sovereign immunity in Kentucky

2026Sovereign immunity is “absolute” and “precludes the maintaining of any suit against the state unless the state has given its consent or otherwise waived its immunity.” Yanero v. Davis, 65 S.W.3d 510, 517 (Ky. 2001).

2025Rooted in both common law and the constitutional doctrine of separation of powers, historically the rule has been that “a state agency is entitled to immunity from tort liability to the extent that it is performing a governmental, as opposed to a proprietary, function.” Sheehy, 706 S.W.3d at 236 (quoting Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001)). -13- However, the General Assembly, via KRS 70.040, waived the sovereign immunity traditionally enjoyed by the office of sheriff, imposing liability on the office for acts committed by the sheriff’s deputies.

2025See Beshear v. Haydon Bridge Co, Inc., 416 S.W.3d 280, 286 (Ky. 2013) (“Haydon Bridge II”) (“Sovereign immunity is an indisputable limitation on the power of the judiciary.”) (quoting Withers v. Univ. of Ky., 939 S.W.2d 340, 344 (Ky. 1997)) (emphasis added).

2022Furtula v. University of Kentucky, 438 S.W.3d 303, 305 (Ky. 2014) (“The state universities of this Commonwealth, including the University of Kentucky, are state agencies that enjoy the benefits and protection of governmental immunity except where it has been explicitly waived by the legislature.”); Withers v. University of Kentucky, 939 S.W.2d 340, 343 (Ky. 1997) (“[The] University of Kentucky is entitled to sovereign immunity”); Department of Corrections v. Furr, 23 S.W.3d 615, 617 (Ky. 2000) (internal quotation marks and citations omitted) (“The doctrine of sovereign immunity sweeps broadly.

2024It, too, is clothed with the same sovereign immunity.” Cullinan v. Jefferson County, 418 S.W.2d 407, 408 (Ky. 1967, overruled on other grounds by Yanero v. Davis, 65 S.W.3d 510, 527 (Ky. 2001).

2013See, e.g., Cullinan v. Jefferson County, 418 S.W.2d 407, 408 (Ky.1967) (holding that school boards are an integral part of the state because they provide public education within a particular geographic area, and are thus entitled to protection under the state’s sovereign immunity).

2021Sovereign immunity is “an inherent attribute of the state” which provides it with “[a]bsolute immunity from suit.” Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009) (citations omitted). “[P]ure sovereign immunity, for the state itself, has long been the rule in Kentucky. . . .

2020See Bryant v. Louisville Metro Housing Authority, 568 S.W.3d 839 , 845–46 (Ky. 2019). 6 Bryant, at 846 (“[G]overnmental immunity is an extension of the parent’s sovereign immunity.”). 7 295 S.W.3d 91 (2009). 4 agency (or alter ego) of [said] clearly immune entity.”8 A government function is “integral” if, taken as a whole and on balance,9 it involves a statewide policy concern and its function is necessary or essential to address that concern.10 The state government engages in many programs and projects, but “state-level government concerns” for our purposes include fundamental functions like

2024Further, “[s]tatutes in derogation of the state’s sovereign immunity will be strictly construed in favor of the state unless the intention of the legislature to do otherwise is clearly expressed in the statute.” Louisville Arena Auth., Inc., 415 S.W.3d at 680 (quoting Jones v. Cross, 260 S.W.3d 343, 345 (Ky. 2008)). -4- “Consequently, a waiver of sovereign immunity cannot be assumed by the courts.” Id. (citation omitted).

2024See Jones v. Cross, 260 S.W.3d 343, 345 (Ky. 2008) (“Statutes in derogation of the state’s sovereign immunity will be strictly construed in favor of the state unless the intention of the legislature to do otherwise is clearly expressed in the statute.”). 23 within five (5) years of the date on which the applicable statute of limitations expired.

2024“Sovereign immunity is a bedrock component of the American governmental ideal, and is a holdover from the earliest days of the Commonwealth, having been brought over from the English common law.” Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 799 (Ky. 2009).

2024“Sovereign immunity is a bedrock component of the American governmental ideal, and is a holdover from the earliest days of the Commonwealth, having been brought over from the English common law.” Caneyville Volunteer Fire Dept. v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 799 (Ky. 2009).

2025Furtula, 438 S.W.3d at 305 n.1. (“[T]o the extent that the agency is performing a governmental function, as a state university does, its governmental immunity is functionally the same as sovereign immunity.”).

