TORTS – GOV’T IMMUNITY: AUTREY V. WESTERN KENTUCKY UNIVERSITY (SC 4/19/2007)

AUTREY V. WESTERN KENTUCKY UNIVERSITY
TORTS:  Governmental immunity
2005-SC-000451-DG.pdf
2005-SC-000480-DG.pdf
PUBLISHED: AFFIRMING IN PART AND REVERSING IN PART (NOBLE)
DATE RENDERED: 4/19/2007

Most of you will be familiar with the underlying facts of this case, which concern the senseless and horrific death of Katie Autry in Western Kentucky University (“WKU”) dorm room. The issues on appeal in this case concern (1) WKU’s immunity from suit, and (2) the WKU Student Life Foundation’s (“SLF”) immunity from suit.

Citing Withers v. University of Kentucky, 939 S.W.2d 340 (Ky. 1997), the Court held that WKU is an agency of the state entitled to governmental immunity. (Note: Withers holds that the U.K. Medical Center is a state agency entitled to sovereign immunity. The change from sovereign to governmental immunity flows directly from the landmark decision of Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001)). The Court then looked at the question of whether providing student housing is a governmental or proprietary function. Here’s where the case becomes interesting.

After noting that providing student housing in the private sector is a proprietary function, the Court concludes that when WKU provides housing, it is performing a governmental function because providing student housing is required by statute. The Court cites to no authority that holds that the governmental/proprietary distinction turns on whether the activity in question is authorized by statute. Indeed, this holding appears to be contrary to Gross v. Kentucky Board of Managers, 105 Ky. 840, 49 S.W. 458 (1899), which holds that a board created by statute and operating according statute is not entitled to immunity because exhibiting Kentucky products at world’s fair is a proprietary function. The holding also represents a 180 degree turn from prior decisions that attacked the doctrine governmental immunity as “a judicially created monstrosity which should be judicially destroyed.” Gas Service Co. v. London, 687 S.W.2d 144, 147 (Ky. 1985).

The other interesting aspect of this case is the Court’s discussion of the claims against SLF alone. The Court seemingly concluded that these claims were the equivalent of individual-capacity claims against a public official and held that “SLF is entitled to qualified official immunity, depending upon whether its delegation of management of its dormitory properties to WKU, which included delegation of the security functions at issue, was a discretionary or a ministerial function.” Extending qualified official immunity to a legal entity rather than an actual person appears to be a first in Kentucky law.

Digested by Hays Lawson.