Opinion
NO. 2014-CA-001394-MR NO. 2014-CA-001778-MR
03-25-2016
KATELYN AKERS APPELLANT v. TIMOTHY ROBERTS AND CITY OF PIKEVILLE APPELLEES AND KATELYN AKERS APPELLANT v. UNIVERSITY OF PIKEVILLE; DOUG J. COTTLE; ALLEN E. ABSHIRE; JEFF KENDRICK; MATT THACKER; BRIAN MCGUIRE; TRACEY NICKLES; AND J. CHRISTOPHER ROBINSON APPELLEES
BRIEF FOR APPELLANT: Diana Carter Wiedel Williamson, West Virginia Eugene Sisco, Jr. Pikeville, Kentucky BRIEF FOR APPELLEES, TIMOTHY ROBERTS AND CITY OF PIKEVILLE: Russell H. Davis, Jr. Pikeville, Kentucky BRIEF FOR APPELLEES, UNIVERSITY OF PIKEVILLE, ET AL.: Donald L. Jones Paintsville, Kentucky Donald L. Combs Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
ACTION NO. 13-CI-00028 OPINION
AFFIRMING BEFORE: CLAYTON, NICKELL, AND THOMPSON, JUDGES. CLAYTON, JUDGE: Katelyn Akers appeals both the Pike Circuit Court's August 1, 2014 order granting summary judgment to Officer Timothy Roberts and the City of Pikeville, and the Pike Circuit Court October 6, 2014 order granting summary judgment to the University of Pikeville, et al. Since these appeals derive from the same circuit court case, they have been designated to be heard together, and we have elected to address them in one opinion.
After careful consideration of the record and the arguments, we affirm the trial court's decisions.
BACKGROUND
In her brief, Akers only provides a procedural history and does not describe the events underlying the appeals. The appellees' briefs, however, described the pertinent facts. Both appeals commenced when Pike District Court entered a bench warrant for the arrest of Akers' friend, Sarah Elizabeth Sisco. Thereafter, Timothy Roberts, a Pikeville police officer, was assigned to serve Sisco's warrant.
The following facts are relevant to both appeals. On April 26, 2012, Officer Roberts saw Akers drive her vehicle onto the campus of the University of Pikeville. Officer Roberts, in his December 6, 2013 affidavit, stated that he knew Sisco was a close friend of Akers. Thus, after Akers stopped her vehicle to drop off a passenger, Officer Roberts approached the vehicle and asked if she had seen Sisco. In her deposition, Akers stated that she told the officer that she had not seen Sisco but believed she was at home. Sisco's home was a short distance, that is, about a block away. According to Officer Roberts' affidavit, Akers volunteered to go to Sisco's residence. He agreed to her offer. (In her affidavit, Akers contends that Officer Roberts asked her to take him.)
According to Akers' deposition, after being questioned by Officer Roberts, she felt like she should check to see if her friend was at home. As Akers drove to Sisco's home, Officer Roberts followed her. (Contrary to her affidavit, Akers stated in the deposition that Officer Roberts never asked her to take him to Sisco's home.) Upon arriving at Sisco's home, Akers voluntarily knocked on both the front and back doors of the Sisco home. (However, in her affidavit, she maintained that he told her to knock on the door, but in the deposition, she conceded that Officer Roberts did not ask her to knock.) Sisco was not at home. Akers, in her deposition, stated that she asked Officer Roberts if he would like her to call Sisco's father. He declined. She then asked if he would like her to call Sisco's sister. He agreed. Sisco's sister did not know where she was either. Then, everyone drove off. The duration of this contact was approximately seventeen minutes.
Because of the interaction, Akers maintains that Officer Roberts detained and imprisoned her for seventeen minutes. Nonetheless, Akers admits that she was never placed under arrest, never placed in handcuffs, never put into a police car, or taken to jail. Still, Akers claims that Officer Roberts' actions amounted to detention.
