Opinion
2014-SC-000425-DG
08-25-2016
MATT JONES AND LORI JONES APPELLANTS v. LARRY BENNETT, RUSSELL COUNTY SHERIFF, NICK BERTRAM, RUSSELL COUNTY DEPUTY SHERIFF, AND RUSSELL COUNTY, KENTUCKY APPELLEES
COUNSEL FOR APPELLANTS: Robert L. Bertram Bertram & Wilson Larry F. Sword Sword & Broyles COUNSEL FOR APPELLEES: Winter R. Huff Attorneys Services of KY, PLLC.
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. NOT TO BE PUBLISHED ON REVIEW FROM COURT OF APPEALS
CASE NO. 2012-CA-001780
RUSSELL CIRCUIT COURT NO. 10-CI-00267
MEMORANDUM OPINION OF THE COURT
AFFIRMING
We accepted discretionary review of this case to address whether a law enforcement officer's allegedly negligent investigation following a 911 report of a wildly reckless driver could subject the responding officer and his department to tort liability for personal injuries sustained when the driver ultimately struck the victim's automobile. The Court of Appeals agreed with the trial court that the officer's conduct was wholly discretionary in nature, shielding the officer and his department from tort liability under the doctrine of qualified official immunity. We agree with the conclusion reached by the courts below and affirm the Court of Appeals' decision.
FACTUAL AND PROCEDURAL BACKGROUND.
Russell County 911 dispatch received a call reporting a black Camaro passed them at a high rate of speed and appeared to have entered Twin Creek Estates, a sparsely populated residential development in a rural area. Sheriff's Deputy Nick Bertram was dispatched to investigate. Roughly twenty minutes after the 911 call, Deputy Bertram turned onto Wooldridge School House Road in search of the black Camaro. At that point in the sequence of events, there is no indication that Deputy Bertram had actually sighted the Camaro. Woolridge Schoolhouse Road, from what we can gather from the record, is a dead-end road.
Jones filed suit in circuit court against Deputy Bertram and the Russell County Sheriff's Office, as well as the Russell County Sheriff. When referring to Deputy Bertram throughout this Opinion, the other parties-defendant are included as well.
Wooldridge School House Road is technically a dead-end, but a number of side roads branch from it. One of those off-branching roads is Twin Creek Estates at the terminus of Wooldridge Road. Twin Creek Estates is a circle, beginning and ending at the terminus of Wooldridge. Wooldridge School House Road is labeled Woold Ridge Road on some maps, but it becomes "Wooldridge Road." The true name of this road is not clear in the record. For our purposes; well refer to it as "Wooldridge School House Road."
According to the dispatcher, during the search, "Nick called and said [the black Camaro] was down there at the residence, and the people that called it told him it was Ricky Lawless driving. So Bertram said he was going to sit there and wait on him to come back out." The record is unclear as to what "the residence" relates to, but we are left to assume it is a residence in Twin Creek Estates.
Instead of approaching "the residence," assuming that Deputy Bertram knew the location of the residence, Deputy Bertram decided to remain in his cruiser in the graveled parking area of a church situated at the mouth of Wooldridge School House Road—where it intersects U.S. Highway 127—to wait for the Camaro to emerge. After idling there briefly, Deputy Bertram saw the Camaro blow past him and turn out onto Highway 127. Within seconds after passing Deputy Bertram, the Camaro, later confirmed to be driven by Lawless, crashed into the vehicle driven by Jones.
The church was located some two miles away from Twin Creek Estates.
Jones filed this tort action against Deputy Bertram and the Russell County Sheriff's Office for the injuries he suffered in the crash. He alleged Deputy Bertram was negligent in failing to apprehend Lawless before the crash, essentially allowing—or, as Jones alleged, even promoting—a high-speed chase. The trial court granted Deputy Bertram's motion for summary judgment on immunity grounds. Jones appealed that decision, but the Court of Appeals agreed with the trial court.
ANALYSIS.
