Request By:
Mr. Gordon C. Duke
Vice President for Business Affairs
Kentucky Fair & Exposition Center
P.O. Box 21179
Louisville, Kentucky 40221
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
As the Vice President for Business Affairs for the Kentucky Fair & Exposition Center you have asked the Office of the Attorney General to render an advisory opinion regarding the Kentucky State Fair Board members' potential tort liability. This concern was at least in part prompted by the tragic and unfortunate incident which occurred recently at the Riverfront Coliseum in Cincinnati.
The question you have asked this office to consider is whether the members of the staff and/or members of the Kentucky State Fair Board may be held personally liable under any state law for any accident that may occur at any of the facilities under the State Fair Board's control. You furthermore stated that if it is our opinion that there could exist certain situations or circumstances where the members of the staff and/or members of the Board could be held personally liable for its actions, whether the Board has the authority to acquire liability insurance for its members and staff. It is the advisory opinion of the Office of the Attorney General that members of the Kentucky State Fair Board and/or staff could be held personally liable under negligence theory of law. Moreover, it is our opinion that without an enabling statute, no public funds could be expended to purchase liability insurance to cover the board members and staff.
The Kentucky State Fair Board is an administrative agency attached to the Executive Branch of government. KRS 12.020. As an agency of the Commonwealth, the State Fair Board, as an entity, is subject to the doctrine of sovereign immunity. In the situation of an accident occurring during State Fair Board controlled activities or on property under its custody, the injured party could claim that negligence of the State Fair Board or its staff caused them to suffer the injury. By a claim of negligence we mean an allegation that the State Fair Board and/or its staff owed a duty to the injured party, that the duty was breached, and the breach of the duty was the proximate or legal cause of the injury. See Prosser, Law of Torts, 4th Edition, page 143. See also
Illinois Central Railroad v. Vincent, Ky., 412 S.W.2d 874 (1967). A negligent act may be one of commission or omission. The injured party would have a right to file a claim in the Kentucky Board of Claims alleging negligence of the Commonwealth and more particularly an agency of the Commonwealth or its employees. KRS 44.070. However, the injured party could choose to file personal negligence actions in the Jefferson Circuit Court against the members of the Board in their official and individual capacity and/or against members of the staff. State officers or employees may be held liable for the negligent performance of ministerial duties. See, for example,
Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962).
The brief overview above of the potential for personal liability of board members and/or staff gets us to the real crux of your opinion request -- the authority to acquire liability insurance for its members and staff. This office, supported by court decisions, has always concluded that unless there exists an enabling statute authorizing the purchase of liability insurance with public funds, none could be acquired. See OAG 73-626 and OAG 75-81, copies attached, illustrative of this position. We have perused the provisions of the statutory law applicable to the State Fair Board, KRS 247.090 et seq., and find no authorization to purchase liability insurance for the board members and/or its staff to protect against negligence claims. As an example of recent legislation where such authority was given by the General Assembly, see KRS 164.287, copy attached, relating to liability insurance for members of governing boards, faculty and staff of institutions of higher education.
We trust the above will have been of help to you and the State Fair Board concerning this matter. Please contact us if we may be of further assistance.