The second appeal is based on the above event and also on an occurrence that took place later that day. Regarding the above-described event, Akers asserts that security personnel employed by the University of Pikeville, including Officer Doug Cottle, also detained and imprisoned her for the same seventeen minutes of the aforementioned contact with Officer Roberts.
Apparently, when Officer Roberts followed Akers to Sisco's home from the campus, some members of the University's security personnel, including Officer Doug Cottle, followed them to Sisco's residence, too. Nonetheless, the security personnel never left their vehicle or spoke to Akers while outside Sisco's residence. Akers corroborates this lack of communication with them in her deposition. She notes that no member of the University of Pikeville security office told her that she had to go to Sisco's house or, for that matter, told her that she had to do anything. Again, as in the facts related to the first appeal, once it was determined that Sisco was not at home, everyone departed.
The additional facts associated with the second appeal happened later the same day, sometime between 6:00 and 7:00 p.m. (Akers does not reference this event in her affidavit.) After Akers spoke with Sisco by phone, she drove to her home and Sisco got in her car. Akers and Sisco drove to a parking lot near the Landmark Inn and parked. Coincidentally, a dance sponsored by the University of Pikeville was being held at the Landmark Inn that evening, and officers from the University were providing security for the event. While Akers and Sisco were parked and talking, Officer Cottle spotted Sisco in Akers' vehicle.
Officer Cottle parked his vehicle next to Akers' vehicle and advised her of the outstanding warrant. In addition, the city police were notified and arrived on the scene a short time later and arrested Sisco. Because of the interaction, Akers maintains that University of Pikeville security officers detained and imprisoned her for ten minutes. According to Akers' deposition, however, the security officers never spoke directly to her at the Landmark Inn. Specifically, Akers testified that no one said that she could not leave. She decided to stay to support her friend. Akers left after Sisco was arrested and taken into custody. No one tried to prevent Akers from leaving.
Akers filed a complaint on January 10, 2013, and an amended complaint on February 13, 2013. She alleges that she was detained and imprisoned for a period of seventeen minutes on April 26, 2012, and later on that same day, she was detained and imprisoned for ten minutes. Furthermore, the actions of the officers placed her in substantial fear. And these actions, based on the complaint's assertions, were racially motivated because of Akers' association with African American students who attend the University of Pikeville.
In the complaint, Akers proffers false imprisonment, assault, and intentional infliction of emotional distress against the officers. Additionally, she alleges negligent supervision, negligent training, and negligent hiring against the University of Pikeville. Finally, Akers asserts that the acts were racially motivated and violated her rights under the Kentucky Constitution.
The parties engaged in discovery including interrogatories, request for production of documents, and request for admissions. Then, on May 16, 2014, Officer Roberts and the City of Pikeville filed a motion for summary judgment with Officer Roberts' aforementioned affidavit attached. In the affidavit, which has been previously cited, Officer Roberts stated he never arrested, detained, or physically threatened Akers. On June 24, 2014, in the response to the motion for summary judgment, Akers attached her previously mentioned affidavit, which contravened Officer Roberts' affidavit. Finally, Akers was deposed on June 26, 2014. Testimony from the deposition is also highlighted above.
A hearing on the motion for summary judgment in the first appeal was held on July 26, 2014. After the hearing, the trial court, on August 1, 2014, entered summary judgment in favor of Officer Roberts, the City of Pikeville and its police department. The trial court determined that Officer Roberts did not arrest or detain Akers. Further, the trial court concluded that Officer Roberts did not tell her she could not leave the scene or to go to Sisco's home or to knock on the doors of the home. Therefore, the trial court decided that Officer Roberts did nothing in his attempt to locate and serve an outstanding bench warrant on Sisco that would lead Akers to believe that she was under arrest or being detained.
