FRANKFORT, Ky. (Legal Newsline) - Parents of a little boy who was drowned after being sucked 430 feet through a drainage pipe behind his house can sue the local sewer authority despite general statutory immunity from tort suits under state law, a Kentucky appeals court ruled.
The authority’s policy to not install grates on such drains wasn’t a legislative or “quasi-legislative” action protected against liability but rather an omission that might have required “repair,” the court ruled.
David Albright and his brother were playing in water behind their house after a heavy rain in August 2018 while their mother Jennifer watched and videotaped them. The two moved down a drainage ditch until David was swept feet-first into the 22-inch pipe. His mother tried to hold on to him but lost her grip and he was sucked into the tube. His body was found later in a catch basin downstream.
Jennifer Albright sued the Louisville Metropolitan Sewer District, accusing it of creating an unsafe condition by failing to install a grate over the pipe. The sewer district moved for dismissal, arguing it was a governmental agency immune from tort claims under the Claims Against Local Government Act and another state law protecting discretionary decisions. In this case, the district said, there were no regulations requiring grates and its policy was to not install them because of the risk they would get clogged and cause flooding.
A trial judge agreed the district was immune, finding that “the drainage pipe in which David Albright drowned was, apparently, fully functional, so functional that the force of the water flowing through it caused David Albright to be swept away.”
“MSD could have decided to place grates over existing pipes or could have decided not to do so, and either decision would have been lawful under existing statutes and regulations,” the trial court concluded.
The Kentucky Court of Appeals reversed the decision in a Jan. 20 opinion. While CALGA appears to bar all lawsuits stemming from “exercise of judgment or discretion vested in the local government,” the court ruled, legislators limited the law’s scope to “judicial, legislative or quasi-legislative authority.”
As far back as 1911, the Kentucky Supreme Court ruled that municipalities have a duty to “construct, maintain and repair the sewer system,” the court went on, meaning most elements of operating a sewer system were ministerial, or non-discretionary. The sewer district argued it had made a quasi-legislative decision when it prohibited grates on all existing and newly constructed drainage systems. But the appeals court disagreed, saying the rule “squarely deals with the repair of its drainage system, which has long been regarded as a nonimmune function of government.”
“A drainage pipe located close to homes in a residential subdivision that presents significant safety risks to those in its immediate vicinity could reasonably be viewed as needing `repair,’” the appeals court concluded.