TORTS: Sovereign immunity and county engineer: BOLIN V. DAVIS (COA 10/31/2008)

Christopher Bolin lost control of his pickup on a snowy, curvy road; slid off of bridge; and landed upside down submerged in a creek. Trapped in the icy water, he died. His estate filed suit against the county road engineer, claiming the engineer “failed to erect a guardrail, speed limit signs, and/or warning signs alerting drivers to the curve at the accident scene.” The opinion addresses two main issues: whether the engineer was (1) sued in his official or individual capacity, and (2) entitled to qualified official immunity.

The opinion devotes a great deal of discussion to the question of whether the suit was brought against the engineer in his official or individual capacity. While the opinion may have worth in saving a poorly drafted complaint, the real lesson here is to ALWAYS state in the complaint whether a public official is being sued in her official or individual capacity or both.

As to qualified official immunity, the Court found that all the claims in complaint alleged violation of discretionary function. Citing Estate of Clark ex rel. Mitchell v. Daviess County, 105 S.W.3d 841 (Ky. App. 2003), the Court held that the engineer was entitled to immunity.