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Sloas v. Rowan County9/19/2003
s and that the doctrine of respondeat superior was inapplicable.
Sloas then appealed to this Court.
On November 21, 2001, this Court affirmed the trial court's dismissal of Sloas's claims in a 2-1 decision. The panel was in agreement that sovereign immunity barred Sloas's claims against Rowan County, that official immunity barred Sloas's claims against Hall and Henderson in their official capacities, and that vicarious liability was not applicable against either Rowan County or Hall and Henderson in their official capacities. The Dissent took the position that official immunity did not preclude Sloas's claims against Hall or Henderson in their individual capacity.
Sloas then filed a motion for discretionary review with the Supreme Court of Kentucky. While that motion was pending, the Supreme Court decided Yanero, supra. On August 14, 2002, Sloas's motion for discretionary review was granted. The Supreme Court then vacated this Court's prior decision and remanded the case with instructions to reconsider the matter in light of the Yanero decision. We now apply the principles of Yanero to the facts of the case at bar.
Summary judgment is only proper "where the movant shows that the adverse party could not prevail under any circumstances." The trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." However, "a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial." This Court has previously stated that " he standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. There is no requirement that the appellate court defer to the trial court since factual findings are not at issue" [citations omitted].
Sloas's claims of negligence against Rowan County are barred under the doctrine of sovereign immunity. A county, as a political subdivision of the Commonwealth, is immune from tort liability unless immunity has been expressly waived by the Legislature. Further, the participation of a county in a self insurance fund cannot by itself constitute a waiver of sovereign immunity. Therefore, since sovereign immunity has not been expressly waived by statute and because Rowan County's participation in the self-insurance fund does not by itself rise to the level of a waiver, Sloas's negligence claims against Rowan County are barred by the doctrine of sovereign immunity. Accordingly, the trial court's granting of summary judgment to Rowan County on Sloas's claims is affirmed.
We next turn to Sloas's negligence claims against both Hall and Henderson in their official capacities as jailer and deputy jailer, respectively. In Commonwealth, Board of Claims v. Harris, decided on the same day as Yanero, our Supreme Court explained the practical effect of bringing suit against a jailer in his official capacity as it relates to immunity issues:
The jailer is a constitutionally elected officer of the county under Section 99 of the Kentucky Constitution. And, the jailer reports to the fiscal court, which oversees the jail's operation and budget. Thus, the official capacity claims are in essence claims alleging negligent operation of the jail and are, therefore, claims against the county. . . . This cloaks the jailer, in his official capacity, with the county's sovereign immunity [citations omitted].
Hence, Sloas's clai
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