2024“However, to the extent that the agency is performing a governmental function, as a state university does, its governmental immunity is functionally the same as sovereign immunity.” Furtula v. Univ. of Kentucky, 438 S.W.3d 303 , 305 n.1 (Ky. 2014) (citing Yanero, 65 S.W.3d at 519 ).

2009The modern “basic” test for whether an entity is entitled to sovereign immunity was laid out in Bems, where the Court addressed “when the sovereign immunity defense applies to an entity created by an act of the General Assembly....” Id. at 328 .

2009The Court then noted: The line between what is a state agency and what is a municipal corporation is not divided by whether the entity created by state statute is or is not a city, but whether, when viewed as a whole, the entity is carrying out a function integral to state government.... [Sovereign immunity should extend only to “departments, boards or agencies that are such integral parts of state government as to come within regular patterns of administrative organization and structure.” Id. at 332 (quoting Kentucky Region Eight v. Commonwealth, 507 S.W.2d 489, 491 (Ky.1974)) (emphasis added

2025See also Dep’t of Corr. v. Furr, 23 S.W.3d 615, 617 (Ky. 2000) (“The doctrine of sovereign immunity sweeps broadly.

2024See, e.g., Furtula v. Univ. of Kentucky, 438 S.W.3d 303, 305 (Ky. 2014) (“The state universities of this Commonwealth, including the University of Kentucky, are state agencies that enjoy the benefits and protection of governmental immunity except where it has been explicitly waived by the legislature.”); Dep’t of Corr. v. Furr, 23 S.W.3d 615, 616 (Ky. 2000) (stating that “the line demarcating where the doctrine of sovereign immunity applied and where it did not apply was long drawn in shifting sands before we [the Supreme Court] chiseled the line in stone” in Withers); Britt v. Univ. of Louisv

2022Reyes v. Hardin County, 55 S.W.3d 337, 342 (Ky. 2001) (citations omitted) (“There is no need for a statute that precludes a suit against an immune entity, for such is inherent in the doctrine of sovereign immunity.

2022Reyes v. Hardin County, 55 S.W.3d 337, 342 (Ky. 2001) (citations omitted) (“There is no need for a statute that precludes a suit against an immune entity, for such is inherent in the doctrine of sovereign immunity.

2025See Beshear v. Haydon Bridge Co, Inc., 416 S.W.3d 280, 286 (Ky. 2013) (“Haydon Bridge II”) (“Sovereign immunity is an indisputable limitation on the power of the judiciary.”) (quoting Withers v. Univ. of Ky., 939 S.W.2d 340, 344 (Ky. 1997)) (emphasis added).

2025See Hadyon Bridge II, 416 S.W.3d at 291 (“Sovereign immunity protects public coffers or, as it is sometimes denominated, the public purse.”).

2007“Such immunity derives from the doctrine of sovereign immunity, which holds that the state, legislators, prosecutors, judges and others doing the essential work of the state enjoy an absolute immunity from suit.” Autry v. Western Kentucky University, 219 S.W.3d 713, 717 (Ky.2007).

2007“Such immunity derives from the doctrine of sovereign immunity, which holds that the state, legislators, prosecutors, judges and others doing the essential work of the state enjoy an absolute immunity from suit.” Autry v. Western Kentucky University, 219 S.W.3d 713, 717 (Ky.2007).

2021Our Supreme Court has developed a two-prong test to determine whether governmental immunity exists: First, the courts must look to the origin of the public entity, specifically: “was [the entity in question] created by the state or a county [which are entitled to immunity], or a city [which is not entitled to immunity except in the legislative and judicial realms]?” The second and “more important” inquiry is whether the entity exercises a “function integral to state government.” Coppage Construction Company, Inc. v. Sanitation District No. 1, 459 S.W.3d 855, 859 (Ky. 2015) (quoting Comair, Inc

2020Justice Venters’s concurrence in Coppage Construction Co. v. Sanitation District No. 1, 459 S.W.3d 855, 865 (Ky. 2015), states, “[i]t has long been recognized within the common law that the historical origin of the doctrine of sovereign immunity was, in part, the protection of the king’s purse.” Obviously, this governmental service is underfunded since it is 15 being performed by a volunteer group.

2016Gov’t v. Smolcic, 142 S.W.3d 128, 132 (Ky.2004) (“urban county governments constitute a new classification of county government ... entitled to sovereign immunity”); see also KRS 1 67C.101(2)(e) (“A consolidated local government shall be accorded the same sovereign immunity granted counties, their agencies, officers, and employees.”).

