Pickens v. Bland

Full title: CIERRA PICKENS, IN HER INDIVIDUAL CAPACITY AS AN EMPLOYEE OF THE JEFFERSON…

Court: Commonwealth of Kentucky Court of Appeals

Date published: Jun 13, 2014

NO. 2013-CA-000975-MR (Ky. Ct. App. Jun. 13, 2014)

Opinion

NO. 2013-CA-000975-MR

06-13-2014

CIERRA PICKENS, IN HER INDIVIDUAL CAPACITY AS AN EMPLOYEE OF THE JEFFERSON COUNTY BOARD OF EDUCATION APPELLANT v. AMBER T. BLAND, AS NEXT FRIEND OF HER INFANT CHILD, KHALIYA WELLS APPELLEE

BRIEFS FOR APPELLANT: C. Tyson Gorman Emily C. Lamb Louisville, Kentucky BRIEF FOR APPELLEE: Douglas H. Morris Lea A. Player Robyn Bell Stanton Matthew W. Stein John Amos Whatley Louisville, Kentucky

STUMBO

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE BRIAN C. EDWARDS, JUDGE

ACTION NO. 11-CI-007293

OPINION

AFFIRMING

BEFORE: JONES, LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: Cierra Pickens appeals from an Opinion and Order Denying Defendant's Motion for Summary Judgment rendered by the Jefferson Circuit Court. Amber T. Bland, as next friend of her minor child Khaliya Wells, instituted the instant action against Pickens alleging that Pickens negligently performed her duties as an elementary school teacher proximately resulting in serious injuries to Wells. Pickens' Motion for Summary Judgment based on qualified official immunity was denied, and this appeal followed.

On November 12, 2010, Pickens was a 4th grade teacher at Klondike Elementary School in Jefferson County, Kentucky. Wells was a student in her class. At the beginning of the school day, students began entering the classroom. There is conflicting evidence as to whether Pickens was standing in the classroom, in the doorway, or outside the classroom in the hall. At some point, two male students began to scuffle over a pencil. There are conflicting accounts of whether the scuffle began in the hallway or the classroom. Nevertheless, once inside the classroom, Wells was inadvertently poked in the eye with the eraser end of the pencil. She was struck in such a manner as to cause injury to her eye which permanently and adversely affected her vision.

Pickens was not immediately aware of the injury. Pickens would later state in deposition that she became aware of the injury when she saw several students gathered around Wells. Conversely, Wells and fellow student La'Kiyah Cooper stated that Pickens was in the hallway at the time of the injury. According to Cooper, she tried to help Wells for about two minutes after the injury and then walked to the hallway to inform Pickens. Cooper stated that Pickens had not been in the classroom for five to fifteen minutes prior to the scuffle and resultant injury.

On November 9, 2011, Bland filed the instant action in Jefferson Circuit Court alleging that Wells acted negligently in failing to supervise the students under her control, which proximately resulted in the injury to Wells. Discovery was conducted, and on September 21, 2012, Pickens filed a Motion for Summary Judgment. As a basis for the motion, Pickens maintained that she was shielded from liability under the doctrine of qualified official immunity. Pickens also argued that the injury to Wells was not foreseeable; therefore, Bland could not prove an essential element to her negligence claim. In response, Bland noted that according to the sworn testimony of two students, Wells and Cooper, Pickens had left the classroom unattended for up to 15 minutes during which time the scuffle ensued and the injury occurred. Bland also argued that the injury was foreseeable.

On May 17, 2013, the Jefferson Circuit Court rendered an Opinion and Order denying Pickens' Motion for Summary Judgment. As a basis for the Order, the Court determined that a genuine issue of material fact existed as to whether Pickens was in the classroom when the injury occurred. Based on the standard set out in Steelvest, infra, the Court concluded that reasonable jurors may believe that Pickens was not in the classroom at the time of the incident, and that it was foreseeable that elementary school children would act in such a way as to cause injury to one another if left unattended. Accordingly, it denied Pickens' motion. This appeal followed.

