JONES V. CROSS
TORTS: Sheriff entitled to county’s sovereign immunity which is waived per KRS 70.040 for actions or omissions of his deputies
OPINION BY SCHRODER; ABRAMSON CONCURRING BY SEPARATE OPINION
The split between the majority opinion and the concurring opinion is more interesting than either the facts or the holding of the opinion itself. The opinion itself is limited to two questions. The first is whether a County Sheriff is entitled to the county’s sovereign immunity? The majority opinion holds yes. The concurring opinion says, “No.”
The second is the rather narrow question of whether KRS 70.040 waives a County Sheriff’s sovereign immunity. Again, the majority holds that it does and the concurring opinion says, “No.”
KRS 70.040 provides in pertinent part:
The sheriff shall be liable for the acts or omissions of his deputies; except that, the office of sheriff, and not the individual holder thereof, shall be liable under this section.
The majority finds that the “literal or plain reading of the statute clearly imposes liability” on the sheriff, which leads the Court to conclude “that the legislative waiver of immunity is very clear, and that the plain language of KRS 70.040 leaves no room for any other reasonable construction than a waiver of the sheriff’s official immunity (the office of sheriff) for the tortious acts or omissions of his deputies.”
In her concurring opinion, Justice Abramson argues that the majority’s holding is contrary to Grayson County Board of Education v. Casey, 157 S.W.3d 201 (Ky.2005). As you may recall, Casey holds that a statute “authorizing boards of education to insure against the negligence of school bus drivers” does not constitute a waiver of the school board’s sovereign immunity despite language “expressly requiring that insurance policies issued pursuant to the statute ‘shall bind the company to pay any final judgment rendered against the insured.’”
Being biased against immunity, I certainly favor the majority opinion. But I should note that the stark differences between the holdings in Jones and Casey could lie in the fact that Jones concerns a waiver of a County’s sovereign immunity whereas Casey concerns a waiver of the Commonwealth’s sovereign immunity. That is, Casey implicates payments out of the State Treasury, and, hence, Section 230 of the Kentucky Constitution, and Jones does not. In other words, Jones could stand for the proposition that waiver of County sovereign immunity is subject to a lesser test than waiver of the State’s sovereign immunity.