Summary judgment is appropriate "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." Summary judgment is improper, in other words, if there exists a genuine issue of material fact. Making this determination requires the trial court to view the evidence presented through a lens most favorable to the party opposing summary judgment—in this case, Jones. But the party opposing the motion must, "present[] at least some affirmative evidence showing that there is a genuine issue of material fact for trial."
Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013). Of course, "[i]mpossible is to be used in a practical sense, not in an absolute sense." Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992).
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Id. at 480.
As for our review, a summary judgment motion presents only questions of law and "a determination of whether a disputed material issue of fact exists." Our review is de novo with no deference afforded to the courts below.
Id. at 482
Qualified official immunity is simply "immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions." This type of immunity protects government officials from liability for the negligent performance of discretionary acts—those acts "involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment." It is not the role of the judiciary "to pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions."
Yanero v. Davis, 65 S.W.3d 510, 521 (Ky. 2001).
Knott Cnty. Bd. of Educ. v. Patton, 415 S.W.3d 51, 57 (Ky. 2013) (alterations omitted) (quoting Yanero, 65 S.W.3d at 522).
Yanero, 65 S.W.3d at 519.
Decisions about how to investigate and apprehend a criminal suspect are an example of discretionary conduct warranting qualified immunity. This case does not require a determination of whether Deputy Bertram was negligent in deciding to arrest the driver of the black Camaro or even whether he was negligent in his conduct after deciding to arrest the driver. There is no evidence Deputy Bertram ever reached the point of making a decision to arrest. According to the record, Deputy Bertram did not see the black Camaro until a few seconds before it collided with Jones. And Deputy Bertram did not illuminate his blue lights until the Camaro sped past him, mere seconds before the crash with Jones. Any argument that Deputy Bertram was negligent in pursuing or arresting Lawless is entirely unsupported by the facts of record. Instead, the crux of this case is whether Deputy Bertram was somehow negligent in his investigation of the facts reported by the 911 caller, i.e., looking for the Camaro; and, more directly, whether the investigation of possible criminal activity under the circumstances of this case is a discretionary act cloaked with qualified immunity.
See Jeffers v. Havrin, 10 F.3d 380 (6th Cir. 1993).
To his credit, Jones acknowledges that the decision to arrest is a discretionary act for qualified-immunity purposes. We assume that he would offer the same argument for the duty to investigate possible criminal activity. But Jones's argument derails immediately after this concession. Indeed, Jones would have this Court embrace the fantastic notion that any action a law enforcement officer takes after deciding to arrest a suspect is ministerial and subject to tort liability. This distorts the doctrine of qualified official immunity. No doubt the decision to arrest an individual is a discretionary one, and that decision does not operate simply as an entree to ministerial behavior.
We have not yet explicitly stated whether a law enforcement officer's investigation of an alleged crime is discretionary or ministerial. But we have dealt with other forms of investigation in various contexts—all of which we have held to be discretionary.
In Stratton v. Commonwealth, for example, the investigation of child-abuse allegations by the Cabinet for Families and Children was discretionary. "Such investigations do have certain mandated statutory requirements as to who shall be interviewed, etc., but they also involve discretionary decisions by the case workers, just as in police investigations." Likewise, we declared discretionary a teacher's investigation into a student's allegations of sexual abuse in Turner v. Nelson. In that case, we noted that Turner may have been statutorily directed to investigate such claims, but was provided no guidance on how to perform that investigation, in other words, Turner was granted "appropriate leeway to . . . investigate complaints by parents, or others, as to the conduct of their students, to form conclusions (based on facts not always known) as to what actually happened, and ultimately to determine an appropriate course of action." In our view, the present case is virtually indistinguishable from Turner v. Nelson.
182 S.W.3d 516 (Ky. 2006).
Id. at 521 (emphasis added).
342 S.W.3d 866 (Ky. 2011).
Id. at 875.
