RENDERED: OCTOBER 7, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1409-MR

ESTATE OF EMILY SNOW APPELLANT 

v. 

APPEAL FROM BOYLE CIRCUIT COURT

HONORABLE DARREN W. PECKLER, JUDGE

ACTION NO. 21-CI-00191

COMMONWEALTH OF KENTUCKY, 

TRANSPORTATION CABINET, 

DEPARTMENT OF HIGHWAYS AND 

KENTUCKY BOARD OF CLAIMS 

F/K/A KENTUCKY CLAIMS 

COMMISSION APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, MCNEILL, AND K. THOMPSON, JUDGES.

COMBS, JUDGE: The Estate of Emily Snow appeals from a judgment of the 

Boyle Circuit Court affirming a decision of the Kentucky Board of Claims in favor 

of Commonwealth of Kentucky Transportation Cabinet, Department of Highways. 

After our review, we affirm.
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In the late night hours of June 29, 2014, 16-year-old Emily Snow was 

killed in a one-car accident on KY 1856 in rural Boyle County. She was riding 

without a seatbelt in the back seat when the car neared the end of a curve, crossed 

the oncoming traffic lane, left the wet road, and struck a tree. Jacob Smith, the 18-

year-old driver, admitted to a deputy sheriff at the scene that he had been drinking 

beer and that he was travelling too fast to negotiate the turn. The speed limit was 

not posted, but the regulatory limit is 55 miles per hour. Signage consisted of a 

single reflective chevron, mid-curve. 

On June 29, 2015, the co-administrators of Snow’s estate (the Estate)

filed a wrongful death action with the Board of Claims against the Transportation 

Cabinet. They alleged that Snow’s death was caused by the failure of the 

Transportation Cabinet to post adequate signage to warn drivers of the “curvature 

and grade of the road.” The Transportation Cabinet denied negligence and asserted 

its immunity as a defense. 

On February 13, 2019, an administrative hearing was conducted in 

Boyle County. The parties presented testimony from various experts and lay 

witnesses. For the Estate, Jerry Pigman, an engineer and crash reconstructionist, 

testified (by deposition) that based upon his analysis, the curve would be 

challenging to navigate at a speed in excess of 25 to 30 miles per hour. Because 

the speed limit along the road was 55 miles per hour, Pigman felt that a right turn 
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sign posted ahead of the curve was the minimum signage that he would have 

recommended. He indicated that two additional chevron signs erected along the 

curve would have guided drivers safely through it. Pigman acknowledged that 

multiple passengers in a car generally proved distracting to teen drivers; that the 

driver’s ability to drive safely was impacted by his consumption of alcohol; and 

that the failure to engage seatbelts resulted in more severe injuries to passengers. 

 On cross-examination, Pigman admitted that relevant provisions of the 

Manual of Uniform Traffic Control Devices (MUTCD), with which he was very 

familiar, did not require the signage he recommended; instead, that manual 

directed that an engineer (or one at his direction) could use his own judgment and 

discretion with respect to traffic control devices placed on lightly travelled roads 

like KY 1856. He specifically agreed that civil engineers (and those at their 

direction) were expected to use their judgment and discretion when making 

decisions regarding signage on a road scarcely travelled, adding, “I think that 

engineering judgment is essentially discretionary decision making. . . .” Moreover, 

he acknowledged that an engineer was authorized by the provisions of the 

MUTCD to consider the crash history of a roadway before arriving at a decision 

with respect to signage. He acknowledged that he had not considered this factor 

before arriving at his opinion.
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Henry Cease, Jr., an accident reconstructionist, testified that the curve 

should have been marked with a curve warning sign indicating a recommended 

speed of 25 miles per hour along with multiple chevron signs in the curve. On 

cross-examination, he acknowledged that he had no experience implementing or 

interpreting the MUTCD and no expertise in the Transportation Cabinet’s policies, 

practices, or procedures. His investigation indicated that the road banked properly 

into the curve making it inherently easier to navigate. 

The Transportation Cabinet admitted that it was responsible for the 

maintenance of KY 1856 -- including signage. However, it denied any negligence 

and argued that Snow’s death was caused by the negligence of others -- including 

the driver. Moreover, it contended that it was immune from liability for any 

negligence in the performance of its discretionary functions, specifically including 

decisions regarding road signage on lightly travelled roadways. 