Moreover, the trial court reasoned that while Akers may have "felt" pressured to go to the Sisco home, Officer Roberts' actions would not lead a reasonable person to believe that he or she was under arrest or not free to leave. Instead, the trial court opined that Officer Roberts may have thought that Akers was being helpful. In sum, the trial court held that Officer Roberts did not arrest, detain, or imprison Akers and his conduct did not rise to the level of "outrageous conduct." Hence, the trial court granted Officer Roberts, the City of Pikeville, and the police department's motion for summary judgment and dismissed them from the action. Further, the trial court ordered that Akers pay their taxable costs.
Regarding the second appeal, the University of Pikeville and members of the security office filed a motion for summary judgment on August 25, 2014. After Akers' response, the trial court held a hearing on September 26, 2014. The trial court then entered summary judgment on October 6, 2014, in favor of the University of Pikeville, et al. In the order, the trial court observed that the officers from the University of Pikeville, who followed Officer Roberts' patrol car to the Sisco residence, did not get out of their vehicle or speak with Akers.
The trial court also established that when the University officers spotted Sisco in the passenger seat of Akers' vehicle at the Landmark Inn, they did not speak with her or tell her that she could not leave the scene. Therefore, the trial court held that the University's security personnel did nothing to lead Akers or any reasonable person to believe that he or she was arrested or detained nor did the officers' conduct arise to the level of "outrageous conduct."
The trial court continued its order and noted that regarding Akers' allegation of other bad acts including charges that the officers' behavior was racially motivated, no affirmative evidence was provided by Akers or her counsel to support this allegation. Lastly, concerning Akers' contentions that the University's security personnel were negligently hired, trained, and retained, the trial court concluded that these claims were without merit and dismissed Akers' complaint.
Akers now appeals from both summary judgments.
STANDARD OF REVIEW
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. In Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985), the Supreme Court of Kentucky held that for summary judgment to be proper the movant must show that the adverse party cannot prevail under any circumstances. Moreover, the Court has also stated that "the proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
We review the efficacy of a trial court's grant of summary judgment by determining whether the trial court erred in concluding that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001). And "[t]he record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, 807 S.W.2d at 480.
With these standards in mind, we turn to the case at bar.
ANALYSIS
On appeal, Akers offers four arguments disputing the decisions of the trial court. She maintains that the trial court judge erred in granting summary judgment because genuine issues of material fact exist; that the trial court judge erroneously granted summary judgment on the issue of false imprisonment; that the trial court judge erroneously granted summary judgment on the issue of outrageous conduct; and, that the trial court judge erred in permitting the appellees to recover taxable costs.
We begin our analysis by addressing Akers' contention that genuine issues of material fact exist. To support this proposition, Akers cites the contradictions between Officer Roberts' affidavit, dated December 6, 2013, and her affidavit, dated May 23, 2014. She characterizes the affidavits as "totally contradicting each other." Therefore, Akers maintains that genuine issues of material fact exist.
Our review of the entire record shows that Akers provided answers to interrogatories and a sworn affidavit, plus she participated in a deposition. There are discrepancies in her responses to these three documents. Hence, our appraisal of the record demonstrates that the only disputed facts arise from Akers' inconsistent statements. Inconsistent testimony by Akers cannot be used to defeat a motion for summary judgment. Moreover, her allegation that the trial court "cherry-picked" statements from her deposition does not alter the contradictions among the documents. Furthermore, this assertion alone does not prove that genuine issues of material fact exist. Notably, the last-in-time testimony by Akers is her deposition. This testimony, in light of the alleged torts, not only contradicts Akers' affidavit but also eliminates any genuine issue of material fact supported in the affidavit.
An example of the inconsistencies in Akers' interrogatory answers, affidavit, and deposition may be illustrated by her testimony concerning whether Officer Roberts asked her to help him at the campus. Interrogatory No. 12 states "please state every oral statement that Officer Roberts made to you during your contact with him on April 26, 2012, and any oral response that you made to Officer Roberts." Under oath, Akers answers "Plaintiff does not recall, will supplement according to Civil Rules."
