Opinion
NO. 2012-CA-001737-MR
06-27-2014
COUNTY OF BOYD, KENTUCKY; KEITH ROBINETTE, individually and in his official capacity as Boyd County Road Supervisor APPELLANTS v. PAULA QUALLS, individually and as next friend and guardian of David Qualls APPELLEE
BRIEFS FOR APPELLANTS: Phillip Bruce Leslie Greenup, Kentucky BRIEF FOR APPELLEE: Michael B. Fox Olive Hill, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYD CIRCUIT COURT
HONORABLE GEORGE DAVIS, JUDGE
ACTION NO. 09-CI-01465
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, DIXON, AND VANMETER, JUDGES. VANMETER, JUDGE: Appellants appeal from the Boyd Circuit Court order which denied their motion for summary judgment on the basis that Boyd County and Keith Robinette were not immune from suit from Paula Qualls's negligence action. After extensive review of the record and applicable law, we reverse and remand this case with instructions for the trial court to enter an order granting summary judgment in favor of Appellants.
County of Boyd, Kentucky; Keith Robinette, individually and in his official capacity; Kentucky Farm Bureau Mutual Insurance Company; and State Farm Mutual Automobile Company. When referring to all appellants we will use the term "Appellants" for convenience purposes. We will identify each appellant individually when appropriate.
Appellee is Paula Qualls, individually and as next friend and guardian of David Qualls, her son.
On November 13, 2007, Qualls was taking her son, David, to school via Hall Ridge Road in Boyd County, Kentucky. As Qualls descended a hill, she noticed "a little pile" of rock and debris and some other substance creating sheen on the right side of her lane of travel. Suddenly, she felt the car jerk out of her hands, lost control of the vehicle, and wrecked. Qualls sustained personal injuries from the motor vehicle accident and filed suit against Appellants, alleging that the accident, and her personal injuries, were caused by the negligence of Boyd County and Keith Robinette, who at the time of the accident was employed as the Boyd County road supervisor.
Qualls's complaint alleged that Hall Ridge Road conditions were unsafe, and that Boyd County and Robinette negligently constructed the road with such a steep grade as to cause the road to be unreasonably dangerous to motorists using the road; negligently failed to provide guardrails on the road; negligently failed to warn motorists of the road's dangerous nature; negligently failed to inspect the road for dangerous conditions; negligently failed to guard the area of the road where potholes were located and where substances such as gravel, oil, and grease had collected; and negligently failed to warn motorists of the presence of such potholes and substances. Qualls alleged the Boyd County road crew had performed work on Hall Ridge Road eight days prior to her accident and had left rock and debris in the road, which she asserts caused her accident.
Following discovery, Appellants moved for summary judgment on grounds of immunity and Qualls's failure to identify the alleged substance in the road, or otherwise prove the substance was a substantial factor in causing her injuries. The trial court denied Appellants' motion, on grounds that Qualls's allegations of negligent maintenance, repair or care of a county roadway were ministerial in nature so as to deprive Boyd County and Robinette of immunity. The trial court found that Boyd County had a ministerial duty to act in a non-negligent manner in maintaining its roadways and that the questions of whether the Boyd County road crew had left debris in the road, and whether the debris caused Qualls's accident, created a genuine issue of material fact to be resolved by a jury. Accordingly, the trial court concluded that summary judgment was not appropriate. This appeal follows.
CR 56.03 provides that summary judgment is appropriate when no genuine issue of material fact exists and the moving party is therefore entitled to judgment as a matter of law. Summary judgment may be granted 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 and against the movant." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (internal quotations omitted). Whether summary judgment is appropriate is a legal question involving no factual findings, so the trial court's grant of summary judgment is reviewed de novo. Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370-71 (Ky. 2010).
Kentucky Rules of Civil Procedure.
In denying Appellants' motion for summary judgment, the trial court relied on the case of City of Frankfort v. Byrns, 817 S.W.2d 462 (Ky. App. 1991) for the rule that once a town decides to make improvements, "the town must exercise ordinary care to prevent injury to property owners and protect their rights." Id. at 464. Applying Byrns to the instant case, the trial court determined that once Appellants decided to maintain the roadways (a discretionary decision), their acts or omissions in doing so were ministerial in character so as to deny them immunity.
Byrns is distinguishable from the present case. Byrns addressed the City of Frankfort's immunity from suit per KRS 65.2001, which applies to actions in tort against local governments. Boyd County, unlike a city or municipality, is cloaked with sovereign immunity, which flows from the Commonwealth's inherent immunity by virtue of a Kentucky county's status as an arm or political subdivision of the Commonwealth. Lexington-Fayette Urban County Gov't v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004). As a result, the trial court's reliance on Byrns as dispositive of the issues at hand was misplaced.