Deputy Sheriff Phillip Dean testified that he responded to the crash 

and investigated the incident. He indicated that KY 1856 was not known for traffic 

accidents and confirmed that it was a rural roadway that was only lightly travelled. 

Jeffrey Sparks, an engineering technologist with the Transportation 

Cabinet, testified that KY 1856 was inspected for safety by the Boyle County 

Maintenance Garage at least once per month. He indicated that foliage had been 

trimmed from the sides of the roadway approximately one month before the fatal 
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collision. He did not know when, why, or by whom the reflective chevron sign 

had been posted at the curve. 

Kenneth Robert Agent, a civil engineer, instructor, and researcher 

employed by the University of Kentucky College of Engineering, testified that he 

taught engineers and other transportation professionals various subjects related to 

placement of traffic control devices and highway safety. Agent described KY 

1856 as a “relatively narrow, very curvy road, very, very low average daily traffic. 

. . .” He observed that the road was relatively flat at the site of the collision and

that given the “long tangent leading to the curve,” a driver could easily see it from 

at least 200 feet with low beam headlights illuminated. He indicated that the sight 

line was enhanced by the existence of a double centerline pavement marking that 

would give a driver “delineation that [he is] going into a right-hand curve.” 

Agent explained that the exercise of engineering judgment would not 

indicate that the curve at the site of the collision required signage for several 

reasons. First, the change in roadway alignment did not “violate [the driver’s] 

expectancy” because “the road is just one curve after another.” Next, he noted that 

a lack of any serious accident history or complaints about the safety of the road 

would weigh in favor of a decision not to erect signage. Additionally, he observed 

that the rural road was only very lightly travelled. In Agent’s opinion, “there was 

[sic] plenty of visual ques [sic] to drive through the curve fine at that location 
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without any signs.” Reviewing specific provisions of the MUTCD, Agent testified 

that under these circumstances, decisions with respect to traffic control devices 

placed at this location were absolutely a matter of discretion. He indicated that he 

had been unable to determine when or how the single reflective chevron had come 

to be placed in the curve. 

Based upon the evidence presented, the hearing officer found that the 

curve where the car left the roadway could be safely negotiated at a speed of 

approximately 20 to 25 miles per hour. He further found as follows: 

[Smith] would have already travelled about five miles on 

this road that evening and gone around several similar 

curves. [KY 1856] is lightly travelled . . . . There was 

one other reported accident listed at this mile marker in a 

nine-year span from 2009 through 2017. It is not clear 

whether that accident was in this curve. There was no 

evidence that the Department of Highways had notice of 

any prior accidents at this location. 

[KY 1856] is marked at this location with a yellow center 

line and with one chevron for northbound traffic, 

indicating a right-hand curve. This sign is placed on the 

left side of the road, in the curve, and can be seen 

depending on the season and how recently the foliage has 

been trimmed, at a distance varying from approximately 

150 to 300 feet. In June of 2014, the foliage was fully 

out, but it had been trimmed about a month prior.

 

The hearing officer observed that the Department of Highways must 

exercise ordinary care to keep the highways in a reasonably safe condition for 

travel, noting, however, that it is not a guarantor of the public’s safety. Citing this 
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Court’s opinions, he also noted that decisions concerning the placement of signs 

and guardrails on our highways generally involve the exercise of discretion and 

enjoy immunity from liability. However, he concluded that where decisions 

violate a “known rule” or standard, state agencies are not entitled to immunity. 

The hearing officer observed that “known rules” are well established 

in the field of highway safety. Citing provisions of the MUTCD, the hearing 

officer determined that turn signs, advisory speed signs, and chevrons on the 

approach to this curve on a lightly travelled road “‘may’ be used, ‘based on 

engineering judgment.’” With respect to lightly travelled roadways, he concluded 

that the MUTCD expressly leaves signage decisions to engineer discretion. He 

rejected the argument that once the Transportation Cabinet made a decision to 

place a reflective chevron at this location, it triggered a ministerial duty to erect the 

full complement of signage. “[T]he only established rules say that the decision is 

discretionary.” 

