Opinion
NO. 2014-CA-001360-MR
03-10-2017
JUDY MARTIN APPELLANT v. PARKING AUTHORITY OF RIVER CITY, INC. APPELLEE
BRIEF FOR APPELLANT: Jeffrey A. Sexton John Byrnes Louisville, Kentucky BRIEF FOR APPELLEE: B. Frank Radmacher, III Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 14-CI-00669 OPINION
AFFIRMING
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BEFORE: DIXON, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: En route to a job interview in downtown Louisville, Judy Martin fell in a public parking garage operated by Parking Authority of River City, Inc. (PARC), an agency of Louisville-Jefferson County Metro Government. Falling from the curb, Martin sustained dental, facial and bodily injuries, and missed the job interview.
Martin filed suit against PARC alleging negligent maintenance of yellow warning stripes. PARC moved to dismiss the complaint for failure to state a claim on which relief could be granted, asserting governmental immunity. PARC based its argument, at least in part, on KRS 67A.910, which recognizes a lack of reasonably priced parking spaces—especially for shoppers in downtown areas within urban counties—is detrimental and causes communities to deteriorate from a diminishing tax base. To reverse urban decay, the Commonwealth enacted a policy of promoting "adequate and reasonably priced parking facilities." KRS 67A.910(2). PARC claimed it was just carrying out its statutory duty.
Kentucky Revised Statutes.
After oral argument, the Jefferson Circuit Court found PARC performs a governmental function and is, therefore, shielded from suit by governmental immunity. In making its decision, the trial court distinguished performance of a governmental function—one integral to state government—from a proprietary function—one not integral to state government and often performed by private entities for profit. Breathitt Cty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 887-88 (Ky. 2009). The trial court dismissed Martin's complaint, based on its finding PARC:
provid[es] reasonably [priced] parking in a "downtown" area and that its actions involved in this matter serve a governmental function.
Martin's subsequent motion to vacate the dismissal was denied for similar reasons. Specifically, the trial court found PARC provides "essential transportation infrastructure," as did the airport board and airport corporation in Comair, Inc. v. Lexington-Fayette Urban Cty. Airport Corp., 295 S.W.3d 91, 104 (Ky. 2009); fills a public need in the Commonwealth consistent with KRS 67A.910; satisfies a statewide concern even though it serves only a small portion of the state, Comair, 295 S.W.3d at 99; and, as part of a merged government, essentially performs what is usually a state function. Id. at 100; Inco, Ltd. v. Lexington-Fayette Urban Cty. Airport Bd., 705 S.W.2d 933, 934 (Ky. App. 1985). Martin appeals, as a matter of right, seeking clarification of the scope of sovereign immunity in the Commonwealth in the wake of Comair.
The notice of appeal contains various errors, including a failure to identify the proper court in which relief is sought, failure to name the appellee in the body, and failure to specify the item from which the appeal is taken. Kentucky Rules of Civil Procedure (CR) 73.03. Appellant is directed to CR 76 for future guidance on perfecting an appeal.
On September 22, 2014, a motion to transfer the case to the Kentucky Supreme Court was denied as untimely. --------
As an intermediate appellate court, this Court is bound by established precedents of the Kentucky Supreme Court. SCR 1.030(8)(a). The Court of Appeals cannot overrule the established precedent set by the Supreme Court or its predecessor court. Special Fund v. Francis, Ky., 708 S.W.2d 641, 642 (1986).Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky. App. 2000). Thus, we cannot chart a course different from that already established by the Supreme Court of Kentucky.
Martin urges us to equate PARC with TARC, the bus service at the center of Transit Auth. of River City v. Bibelhauser, 432 S.W.3d 171, 173 (Ky. App. 2013), wherein the same trial court found neither sovereign nor governmental immunity applied in a negligence action. TARC based its argument for immunity on KRS 67C.101(2)(e) and 96A.020(1), but neither carried the day. In particular, KRS 96A.020(1) allows a transit authority to "sue and be sued," and to enjoy "the powers of private corporations." TARC failed to satisfy the two-part test applied in Comair, 295 S.W.3d at 99—requiring the proper combination of parentage and function performed. TARC could prove its lineage as "an agency of the consolidated Louisville Metro," but it could not prove it provides a governmental function. Bibelhauser, 432 S.W.3d at 174-75. Because TARC provides the same transportation service provided by for-profit taxis and buses, it was deemed a local proprietary venture rather a provider of a "state-level government function," whose absence would leave a "state-level concern" less than fully addressed. Id.
Not so for PARC. It derives its authority from KRS 67A.910 which recognizes the need for affordable and plentiful parking in downtown areas—something PARC provides. As a result of the merger of Louisville and Jefferson County, PARC satisfies the first prong necessary for the protection of governmental immunity because it works on behalf of the county and work on behalf of a county is usually a state function. Comair, 295 S.W.3d at 100. PARC also satisfies the second prong because without it, there would be a void in available parking in downtown Louisville.
In conclusion, we affirm the trial court's dismissal of Martin's complaint and the subsequent motion to vacate.
DIXON, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
TAYLOR, JUDGE DISSENTING. Respectfully, I dissent. I would reverse and remand to the Circuit Court for trial. There is nothing in the record on appeal that establishes PARC engages in any "function integral to state government" as required in Comair, 295 S.W.3d at 99. I believe Transit Auth. of River City v. Bibelhauser, 432 S.W.2d 171 (Ky. App. 2013) is controlling. I see no distinction between PARC and TARC, both being non-profit corporations performing services for Louisville Metro government, and neither of which addresses state level governmental concerns that are common to all citizens of the state. The services provided by both entities are proprietary and strictly local in nature, and thus fail to qualify for immunity under Comair in my opinion. BRIEF FOR APPELLANT: Jeffrey A. Sexton
John Byrnes
Louisville, Kentucky BRIEF FOR APPELLEE: B. Frank Radmacher, III
Louisville, Kentucky