Conduct of Interscholastic Athletics Deemed a Governmental Function, Immunity Exists

Mar 13, 2004

The Claims Against Local Governments Act (“CALGA”) does not constitute a waiver of a county’s immunity from vicarious tort liability, but only specifies what damages could be obtained against local governments once a common law judgment was rendered, the Supreme Court of Kentucky ruled August 21, 2003, affirming an appellate court’s decision.
The court ruled that the 1988 enactment of CALGA was “an attempt to limit the damages awardable against a local government for its non-immune tortuous acts and to limit the damages that a local government is required to pay on behalf of its employees pursuant to KRS 65.2005(1).” In no way was the CALGA inconsistent with state law on immunity or an attempt to waive any immunity for counties or municipalities, according to the court.
The court clarified state law on the issue of governmental and sovereign immunity, holding that counties enjoy sovereign immunity and cannot be held vicariously liable for torts of its employees. Municipalities are covered by governmental immunity only for the torts committed in the performance of legislative or judicial or quasi-legislative or quasi-judicial functions.
On March 26, 1999, appellant Leah Schwindel was injured as she was descending bleachers while a spectator at an interscholastic softball tournament held at Meade Olin Park in Brandenburg, Kentucky. The complaint alleges that a foot rail slipped out of place causing her to fall down onto open metal brackets. The injury required immediate surgery. She sued Meade County and the Meade County Board of Education “in their official capacities,” for negligently causing her injuries by failing to properly construct and maintain the bleachers.
The appellees asserted governmental and sovereign immunity and filed a motion for summary judgment. Since the complaint did not name any particular employee or agent of the county or municipality to hold the county vicariously liable, the court held that sovereign immunity was correctly asserted. “Even if Meade County could have been required to pay a judgment rendered against its employees, no judgment could be entered against the county, itself; thus, the complaints against it were properly dismissed,” the court stated.
The complaint was later amended to include “unknown defendants,” but the appellants never identified them within the period of the statute of limitations. The court stated that judgments could have been obtained against them individually for the negligent performance of a ministerial duty, but that the appellants failed to properly identify them in time. Moreover, the court reasoned that if the “unknown defendants” had been county employees, Meade County could have been responsible for paying the cost of the defense and some portion of the judgments.
Additionally, the complaint alleged that since the appellees were charging admission fees, selling refreshments and event programs, they were operating an “enterprise for profit,” and under Kentucky law, this activity should not be covered by governmental immunity. The court ruled that this conduct did not convert the event from a governmental function into a proprietary one. The court reasoned that the receipt of income only defrayed expenses or provided additional financial support for other school activities.
Leah Schwindel will not receive any judicial relief for her injury.


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