Opinion
NO. 2015-CA-000021-MR
02-12-2016
TAMMY DURHAM, ADMINISTRATRIX OF THE ESTATE OF CHARLES M. DURHAM, DECEASED APPELLANT v. DAVID GOOCH APPELLEE
BRIEFS FOR APPELLANT: Richard Clay Danville, Kentucky BRIEF FOR APPELLEE: Stacey A. Blankenship Kristen N. Worak Paducah, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE JEFFREY THOMAS BURDETTE, JUDGE
ACTION NO. 11-CI-00232 OPINION
AFFIRMING BEFORE: NICKELL, STUMBO AND VANMETER, JUDGES. STUMBO, JUDGE: Tammy Durham, Executrix of the Estate of Charles M. Durham, Deceased, appeals from Findings of Fact, Conclusions of Law and Order Granting Defendant's Motion for Summary Judgment rendered in Lincoln Circuit Court. She filed the instant action against Lincoln County Jailer David Gooch, in both his individual and official capacities, alleging that Charles Durham's suicide while in custody of the Lincoln County Jail resulted from Gooch's failure to exercise reasonable care to keep Durham safe. Tammy Durham argues that Summary Judgment was improperly rendered because Gooch breached his duty to prevent Charles Durham from harming himself, and that Gooch is not immune because his compliance with jail standards and policies is ministerial rather than discretionary. For the reasons stated below, we find no error and AFFIRM the Summary Judgment on appeal.
On May 6, 2010, Charles M. Durham ("Durham") died as a result of injuries he sustained during a suicide attempt while incarcerated in the Lincoln County Jail. Durham's mother, Tammy Durham ("Appellant") was appointed Executrix of his Estate. On May 20, 2011, she filed the instant wrongful death action in Lincoln Circuit Court alleging that Durham's suicide was the result of acts or omissions of Lincoln County Jailer David Gooch ("Appellee").
At the time of Durham's incarceration on April 28, 2010, Appellee was aware that Durham had attempted suicide approximately ten years prior. When Durham entered the custody of the Lincoln County Jail in 2010, he denied that he was experiencing any health conditions that would require medical attention. He also denied being suicidal. The record indicates that Appellee spoke with Durham on three occasions on April 28, 2010, at which time Durham again said he was not suicidal and stated that he was mentally prepared for his incarceration.
In December, 2009, and prior to the events at issue, Durham was incarcerated in the Lincoln County Jail on other charges. At that time, Durham had been placed on a suicide watch for about thirteen hours after intentionally hitting his head against a cage. At the end of the suicide watch, Durham was interviewed by a mental health professional and transferred back to the general prison population after it was determined that he was not suicidal. No evidence was presented that Appellee was aware of this incident, nor that any jail procedures or policies required the jail staff to so inform Appellee.
During the April, 2010 incarceration, inmate Robert Thomas Dean was incarcerated in the same cell as Durham. He would later testify that on the night before Durham's suicide, Durham gave no indication that he was suicidal and was "cutting up and joking" with the other inmates. On the day before Durham's suicide, telephone conversations between Durham and two other individuals were recorded. During these conversations, Durham threatened to hang himself. However, neither individual reported this threat to the Lincoln County Jail.
On Sunday, May 2, 2010, an inmate found Durham in his cell, hanging from the neck by a bed sheet that he had fashioned into a noose. Inmates summoned the jail staff, who cut the sheet and lowered Durham to the ground. Durham was transported by EMS to Fort Logan Hospital, and then transferred to the University of Kentucky Medical Center. He died four days later from a brain injury due to strangulation.
On May 20, 2011, Appellant filed the instant action in Lincoln Circuit Court alleging that Durham's suicide resulted from Appellee's failure to exercise reasonable care to keep Durham safe. Following discovery, Appellee filed a Motion for Summary Judgment. On December 5, 2014, the Lincoln Circuit Court rendered Findings of Fact, Conclusions of Law and Order Granting Defendant's Motion for Summary Judgment. As a basis for the Order, the court determined that Appellant could not establish the requisite elements to support a negligence claim and, even if she could, Appellee would nevertheless be entitled to qualified immunity. The court reasoned that Appellant failed to produce any evidence that Appellee had breached a duty to Durham, because Appellee had not been involved in Durham's booking and had no reason to know that Durham allegedly was at a risk of harm. It stated that,
[a]t best, even if Gooch was negligent, it appears that his decision to house Durham in a general population cell rather than on suicide watch was an "honest mistake or oversight," which the Kentucky Supreme Court has ruled is insufficient to establish bad faith. Even Plaintiff, in her Response to Motion for Summary Judgment, calls Gooch's decision a "mistake."This appeal followed.
Appellant now argues that the Lincoln Circuit Court erred in sustaining Appellee's Motion for Summary Judgment. She first contends that the court improperly concluded that "[p]laintiff has failed to bring forth evidence to establish an issue of fact as to whether Gooch breached a duty owed to Durham." Appellant asserts that the law imposes upon a jailer the duty to exercise reasonable and ordinary care and diligence to prevent unlawful injury to a prisoner in his custody, and that Appellee was negligent in failing to carry out this duty. She maintains that Appellee had both constructive and actual knowledge that Durham was at a high risk of suicide. She claims that the jail had a well-established protocol for the detection of suicide risk and for the prevention of suicide while in custody, and that Appellee breached that duty. Appellant contends that Appellee admitted knowing that Durham had attempted suicide several years before, and that Durham had consumed a controlled substance prior to booking. The substance of her claim of error is that Appellee knew or should have known that Durham was at a high risk of suicide, that the failure to prevent the suicide constituted a breach of Appellee's duty to protect Durham, and that the trial court erred in rendering Summary Judgment on this issue.
