RENDERED: DECEMBER 17, 2020

TO BE PUBLISHED

Supreme Court of Kentucky

2018-SC-0601-DG

KIMBERLY HOWARD, AS EXECUTRIX OF 

THE ESTATE OF EMMA JEAN HALL, 

DECEASED

APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2017-CA-0747

MAGOFFIN CIRCUIT COURT NO. 15-CI-00103

BIG SANDY AREA DEVELOPMENT DISTRICT, INC. APPELLEE

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

AFFIRMING

Kimberly Howard, in her capacity as executrix of the Estate of Emma 

Jean Hall, deceased, brought this negligence and wrongful-death action in the 

circuit court asserting claims against Big Sandy Area Development District, 

Inc. (“BSADD”). The circuit court granted summary judgment, holding that 

BSADD was shielded from liability by governmental immunity and that, in any 

event, Howard’s evidence did not support the claims as a matter of law. The 

Court of Appeals unanimously affirmed on appeal. On discretionary review, we 

hold that BSADD does not have governmental immunity because, though a 

creature of statute, it does not perform an integral state function. So we 

disagree with the Court of Appeals’ decision on that important point of law, but 

we affirm the result reached by the Court of Appeals panel and the trial court
2

because we agree that the trial court properly granted summary judgment on 

the merits of Howard’s claims against BSADD. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Ninety-three-year-old Emma Jean Hall died of the effects of sepsis that 

developed from a bed sore on her lower back. Despite the challenges of 

advancing age and declining health during the last decade of her life, Hall was 

able to remain in her home with the help of friends, family, and BSADD

homecare aides, who performed basic housekeeping, and periodic bathing. 

Hall’s various helpers alternated, making intermittent but frequent visits to her 

home.

BSADD is an area development district (“ADD”) that encompasses the 

Kentucky counties of Floyd, Johnson, Magoffin, Martin, and Pike.1 BSADD, 

like some other ADDs in this state, arranges for assistants, called homecare 

aides, to visit elderly clients on a regular basis as part of the state’s “Homecare 

Program.”2 This homecare program is specifically designed to allow otherwise 

independent elders to remain in their homes and out of nursing homes. This 

program is just one of several social and economic projects that BSADD helps 

coordinate and facilitate in the Eastern Kentucky region. 

BSADD assigned a homecare aide to help Hall with very basic 

housekeeping and self-care—sometimes to change her clothes and sometimes 

to help her bathe. As a matter of BSADD policy, these aides were otherwise 

limited in what they could do for Hall. For instance, BSADD’s homecare 

 

1 Kentucky Revised Statute (KRS) 147A.050(11).

2 910 Kentucky Administrative Regulation (KAR) 1:180(3).
3

services expressly excluded rudimentary medical services, such as handing 

prescribed medication to Hall. BSADD merely supplemented Hall’s existing 

network of family and neighborhood help. 

The BSADD homecare aides were regularly scheduled to visit Hall at her 

home twice a week for a period of two hours. During one of these routine 

visits, the homecare aide found Hall slumped in her recliner, appearing ill. 

Hall told the aide to call her son. Hall was transported by ambulance to 

Pikeville Medical Center. 

The treating physician at Pikeville Medical diagnosed a severe bedsore on 

Hall’s lower back. Sadly, Hall’s condition progressed to sepsis, and she died as 

result of the infection. The doctors gave differing accounts of how the condition 

progressed and, therefore, how noticeable the bedsore would have been to

Hall’s caretakers.3 

Howard, brought this negligence action against BSADD, alleging that

Hall’s condition could have been found and remedied had BSADD’s homecare 

aide not been negligently inattentive. BSADD moved for summary judgment 

claiming governmental immunity shielded it from suit and that evidence of its 

negligence was insufficient as a matter of law.

The trial court granted BSADD’s motion for summary judgment, holding 

 

3 Hall’s treating physician, the physician who diagnosed the bedsore at Pikeville

Medical, testified that a bedsore at the stage it was discovered could have taken 

anywhere from 10 to 15 days to develop. This expert opined that only negligence can 

explain how the condition progressed to the stage it did without intervention from 

BSADD aides, that the BSADD aide would have and should have noticed the condition 

and helped Hall before it was too late.

