Opinion
NO. 2019-CA-000859-MR
07-02-2020
REBECCA HARGROVE, AS GRANDMOTHER, GUARDIAN, AND NEXT FRIEND OF R.S., A MINOR APPELLANT v. MICHAEL KELLY, JEFFREY MARSHALL, AND DIANE ELDER APPELLEES
BRIEFS FOR APPELLANT: Teddy B. Gordon Andrew E. Mize Peter Jannace Louisville, Kentucky BRIEF FOR APPELLEES: Mark S. Fenzel Dana L. Collins Katherine T. Reisz Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 16-CI-004404 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES. DIXON, JUDGE: Rebecca Hargrove, as grandmother, guardian, and next friend of R.S., a minor, appeals from orders of the Jefferson Circuit Court granting summary judgment in favor of Michael Kelly, Jeffrey Marshall, and Diane Elder (collectively, "Administrators") and denying her motion to alter, amend, or vacate, entered on December 21, 2018, and May 1, 2019, respectively. Following review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
R.S. entered sixth grade at Crosby Middle School in 2015 and was bullied, verbally harassed, and physically assaulted by other students at school. In November 2015, student A. picked R.S. up and threw him down the stairs, injuring his ankle. In December 2015, R.S. was tripped by an unknown classmate, causing him to fall into his desk and injure his right thumb and hand.
Hargrove became aware of the abuse at school, and on March 9, 2016, contacted sixth-grade counselor Diane Elder and reported that R.S. had been bullied and thrown down the stairs. The following day, Elder spoke with R.S. at school. R.S. gave the name of a witness but could not remember in which stairwell the incident occurred. Elder interviewed the witness, who did not recall the stairwell event, but did recall a different incident in which student J. shoved R.S. to the ground. Elder confronted J. and called his mother. J. admitted to the misconduct and was disciplined by the school. R.S. also told Elder other students had called him gay. Elder spoke with these students and advised that their behavior was unacceptable, and they agreed to stop.
On March 22, 2016, R.S. filled out an incident report, stating that student R.B. threatened to cut his head off and push him down the stairs, and that R.B. actually pushed him in a stairwell. R.S. listed two witnesses to these events. Elder interviewed the witnesses and obtained a written statement from each. Neither of the witnesses heard or saw what R.S. alleged; therefore, R.B. was not disciplined by the school.
In late March 2016, student K.W. physically assaulted R.S. on multiple occasions, including punching him in the stomach. K.W. also repeatedly antagonized R.S. about his mother and his shoes. On April 22, 2016, K.W. assaulted R.S. again, punching him and striking him with a band stand. R.S. went to the hospital the same day. On May 2, 2016, pursuant to a release signed by the family, R.S.'s doctor called the school to discuss his treatment with Elder and Assistant Principal Jeffrey Marshall. The doctor advised that R.S.'s jaw had been x-rayed after the April 22, 2016, incident at school, but the x-ray was normal. Marshall investigated this report, speaking with R.S., Hargrove, and witnesses, and noted that K.W. was not the same student involved in the stairwell incidents previously reported by R.S. Marshall testified R.S. had no marks, bruises, or other injuries from the altercation. Marshall suggested peer mediation "since this was a one[-]time issue," but R.S. did not return to school, and peer mediation never commenced. K.W. was, however, required to serve in-school suspension.
Marshall did not begin working for Crosby Middle School until April 6, 2016.
This is disputed by Hargrove who asserts R.S. suffered a swollen and bruised jaw following this incident.
On September 12, 2016, Hargrove filed suit against the Administrators—in their individual capacities—for negligence, negligent supervision, and/or negligence per se. The Administrators answered, affirmatively pleading immunity defenses. Written discovery was conducted, and the Administrators moved the court for summary judgment. After the matter was fully briefed, the court granted summary judgment in favor of the Administrators, finding they were entitled to qualified official immunity. Hargrove then moved the court to alter, amend, or vacate its order granting summary judgment. The motion was denied, and this appeal followed.
STANDARD OF REVIEW
Summary judgment is appropriate "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." CR 56.03. An appellate court's role in reviewing a summary judgment is to determine whether the trial court erred in finding no genuine issue of material fact exists and the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de novo because factual findings are not at issue. Pinkston v. Audubon Area Community Serv., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006).
Kentucky Rules of Civil Procedure. --------
It is well-established that a party responding to a properly supported summary judgment motion cannot merely rest upon the allegations in his pleadings. Continental Casualty Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky. 1955). The party opposing summary judgment "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 481 (Ky. 1991) (citations and internal quotation marks omitted). "[T]he 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." Id. at 480.
ANALYSIS
On appeal, Hargrove contends the trial court erred by determining the Administrators were entitled to qualified immunity. The standards for immunity are well-settled:
"Official immunity" is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions. It rests not on the status or title of the officer or employee, but on the function performed. . . . [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 functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee's 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. . . .Yanero v. Davis, 65 S.W.3d 510, 521-22 (Ky. 2001) (citations omitted).
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 officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.
Here, absolute immunity is unavailable as a complete defense because the Administrators were not sued in their representative capacities. Therefore, we must determine what qualified immunity the Administrators enjoy, if any, as an affirmative defense to the claims against them. Qualified official immunity "rests not on the status or title of the officer or employee, but on the function performed." Id. at 521 (citation omitted). Hargrove argues that even though Kelly, Marshall, and Elder were school administrators, the acts they performed concerning R.S. were ministerial. She contends they—especially Elder and Marshall—were each personally involved in student supervision and responding to R.S.'s repeated complaints of abuse by students.
