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Gary Hurt, In His Individual Capacity As Employee of the Jefferson v. Barbara Parker

January 4, 2013

GARY HURT, IN HIS INDIVIDUAL CAPACITY AS EMPLOYEE OF THE JEFFERSON COUNTY BOARD OF EDUCATION AND GARY HURT, PRINCIPAL OF VALLEY HIGH SCHOOL
APPELLANT
v.
BARBARA PARKER APPELLEE



APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NO. 10-CI-006097

The opinion of the court was delivered by: Combs, Judge:

RENDERED: JANUARY 4, 2013; 10:00 A.M. TO BE PUBLISHED

OPINION

AFFIRMING

BEFORE: COMBS, LAMBERT, AND NICKELL, JUDGES.

Gary Hurt appeals from the order of the Jefferson Circuit Court which denied his motion for summary judgment. After our review, we affirm.

Hurt is the principal of Valley High School in Louisville. Valley High has an agreement with the Valley Youth Football League for the League to use the high school for football games. The League is not associated with Jefferson County Public Schools; it is a volunteer-led organization. On September 19, 2009, Barbara Parker attended one of the League's games at Valley High. On her way back to the parking lot, she tripped on some uneven, cracked concrete and fell. The crack was approximately one inch wide. Parker suffered significant injuries.

On August 30, 2010, Parker filed a complaint in Jefferson Circuit Court alleging that Principal Hurt, the athletic director of Valley High (William Raleigh), and the League negligently failed to maintain the parking lot and that their negligence caused her injuries. Hurt and the athletic director were named as defendants in both their official capacities and as individuals. The claims against the athletic director and the League were later dismissed, and they are not parties to this appeal. Hurt filed a motion for summary judgment on June 23, 2011. On September 19, 2011, the court entered an order granting Hurt's motion as to the claims against him in his official capacity. However, it left intact the claims against him in his individual capacity. This appeal follows.

Hurt argues that the trial court erred when it declined to find that he was entitled to qualified official immunity. We first note that Kentucky Rule[s] of Civil Procedure (CR) 54.01 limits appeals to judgments from final orders. Although the court's order overruling the motion to dismiss based on immunity is not final, our Supreme Court has held that an interlocutory order involving immunity issues is properly subject to appeal. Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009). Therefore, we have jurisdiction to consider the merits of this appeal.

The doctrine of sovereign immunity is "a bedrock component" of our law. Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 799 (Ky. 2009). It affords the "state, legislators, prosecutors, judges and others doing the essential work of the state" immunity from fear of suit. Autry v. Western Kentucky Univ., 219 S.W.3d 713, 717 (Ky. 2007).

School boards and their employees are not entitled to sovereign immunity; however, as agencies of the state, they enjoy governmental immunity. James v. Wilson, 95 S.W.3d 875, 904 (Ky. App. 2002). Governmental immunity attaches to state agencies in the course of their performance of governmental functions. Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001). Individuals who are sued in their official capacities as government employees are also entitled to governmental immunity. Autry, supra. The doctrine is born of the notion that it is inappropriate for courts to: pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions, because such actions furnish an inadequate crucible for testing the merits of social, political or economic policy. Put another way, "it is not a tort for government to govern."

Yanero, supra (quoting Dalehite v. United States, 346 U.S. 15, 57, 73 S.Ct. 956, 979, 97 L.Ed. 1427 (1953)).

Pertinent to this appeal, when agency employees are sued in their individual capacities, they may enjoy qualified official immunity. Bolin v. Davis, 283 S.W.3d 752, 757 (Ky. App. 2008). Qualified official immunity shields public officers or employees from liability for: the negligent performance . . . 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.

Yanero v. Davis, 65 S.W.3d at 522 (citation omitted). Critical to the existence of this qualified immunity is the distinction between the discretionary versus the ministerial character of the acts performed. Public officers and employees are not entitled to the protection of qualified immunity if they have negligently ...


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