BSADD’s doctor testified, after reviewing the case, that even though a bed sore 

this severe took roughly 10 to 15 days to develop, the sore and its progression were 

largely subcutaneous (under the skin) for most of that time, Hall’s condition probably 

could not have been apparent by visual inspection until it was far too late.
4

that BSADD enjoyed governmental immunity and that the facts supported no 

special duty on BSADD’s part, much less a breach of such duty. The Court of 

Appeals unanimously affirmed the decision of the circuit court. We granted 

Howard’s motion for discretionary review.

II. ANALYSIS

We review a trial court’s grant of summary judgment de novo, and in 

doing so, we owe no deference to the legal conclusions of the courts below.4

The primary issue is whether BSADD enjoys governmental immunity 

from negligence claims as a “quasi-governmental” entity. As a rule, state 

government and its agencies are protected by sovereign immunity from civil 

suit.

5 In some cases, this immunity can extend to non-governmental or quasigovernmental bodies under a different name: governmental immunity.6

The controlling authority on whether a quasi-governmental entity enjoys 

governmental immunity is Comair, Inc. v. Lexington-Fayette Urban County 

Airport Corp.

7 Under Comair, governmental immunity extends to a quasigovernmental entity if (1) it has immune “parentage” and (2) it performs an 

“integral” function of state government. 

An entity has immune “parentage” if it owes its origin to an entity that is

itself entitled to sovereign or governmental immunity and if it operates as “an 

 

4 Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013).

5 Yanero v. Davis, 65 S.W.3d 510, 523 (Ky. 2001). See Bryant v. Louisville Metro 

Housing Authority, 568 S.W.3d 839, 845–46 (Ky. 2019).

6 Bryant, at 846 (“[G]overnmental immunity is an extension of the parent’s 

sovereign immunity.”).

7 295 S.W.3d 91 (2009). 
5

agency (or alter ego) of [said] clearly immune entity.”8 A government function is 

“integral” if, taken as a whole and on balance,

9 it involves a statewide policy 

concern and its function is necessary or essential to address that concern.10 

The state government engages in many programs and projects, but “state-level 

government concerns” for our purposes include fundamental functions like

“police, public education, corrections, tax collection, and public highways.”11

The Comair analysis is thus a fact-sensitive, case-by-case analysis.12 We 

must acknowledge that under Kentucky law, “while the state enjoys immunity 

from suit, a level of constraint must be exercised in its application to other 

entities in order to respect both constitutional and important public policy 

limitations.”13 And “certainly not every business can be immunized simply 

because it is established by act of the General Assembly.”14 With these 

principles in mind, we can now wade into the muddy waters of governmental 

immunity.

A. BSADD has immune parentage.

This first element concerns the nature of the entity in question, or what 

it is, with specific regard to its legal origin and its governance.15 ADDs are 

 

8 Id. at 99 (emphasis added).

9 Id. at 98. See, e.g., Stanford v. U.S., 948 F. Supp. 2d 729, 736 (2013); N. 

Kentucky Area Planning Comm’n v. Cloyd, 332 S.W.3d 91, 95–96 (Ky. App. 2010) 

(assessing the balance of an area planning commission’s activities).

10 Comair, at 99.

11 Id.

12 Id.

13 Bryant v. Louisville Metro Housing Auth, 568 S.W.3d 839, 846 (Ky. 2019).

(citing Coppage Constr. Co. v. Sanitation Dist. No. 1, 459 S.W.3d 855, 859 (Ky. 2015)).

14 Kentucky Ctr. for the Arts Corp. v. Berns, 801 S.W.2d 327, 331 (Ky. 1990).

15 See Comair, at 99.
6

creatures of statute, established and authorized to operate in their respective 

regions under KRS 147A.050. Statutes and regulations refer to the ADDs as 

“public agencies” or “special districts” of state and local government.16 ADDs 

are therefore created by statute; owe their origin directly to the legislature,

which is an immune entity; and are at least nominally “public agencies” by 

statute. This makes them potentially entitled to immunity.