But her affidavit describes the interchange as follows:
When we got there [Elizabeth's home], Roberts directed me to knock on the front door while he stood away. . . . Roberts then asked me to go around the house and knock on all the doors and windows.Contrasting her affidavit with Officer Roberts' affidavit, he says in his affidavit:
That during this encounter, Ms. Akers, on April 26, 2012, Mrs. Akers [sic] volunteered to go to Sara Elizabeth Sisco's residence at 114 South College Street and see if she was home. I accepted Mrs. [sic] Akers offer and the two of us left in our separate vehicles and proceeded [sic] Ms. Sisco's residence at 114 South College Street. Upon arriving at 114 South College Street, Katelyn Akers got out of her vehicle, went and knocked on the front door of the Sisco residence. No one answered so Ms. Akers went to the back door. Ms. Akers returned and told me that no one answered.
The final testimony about Officer Roberts' actions is found in Akers' deposition where she says that she offered to take Roberts to Sisco's home, that he did not ask her to knock on the doors, and that she voluntarily did so.
Undoubtedly, "[a]n affidavit which merely contradicts earlier testimony cannot be submitted for the purpose of attempting to create a genuine issue of material fact to avoid summary judgment." Gilliam v. Pikeville United Methodist Hosp. of Kentucky, Inc., 215 S.W.3d 56, 62-63 (Ky. App. 2006). Initially, Akers stated in her interrogatory answers that she does not recall Officer Roberts' statement. This is a sworn statement. She then later changed the admission by entering a conflicting affidavit. Additionally, the affidavit with its obvious contradiction seems to purposely attempt to create a material issue. And then the deposition contradicts the affidavit. Akers cannot create disputed facts by giving multiple sworn statements that are different versions of her own testimony.
Moreover, Akers' assertions that, although she was not detained, she was fearful during the encounters, do not create material issues of fact. As stated by our Court in Haugh, "[a] party's subjective belief about the nature of the evidence is not the sort of affirmative proof required to avoid summary judgment." Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007). Therefore, in our de novo review of these matters, we do not believe that the trial court erred in granting summary judgment in the two cases because when no genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law. CR 56.03.
Having determined that no genuine issues of material fact exist and that summary judgment is appropriate, it is not difficult to also conclude that Akers' claim of false imprisonment must also be dismissed. Kentucky cases define false imprisonment as being any deprivation of the liberty of one person or detention by another without the person's consent whether done by actual violence, threats or otherwise. Banks v. Fritsch, 39 S.W.3d 474, 479 (Ky. App. 2001) (citations omitted). To sustain a recovery for the tort of false imprisonment, a complainant must establish that he was detained and that the detention was unlawful. Great Atlantic & Pacific Tea Co. v. Smith, 281 Ky. 583, 136 S.W.2d 759, 767 (1939). Moreover, restraint occurs if it arises out of words, acts, gestures, which induce reasonable apprehension that force will be used on a person if they do not submit. McDonald's Corporation v. Ogborn, 309 S.W.3d 274 (2009). Here, we have concluded that Akers was not detained, and thus, she has the burden to establish that the actions or words of the appellees would cause a reasonable person to believe that they were not free to leave. Akers did not do so.
Akers maintains that the facts of her case are similar to those in McDonald's. We disagree. Ogborn was detained and under duress and threat of arrest. Subsequently, she agreed to be questioned and strip searched. First, Akers was never detained. She could have left at any time; she acted voluntarily; and, she averred no harmful acts which were committed against her.
Moreover, regarding statements that might lead her to believe she was detained, in the initial contact, Officer Roberts' statements are not threatening or suggestive. And the University security, by her own testimony, never spoke to her. In the second incident, Officer Roberts was not present; she proffers no complaint about the city police in arresting her friend, and again, the University security never stated she could not leave, or in fact, even spoke to her.