A jailer has a duty to exercise reasonable and ordinary care to prevent injuries to inmates. Rowan County v. Sloas, 201 S.W.3d 469, 479 (Ky. 2006). However, a jailer is not negligent in failing to prevent what he could not reasonably anticipate. Id. "In order to prove that a jail employee is liable for negligence in a suicide attempt, the employee must either know or have reason to know that the prisoner is at risk of harm and fail to take reasonable care to prevent the prisoner from harm." Jerauld ex rel. Robinson v. Kroger, 353 S.W.3d 636, 640 (Ky. App. 2011)(citing Sudderth v. White, 624 S.W.2d 33 (Ky. App. 1981)). In order to prevail on a claim of negligence, the plaintiff must prove 1) a duty of care owed by the defendant, 2) conduct constituting a breach of that duty, 3) resultant injury and 4) causation between the breach and the injury. Lewis v. B & R Corp., 56 S.W.3d 432, 436-37 (Ky. App. 2001).
Additionally, summary judgment "shall be rendered forthwith 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. "The 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, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Id. "Even though a trial court may believe the party opposing the motion may not succeed at trial, it should not render a summary judgment if there is any issue of material fact." Id. Finally, "[t]he standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues 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).
In support of her claim that Summary Judgment was improperly rendered, Appellant directs our attention to evidence that, 1) Durham attempted suicide some ten years before, 2) that he was placed on a suicide watch for thirteen hours in December, 2009, during a prior period of incarceration, and 3) he took a 7.5 mg Percocet on the day of his 2010 arrest. Even when viewing the record in a light most favorable to Appellant and resolving all doubts in her favor, we must conclude that the Lincoln Circuit Court correctly found that there were no genuine issues as to any material fact, and that Appellee was entitled to judgment as a matter of law.
Durham's 2009 suicide watch was lifted when he stated that he was not suicidal, and Appellee asserts that Durham had a prescription for the Percocet he consumed on the day of his arrest. The record contains no evidence that Appellee knew or had reason to know that Durham was at a risk of harming himself on May 2, 2010. Durham expressly denied being suicidal on more than one occasion during and after the booking process. Deputy Barbary Rowland booked Durham in the jail and found no basis for requesting a mental health evaluation by Comprehensive Care. Additionally, even if Comprehensive Care had been utilized, the record does not reveal that an evaluation would have resulted in a suicide watch or otherwise prevented Durham from killing himself. Though Durham called two individuals outside the jail and told them that he was contemplating suicide, this information was never relayed to Appellee or other prison employees. Even when considering these facts in a manner most favorable to Appellant and construing all doubts in her favor, we cannot conclude that the trial court erred in finding that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.
Appellant goes on to argue that the Lincoln Circuit Court erred in concluding that Appellee was entitled to qualified immunity in his individual capacity. While this argument is moot in light of our conclusion that the trial court properly rendered Summary Judgment on the underlying negligence claim, we have previously held that jailers may be entitled to qualified official immunity against a plaintiff's claim of negligence involving an inmate suicide. Jerauld, 353 S.W.3d at 641. In Jerauld, an inmate's father told arresting officers that his son might hurt himself. Later in prison, inmate Jerauld stated that he was having difficulty withdrawing from heroin, and a certified psychologist determined that Jerauld was a level III suicide risk. Like Durham, Jerauld told a third party via a phone call that he might harm himself, but denied to prison officials that he intended self-harm or suicide. After Jerauld was released to the general prison population, he attempted suicide by using a bed sheet to hang himself. He survived, but was left in a permanent vegetative state.
Appellant sued Appellee in both his official and individual capacities. During the pendency of the proceeding, Appellant conceded that the claims against Appellee in his official capacity must be dismissed under the doctrine of sovereign immunity.
In considering the issue of qualified official immunity in Jerauld as to two prison employees, a panel of this Court held as follows:
Appellant argues that [prison employees] Parker and Sams were obligated to take specific acts in dealing with him since he was at risk for suicide. Thus, Appellant contends their acts were ministerial. It is important to note, however, that both contend they did not believe him to be at risk for suicide. "[I]n the final analysis, the decision as to whether a public official's acts are discretionary or ministerial must be determined by
the facts of each particular case...." Caneyville Volunteer Fire Dept. v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 809 (Ky. 2009).
In this case, Sams and Parker made decisions regarding Jerauld's suicide risk based on observations they made.
Discretionary or judicial duties are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one of two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed.
Jerauld, 353 S.W.3d at 640-41.
Collins v. Commonwealth of Ky. Natural Resources and Environmental Protection Cabinet, 10 S.W.3d 122, 125 (Ky. 1999), quoting Franklin County, Ky. v. Malone, 957 S.W.2d 195, 201 (Ky. 1997), reversed on other grounds by Yanero [v. Davis], 65 S.W.3d [510] at 522 [(Ky. 2001)].
We find acts taken by Parker and Sams to be discretionary in nature and, therefore, both are entitled to qualified official immunity.
A party is entitled to qualified official immunity if his actions were 1) discretionary, 2) made in good faith, and 3) within the scope of the employee's authority. Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). --------
Jerauld is factually similar to the matter before us, and supports the trial court's conclusion that Appellee is shielded by qualified official immunity. We find no error. For the foregoing reasons, we AFFIRM the Lincoln Circuit Court's Findings of Fact, Conclusions of Law and Order Granting Defendant's Motion for Summary Judgment.
ALL CONCUR. BRIEFS FOR APPELLANT: Richard Clay
Danville, Kentucky BRIEF FOR APPELLEE: Stacey A. Blankenship
Kristen N. Worak
Paducah, Kentucky