Released for Publication September 18, 2014.
[Copyrighted Material Omitted]
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2010-CA-002319-MR. FLOYD CIRCUIT COURT NO. 09-CI-00199.
FOR APPELLANTS: Michael J. Schmitt, Jonathan C. Shaw, Porter, Schmitt, Banks & Baldwin, Paintsville, Kentucky.
FOR APPELLEE: Glenn Martin Hammond, Glenn Martin Hammond Law Office PLLC, Pikeville, Kentucky.
OPINION OF THE COURT BY JUSTICE NOBLE. Minton, C.J.; Abramson, Scott and Venters, JJ., concur. Cunningham, J., concurs in part and dissents in part by separate opinion. Keller, J., not sitting.
Appellees, Sherry and Roger Thomason, individually and as next friend of Anthony Thomason, a minor, sued the Appellants, Joe Marson, Carolyn Martin, and Eddie Hamilton for injuries Anthony sustained in a fall from the bleachers at South Floyd Middle School. The Thomasons alleged negligence claims against the Appellants, who were principals at South Floyd High and Middle Schools and a teacher, respectively. The Appellants moved for summary judgment based on qualified immunity, which the Floyd Circuit Court denied. They then sought interlocutory review of the immunity issue in the Court of Appeals, which affirmed the trial court's denial of the motion. The Appellants sought further review in this Court. We granted discretionary review, and now affirm in part and reverse in part.
As a child care accommodation to parents, students at the South Floyd Middle School were allowed on campus approximately one hour before school began. Teachers supervised the children from the time they got off the bus, directing them either to the cafeteria for breakfast or to the gymnasium (shared with South Floyd High School) where students waited for classes to begin. Each grade level was assigned a particular section of the bleachers where they were to sit until school started. The students entered the gym from a walking track on the upper level, and descended the bleacher stairs to their appropriate seating area.
Anthony Thomason attended South Floyd Middle School, and at the time of his injury, was twelve years old. He is legally blind but is also prescribed corrective lenses. On September 15, 2008, Anthony followed the usual procedure to walk down the bleachers to take a seat. However, on that day, the bleachers had not been fully extended. He failed to notice this, and walked off the retracted portion of the bleachers. He fell six to eight feet to the floor, suffering injuries to his head and arm.
Anthony's parents, Sherry and Roger, filed a negligence action in Floyd Circuit Court, individually and on Anthony's behalf. The suit named Joe Marson, principal of South Floyd High School, in his individual capacity; and Carolyn Martin, principal of South Floyd Middle School, and Eddie Hamilton, a teacher at the middle school, in both their individual and official capacities. The suit claimed that the Appellants knew of Anthony's disability, failed to properly supervise him, and failed to provide him with a safe environment, which resulted in his injuries.
Appellants filed a motion for summary judgment, raising issues including the defenses of governmental and qualified immunity, which the trial court denied. On appeal, the Court of Appeals affirmed in part and vacated in part, and considered other matters which are not pertinent to the case before this Court. Part of the Court of Appeals' ruling was that Appellants were entitled to assert governmental immunity in defense of the claims against
them in their official capacities as school employees, and that the principals, Marson and Martin, could not be held liable on a vicarious liability theory for the negligence of the employees they supervised. Those rulings have not been further appealed.
However, the Court of Appeals also held that Appellants were not entitled to qualified governmental immunity in their individual capacities because the alleged negligence (failing to ensure the bleachers were properly extended, and inadequate supervision) consisted of a fixed, routine duty and were therefore ministerial in nature. We granted discretionary review to examine this question. Further facts will be developed below as they are necessary to the legal analysis.
This is an interlocutory appeal to review only the qualified immunity question. Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 886 (Ky. 2009). The trial court and the Court of Appeals found that the negligent acts or omissions in this case were failing to properly extend the bleachers to the proper length to be safe for use by the students, and failing to provide adequate supervision of the students as they arrived and were held in the gym before school started. Whether qualified immunity extends to the Appellants turns on whether the acts of the various defendants were discretionary or ministerial. See Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001).
The question of when a task is ministerial versus discretionary has long plagued litigants and the courts. Generally, a governmental employee can be held personally liable for negligently failing to perform or negligently performing a ministerial act. Part of the rationale for allowing this individual liability is that a governmental agent can rightfully be expected to adequately perform the governmental function required by the type of job he does. To the extent his job requires certain and specific acts, the governmental function is thwarted when he fails to do or negligently performs the required acts. But when performance of the job allows for the governmental employee to make a judgment call, or set a policy, the fact that there is uncertainty as to what acts will best fulfill the governmental purpose has resulted in immunity being extended to those acts where the governmental employee must exercise discretion. To some extent, this says that governing cannot be a tort, but failing to properly carry out the government's commands when the acts are known and certain can be.
Stated another way, properly performing a ministerial act cannot be tortious, but negligently performing it, or negligently failing to perform it, can be. And the law provides no immunity for such acts, meaning the state employee can be sued in court. Yanero, 65 S.W.3d at 522. Negligently performing, or negligently failing to perform, a discretionary act cannot give rise to tort liability, because our law gives qualified immunity to those who must take the risk of acting in a discretionary manner. Id. at 521-22. Whether the employee's act is ...