The hearing officer concluded that decisions made by the Highway 

Department with regard to signage at this curve on KY 1856 were part of its 

discretionary function and, consequently, that it was immune from liability for any 

negligence associated with these decisions. The order that he entered on March 30, 

2020, recommended that the claim be dismissed. 
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In an order entered on July 28, 2020, the Board of Claims disagreed 

and rejected the hearing officer’s recommendation. It found that “ministerial acts 

that led to the engineering decision to place signs were either not performed or 

performed negligently.” This finding was based on the testimony of the Estate’s 

engineers indicating that the signage at the curve was insufficient to provide proper 

warning of danger inherent in the curve. It ordered that the claim be remanded to 

the hearing officer for a recommendation on damages. 

Upon remand, the hearing officer entered an amended recommended 

order as directed in which he recited that the Transportation Cabinet “was 

negligent in the performance of certain ministerial acts, leading to its decision to 

place only one warning sign in this curve, and that such negligence was a 

significant factor in causing this accident.” He concluded that the driver, Jacob 

Smith, was negligent by driving at a speed unsafe for the road conditions and that 

Snow was negligent by failing to exercise ordinary care for her own safety (i.e., not 

wearing a seatbelt). In an order entered on February 3, 2021, the hearing officer 

recommended that liability be apportioned 30 percent to the Transportation 

Cabinet; 60 percent to Smith; and 10 percent to Snow. He recommended judgment 

against the Transportation Cabinet in the amount of $104,286.00.

In an order entered on May 3, 2021, the Board of Claims reversed its 

original decision and now rejected the hearing officer’s amended recommendation
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that it had previously directed on remand. Its final order included the following

reasoning: 

Although the Claimant agreed the decision to 

install signage was a discretionary function, it argued that 

the judgment required to evaluate whether signage is 

necessary and sufficient in any particular location is a 

ministerial function and subject to liability. The 

Claimant’s position is that once the [Transportation 

Cabinet] decided to install signage they had to use every 

means necessary to ensure the signage was sufficient. 

The Claimant offered testimony that the signage was 

insufficient for the curve and argued that the actual steps 

necessary to properly measure the curve, ball banks, etc., 

were not performed, and so there was a negligent 

performance of the ministerial duty. However, there was 

no testimony to prove whether proper measurements 

were performed to support such a finding nor was there 

any proof as to what ministerial steps are necessary to 

form the basis of the engineering judgment regarding the 

sufficiency of the signage. 

The hearing officer noted in his original 

recommendation that there was no testimony from either 

party as to how long the chevron signage had been in this 

curve, who made the decision to place it there, why there 

was no other signage, or any other consideration that 

went into signage at the subject location. 

[The Transportation Cabinet] offered testimony 

that since the Manual on Traffic Control Devices 

(MUTCD) was adopted in 2009, and based on that 

manual, it placed a priority on improving signage on 

roads with more than 1000 vehicles per day. However, 

the same MUTCD renders signage on roadways with less 

than 1000 cars per day, discretionary, and based on 

engineering judgment. The subject roadway was one 

with less than 1000 cars per day. On these less travelled 

roads, signage depends on whether there is an accident 
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history at any particular location before [the 

Transportation Cabinet] places additional signage. There 

is a lack of competent proof that the subject roadway was 

known to have any accident history that would place [the 

Transportation Cabinet] on notice that additional signage 

might be necessary.

The decision to place signage at the subject 

location in this case, based on the proof, was made on 

engineering judgment, which is a discretionary function, 

and is not subject to the waiver of sovereign immunity. 

There is also insufficient proof of any negligently 

performed alleged ministerial duty in this case. 

The Board of Claims ordered that the claim be dismissed. 

On May 27, 2021, co-administrators of Snow’s Estate filed a petition 

for judicial review in the Boyle Circuit Court. They argued that the final order of 

the Board of Claims was not based on substantial evidence; that its conclusions of 

law were erroneous; and that it acted beyond its authority. 

In an order entered November 17, 2021, the Boyle Circuit Court 

affirmed the decision of the Board of Claims to dismiss. It held that substantial 

evidence supported the Board’s findings of fact and that it did not err in its 

application of the law. This appeal followed. 