As a matter of practice BSADD is apparently quite independent from 

state government, both legally and functionally, which undercuts any 

argument that BSADD is an “alter ego” of the state legislature. BSADD is not 

part of the legislative or executive branches of state government like the 

Department for Health and Family Services (hereinafter “the Cabinet”), the 

Department for Aging and Independent Living, or the Department of Local 

Government. Instead, BSADD is a distinct corporate entity. It does not 

apparently create, direct, or influence policy at any significant level, such as by 

regulation. Interestingly, KRS 147A.060 states that “[a] person who is a state 

officer, a deputy state officer, or a member of the General Assembly may serve 

only in a nonmember advisory capacity to the board of directors of an area 

development district.” These facts make it hard to say how it acts as an alter 

ego or even as a legal extension of its immune parent, the legislature, in the 

same way other public agencies do.

Further, BSADD operates relatively independently and is subject to 

minimal direction and oversight from state agencies.

17 It is instead subject to 

 

16 See KRS 65.005, KRS 147A.040(15), and 147A.080(10).

17 See Bryant, at 846–47 (discussing entity’s independence from the legislature 

in determining whether it is a “state agency” for purposes of Comair) (“There is 
7

the control of a board of directors that can independently sue and be sued.

18

In sum, BSADD is not even functionally part of the state government, even by 

statute. Rather, it sometimes serves as a corporate instrumentality of different

state agencies. It is not an “agency” or part of an agency in any meaningful 

sense of that term. 

B. BSADD does not perform an integral function of government.

This second element of Comair concerns the nature and scope of what an 

entity actually does, focusing on the entity’s relationship to state government.

19 

This is the weightier of the two factors under consideration.

20 This bigger, 

more complex issue, discussed at length by the Court of Appeals, requires us 

to determine whether BSADD performs an “integral” function of state

government, i.e., (a) as a whole and on balance, it is (b) necessary and essential 

to the execution of (c) a state-level policy. For the following reasons, we find 

that BSADD plays a proprietary role, is not necessary to the execution of statelevel policy or services, and thus does not perform an integral state function. 

 

sufficient control authorized [by statute] to find a connection adequate for this prong 

of the Comair test . . . . These statutes portray a definitive, albeit more removed than 

other agencies of the government, control from the legislative and executive branches 

over LMHA.”).

18 KRS 147A.080(2).

19 Comair, at 99 (“[S]overeign immunity should extend . . . to the departments, 

boards or agencies that are such integral parts of state government as to come within 

the regular patterns of administrative organization and structure.”) (quoting Kentucky 

Center for the Arts Corp. v. Berns, 801 S.W.2d at 332) (emphasis added).

20 See id. (“The more important aspect of Berns is the focus on whether the 

entity exercises a governmental function, which that decision explains means a 

‘function integral to state government . . . . [Past decisions] clearly demonstrate a shift 

in focus to the nature of the entity.’”) (citing Berns, at 332, other citations omitted).
8

1. BSADD’s role is proprietary—advising, planning, contracting, 

and coordinating various regional projects.

Under Comair, an entity’s “function” must be identified and understood 

as the sum of its discrete functions.21 The Court of Appeals seems to have 

correctly described BSADD’s homecare program and how it functions, its 

limited role within a broader state and federal scheme of services, and how 

beneficial it is to homecare clients. But the Court of Appeals did not 

adequately consider the homecare program as only a discrete part of what 

BSADD does, seemingly missing what BSADD is in a fuller sense. This crucial 

misstep distorts what should have been a more holistic analysis under 

Comair.

22

The legislature established BSADD to support social and economic 

development, a notably broad purpose. On the ground, BSADD supports the 

coordination of various social services and state projects, but it does not, for 

the most part, seem to provide government services directly. Its services may

indeed help the government accomplish various projects more expeditiously, 

but it does not generally complete the projects itself. And though it happens to 

implement its limited homecare program, that is about as “hands on” as 

BSADD gets in support or furtherance of government programs.

The Court of Appeals further erred when it incorrectly conflated the 

homecare program with more direct and comprehensive public services meant 

to aid under-resourced persons. This was evident, for instance, in the Court of 

 

21 See Berns, at 332.

22 Comair, at 98 (citing Berns, at 332).
9

Appeals’ comparison between BSADD’s homecare service and a state-run 

mental hospital operated by the Cabinet in Hamblen ex rel. Byars v. Kentucky 

Cabinet for Health and Family Services.

