Immunity Rears Its Head, Again

May 11, 2007

The Kentucky Supreme Court has published Autry v. Western Kentucky Univ., which again dealt with the defense of immunity by a state agency. This case stems from the horrific death of Katie Autry at WKU and the subsequent wrongful death action by her parents against WKU and The Student Life Foundation, Inc. The opinion is important mostly for the background discussing immunity as it applies to state agencies. My quick tutorial:

A. Sovereign immunity applies to the state, legislators, prosecutors, judges, and others doing essential work for the state and it is absolute.

B. Governmental immunity extends to state agencies that perform governmental functions AND are supported by money from the state treasury AND were created for that purpose.

1. Official immunity: If a state agency is deemed to have governmental immunity its officers or employees have official immunity when they are sued in their official or representative capacity or it involves official acts.

2. Qualified official immunity: If officers or employees are sued in their individual capacities, they have qualified official immunity if their acts are:

1a. Discretionary, ie, made in good faith and within the scope of their authority or employment. An act is not discretionary merely because some judgment is used in deciding on the means of method used.

2a. Discretionary acts that violate constitutional, statutory, or other clearly established rights are not entitled to immunity or if they are done willfully or maliciously with intent to harm or committed with a corrupt motive or bad faith.

3a. Ministerial, ie, absolute, certain, and imperative, involving the mere execution of a specific act based on a fixed and designated facts are not entitled to immunity.

  • If the ministerial acts are proper, then the public officer or employee has official immunity (see A. above) without qualification.

4a. If an official act is done by a public officer or employee which is known or should have been known by that officer or employee to be a violation of constitutional right or done maliciously to cause injury, there is no immunity.

Simple right? The time and effort required to reach a decision is the best evidence that immunity is an archaic concept that has outlived its usefulness. At the least it should be simplified and used only in limited circumstances.

One Response to “Immunity Rears Its Head, Again”

  1. jimmyshay Says:

    i agree with your views on immunity. additionally, the Autrey decision is direct result of the confusion Justice Cooper injected in the immunity analysis by resurrected the governmental/proprietary distinction in the governmental immunity analyis.

    In Autrey, the Court expressly held that providing housing is proprietary function when performed in the private sector, but it is governmental when provided by WKU, because WKU is required by statute to provide housing. In other words, under Autrey, the governmental/proprietary distinction now turns on whether the act is required by law. This holding threatens to bring almost all governmental acts by state agencies under the governmental immunity umbrella.


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