On appeal, the Estate argues that the Boyle Circuit Court erred by 

failing to conclude that it had shown that the Transportation Cabinet was negligent 

in the performance of a ministerial act. We disagree.
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Because the Estate was unsuccessful before the Board, the Board’s

findings of fact must be accepted unless the evidence was so strong and 

persuasive as to compel a finding in favor of the Estate. Commonwealth, Dep’t of

Highways v. Hoskins, 495 S.W.2d 177 (Ky. 1973). However, “[w]hen the outcome 

of a case turns on an issue of law, . . . appellate review is de novo.” Western

Kentucky Coca-Cola Bottling Co., Inc. v. Revenue Cabinet, 80 S.W.3d 787, 790 

(Ky. App. 2001).

The Commonwealth and its agencies and subdivisions are immune 

from liability unless the Commonwealth has waived its immunity. Yanero v.

Davis, 65 S.W.3d 510 (Ky. 2001). Section 231 of the Kentucky Constitution 

provides that “[t]he General Assembly may, by law, direct in what manner and in 

what courts suits may be brought against the Commonwealth.” The Board of 

Claims Act, KRS1 44.070 et. seq., provides for a limited waiver of sovereign 

immunity for claims based on the negligent performance of ministerial acts by 

officers, agents, or employees of the Commonwealth while acting within the scope 

of their employment. Gaither v. Justice & Public Safety Cabinet, 447 S.W.3d 628 

(Ky. 2014). “In any appeal from a decision of the [Board of Claims], the critical 

inquiry is whether the allegedly negligent act is discretionary or ministerial.” 

Commonwealth v. Russell, 578 S.W.3d 747, 750 (Ky. App. 2019). 

1 Kentucky Revised Statutes.
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The Supreme Court of Kentucky has held that if an act involves 

“policy-making decisions and significant judgment,” it is discretionary; if it 

involves “merely routine duties,” which “will typically be established by statutes 

or regulations that very clearly and specifically set forth those actions that the 

agency must take,” it is ministerial. Commonwealth, Transportation Cabinet,

Dep’t of Highways v. Sexton, 256 S.W.3d 29, 32-33 (Ky. 2008) (citations omitted). 

A ministerial act “requires only obedience to the orders of others” and a duty that 

is “absolute, certain, and imperative” whereas a discretionary act requires “the 

exercise of discretion and judgment, or personal deliberation, decision, and 

judgment.” Gaither, 447 S.W.3d at 633 (citation omitted).

It is undisputed that the Manual on Uniform Traffic Control Devices 

is “the national standard for all traffic control devices installed on any street, 

highway, or bicycle trail open to public travel[.]” 23 Code of Federal Regulations

(C.F.R.) § 655.603 (2010). The purpose of the MUTCD is to make uniform all 

traffic control devices across the various jurisdictions within the United States. 

KRS 189.337(2) requires the Department of Highways to “promulgate and adopt a 

manual of standards” for control of traffic devices. To implement this provision, 

the Transportation Cabinet issued 603 Kentucky Administrative Regulation (KAR)

5:050. Section 1 of the regulation directs that “[t]he standards and specifications 
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set forth in the [MUTCD] shall apply to all traffic control devices . . . in 

Kentucky.” 

MUTCD Section 2C.06 provides a chart of road signs used to warn of 

a change in roadway alignment. It creates specific standards for the use and 

placement of signs signaling an upcoming curve in the roadway. However, these 

standards are only applicable to roadways with more than 1,000 vehicles in 

average daily travel. The provision authorizes the use and placement of standard 

warning signs on little used roads. However, it sets no requirements nor does it 

make any recommendations for warning signs erected on them -- except to advise 

decision-makers that their use should be kept to a minimum. MUTCD Section 

2C.02. Instead, the use and the placement of standard warning signs on lightly 

travelled roads are expressly and explicitly left to “engineering judgment.” 

“Engineering judgment” is defined by the MUTCD as: 

the evaluation of available pertinent information, and the 

application of appropriate principles, provisions, and 

practices as contained in this Manual and other sources, 

for the purpose of deciding upon the applicability, 

design, operation, or installation of a traffic control 

device. 

