at hand.
For the reasons discussed, I concur with the majority’s ultimate result, but respectfully disagree with its reasoning.
CUNNINGHAM and SCHRODER, JJ., join.
. Section 14 provides that "[a]Il courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”
. Section 54 provides that ”[t]he General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property."
. Section 241 provides that:
Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong; and until such provision is made, the same shall form part of the personal estate of the deceased person.
. See Williams, 972 S.W.2d at 275 (Cooper, J., dissenting) (“[T]he historical analysis of the origins and purposes of Sections 14, 54 and 241 [of the Kentucky Constitution], as set forth in Professor Lewis's article ... reveals not even an implication that those sections *816are interrelated or that the framers intended for any or all of them, read separately or together, to transform power over public policy with respect to tort law from the legislature to the judiciary.”).
. Section 156a of the Kentucky Constitution provides that the General Assembly "may provide for the creation ... government, functions, and officers of cities." Under its constitutional authority, the General Assembly has, for example, enacted statutes designating the proceedings necessary to incorporate a city (KRS 81.050) and has classified cites into six classes. Therefore, it is manifest that the General Assembly’s legislative fingerprints are all over the creation, classification, duties, and powers of cities.