23 In that case, Hamblen, by and 

through his guardian Byars, sued the Cabinet for Health and Family Services, 

the Kentucky Department for Mental Health and Mental Retardation Services, 

and the state hospital and its employees for negligence. Hamblen was sixtyone years old, severely disabled mentally and physically, and a resident at the 

state hospital for over thirty years.24 The Court of Appeals held in Byars that 

the defendants, as legal extensions of the state via the Cabinet, were clearly 

performing government functions and were therefore protected from suit by 

governmental immunity.

25

The Court of Appeals erred when, in the present case, it compared 

BSADD to a Cabinet-run state hospital “provid[ing] for the health and welfare 

of [the state’s] dependent classes.”26 Provision of long-term, comprehensive 

mental-health services by the Cabinet at a brick-and-mortar state hospital, 

sometimes to persons as severely disabled as Hamblen in Byars, is different

from BSADD’s services helping independent-living elders with basic, nonmedical household tasks in their own homes. And the plaintiffs in Byars sued

the Cabinet itself, an agency that is indisputably a part of state government.

 

23 322 S.W.3d. 511 (Ky. App. 2010).

24 Id. at 514.

25 Id. at 516.

26 Howard v. Big Sandy Area Dev. Dist., Inc., No. 2017-CA-000747-MR, 2018 WL 

3672708, at *5 (Ky. App. Aug. 3, 2018).
10

Even the Court of Appeals’ quote from the Byars case demonstrates a 

serious distinction between the Byars defendants and BSADD, as the mentalhealth services were “carried out under the direct auspices of state government 

and were functions integral to state government.”27 BSADD does not truly 

operate “under the auspices” of the Cabinet or any other government agency, 

even with respect to the homecare program. The record shows that BSADD’s

interactions with the Cabinet and the Department of Aging and Independent 

Living are rather limited and infrequent. The relationship is more contractual 

and proprietary than supervisory.

Even if this homecare service in isolation could be characterized as a 

type of integral government service, which it cannot, it still only amounts to 

part of what BSADD does. On balance, BSADD does not serve the sort of 

integral welfare functions the Court of Appeals described. Rather, BSADD is

mostly a facilitator, a point of contact, and an organizer. BSADD itself simply 

does not disburse welfare, provide other services directly to the public, or 

provide shelter or healthcare to those in need as characterized by the Court of 

Appeals.

2. BSADD is not “necessary” or “essential” to the execution of 

public services and projects.

Next, Comair requires that an entity be “necessary” or “essential” to the 

execution of a government function to the point that it is practically part and 

parcel of the legal and operational structure supporting the program.28 The 

 

27 Id. (citing Byars, at 516–17) (emphasis added).

28 There is conceptual overlap here with the “alter ego” point under the first 

Comair factor, but this factor focuses more on the degree of integration of an entity’s 

corporate structure into state government.
11

Court of Appeals did not directly reach this point, though it did briefly discuss 

BSADD’s statutory relationship with the Cabinet for Health and Family 

Services.29 BSADD’s various projects can be accomplished, legally and 

functionally, by government agencies themselves or by other entities, according 

to the statute cited.

30 BSADD’s cooperation with the Cabinet with respect to 

the homecare program does not define BSADD, and the Cabinet’s cooperation 

with BSADD does not define its general provision of public services and 

resources to needy Kentuckians. BSADD’s role can be, and is in fact, 

accomplished by other private or public entities that can assume the same 

coordinating, planning, and organizing role BSADD plays. Without BSADD, 

the government’s ability to implement state or local policy would not cease to 

be, it would simply be accomplished by other means. 

Unlike the Cabinet or its constituent departments, for instance, BSADD 

has not obviously “come within regular patterns of administrative organization 

and structure” of state government.

31 Granted, BSADD happens to have an 

internal corporate structure through which it coordinates its homecare services

in the Big Sandy region. But BSADD’s role is complementary to state 

government, not necessary to it. In other words, while BSADD does good work 

for the elderly by providing homecare, one can imagine that service being 

 

29 See KRS 205.460(1) (“The (Health and Family Services) cabinet shall fund, 

directly or through a contracting entity or entities, in each district, a program of 

essential services which shall have as its primary purpose the prevention of 

unnecessary institutionalization of functionally impaired elderly persons.”) (emphasis 

added)).