2009See Smolcic, 142 S.W.3d at 132-133 ; see also KRS 67C.101(2)(e): “A consolidated local government shall be accorded the same sovereign immunity granted counties, their agencies, officers, and employees.” All of the officials who are defendants in this action were sued only in their official or representative capacities.

2011In the alternative, they invite us to extend the doctrine of governmental immunity to municipal corporations by overruling the longstanding decision of Haney, 386 S.W.2d 738 .

1979We shall discuss the city case first, because its resolution disposes of the Commonwealth case without requiring consideration of the sovereign-immunity question. *5 It was settled in Haney v. City of Lexington, Ky., 386 S.W.2d 738, 742 (1964), that the doctrine of sovereign immunity no longer protects municipal corporations in this state from tort liability.

1997The report concluded: “In summary, the June 16, 1988 escape from the Kentucky State Penitentiary would not have occurred had the established policies and procedures been followed.... ” The Board of Claims Act is a partial waiver of the Commonwealth’s sovereign immunity, University of Kentucky v. Guynn, Ky., 372 S.W.2d 414 (1963), in order “to compensate persons for damages sustained to either person or property as a proximate result of negligence on the part of the Commonwealth, any of its cabinets, departments, bureaus or agencies, or any of its officers, agents or employees_” KRS 44.070(1).

1990Dept. of Educ. v. Blevins, Ky., 707 S.W.2d 782 (1986), points out that “[t]he Board of Claims Act ... is a partial waiver of the Commonwealth’s sovereign immunity [citing Guynn, supra].

2024Sovereign immunity is another, because immunity “entitles its possessor to be free ‘from the burdens of defending the action, not merely . . . from liability.’” Prater, 292 S.W.3d at 886 (citing Rowan Cnty. v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006); Lexington-Fayette Urb.

2021Though recent decisions have taken pains to avoid laxly jumbling the concepts, as a practical matter if the state agency “is performing a governmental function” then “its governmental immunity is functionally the same as sovereign immunity.” Id.

2022Auth., 568 S.W.3d 839 , 844 n.3 (Ky. 2019) (citing KRS 67C.101(2)(e)) (“A consolidated local government shall be accorded the same sovereign immunity granted counties, their agencies, officers, and employees.”).13 (d) Within ten (10) years of the conviction of a civil defendant for an offense included in the definition of childhood sexual assault or abuse.

2020See Bryant v. Louisville Metro Housing Authority, 568 S.W.3d 839 , 845–46 (Ky. 2019). 6 Bryant, at 846 (“[G]overnmental immunity is an extension of the parent’s sovereign immunity.”). 7 295 S.W.3d 91 (2009). 4 agency (or alter ego) of [said] clearly immune entity.”8 A government function is “integral” if, taken as a whole and on balance,9 it involves a statewide policy concern and its function is necessary or essential to address that concern.10 The state government engages in many programs and projects, but “state-level government concerns” for our purposes include fundamental functions like

2011The theory underlying this approach is that if the appellate court had considered the issue to be meritorious, the court would have reached a different result: “Our rule is that issues which, if sustained, call for dismissal, are taken as decided and rejected when the case has been reversed and remanded on the first appeal.” Board of Trustees of University of Kentucky v. Hayse, 782 S.W.2d 609, 614 (Ky.1989), overruled on other grounds by Yanero v. Davis, 65 S.W.3d 510 (Ky.2001); see also id. (“This remand with no discussion of the sovereign immunity defense, which had been raised and, which, i

2007The Supreme Court responded that the remand in the first appeal “with no discussion of the sovereign immunity defense, which had been raised and, which, if appropriate, would call for dismissal, forecloses further litigation of these questions as a matter of law.” Id. at 614 (citation omitted).

2013KRS 67.180 has been interpreted by our Kentucky Supreme Court as “an express, though limited, waiver of a county’s sovereign immunity.” Grayson County Bd. of Educ. v. Casey, 157 S.W.3d 201, 206 (Ky.2005), citing Monroe County v. Rouse, 274 S.W.2d 477, 479 (Ky.1954).

2005(Emphasis added.) That language constitutes an express, though limited, waiver of a county’s sovereign immunity. 9 Monroe County v. Rouse, 274 S.W.2d 477, 479 (Ky.1954).

2025See also Commonwealth, Transportation Cabinet, Bureau of Highways v. Roof, 913 S.W.2d 322 (Ky. 1996), “[T]he Commonwealth is under no obligation to make payment to injured parties because of the protections provided by the doctrine of sovereign immunity.

