COMMONWEALTH OF KENTUCKY TRANSPORTATION CAB.  V. SEXTON
TORTS:  In absence of notice state highway department has no duty to inspect trees for dangerous defects
2006-SC-000454-DG.pdf
PUBLISHED: REVERSING AND REMANDING
OPINION BY MINTON; SCHRODER NOT SITTING
FROM JEFFERSON COUNTY
DATE RENDERED: 6/19/2008

The Supreme Court of Kentucky reverses and remands this property damage case against the Commonwealth, holding that, since the acts were not ministerial, the Commonwealth has not waived sovereign immunity. This case had created a new duty on the state’s urban landowners owed to adjoining landowners to exercise ordinary care to prevent an unreasonable risk of harm arising from defective or unsound trees on the urban landowners’ property. Because the Supreme Court was concerned about the magnitude of this new duty and the characterization of inspection of trees on all state-owned land for soundness as a ministerial act, it granted discretionary review.

The CA stated that inspection and removal of dead trees are ministerial acts if the highway department had a well-defined duty to inspect trees for dangerous defects, despite lack of actual notice of such defects, and then imposed such a duty of inspection. Neither approach is consistent with case law defining ministerial and discretionary acts.

In determining whether acts are ministerial or discretionary it is necessary to determine whether the acts involve policy-making decisions and significant judgment, or are merely routine duties. An agency’s "routine duties" will typically be established by statutes or regulations that very clearly and specifically set them forth (with exceptions). The S.Ct. is unaware of any statutes or regulations specifically establishing a duty that the highway department inspect trees on its lands. Not only are there no statutes or regulations governing tree inspection in the absence of actual notice of unsound trees by the highway department, there was no existing Kentucky case law at the time of the property damage that imposed on the highway department a duty to inspect trees for soundness on its property. In fact, earlier decisions held that the highway department had no duty to inspect for dead trees even where the dead tree was located along a roadway.

To the extent that the department elected to conduct some tree inspections to promote public safety on the highways or even prevent damage to private property, this must have come about as a result of its employees’ discretion to elect to perform such a function since this specific function was not required by any applicable law. Since this was clearly a discretionary act, the Commonwealth has not waived sovereign immunity for any alleged negligence in performing this act.

By John Hamlet, ed.