30 See KRS 205.460(1) (“. . . directly or through a contracting entity or 

entities. . .”).

31 See Comair, at 99.
12

provided without BSADD, but one cannot imagine provision of that service, 

even if just by contract, without the Cabinet itself or the Department for Aging 

and Independent Living. The latter are clearly the more necessary and 

essential parts of the government’s provision of those services, while BSADD 

has merely contracted with the government according to statute to provide that 

service among others. We conclude BSADD is not “necessary” or “essential” to 

government functions under Comair.

3. BSADD’s role is region-specific by design and in substance, not 

statewide.

Finally, Comair requires that an entity’s function predominantly be of 

statewide importance.32 BSADD’s operation is not of statewide concern. 

BSADD was intended by statute to address region-specific concerns, and that 

is all it does. Even its name, the “Big Sandy” Area Development District, 

indicates such a local focus. BSADD is clearly authorized to run on an 

exclusively regional level with exclusively regional interests in mind. Overall, 

BSADD’s existence and operation has primarily regional implications and is not 

of “statewide” policy concern under Comair, notwithstanding the General 

Assembly’s establishing ADDs in various regions across the state.

C. Summary judgment was proper on the merits of Howard’s negligence 

claim.

Having dispensed with the argument that BSADD enjoys governmental 

immunity, we turn briefly to the merits of the motion for summary judgment on 

the negligence claims. The trial court ruled—and the Court of Appeals 

affirmed—that BSADD’s agents owed no identifiable duty of care to Hall and 

 

32 Id. at 98.
13

that there was no evidence of breach under a general standard of care. We 

affirm this part of the decision, holding that BSADD and its homecare aides did 

not owe a special duty of care to Hall, even by its rendering services to her 

through the Homecare Program. 

Summary judgment is to be “cautiously applied and should not be used 

as a substitute for trial.”33 A party is nonetheless entitled to judgment as a 

matter of law when, after viewing the facts in a light most favorable to the 

nonmoving party, there is no issue as to any material fact as a matter of law.”34

The trial court correctly stated that under Kentucky law, negligence consists of 

a duty, a breach of that duty, and a consequent injury.35 Duty is a matter of 

law,36 and where there is no duty, there can be no breach.

The undisputed facts indicate BSADD did not render medical services or 

agree to render medical services to its homecare clients. It did not and does 

not run a medical facility or operate a nursing home. Its homecare aides 

played a role practically identical to Hall’s family members and neighbors, and 

it only provided its limited services two days a week. It certainly did not owe 

the higher duty of care owed by medical professionals. BSADD cannot be 

considered Hall’s agent, and Hall was not dependent on BSADD’s assistance. 

The record simply contains no evidence that BSADD breached a standard of 

care to Hall, even if Howard could prove a homecare aide could have or should 

 

33 Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 483 

(Ky. 1991).

34 CR 56.03; Id. at 480.

35 See M&T Chemicals v. Westrick, 525 S.W.2d 740, 741 (Ky. 1974).

36 Pathway v. Hammonds, 113 S.W.3d 85, 89 (Ky. 2003).
14

have noticed Hall’s subcutaneous bedsore early in its progression. Entry of

summary judgment was proper, as no issue of material fact was left for a jury 

to resolve. BSADD was entitled to judgment as a matter of law on the 

substance of the negligence claim, not because of governmental immunity.

IV. CONCLUSION

The lower courts incorrectly held that the Big Sandy Area Development 

District is protected by governmental immunity with respect to this negligence 

claim. But the Circuit Court properly entered, and the Court of Appeals 

properly affirmed, summary judgment on the negligence claim itself. 

Accordingly, we affirm the entry of summary judgment but on different grounds

than the Court of Appeals.

All sitting. All concur.

COUNSEL FOR APPELLANTS:

Richard Eric Circeo

Circeo Fannin, P.S.C.

Robert Earl. Salyer

Wilkes & McHugh, P.A.

COUNSEL FOR APPELLEES:

Jonathan C. Shaw

Porter, Banks, Baldwin & Shaw, PLLC