June 7, 2013
MARIAN MUCKER, AS AN EMPLOYEE OF THE JEFFERSON COUNTY BOARD OF EDUCATION; AND MARIAN MUCKER, PLANT OPERATOR OF MINORS LANE ELEMENTARY SCHOOL, APPELLANT
EULENE BROWN, APPELLEE
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JAMES M. SHAKE, JUDGE ACTION NO. 11-CI-000640.
BRIEFS FOR APPELLANT: Ekundayo Seton Byron E. Leet Louisville, Kentucky.
BRIEF FOR APPELLEE: George Schuhmann Louisville, Kentucky Kenneth G. Doane, Jr. Jeffersonville, Indiana.
BEFORE: COMBS, STUMBO AND THOMPSON, JUDGES.
Marian Mucker, in her individual capacity as an employee of the Jefferson County Board of Education, appeals from an order of the Jefferson Circuit Court denying her motion for summary judgment on the basis of qualified official immunity. She argues that the circuit court erred when it ruled she had a ministerial duty to remove ice from a sidewalk located on the grounds of Minors Lane Elementary School, a public school where she worked as a plant operator. We affirm.
As a plant operator, Mucker was familiar with the plant operator's manual. She testified that pursuant to the manual, a plant operator had a duty to keep the sidewalks clear of ice and snow as necessary. She further testified that she was to begin her work at 6:00 a.m. and had a duty to inspect and treat the sidewalks for ice and snow. If needed, she normally began treating the grounds for ice and snow in preparation for the arrival of children and parents at approximately 7:00 a.m. Mucker testified that she was aware that the gym door entrance was used to enter the school.
On February 1, 2010, Mucker arrived at the school. It had been below freezing the previous night and she observed ice on the sidewalks outside the school. She first attended to other duties within the school before removing the ice and then began treating the sidewalks for ice in front of the building, an area away from the gym entrance.
Eulene Brown was an instructor at the school and a site director at the YMCA Child Enrichment Program operated on the school's premises which began at 7:00 a.m. On February 1, 2010, while entering the school, Brown slipped and fell on a walkway leading to the gym entrance that had not been cleared of ice.
In addition to Mucker's deposition, Brown submitted the affidavit of Wanda Arnold, a Jefferson County Public School instructor and YMCA Child Enrichment Program employee, in opposition to Mucker's motion for summary judgment. She stated that when she arrived at the school at approximately 6:30 a.m., Mucker was present but the sidewalks had not been cleared of ice. She further stated that at approximately 7:00 a.m., a student had slipped and fallen on ice accumulated on the sidewalk by the gym door. When she went to advise Mucker that the sidewalks needed to be cleared, Mucker was in the teacher's lounge. During the ten- to fifteen-minute delay it took Mucker to clear the sidewalks, Brown slipped and fell.
The sole issue presented is whether the circuit court properly denied Mucker's assertion that she is entitled to qualified official immunity. Although generally an order denying a summary judgment is interlocutory and not appealable, an order denying a substantial claim of immunity is immediately appealable even in the absence of a final judgment. Breathitt County Board of Education v. Prater, 292 S.W.3d 883, 887 (Ky. 2009).
School boards and their employees are considered agencies of the state and enjoy governmental immunity. James v. Wilson, 95 S.W.3d 875, 904 (Ky. App. 2002). "The immunity that an agency enjoys is extended to the official acts of its officers and employees. However, when such officers or employees are sued for negligent acts in their individual capacities, they have qualified official immunity." Autry v. Western Kentucky University, 219 S.W.3d 713, 717 (Ky. 2007). Mucker was sued in her individual capacity.
Public officers and employees are shielded from liability for the negligent performance of discretionary acts in good faith and within the scope of their authority. Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). The distinction between a discretionary act and a ministerial act is pivotal to the immunity determination. A discretionary act involves the exercise of discretion and judgment or personal deliberation. Id. A ministerial act is one that is "absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Id. The Yanero Court elaborated: "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." Id. The Court emphasized "[t]hat a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in nature." Id. (internal quotations and citations omitted). Because "few acts are purely discretionary or purely ministerial, " the courts must look for the "dominant nature of the act." Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010).
Mucker admits that her job duties required that she clear ice from the school's sidewalks. She was aware on the morning of February 1, 2010, that ice had accumulated on the sidewalk outside the gym, and that students, parents and school personnel would be using the gym entrance by 7:00 a.m. Despite the ministerial nature of her duties, Mucker contends she had discretion to decide when and where to begin removing the ice and, therefore, is entitled to qualified official immunity. We disagree.
In Faulkner v. Greenwald, 358 S.W.3d 1 (Ky.App. 2011), this Court held that a school athletic director's duty to safely maintain a concession stand was a ministerial duty. Although the athletic director may have possessed some discretion regarding the means and methods used, the task of safely maintaining the concession stand was ministerial in nature. Id. at 4. The present case is analogous. Although Mucker may have had discretion to decide when and where to begin clearing the sidewalks, she had the ministerial duty to clear the sidewalks of ice prior to the time students, parents, and staff members were reasonably anticipated to arrive at the school.
Because we conclude that Mucker's duties were ministerial in nature, we do not need to determine whether she acted in good faith. Bryant v. Pulaski County Detention Center, 330 S.W.3d 461, 466 (Ky. 2011). Mucker is not entitled to qualified official immunity.
Finally, in response to Mucker's public policy argument that the denial of qualified official immunity renders her absolutely and strictly liable, we stress that our holding is limited to affirming the trial court's ruling that Mucker is not entitled to qualified official immunity. The elements of negligence must be proven and dismissal on other grounds, including the open and obvious doctrine, is not precluded.
The order of the Jefferson Circuit Court is affirmed.