Kentucky Revised Statutes.
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Further, Robinette is clothed in absolute immunity since his actions in a representative (official) capacity fall under the umbrella of the sovereign immunity afforded to Boyd County. Yanero v. Davis, 65 S.W.3d 510, 521-22 (Ky. 2001); Estate of Clark ex rel. Mitchell v. Daviess County, 105 S.W.3d 841, 844 (Ky. App. 2003). In other words, any action against Robinette in his official capacity is essentially an action against the county, which is barred by sovereign immunity. Clark, 105 S.W.3d at 844. Accordingly, summary judgment in favor of Boyd County and Robinette, in his official capacity, is warranted.
Regarding Qualls's allegations against Robinette in his individual capacity, Robinette "will be cloaked in qualified official immunity only if his alleged negligence occurred during his good faith performance of a discretionary act within the scope of his employment" as county road supervisor. Bolin v. Davis, 283 S.W.3d 752, 757 (Ky. App. 2008). Kentucky law is clear that public employees will be accountable for ministerial acts performed within the scope of their employment, but will be immune from liability for discretionary acts performed in good faith. Id.
[W]hen sued in their individual capacities, public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment. Qualified official immunity applies to the negligent performance by a public officer or employee of (1) discretionary acts or function, i.e., those involving theId. at 757-58 (internal quotation and citation omitted).
exercise of discretion and judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employees [] authority. An act is not necessarily discretionary just because the officer performing it has some discretion with respect to the means or method to be employed. Qualified official immunity is an affirmative defense that must be specifically pled.
Conversely, an officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of others, or when the officers [] duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts. That a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in nature.
Similar to the case at bar, Bolin involved a negligence action against the county road engineer stemming from a single-vehicle accident. Id. at 758. The plaintiff's estate in Bolin alleged that the absence of a proper warning sign or guardrail at the curve in the road where the accident occurred caused the plaintiff's death and that the county road engineer was negligent in keeping the roadway in a reasonably safe condition for public travel. Id. This court determined that the county engineer's decision not to install a sign and/or guardrail at the location in question was a discretionary act for which qualified official immunity was available, rather than a ministerial act subjecting him to liability for alleged acts of negligence. Id.
The Bolin court pointed to the county engineer's deposition testimony that he had assessed the disputed location and determined a guardrail was not needed. He made this decision based on his experience, rather than any directive from the county. Bolin, 283 S.W.3d at 758. The county engineer further testified that county roads were inspected and reports of needed repairs were made weekly. Id. at 759. Based on the evidence, this court characterized the county engineer's action or inaction as a discretionary function and did not find the county engineer was merely obeying orders or executing "a specific act arising from fixed and designated facts." Id. (internal quotations and citation omitted). Rather, the county engineer had choices in determining the best means of guarding the county road and made a "good faith judgment call" amounting to a discretionary act for which he enjoyed qualified official immunity. Id. at 760. As a result, this court affirmed the trial court's decision to grant summary judgment in his favor. Id.
In so ruling, the Bolin court discussed Clark, 105 S.W.3d 841, which also involved a single-vehicle accident and allegations of negligence on the part of the county road engineer and road foreman in inspecting, repairing, maintaining, warning, and guarding the county road where the accident occurred. In Clark, this court concluded that the Daviess County engineer and road foreman were entitled to qualified official immunity since their decision not to install a warning sign and/or guardrail required an exercise of discretion. Id. at 845. In reaching this conclusion, this court noted the county had developed a "comprehensive scheme to evaluate and to maintain county roadways" which included road inspections and a procedure for receiving recommendations for road improvements. Id. Whether to install a guardrail at the location of Clark's accident had been considered and rejected based on "fiscal factors and geographic considerations." Id. Based on the foregoing, this court held that the decision of whether to install a guardrail was discretionary in nature and was not merely "a matter of routine involving no policy-making decision or significant judgment." Id.
