concurring in part and dissenting in part.
I agree that Potts should not have been granted summary judgment, but only because there was evidence that the 30-inch pipe across his property was clogged, thus impeding runoff of water from his property and partially causing the flooding of his property. However, I do not agree that the mere existence of this type of drainage system is an attractive nuisance — particularly where, as here, a police officer was present and had warned the child victim not to enter the water. I also agree that Morton was not entitled to summary judgment because there was evidence that the 42-inch pipe constructed across his property was too narrow to accept the discharge from the fieldstone culvert, thus contributing to the flooding of Potts’s property. However, I believe the trial judge correctly concluded that the City of Mt. Sterling was entitled to summary judgment.
Contrary to the assertion in the majority opinion, the city did not attach its drainage system to the privately-owned systems *511constructed on the Potts and Morton properties. The city only constructed the field-stone culvert under Richmond Avenue. Appellants’ expert, Lester Auble, admitted that this culvert could have accommodated “222 cubic feet of water per second,” much more than necessary to drain all of the rainwater that fell on Potts’s property on the day J.C. Walker drowned. The city built the culvert in the 1940s. The drainage systems on the Potts and Morton properties were built and attached to the culvert much later. There was no evidence that the city was involved in any way in that later construction. Thus, the private systems were attached to the existing city-built system, not vice versa. Although Auble opined that the chambers on either side of the culvert were negligently designed, there was no evidence that any portion of either chamber was designed by the city. Nor was there any evidence other than speculation that either chamber was located within the city-owned right-of-way.
The majority opinion attaches some significance to the fact that the city had built three catch basins a half-block north of the culvert near the corner of Richmond Avenue and Spring Street that were designed to remove water from Spring Street to be drained via an 18-inch pipe from the catch basins to the chamber on the west side of the culvert. However, the evidence is undisputed that, prior to the day of this accident, the 18-inch pipe had been crushed to the extent that any amount of water that may have trickled from Spring Street to the culvert was de minimus. Nor does the fact that the city connected the catch basins to the private drainage system convert the latter into a public system or impose liability on the city for its repair. City of Irvine v. Smith, 304 Ky. 868, 202 S.W.2d 733, 734 (1947); Heitzman v. Sanitation Dist. No. 1, Ky.App., 26 S.W.3d 794, 796-97 (2000).
Finally, Appellant argues that the city was negligent in failing to construct an adequate drainage system. However, while the city could be held liable for the negligent design and construction of a faulty drainage system, it cannot be held liable for exercising its discretion not to expend public funds to construct an adequate drainage system. Cf. City of Frankfort v. Byrns, Ky.App., 817 S.W.2d 462, 464 (1991) (decision whether to design and construct a storm water system is a discretionary act, but the subsequent act of designing and building the system was ministerial).
GRAVES, J., joins this opinion concurring in part and dissenting in part. KELLER, J., joins this opinion in part.