Deputy Bertram, to be sure, had a ministerial duty to respond to the 911 call and investigate the report of suspected criminal activity—a duty that he fulfilled. Finding the elusive black Camaro to determine if Lawless was the driver and whether he was possibly intoxicated went beyond that ministerial categorization. A police investigation requires many "good faith judgment calls made in a legally uncertain environment"—the very definition of a discretionary act. Deputy Bertram was trained to operate under various department protocols, but Deputy Bertram simply did not act "without particular concern for his own judgment," departmental policies and procedures notwithstanding. Nor were there clear, well understood implicit rules of conduct as we discussed in Yanero or Gaither v. Justice & Public Safety Cabinet.
This is not a novel theory of qualified official immunity; we have previously recognized its utility. The Court of Appeals, in Leamon v. Phillips, 423 S.W.3d 579 (Ky.App. 2014), summarized the concept well: "The Kentucky Supreme Court concluded that while the initial duty to investigate was non-discretionary, i.e. ministerial, the ultimate determination of whether and how to proceed, and against whom, implicated the judgment of the case workers and was therefore discretionary." Id. at 764.
Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001).
447 S.W.3d 628 (Ky. 2014).
Other states and federal courts have been firm in their embrace of the discretionary nature in similar situations. For example, the Iowa Supreme Court held that, "Police officers and other investigative agents must make quick and important decisions as to the course an investigation shall take. Their judgment will not always be right; but to assure continued vigorous police work, those charged with that duty should not be liable for mere negligence." We agree.
Smith v. State, 324 N.W.2d 299, 301 (Iowa 1992). See also City of Jackson, Mississippi v. Sandifer, Jr., 107 So.3d 978, 987 (Miss. 2013) ("Indeed, the circuit court correctly recognized that the City is immune from liability for its investigative decisions because such decisions are discretionary functions . . .").
Jones heavily relies on our decision in Jones v. Lathram to support his argument that Deputy Bertram engaged in ministerial acts during his pursuit of Lawless. But Lathram involved a fatal automobile accident brought about by a state trooper's negligent driving while responding to an emergency call. After review, we found that Trooper Lathram undertook a ministerial act—decisions "were required in the course of driving," but those decisions were not "truly discretionary acts." Instead, Lathram's duty involved "reactive decisions based on duty, training and overall consideration of public safety," but no real deliberation or exercise of judgment.
150 S.W.3d 50 (Ky. 2004).
Jones, 150 S.W.3d at 53.
Id.
Lathram does not apply to the present facts. The act of driving, regardless of speed, is ministerial—it is not a legally uncertain environment. Investigating and determining whether criminal activity has occurred is a wholly different concept.
Deputy Bertram was free to exercise his own judgment as to the most effective way to investigate the 911 caller's claims regarding the black Camaro. The present record contains no evidence that Deputy Bertram was trained in how to locate a speeding driver who might be intoxicated. Much like Rowan Cnty v. Sloas or Haney v. Monsky, Deputy Bertram had little other than his personal discretion to guide his search for the Camaro. Deputy Bertram, accordingly, was entitled to official immunity, and the grant of summary judgment was appropriate.
201 S.W.3d 469 (Ky. 2006).
311 S.W.3d 235 (Ky. 2010). --------
CONCLUSION.
In the end, this is simply not a case involving a police officer's discretionary decision whether or not to initiate an arrest or even the negligent performance of arrest. This case, to the contrary, involves a police officer's duty to investigate an alleged crime. While the initiation of investigation may be ministerial, the actual investigation is a succession of individual decisions made in a legally uncertain area and, therefore, discretionary in nature. Deputy Bertram, accordingly, was properly cloaked in official immunity. The courts below were correct in issuing and affirming summary judgment on his behalf. We affirm.
All sitting. All concur. COUNSEL FOR APPELLANTS:
Robert L. Bertram
Bertram & Wilson Larry F. Sword
Sword & Broyles COUNSEL FOR APPELLEES:
Winter R. Huff
Attorneys Services of KY, PLLC.