2024As recognized by our Supreme Court in Commonwealth, Transportation Cabinet, Bureau of Highways v. Roof, 913 S.W.2d 322 (Ky. 1996), “the Commonwealth is under no obligation to make payment to injured parties because of the protections provided by the doctrine of sovereign immunity.

2013In Foley Const. Co. v. Ward, 375 S.W.2d 392, 396 (Ky.1964), the Court held that sovereign immunity precluded an action against the Commonwealth for breach contract without express legislative consent.

1977The Court left no doubt about its position on sovereign immunity when the entire text of the per curiam opinion in Smith, supra, reads: Conceding that the doctrine of sovereign immunity is not above reproach, in view of Foley Construction Company v. Ward, Ky., 375 S.W.2d 392 (1964), it would appear that the appropriate forum for pursuing the fight against it is the General Assembly.

2022In Commonwealth v. Kentucky Retirement Systems, 396 S.W.3d 833 (Ky. 2013), the Supreme Court of Kentucky held that the Commonwealth’s sovereign immunity did not preclude a declaratory judgment action.

2019Both UK and the Department maintain that a declaratory judgment against them in the context of this case is barred by sovereign immunity.*22 “Sovereign immunity is founded on the notion that the resources of the state, its income and property, cannot be compelled as recompense for state action that harms a plaintiff through the ordinary suit-at-law process.” Retirement Systems, 396 S.W.3d at 836 ; accord Haydon Bridge II, 416 S.W.3d at 286-87 .

2024Bd. of Claims v. Harris, 59 S.W.3d 896 (Ky. 2001) (holding that a jailer sued in his official capacity is cloaked with the county’s sovereign immunity).

2013In Franklin County v. Malone, 957 S.W.2d 195, 204 (Ky.1997) (overruled on other grounds by Commonwealth v. Harris, 59 S.W.3d 896 (Ky.2001), and on other grounds by Yanero v. Davis, 65 S.W.3d 510 (Ky.2001)), the Supreme Court reiterated its previous holding that “a county is a political subdivision of the Commonwealth and as such is an arm of state government protected by the same sovereign immunity as the state.” Therefore, “in the absence of waiver, the county is immune from tort liability.” Id. at 203.

2021The Court next addressed the application of KRS 67.180 in Ginter, 327 S.W.2d 98, 100 , and held that subsection (2) “clearly recognizes the immunity doctrine” in providing that a 5 In 2014, the General Assembly amended the language in subsection (1) to substitute “except a county containing a city of the first class” as the equivalent of “containing a city of the second, fourth, fifth or sixth class.” No substantive changes were made. 15 suit on a county insurance policy is maintainable only to measure the liability of the insurance carrier.

2005(Emphasis added.) Reyes noted that the first clause of KRS 67.186(3) codified the holding in Ginter v. Montgomery County, 327 S.W.2d 98, 100 (Ky.1959), that waiver of a county’s sovereign immunity is triggered only by the actual purchase of liability insurance and is not triggered when a county fails to purchase insurance though authorized to do so.

2011Yanero, 65 S.W.3d at 517 ; Alden v. Maine, 527 U.S. 706, 746 , 119 S.Ct. 2240 , 144 L.Ed.2d 636 (1999).

2011Yanero, 65 S.W.3d at 517 ; Alden v. Maine, 527 U.S. 706, 746 , 119 S.Ct. 2240 , 144 L.Ed.2d 636 (1999).

2026Sovereign immunity is “an inherent attribute of a sovereign state that precludes the maintaining of any suit against the state unless the state has given its consent or otherwise waived its immunity.” Louisville Arena Authority, Inc. v. RAM Engineering & Const., Inc., 415 S.W.3d 671 , 679–80 (Ky. App. 2013) (internal quotation marks and citations omitted).

2024Further, “[s]tatutes in derogation of the state’s sovereign immunity will be strictly construed in favor of the state unless the intention of the legislature to do otherwise is clearly expressed in the statute.” Louisville Arena Auth., Inc., 415 S.W.3d at 680 (quoting Jones v. Cross, 260 S.W.3d 343, 345 (Ky. 2008)). -4- “Consequently, a waiver of sovereign immunity cannot be assumed by the courts.” Id. (citation omitted).

2023Ammerman v. Board of Educ., of Nicholas County, 30 S.W.3d 793, 797 (Ky. 2000).

2005Ky. Const. § 231; Ammerman v. Board of Education of Nicholas County, 30 S.W.3d 793 (Ky.2000). *749 The General Assembly waived sovereign immunity for contract actions with the enactment of KRS 45A.245. 1 The only limitation on damages is that they cannot exceed twice the original amount of the contract.