However, with respect to the alleged failure to replace a proper warning sign at the area of the roadway in question, the Clark court held that this action (or inaction) was ministerial in nature. Clark, 105 S.W.3d at 846. Testimony indicated a warning sign was necessary at the disputed location and in fact had been installed there previously. Id. Testimony further established that money for sign expense was readily available in the road department budget and employees did not need fiscal court approval to maintain such signs, when necessary for the safe condition of the roadway. Id. This court held that the action (or inaction) of the county road department regarding replacement of warning signs did not involve a good faith judgment call in a legally uncertain environment, but rather required only obedience to the orders of others, a duty involving mere execution of a specific act arising from fixed and designated facts. Id. Based on evidence that the warning sign of the curve in the road was down and required immediate replacement, and evidence supporting the plaintiff's allegation that Clark's death stemmed from the possible negligence of county road department employees, this court determined that qualified official immunity did not apply to the claim regarding replacement of the warning sign. Id. Summary judgment on that basis was therefore improper. Id.
Here, Robinette specifically pled qualified official immunity in his answer to Qualls's complaint. In his deposition, Robinette testified that as road foreman, he had discretion to decide where to place a guardrail, unless otherwise directed by the fiscal court. He stated he was not directed by the fiscal court to place a guardrail at the location in question and that he exercised his judgment, in good faith, not to place a guardrail there. Robinette testified that the decision to place guardrails in certain locations was not made until funding and guardrail materials were available. Once available, he had to prioritize which areas in the county would receive the limited supply of guardrails. Given the hilly terrain in Boyd County, he believed guardrails could probably be useful everywhere.
That being said, Robinette did not recall the spot in question being considered for a guardrail. To his recollection, Hall Ridge Road was in good condition at the time of the accident and no complaints had been received about the condition of the road. Robinette testified that upon arriving at the scene of the accident shortly after it occurred, he did not see anything he considered hazardous - oil or hydraulic fluid - in the road and did not know the source of the alleged small pile of rocks in Qualls's lane of travel.
The record also contains the deposition testimony of Sandy Rose, who worked in the Boyd county road department office at the time of Qualls's accident. Rose's job responsibilities include placing orders for materials and documenting complaints/requests for work to be performed on particular roads. When she receives a complaint, she fills out a complaint form and places the form on the road foreman's desk to review and then visit the complained of location, or have his assistant road foreman visit it. If a job is required and completed, the complaint form is then filed. Rose testified that she did not recall receiving any complaints about Hall Ridge Road or recall any work being performed on the road during the week leading up to Qualls's accident.
Keith Smallridge, storm water coordinator for Boyd County, testified by way of deposition that he would assist Robinette with investigating road complaints when he was not occupied with storm water work. Smallridge testified that he had lived in Boyd County all of his life, was familiar with the portion of Hall Ridge Road where Qualls's accident occurred, and did not know of any other accidents that had occurred at that location. Smallridge testified that after the accident, the department did not receive any calls requesting that the road be cleaned because it was dirty or dangerous. Smallridge stated he did not believe that area of the road was dangerous or in poor condition and could not recall any work performed on Hall Ridge Road during the week leading up to the accident.
Qualls testified that she travels Hall Ridge Road to access her house and has travelled the road hundreds of times. She testified that on the morning of the accident, the weather was drizzling rain, a "misty-like" condition, and that it had rained the night before. She further testified that Hall Ridge Road is a black asphalt road. Qualls stated that at the top of the road's downhill curve, she hit rock and debris that was in the right side of her lane of travel, and then slid on oil or something that caused her vehicle to slide down the hill. The last thing she remembers is feeling the car jerk out of her hands and losing control of the vehicle. She does not recall seeing any county vehicles on the road that morning and does not know how the rocks got on the road. Nor is she aware of anyone having an accident at this area of the road, before or after her accident, because of rock and debris. She testified that she believes the absence of a warning sign and guardrail at the curve contributed to her accident and that Hall Ridge Road is very steep.
Based on the foregoing, we find Robinette exercised his sound judgment, in good faith, by not installing a guardrail and/or warning sign at the site where Qualls's accident occurred. The record shows his decision not to place a guardrail and/or sign at the location in question was based on consideration of fiscal factors, availability of materials, and the necessity of placing it at that particular location, as opposed to other locations. The road department had not received any complaints about the condition of the road and Robinette had received no directive to install a guardrail and/or sign at this location. Thus, his decision not to do so was discretionary and he is entitled to qualified official immunity. The trial court erred as a matter of law by not granting summary judgment in his favor with respect to the claims asserted against him in his individual, as well as official, capacity.
The order of the Boyd Circuit Court is reversed and the trial court is directed on remand to enter an order granting summary judgment in favor of Appellants.
ALL CONCUR. BRIEFS FOR APPELLANTS: Phillip Bruce Leslie
Greenup, Kentucky
BRIEF FOR APPELLEE: Michael B. Fox
Olive Hill, Kentucky