In Kristina L. Ives, Individually, et al. v. HMB Professional Engineers, Inc., et al., 2024 WL 2487850 (Ky. Ct. App. May 24, 2024), the Court of Appeals of Kentucky reversed and remanded the Fayette Circuit Court’s decision to grant summary judgment in favor of engineers (the “Engineers”) on the basis they were immune from liability.
On October 2, 2018, Hiram Dudley Ives, and Jennings Copley were driving northbound on I-65 when Copley lost control of the vehicle. The Engineers had been previously engaged by the Kentucky Transportation Cabinet (“KYTC”) to redesign I-65 in a lane widening project. Because I-65 is part of the National Highway System (“NHS”), the final design plan for the widening project had to be approved by KYTC and the Federal Highway Administration.
Plaintiffs allege the Engineers negligently designed the section of I-65 where the accident occurred by omitting drainage inlets, thereby causing water to improperly drain, collect, and pool on the highway. The Engineers moved for summary judgment, claiming they were “immune” because their plans were approved by KYTC and the Federal Highway Administration and prepared in accordance with their design criteria.
The Engineers specifically cited to Rigsby v. Brighton Engineering Co., 464 S.W.2d 279 (Ky. 1970), and argued Rigsby held engineers were immune for civil liability on roadway design approved by the state. The Court of Appeals did not agree, and held Rigsby did not address immunity.
The Court of Appeals cited to McCabe Powers Body Co v. Sharp, 594 S.W.2d 592, 594 (Ky. 1980), which held the analysis of whether an independent contractor can be held liable to third parties for its negligence in performing its contract depends on the nature and scope of the work it was hired to perform and not on immunity. The Court of Appeals examined what the Engineers were hired to do and found the Engineers were required to use their skills and expertise to design the project. Even though the Engineers’ design was approved by KYTC and the Federal Highway Administration, the Court of Appeals held approval by these entities cannot absolve the Engineers from their own design negligence.
Designs approved by the state and federal government are often the subject of immunity analysis and many states have adopted express immunity statutes for such work. Ives is an example of a Court’s refusal to create immunity in the absence of such a statute and engineers should remain aware of potential liability for these projects in states without a specific immunity statute for design approval by the state and federal governments.