Pickens now argues that the Jefferson Circuit Court erred by denying her Motion for Summary Judgment. She first maintains that she is immune from Bland's negligent supervision claim under the doctrine of qualified official immunity. The focus of her argument is that the supervision of students is a discretionary act to which qualified official immunity applies, rather than a ministerial act for which such immunity does not apply. In support of this claim, she directs our attention to the three-part test for determining qualified official immunity as set out in Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001). Pursuant to Yanero, Pickens contends that her supervision of the school children was 1) a discretionary act, 2) that was made in good faith, and 3) was within the scope of her authority. Id. at 522. She argues that Kentucky courts have long held that student supervision is a discretionary act, and she cites to several Kentucky cases in support of this contention. She also contends that any dispute as to which side of the classroom door she was standing on at the time of the incident does not preclude the entry of summary judgment in her favor, and that irrespective of this, Bland cannot establish the requisite foreseeability to support her negligence claim. She maintains that she is entitled to Summary Judgment as a matter of law, and that the Jefferson Circuit Court erred in failing to so rule.

In the interest of judicial economy, and as we cannot improve upon the well-reasoned Opinion of the Jefferson Circuit Court, we adopt that Court's analysis as that of this Court. The Jefferson Circuit Court stated that,

In Kentucky, a movant should not succeed on its motion for summary judgment unless it appears impossible for the non moving [sic] party to produce evidence warranting a judgment in its favor and the movant is entitled to judgment as a matter of law. See Steelvest, Inc. v. Scansteel Serv. Ctr., 807 S.W.2d 476 (Ky. 1991). The term "impossible" is used in a practical sense and not in an absolute sense. See Perkins v. Hausladen, 828 S.W.2d 652 (Ky. 1992). Steelvest
merely states that trial judges are to refrain from weighing evidence at the summary judgment stage; the inquiry should be whether, from the evidence of record, facts exist which would make it impossible for the non-moving party to prevail. See Welch v. American Publishing Co. of Kentucky, 3 S.W.3d 724, 730 (Ky. 1999). "The movant bears the initial burden of convincing the court by evidence of record that no genuine issue of fact is in dispute, and then the burden shifts to the party opposing summary judgment to present 'at least some affirmative evidence showing that there is a genuine issue of material fact for trial' ". Hallahan v. The Courier-Journal, 138 S.W.3d 669, 705 (Ky. App. 2004) (quoting Steelvest, 807 S.W.2d at 482). The Kentucky Supreme Court has indicated that "[t]he circuit judge must examine the evidentiary matter, not to decide any issue of fact, but to discover if a real or genuine issue exists. All doubts are to be resolved in favor of the party opposing the motion." City of Florence, Kentucky v. Chapman, 38 S.W.3d 387, 390 (Ky. 2001).
....

Immunity

In helping determine whether public employees are entitled to immunity, courts have identified two classes of acts: discretionary and ministerial. See generally, [Yanero.]

Under Yanero, public officers and employees are entitled to "qualified official immunity" for negligent conduct when the negligent act or omissions were (1) discretionary acts or functions, that (2) were made in good faith (i.e., were not made in "bad faith"), and (3) were within the scope of the employee's authority. Conversely, no immunity is afforded for the negligent performance or omissions of a ministerial act, or if the officer or employee willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive, i.e., again the

"bad faith" element. And "[o]nce the officer or employee has shown prima facie that the act was performed within the scope of his/her discretionary authority, the burden shifts to the plaintiff to establish by direct or circumstantial evidence that the discretionary act [was in bad faith]."

Rowan County v. Sloas, 201 S.W.3d 469, 475-76 (Ky. 2006) (citing Yanero).

The distinction between discretionary and ministerial acts has been defined as follows:

[d]iscretionary 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 (internal citations omitted).
[sic] it shall be performed.

Collins v. Commonwealth of Ky. Natural Resources and Environmental Protection Cabinet, 10 S.W.3d 122, 125 (Ky. 1999).

A ministerial act, on the other hand, is 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. That a necessity may exist for the ascertainment of . . . facts does not operate to convert the act into one discretionary in nature (internal citations omitted)[.]