The MUTCD directs that engineering judgment shall be exercised by an engineer 

(or by an individual working under his supervision) through the application of 

procedures and criteria established by the engineer. Documentation of engineering 

judgment is expressly not required.
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While erecting roadway safety and traffic control measures is 

manifestly part of the Transportation Cabinet’s regular duties, the decision on 

whether to do so (and how) on a lightly travelled road is discretionary. See

Hammers v. Plunk, 374 S.W.3d 324, 330 n.3 (Ky. App. 2011) (holding that 

“determinations involving such things as whether a guardrail or sign should be 

placed in a certain area of roadway are discretionary”); Bolin v. Davis, 283 

S.W.3d 752 (Ky. App. 2008) (holding that a county road engineer’s decision not to 

install a guardrail was discretionary); Estate of Clark ex rel. Mitchell v. Daviess

County, 105 S.W.3d 841 (Ky. App. 2003) (holding that a decision not to install a 

guardrail was discretionary). 

There is no statute or regulation requiring the Department of 

Transportation to install signage of any kind on little used roads like KY 1856. 

Therefore, we cannot construe its evaluation of a road’s safety or its exercise of 

engineering judgment as anything other than discretionary. Furthermore, 

testimony indicated that the Transportation Cabinet is required to prioritize the use 

of its resources. There was testimony that this rural road is regularly inspected; 

that it has not been the scene of numerous collisions; that it was banked correctly; 

and that the marking of the double centerline pavement adequately warned drivers 

of the upcoming curve. These factors indicate that KY 1856 was not unreasonably 
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dangerous absent additional signage and that the Transportation Cabinet used its 

discretion in deciding where and how to erect its road safety signs. 

Our analysis indicates that any decision to erect (or not) a curve 

warning sign on this little-used roadway involved policy making and the exercise 

of significant judgment. These types of decisions are not subject to the statutory 

waiver of immunity. Consequently, there is no liability even where the decisions 

could be viewed as negligent because they were discretionary rather than 

ministerial. 

Nevertheless, the Estate argues that the Transportation Cabinet is 

liable for its failure to “exercise engineering judgment, take measurements, and 

determine the appropriate speed in the placement of all signage.” It relies on our 

holding in Commonwealth v. Estate of Franklin, No. 2014-CA-000201-MR, 2015 

WL 2337844 (Ky. App. May 15, 2015), a recent, unpublished decision, in support 

of its contention. We are not persuaded by reference to our decision in Estate of 

Franklin because the critical facts underlying the issues considered are distinctly 

distinguishable. 

In Estate of Franklin, the Board of Claims found from the evidence 

that an advisory speed sign (indicating a safe speed of 25 m.p.h.) posted in a curve 

was gravely misleading given the unusually dangerous slope of the roadway and 

the fact that the curve had been the scene of numerous crashes. We affirmed its 
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conclusion that the Transportation Cabinet’s decision to merely mark an 

improperly banked curve with a speed advisory sign rather than to reconstruct the 

badly banked road was a discretionary act. However, we also affirmed its 

conclusion that the Transportation Cabinet’s implementation of the specific 

requirements of the MUTCD related to signage was a ministerial act -- specifically 

including the exercise of engineering judgment and engineering studies where 

circumstances demand. We agreed that the Transportation Cabinet was negligent 

by failing to evaluate the existing advisory speed and curve signage on a roadway 

that it should have known was unreasonably dangerous and that had been the scene 

of numerous accidents -- at least one of which included a fatality.

In the case now before us, the Board of Claims found that no evidence 

had been presented to indicate that the Transportation Cabinet failed to exercise its 

discretion to place (or to retain) the single chevron in the curve on KY 1856 where 

the car involved left the roadway. No evidence was presented to indicate that the 

road was unreasonably dangerous (because of an error in its construction, for 

example) or that it was made so by the placement of the single chevron. There was 

no evidence to indicate that the placement of the chevron violated the requirements 

of the MUTCD. Consequently, the Board of Claims did not err by concluding that 

the Transportation Cabinet was immune from the Estate’s negligence claim. 
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 We affirm the order of the Boyle Circuit Court that affirmed the 

holding of the Board of Claims dismissing this claim. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

J. Hadden Dean

Danville, Kentucky 

BRIEF FOR APPELLEE

COMMONWEALTH OF 

KENTUCKY, TRANSPORTATION 

CABINET:

Marlin A. Jones

Frankfort, Kentucky