Introduction

This decision addresses a recurring and consequential question in Kentucky public law: when a local utility refuses to install safety grates or warnings at a stormwater inlet, can it invoke municipal immunity under the Claims Against Local Governments Act (CALGA) to avoid tort liability? The Court answers no on these facts, while also clarifying that the Louisville & Jefferson County Metropolitan Sewer District (MSD) is indeed a “local government” covered by CALGA.

The case arises from the tragic death of fifteen-year-old David Albright, who was swept into an ungrated stormwater pipe in a residential swale during a modest rain event. His mother, Jennifer Albright, sued MSD for negligence, failure to warn, negligence per se, attractive nuisance, negligent infliction of emotional distress, and loss of consortium. The trial court granted summary judgment to MSD based on municipal immunity; the Court of Appeals reversed; and the Supreme Court now affirms the reversal and remands for trial.

The Court sets two important markers: (1) MSD, as a special-purpose utility, qualifies as a “local government” under CALGA; but (2) MSD’s blanket “no-grate” practice and failure to warn do not implicate legislative or quasi-legislative authority under KRS 65.2003(3) and therefore do not confer immunity. The opinion also thoroughly reconciles prior municipal-immunity caselaw with CALGA and aligns Kentucky doctrine with Florida’s “known-danger” rule for public infrastructure hazards.

Summary of the Opinion

• CALGA applicability: MSD is a “local government” under CALGA. The Court harmonizes older “special district” terminology with the current “special purpose governmental entity” framework in KRS Chapter 65A and confirms entities like MSD fall within KRS 65.200(3).
• No immunity on these facts: MSD’s refusal to install a safety grate or warn at the pipe opening, and its failure to maintain/repair the drainage system to avoid an unreasonable hidden hazard, involve ministerial obligations (maintenance/repair) and not legislative or quasi-legislative functions. CALGA does not immunize such claims.
• Key doctrinal confirmations: Reaffirms Haney and Gas Service: municipal immunity is the exception, not the rule; municipalities have a longstanding ministerial duty to construct, maintain, and repair sewer systems non-negligently.
• Comparative authority: The Court approvingly cites the Florida Supreme Court’s reasoning in City of St. Petersburg v. Collom (1982): once a government creates or maintains a known dangerous condition not readily apparent, it has an operational/ministerial duty to warn or correct it.
• Disposition: Affirms the Court of Appeals, vacates the trial court’s summary judgment for MSD, and remands for further proceedings.

Factual and Procedural Background

Albright and her two sons returned home on August 31, 2018, to find ankle-deep water in their backyard swale in Old Dorsey Place/Foxboro Estates. The swale drains through several residential backyards into an underground pipe (18–21 inches in diameter) embedded in a concrete headwall. The pipe runs 430 feet entirely underground, with two 90-degree turns, and no means of escape. There were no warning signs or safety grates.

While playing in 16-inch-deep pooled water at the headwall, David, barefoot and upright, lost footing and was swept feet-first into the pipe despite his mother’s attempt to hold him. He was recovered in MSD’s detention pond and died a week later from his injuries. Expert analysis characterized the rainfall as approximately a “1-year storm event.” According to plaintiff’s expert Dr. Andrew Earles, once David’s body occluded the pipe entrance, water forces approximated 660 pounds; with a grate, the pinning force would have been roughly 20 pounds.

Evidence showed MSD had long known the area was frequented by children (service records back to 1995 included requests for grates and safety concerns). MSD relied on a “no-grate” guideline in its Drainage Manual—never formally adopted by its Board—stating MSD would not place grates on existing systems, or allow their use in new systems, where flooding damage or a safety hazard exists. The Manual expressly stated its principles were “blind to MSD resource levels,” leaving resource constraints to affect timing, not responsibility.

The trial court granted MSD summary judgment under CALGA; the Court of Appeals reversed; the Supreme Court now affirms that reversal and remands for trial.

