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McCuiston v. Butler

Court of Appeals of Kentucky

January 6, 2017



          BRIEF FOR APPELLANT: Stephen M. Arnett Morganfield, Kentucky

          BRIEF FOR APPELLEES: Michael S. Maloney Justin M. Schaefer Louisville, Kentucky



          CLAYTON, JUDGE:

         Jean 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.


         On July 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.

         At the 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 sheriff.

         Immediately 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 theft-in-progress.

         When 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.

         After 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.

         Nonetheless, 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.

         Three 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 own investigation.

         The 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 terminated.

         The 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 months.

         Besides 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.

         On 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 ...

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