A "government official performing a ministerial duty does so without particular concern for his own judgment; or, as we said in [Marson v. Thomason, 438 S.W.3d 292, 297 (Ky. 2014)] the act is ministerial 'if the employee has no choice but to do the act.'" Patton v. Bickford, 529 S.W.3d 717, 724 (Ky. 2016). By contrast, "discretionary acts are those performed at the policy-making level, but acts performed at the operational level are included within this category as well." Id. "Promulgation of rules is a discretionary function; enforcement of those rules is a ministerial function." Williams v. Kentucky Dept. of Educ., 113 S.W.3d 145, 150 (Ky. 2003), as modified (Sept. 23, 2003) (citing Yanero, 65 S.W.3d at 529). KRS 161.180(1) provides:
Each teacher and administrator in the public schools shall in accordance with the rules, regulations, and bylaws of the board of education made and adopted pursuant to KRS 160.290 for the conduct of pupils, hold
pupils to a strict account for their conduct on school premises[.](Emphasis added.) The Crosby Middle School bullying policy reads, in pertinent part:
Students shall not engage in such behaviors as hazing, bullying, menacing, taunting, intimidating, verbal or physical abuse, or making threats. . . . The consequences for such an offense will follow the [Jefferson County Public Schools (JCPS)] Code of Acceptable Behavior and Discipline and Student Bill of Rights. Students who violate this policy are subject to short/long term suspension or referral for alternative placement.The 2015-16 JCPS Code of Acceptable Behavior and Discipline and Student Bill of Rights provides:
Students shall not engage in such behaviors as hazing, bullying, menacing, taunting, intimidating, verbal or physical abuse, or making threats. . . . Students who violate this policy shall be subject to appropriate disciplinary action.The JCPS Code also has a section addressing the role of the school guidance counselor, which states, "It is recommended that the guidance counselor be notified of referrals and disciplinary action taken."
This case is factually and legally similar to Patton in some respects. In Patton,
[w]e noted in Marson that school principals have a "duty to provide a safe school environment, but they are not insurers of children's safety." 438 S.W.3d at 299. The duty is discretionary because it is "so situation specific,
and because it requires judgment rather than a fixed, routine performance." Id. Ordinarily, the duty is "exercised most often by establishing and implementing safety policies and procedures." Id. There is a "qualitative difference in actually [supervising students] and assigning someone to fill that task." Id. The Administrators are a degree removed from the actual execution of the policies. Instead, their role is to monitor the implementation of the policies and react as needed. Disciplining students for policy violations is likewise a discretionary function.
Principal Bickford had only a general supervisory duty over the students. Although at times she helped to monitor the cafeteria during lunchtime, her role as principal did not entail the specific supervision required of the Teachers. . . .
. . .
The duty to report bullying is clearly ministerial . . . .
. . .
Our research discloses only one instance in which we determined a teacher's supervisory duty which combined a ministerial task with a degree of discretion to be a discretionary duty. Turner v. Nelson, 342 S.W.3d 866 (Ky. 2011), is an atypical case. Turner involved a kindergarten teacher with statutory duty to report suspected sexual abuse if she knew or had reasonable cause to believe that a child was abused. Id. at 877. The alleged abuse involved a five-year old kindergartener's touching of a five-year old playmate. Determining whether to report the incident as sexual abuse required investigating the facts, weighing the credibility of the children, and exercising judgment to discover if the alleged actions of the five-year old could even qualify as "sexual abuse." The degree of discretion required is evident and clearly outweighs the ministerial duty of
making a binary decision to report the incident or not. This case is far different. ACMS policy provided a list of specific conduct considered to be bullying and required the reporting of any listed act. No discretion or judgment was required to determine if specific conduct qualified as bullying. Turner is different and so it results in a different conclusion.Patton, 529 S.W.3d at 727-28 (emphasis added; footnote omitted). Here, the principal's role was even more removed as he had no direct involvement with the students involved in this case. Although Hargrove made blanket allegations against Principal Kelly in her pleadings, she has directed us to no evidence specifically showing that he engaged in any activities involving R.S.'s complaints of bullying—discretionary, ministerial, or otherwise. Consequently, summary judgment against Principal Kelly is proper, even if not on the grounds of immunity. As it concerns Elder and Marshall, however, they did not perform the ministerial duty of reporting incidents of abuse and/or bullying. Instead, they investigated complaints made to them and disciplined students for policy violations. Therefore, for the reasons discussed in Patton, their acts were discretionary and afforded qualified official immunity. Thus, the trial court did not err in granting summary judgment.
The duty of the Teachers to report bullying was ministerial and so they lack the protection of qualified immunity. That is, of course, not to say they are liable. They, and others similarly situated, may have defenses; they simply are not immune from suit. Plaintiffs have the burden of establishing a prima [facie] case of negligence in the breach of the applicable ministerial duty.
CONCLUSION
Therefore, and for the foregoing reasons, the orders entered by the Jefferson Circuit Court are AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Teddy B. Gordon
Andrew E. Mize
Peter Jannace
Louisville, Kentucky BRIEF FOR APPELLEES: Mark S. Fenzel
Dana L. Collins
Katherine T. Reisz
Louisville, Kentucky