Analysis

A. Precedents and Statutes Driving the Decision

• Haney v. City of Lexington (1964): Abolished broad municipal tort immunity, retaining only immunity for “legislative, judicial, quasi-legislative, or quasi-judicial functions.” Announced the overarching principle: “liability is the rule—the exception is immunity.”
• Gas Service Co. v. City of London (1985): Reaffirmed Haney, rejected attempts to re-expand municipal immunity, and drew the key line: regulatory enforcement functions (e.g., code inspections and adjudicative decisions) can be immune; routine maintenance/repair (including sewers) is not. Overruled post-Haney drift (e.g., Louisville Seed, Frankfort Variety, Greer).
• Historic sewer cases: From the 19th and early 20th centuries (Prather; City of Maysville v. Brooks; Beiser; Toebbe; Buttimer), Kentucky recognized that establishing sewers is legislative, but maintenance and repair is a ministerial duty with potential tort liability.
• Post-CALGA continuity: City of Frankfort v. Byrns (1991) and Mason v. City of Mt. Sterling (2003) applied Haney/Gas Service after CALGA’s enactment, holding that once a city decides to build, the design/construction implementation and the ongoing maintenance/repair are ministerial and not immune.
• Regulatory-function cases: Bolden v. City of Covington (1991) (fire/housing code inspection decisions are quasi-judicial and immune); Ashby v. City of Louisville (1992) (police failure to serve warrant not a quasi-judicial/regulatory function; no immunity).
• Sovereign-immunity line and special districts: Calvert Investments v. MSD (1991) denied sovereign immunity to MSD; Comair (2009) defined the sovereign-immunity test; Coppage Construction (2015) held Sanitation District No. 1 is a special district but not sovereignly immune. These cases largely ignored CALGA; today’s opinion corrects that omission and integrates CALGA.
• CALGA’s text: KRS 65.200–65.2006 creates procedures and limits, and immunizes claims “arising from” the exercise of judicial, quasi-judicial, legislative, or quasi-legislative authority or other discretion, with examples (failure to adopt rules; allocation of resources; failure to inspect). Crucially, it preserves liability for employees’ ministerial acts and does not expand municipal immunity beyond pre-1988 common law.
• Special district terminology modernized: The Court reconciles the pre-2014 “special district” term (KRS 65.005) with current “special purpose governmental entity” (KRS 65A.010), concluding the categories are substantially similar and include sewer/sanitation entities. Passage of HB 1 (2013) focused on transparency/oversight, not immunity.
• Comparative authority: City of St. Petersburg v. Collom (Fla. 1982), adopted in substance: where the government creates or maintains a non-obvious hazardous condition with knowledge people will encounter it, an operational/ministerial duty arises to warn or correct; failure to do so is not immunized as a planning-level decision.

