JEAN MCCUISTON, AS ADMINISTRIX OF THE ESTATE OF JOYCE MCCUISTON, APPELLANT
WILLIAM B. BUTLER AND CITY OF HENDERSON, APPELLEES
FROM HENDERSON CIRCUIT COURT HONORABLE KAREN LYNN WILSON,
JUDGE ACTION NO. 13-CI-00153.
FOR APPELLANT: Stephen M. Arnett Morganfield, Kentucky
FOR APPELLEES: Michael S. Maloney Justin M. Schaefer
BEFORE: CLAYTON, STUMBO, AND VANMETER,  JUDGES.
McCuiston, as administrix of the estate of Joyce McCuiston
(hereinafter "the Estate"), appeals the Henderson
Circuit Court's order granting summary judgment to
William B. Butler and the City of Henderson, Kentucky
(hereinafter "Henderson") in a wrongful death
action. After careful consideration, we affirm.
28, 2012 at 7:52 a.m., Joyce McCuiston called 911, and
William B. Butler answered the call. He worked for the
Henderson's 911 communication center as a dispatcher. Ms.
McCuiston made the call from a cell phone to report a
non-active theft. Because her speech was slurred and she was
very difficult to understand, Butler asked McCuiston several
times during the call to confirm both her identity and her
address (553 Fairmont Avenue). Since she was using a cell
phone, her location was not available on the system.
end of the call, Ms. McCuiston advised Butler that she was
dehydrated and unable to come to the door. Nonetheless, Ms.
McCuiston never requested medical assistance or an ambulance
or reported any type of medical emergency. She instructed
Butler that when the responder arrived, she would
"holler" and say "come in, the door's
open." Butler advised her that he would do so and ended
the call. But he never relayed this information to the deputy
after ending the call, Butler sent a deputy from the
Henderson County Sheriff's Office to 553 Fairmont Avenue,
which was an address located outside Henderson in Henderson
County. The call was designated a non-emergency call since it
was a report of a theft and not a report of a
Deputy Jewely King arrived at the residence, she was not
completely certain it was the residence because it was not
numbered. Deputy King knocked on the door but received no
answer. Next, Deputy King spoke with a neighbor, Barbara
Gatewood. Gatewood informed Deputy King that Ms. McCuiston
owned the property, but she was in and out, plus no one lived
there all of the time. She also told Deputy King that Ms.
McCuiston was a severe alcoholic, and if she was awake, she
was drunk. Gatewood further added that if Ms. McCuiston
called 911, it was likely from a pay phone somewhere.
speaking with Gatewood, Deputy King called the phone number
given in the 911 call but the call was unanswered. She then
went to the back door and knocked loudly. Deputy King did not
hear any response or other noise from inside the home. She
contacted Butler at dispatch and told him that no one
answered at 553 Fairmont and that she had been advised by a
neighbor that no one lived there. The call was ended. Later,
Deputy King admitted that this information was misleading
since Gatewood had not told her no one lived at the address.
Butler relied on the information. After several attempts to
determine the caller's name and location, he assumed he
had misheard the address. Still, Butler never told Deputy
King about McCuiston's instructions at the end of the
original 911 call. According to Butler, he did not want to
send Deputy King into the wrong residence and risk her life
or other people's lives.
days later, on July 31, 2012, friends of Ms. McCuiston
entered the residence and found her dead. Deputies from the
Henderson County Sheriff's Office arrived at the scene to
investigate the death. During the investigation, they
discovered a prepaid cell phone in plain view on the coffee
table a few feet from Ms. McCuiston's body. After it was
turned on, it showed that one of the last calls was to
Henderson 911. Deputy King was then questioned. All the
information was turned over to the Henderson Police
Department. Thereafter, the police department conducted its
Henderson Police Chief was concerned about Butler's
handling of the call. Consequently, he recommended that
Butler's employment be terminated. Prior to termination,
however, Butler, as a civil service employee, was entitled to
an administrative hearing before the Henderson Civil Service
Commission ("Commission"). He took advantage of
this option and appealed the decision to terminate his
employment. The Commission held a hearing on September 24,
2012, during which the City argued that Butler should be
civil service rules dictated that the Henderson City Attorney
was to advise the Commission during the hearing. Thus,
outside legal counsel, Chris Hopgood, was hired to represent
Henderson for all purposes related to the hearing. At the
hearing, Hopgood made an opening argument, presented
evidence, and provided a closing argument. During the closing
argument, Hopgood asked the Commission to find that Butler
had violated several administrative policies and procedures,
which contributed to McCuiston's death. Nevertheless,
Hopgood did not offer independent facts into evidence or
testify under oath or offer any avowal of the facts relevant
to the Commission's determination. The Commission found
that Butler had violated several regulations, but rather than
termination, ordered that he be suspended without pay for six
the law enforcement investigations, Dr. Donna Stewart, the
Commonwealth of Kentucky medical examiner, investigated Ms.
McCuiston's death. Dr. Stewart performed the autopsy and
conducted toxicological analyses of various tissues and
fluids obtained during the autopsy. The medical examiner
attributed her death to natural causes brought about by a
history of uncontrolled hypertension and chronic alcoholism.
Further, Dr. Stewart opined that it was not scientifically
possible to establish the date and time of death.
February 26, 2013, the Estate filed suit for wrongful death
against both Butler and the City of Henderson. After
completing discovery, Butler and Henderson filed a motion for
summary judgment arguing that Butler had no duty towards Ms.
McCuiston and that his actions did not proximately cause her
death. Additionally, Butler and Henderson maintained that
even if his actions were a substantial factor in causing her
death, Butler was ...