Arguing Sovereign Immunity In A CR 52 Motion For Judgment Can Eliminate Wasteful & Unnecessary Litigation In Kentucky

Sovereign immunity is a complete shield from liability regularly raised by governmental agencies. This defense can protect a government entity or employee in situations in which the entity was formed by the government and exercises purely governmental functions integral to state government. A thorough breakdown of when and how the immunity applies can be found here.

Immunity defenses are affirmative defenses that are traditionally raised in two phases of litigation. First, immunity is raised at the pleading stage under a CR 12 motion to dismiss. However, defendants face a significant uphill battle at this phase due to an unfavorable standard of review from the Court. When considering a motion to dismiss, the Court reviews the record in the light most favorable to the plaintiff, and assumes all facts alleged in the complaint to be true. Clever attorneys will plead facts that would operate as an exception to immunity, and the Court will typically revisit the issue at summary judgment. Therefore, CR 12 motions raising immunity tend to be unsuccessful.

Second, historic immunity case law states that the application of immunity is a fact-intensive inquiry that is decided on a case-by-case basis. Thus, Kentucky judges will typically allow the plaintiff to conduct significant discovery before determining whether immunity applies. If so, defendants are stuck having to wait until the summary judgment phase of litigation to raise the immunity defense, sometimes after years of litigation. But yet again, the CR 56 summary judgment standard of review is infamously unfavorable for Kentucky litigants. There, the Court will resolve any genuine issue of material fact in the light most favorable to nonmoving party when considering the motion. Accordingly, factual disputes regarding the application of sovereign immunity are resolved in favor of the plaintiff. While immunity defenses can very well be successful at the summary judgment phase of the litigation, they are still reviewed under an unfavorable standard.

Now, there is a much more favorable method for raising the immunity defense. Kentucky case law has consistently held that because immunity is a complete shield from liability, it should be resolved as soon as possible. The logic is that if a litigant is protected from liability regardless of fault, it should not be subjected to years of protracted litigation. In other words, subjecting an immune litigant to years of litigation defeats the purpose of immunity. Accordingly, the Kentucky Supreme Court has ruled a CR 52 motion for judgment is the most appropriate method for raising the immunity defense. See Sheehy v. Volentine, 706 S.W.3d 299 (Ky. 2024); see also Dickerson v. Bower, 723 S.W.3d 799, 806 (Ky. App. 2025).

A CR 52 motion for judgment is an extremely favorable mechanism for raising the immunity defense. The rule allows litigants to raise the immunity issue very early in the litigation because CR 52 allows Kentucky judges to find facts, weigh evidence, and make credibility determinations. This provides a stark contrast to CR 12 motions to dismiss and CR 56 motion for summary judgment because these rules preclude judges from engaging in any fact-finding and instead require them to give significant deference to nonmoving parties. CR 52 fills that gap and allows litigants to resolve an immunity defense in a meaningful way at the outset of litigation. Hopefully, by making use of this framework, defendants can eliminate wasteful and unnecessary litigation.

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