B. Legal Reasoning

1. MSD is a local government under CALGA. The Court harmonizes statutory language: “special district” in KRS 65.200(3) maps to “special purpose governmental entity” in KRS 65A.010, expressly including sewer services. CALGA therefore can apply to MSD and similar entities.
2. Municipal immunity remains the exception. The Court reiterates Haney/Gas Service: unlike sovereign immunity (presumed unless waived), municipal immunity is disfavored and must be proven by the municipality in narrow circumstances. Liability is the default.
3. Maintenance/repair and warnings are ministerial, not legislative.
   • Centuries of Kentucky law impose a ministerial duty to non-negligently construct, maintain, and repair sewers once established. The duty encompasses addressing dangerous conditions and providing remedial maintenance.
   • MSD’s actions fit squarely within that ministerial framework: a blanket, non-Board “practice guideline” refusing grates in all circumstances is not a legislative enactment; it is a maintenance posture. The Design Manual did not forbid grates; the Drainage Manual guideline was not a Board-adopted “policy.”
   • MSD’s ordinance-based responsibilities expressly require monitoring, inspection, routine and remedial maintenance when there is a “potential hazard to the public.” That statutory/ordinance framework undermines any claim that a “failure to inspect” example in KRS 65.2003(3)(e) confers immunity here.
   • The claim is not about regulating private conduct or adjudicating rights—where immunity has been recognized—but about government-created physical conditions in a public drainage facility used by the community.
4. Known, non-obvious hazards create a duty to warn or correct. The record showed decades of notices that children frequented the site and requested grates, yet there were no grates or warnings. The danger (a 430-foot underground pipe with no egress, two 90-degree turns, and hidden suction forces during routine rain) was non-obvious to laypersons. Under both Kentucky precedent and Collom’s persuasive rationale, such conditions trigger operational/ministerial duties that are not immunized.
5. CALGA’s “legislative/quasi-legislative” shield does not reach these facts.
   • Immunity attaches to regulatory enforcement and adjudicative functions—activities “different from any performed by private industry,” where liability would invent a new tort duty to regulate. Sewer operation and maintenance, by contrast, is “similar to a private corporation,” and tort liability for negligent maintenance has existed for over a century in Kentucky.
   • MSD’s resource-allocation rationale is undercut by its own Drainage Manual (principles “blind to MSD resource levels”) and the ordinance mandate to perform remedial maintenance for potential hazards.
   • Allowing immunity simply because a utility made a “decision” would invert Haney’s core premise and make immunity the rule.
6. Summary judgment standard. Viewing the record in Albright’s favor, there are triable fact issues on negligence: unreasonable danger, MSD’s knowledge, deviation from industry standards (ASCE/WEF guidance recommending safety racks for long runs), and the feasibility of warnings or grates. Immunity thus cannot resolve the case as a matter of law.

C. Separate Opinions

• Keller, J. (concurring in result only): Emphasizes that CALGA supplies the governing standard; courts should ask whether the claim “arises from” the exercise of judicial/quasi-judicial/legislative/quasi-legislative authority. The ministerial/discretionary vocabulary belongs to qualified official immunity (individual-capacity suits), not CALGA’s municipal-immunity analysis. Still concludes MSD’s actions are not the sort of high-level policymaking immunized by KRS 65.2003(3).
• Thompson, J. (concurring in result only): Presses for a clearer “bright line”: no CALGA immunity when municipal decisions create objectively hazardous conditions that naturally risk death. Characterizes MSD’s across-the-board “no grates” stance as an abandonment of true discretion and as reckless in light of known hazards.
• Conley, J. (concurring in part, dissenting in part; joined by Bisig and Nickell, JJ.): Would grant immunity. Views MSD’s no-grates approach as a quintessential legislative/quasi-legislative choice among competing dangers (flooding vs. inlet entrapment) within limited resources. Warns the holding will expose MSD to “damned if you do, damned if you don’t” liability across the system.

D. Impact and Practical Implications

1) Doctrinal clarifications

• CALGA applies to special districts: Water, sewer, sanitation, and similar utilities are “local governments” eligible to seek CALGA immunity—but only within KRS 65.2003(3)’s narrow categories.
• Maintenance/warning duties are not immunized: Claims that a local utility created or maintained a non-obvious hazard, failed to warn, or failed to perform remedial maintenance fall on the liability side of the Haney/Gas Service line. Expect more cases to proceed to jury on fact-intensive negligence questions.
• Regulatory enforcement still protected: Activities like code enforcement decisions, adjudicative functions, and the kinds of administrative determinations seen in Bolden remain prime candidates for CALGA immunity.
• Adoption of Collom-like known-danger rule: Kentucky now explicitly embraces the logic that government cannot knowingly leave a trap unguarded and invoke planning-level immunity.

2) Litigation strategy

• Plaintiffs: Emphasize the non-obviousness of the hazard, prior notice to the utility, industry guidance (ASCE/WEF) recommending safety devices for long-run inlets, and local ordinances mandating inspection and remedial maintenance. Tie the claim to maintenance/repair and failure-to-warn duties rather than high-level policy adoption.
• Defendants: If invoking CALGA, frame the challenged action as a genuinely legislative/quasi-legislative decision (board-adopted, deliberative, resource-balancing), distinct from day-to-day system maintenance. Build a record of formal policymaking and contemporaneous tradeoff analysis.