Sloas, 201 S.W.3d at 478.
In this case, Ms. Pickens states that on the morning of the alleged incident, she was standing in the doorway of the classroom, checking students in as she had done many times before. She contends that while the Klondike Elementary Teacher Handbook states unequivocally that students are not to be left unattended in the classroom, there are no specific policies that govern how teachers are supposed to supervise students in the morning as they enter the classroom. The particular means of supervision of the students is left to the individual discretion of each teacher.
Ms. Bland contends, however, that Ms. Pickens was not inside of the classroom when the incident took place. She further argues that even if Ms. Pickens has discretion as to how to supervise the students, she did not have the discretion to leave them unattended in the classroom, and thus was not performing a discretionary function at the time that Ms. Wells was injured. Ms. Bland also states that even if Ms. Pickens was performing a discretionary function, she did not do so in good faith, and as such, should not enjoy the privilege of qualified immunity.
The Kentucky Supreme Court has indicated that, in ruling on a motion for summary judgment, "[t]he circuit court must examine the evidentiary matter, not to decide any issue of fact, but to discover if a real or genuine issue exists. All doubts are to be resolved in favor of the party opposing the motion." City of Florence, Kentucky v. Chipman, Ky., 38 S.W.3d 387, 390 (2001). Here, the Court finds that a genuine issue of material fact exists as to whether or not Ms. Pickens was in the classroom at the time Ms. Wells was injured. If Ms. Wells sustained her injury while Ms. Pickens was outside the classroom, Ms. Pickens would not be entitled [to] avail herself of the qualified immunity protections. . . .
Foreseeability
Ms. Pickens also argues that the Court must grant this motion because Ms. Bland cannot establish the requisite
foreseeability in order to support a claim for negligence. The issue of foreseeability of an injury goes to whether or not Ms. Pickens breached a duty of care that she owed to Ms. Wells. The question of duty is a question of law to be determined by the Court. See Pathways, Inc. v. Hammons, Ky., 113 S.W.3d 85, 88-89 (2003). "When a court resolves a question of duty it is essentially making a policy determination." Mullins [v.] Commonwealth Life Ins. Co., Ky., 839 S.W.2d 245, 248 (1992). In Lee v. Farmer's Rural Elec. Co-op. Corp., Ky. App., 245 S.W.3d 209, 218 (2007), the Court explained the responsibility of the courts' determination of whether a defendant owes a duty to the plaintiff[:]

The allocation of responsibility for determining this question to the courts, rather than to juries, reveals that the duty inquiry contains an important role for considering the policy consequences of imposing liability on a certain class of situations. Essentially, the foreseeability inquiry requires courts to determine questions inexorably tied to the ultimate question of whether the defendant was negligent. After all, the probability of the harm is a significant factor in traditional assessment of negligence. By placing the foreseeability analysis in the hands of courts, the existence of duty elements of the prima facie case serves as a gatekeeper for the otherwise extremely broad concept of negligence.

Moreover, it is well-established that "[e]very person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury." Isaacs v. Smith, Ky. 5 S.W.3d 500, 502 (1999).
Teachers are held to a high standard in the supervision of students. KRS § 161.180(1) provides as follows:

(1) 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, on the way to and from school, and on school sponsored trips and activities.

It is well established that under Kentucky law, if a public school teacher is found to be negligent in the supervision of her students, she can be held liable for any injuries attributed to her failure to properly supervise. Williams v. Kentucky Dep't of Educ., 113 S.W.3d 145 (Ky. 2003)[,] citing Yanero v. Davis, 65 S.W.3d 510 (2001). "The premise for this duty is that a child is compelled to attend school so that the protective custody of teachers is mandatorily substituted for that of the parent." Williams, supra, at 148. Kentucky courts recognize a special relationship between a student and the school. This relationship "imposes an affirmative duty on the district, its faculty, and its administrators to take all reasonable steps to prevent foreseeable harm to its students." Id. _
Here, Ms. Bland states that in violation of her supervisory duties, Mr. Pickens was not in the classroom at the time that the incident is alleged to have occurred. In the light most favorable to M[s]. Bland, the Court must conclude that reasonable jurors may believe that Ms. Pickens was not in the classroom at the time of the incident, and that it was foreseeable that elementary school aged children would act in such a way as to cause injury to one another if left unattended.

Having adopted the reasoning of the Jefferson Circuit Court, and viewing the record in a light most favorable to Bland for the sole purpose of considering Pickens' Motion for Summary Judgment, we conclude that Pickens' physical location at the time of the incident represents a genuine issue of material fact sufficient to overcome Pickens' motion. While Pickens claims that she was in the classroom, two students stated in deposition that she was outside the classroom at the time of the incident, and one of the students stated that she had been outside the classroom for five to fifteen minutes prior to the incident. Additionally, we find no error in the Jefferson Circuit Court's determination that it was foreseeable that school-aged children might act in such as way as to cause injury to one another if left unattended. Having applied Steelvest, supra, to the foregoing, we find no error. We affirm the Opinion and Order Denying Defendant's Motion for Summary Judgment of the Jefferson Circuit Court.

ALL CONCUR. BRIEFS FOR APPELLANT: C. Tyson Gorman
Emily C. Lamb
Louisville, Kentucky
BRIEF FOR APPELLEE: Douglas H. Morris
Lea A. Player
Robyn Bell Stanton
Matthew W. Stein
John Amos Whatley
Louisville, Kentucky