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

Commonwealth of Kentucky Court of Appeals

January 4, 2013



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





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 performed a ministerial act; i.e., a duty that is "absolute, certain, and imperative[.]" Id.

On appeal, Hurt argues that the responsibility of maintaining the parking lot is discretionary rather than ministerial and that the trial court erred in holding it to be ministerial in nature. We find no error in the court's determination.

An act can be ministerial even if the person charged with performing it may exercise some discretion as to the means and methods he uses. Id. This Court has held that maintaining athletic facilities and premises in a safe condition is a ministerial duty of an athletic director. Faulkner v. Greenwald, 358 S.W.3d 1, 4 (Ky. App. 2011). Kentucky's Supreme Court has also held that failure to maintain safe bleachers would be grounds for individual liability rather than being subject to qualified immunity. Schwindel v. Meade County, 113 S.W.3d 159, 169 (Ky. 2003).

Neither party contends that the parking lot where Parker fell was considered to be part of the athletic premises of Valley High. Therefore, Parker does not contest the dismissal of the athletic director from this case. Rather, she contends that it is Hurt's responsibility to ensure that the parking lots are maintained in safe condition.

Hurt admits that his job description includes "directing[ing] the utilization of available services and resources according to clearly established priorities and needs." The record shows that it also charges him with planning, executing, and evaluating school operations -- as well as exercising administrative authority and responsibility for decision-making. Thus, as the principal, Hurt is responsible for all facets of operations at Valley High.

Hurt's argument focuses on the fact that he has the discretion to decide when and how the parking lots are repaired; nonetheless, he has not alleged that he is not ultimately responsible for insuring that maintenance of the parking lot is performed. Furthermore, we note that Kentucky Revised Statute[s] (KRS) 158.440(1) mandates that schools be safe environments. Therefore, the person who is in charge of the school -- the principal -- has a ministerial duty to maintain the parking lots in a safe manner.

We restrict our opinion to affirming the ruling of the trial court that Hurt is not subject to dismissal from the lawsuit on the basis of qualified immunity.

However, we are not holding that Hurt may not be subject to dismissal on other grounds. The issue of qualified immunity is the only issue before this Court and the only one that we may address. Since we are affirming the denial of summary judgment, all other matters are susceptible of a full trial on their merits.

We affirm the order of the Jefferson Circuit Court.



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