3) Compliance for local utilities post-Albright

• Hazard audits: Identify inlets with long underground runs, no egress, residential proximity, and history of child presence; evaluate for grates, trash racks, or alternative safety devices; consider signage.
• Warning protocols: Where risk cannot be promptly corrected, deploy conspicuous warnings; document inspections and responses to service requests.
• Policy governance: If adopting systemwide practices that implicate safety, use Board-level action with clear findings and a process for site-specific exceptions. A rigid blanket rule without case-by-case discretion is vulnerable.
• Ordinance compliance: Fulfill ordinance-imposed duties to “monitor,” “inspect,” and provide “remedial maintenance” where a “potential hazard to the public” exists (as in Louisville Metro Code §§ 50.71–.72).
• Training and documentation: Train field staff to recognize non-obvious hazards; document hazard abatement decisions and resource prioritizations.
• Insurance and budgeting: Expect increased exposure for failure-to-warn/maintain claims; plan reserves and prioritize capital improvements accordingly.

4) Open questions and likely extensions

• Water districts: Although Carucci denied sovereign immunity to a water district, this opinion clarifies CALGA must be analyzed for special districts. Future cases will test CALGA’s scope for water-service hazards, with maintenance/warning claims likely non-immune.
• “Failure to inspect” example in KRS 65.2003(3)(e): After Albright, courts will look past labels to the substance. Where ordinances mandate inspection/remedial action and the hazard is a physical condition created or maintained by the utility, immunity is unlikely.
• Framework tension: The concurrence by Justice Keller urges a text-centered CALGA analysis, de-emphasizing “ministerial” terminology. Litigants should brief both the statute’s “arising from” language and the Haney/Gas Service maintenance/repair line, which the majority continues to apply.

Complex Concepts Simplified

• Sovereign vs. municipal immunity: Sovereign immunity protects the Commonwealth by default unless waived. Municipal immunity is judge-made and narrow; liability is the default, immunity the exception.
• CALGA (KRS 65.200–200.2006): A statute that governs tort claims against “local governments.” It immunizes only claims that arise from legislative/judicial-type decisions or comparable high-level discretion; it preserves liability for employees’ ministerial acts.
• Ministerial vs. legislative/quasi-legislative: Ministerial acts are routine, operational, or maintenance functions with established duties; legislative/quasi-legislative acts involve policymaking, rulemaking, and adjudicative/regulatory decisions.
• Special purpose governmental entity: A local, board-governed entity providing limited services (like sewer or sanitation) with authority to receive or generate public funds. MSD fits this category and thus falls within CALGA.
• Known, non-obvious hazard: A dangerous condition that ordinary people would not recognize (e.g., hidden suction at an underground pipe). When government creates or maintains it and knows people will encounter it, it must warn or fix it.
• “1-year storm event”: A rainfall expected roughly once per year. The conditions on the day of the incident were not extreme, underscoring that the hazard was not limited to rare storms.

Conclusion

This opinion decisively reconnects CALGA with Kentucky’s municipal-immunity jurisprudence and clarifies two core rules. First, special-purpose utilities like MSD are “local governments” within CALGA’s ambit. Second, CALGA does not insulate a local utility from tort claims arising from its ministerial obligations to maintain, repair, and warn about hazards in its sewer and stormwater systems, particularly where the hazard is non-obvious and known.

By reaffirming Haney and Gas Service and adopting the Collom known-danger logic, the Court preserves a coherent, workable boundary: truly legislative/quasi-legislative/regulatory decisions remain shielded, but routine infrastructure safety and maintenance do not. The ruling ensures that “it is not a tort for government to govern,” but it is a tort for government to create or maintain hidden traps without warning or remedy. On remand, a jury—not immunity—will decide whether MSD breached its duties here.