Additionally, we are troubled by the description of the events in both of Akers' briefs in the discussion of false imprisonment, which are not supported by the record:
In the instant case, the Plaintiff was followed by Officer Roberts, who waited until she was alone and in front of the campus security building to ask for back-up from Security Guard Cottle who had recently man-handled the Plaintiff's friend. Then, Officer Roberts who was being
tailed by security guard Cottle, stopped the Plaintiff by turning on his blue lights, which is the police officer's official method of stopping a vehicle who is believe to be engaged in wrong-doing. Then, Officer Roberts directed the Plaintiff to take certain actions and to go to certain places where the Plaintiff did not want to go and felt unsafe, i.e., to assist the officer in locating an alleged fugitive from justice.This statement is completely contrary to Akers' sworn deposition where she was directly asked about these events. Our Court cannot consider events stated in a brief, which is unsupported by the record. Ford v. Commonwealth, 472 S.W.2d 261 (Ky. 1971). Further, we are troubled by the discrepancy. Undoubtedly, events are interpreted differently by opposing parties to an issue, but Akers herself stated in her deposition that Officer Roberts did not direct her to knock on the doors or that he insisted that she pound on the doors of the house.
. . . .
In the instant case, the Plaintiff, Ms. Akers, feared the authority of one real police officer and one fake officer with a badge. She repeated [sic] asked the officer to permit her [sic] call the owner of the residence, Mr. Sisco, but the Officer(s) insisted that Plaintiff continue to pound on the door of the house, peer in the windows, and go around back of the residence, while they stood back.
Next, Akers maintains that the trial court erred by granting summary judgment on the issue of outrageous conduct. She again references the McDonald facts as similar to her situation. The tort of outrageous conduct, also referred to as the intentional infliction of emotional distress ("IIED"), is described as "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to others results from it, for such bodily harm." Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984) (quoting Restatement (Second) of Torts § 46). To recover for IIED, a plaintiff must establish the following elements: (1) the wrongdoer's conduct was intentional or reckless; (2) the conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; (3) there must be a causal connection between the wrongdoer's conduct and the emotional distress; and, (4) the distress suffered must be severe. Osborne v. Payne, 31 S.W.3d 911, 913-14 (Ky. 2000).
Again, we are not persuaded by Akers' arguments that the actions of the appellees in this case meet the necessary legal elements for this tort. She makes conclusory statements about the officers' actions and her reactions, but provides no evidence of the intent to commit outrageous actions that result in extreme emotional distress. The police officers asked her about the location of her friend. She volunteered to go there. Later, she saw her friend arrested on a valid bench warrant. At no time was she threatened, harmed, or detained nor did she provide any evidence establishing extreme distress on her part. In fact, when Akers was deposed, she was working in Pikeville and drove to her job every day. Moreover, in her deposition, she observed that she had not sought counseling or any treatment for distress. Again, the trial court properly granted the summary judgment since Akers was unable to establish any genuine issue of material fact substantiating outrageous conduct.
Lastly, Akers proffers that the trial court erred by permitting the appellees to recover taxable costs. She contends that there is no statutory authority for the recovery of taxable costs in this type of case, and thus, the award is merely punitive and contrary to the interests of justice. The appellees respond that such a recovery is authorized by Kentucky Revised Statutes (KRS) 453.040, which provides that a successful party in any action shall recover costs unless not permitted by another law. KRS 453.040(1). We agree. In these cases, the appellees were the successful parties, and no law exists to deprive them of an award of their costs. Hence, the trial court properly awarded them taxable costs.
CONCLUSION
Reviewed de novo, the appellees have shown that Akers "could not prevail under any circumstances" and therefore, summary judgment is "appropriate." Steelvest, 807 S.W.2d at 480. The orders of the Pike Circuit Court are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Diana Carter Wiedel
Williamson, West Virginia Eugene Sisco, Jr.
Pikeville, Kentucky BRIEF FOR APPELLEES,
TIMOTHY ROBERTS AND CITY
OF PIKEVILLE: Russell H. Davis, Jr.
Pikeville, Kentucky BRIEF FOR APPELLEES,
UNIVERSITY OF PIKEVILLE, ET
AL.: Donald L. Jones
Paintsville, Kentucky Donald L. Combs
Pikeville, Kentucky