FLOYD LAWRENCE PATTON, AS ADMINISTRATOR OF THE ESTATE OF STEPHEN LAWRENCE PATTON APPELLANT
DAVIDA BICKFORD, PAUL FANNING, RONALD "SONNY" FENTRESS, JEREMY HALL, ANGELA MULLINS, LYNN HANDSHOE, AND GREG NICHOLS APPELLEES
CORRECTED: APRIL 1, 2016
RENDERED: MARCH 17, 2016
REVIEW FROM COURT OF APPEALS CASE NO. 2012-CA-000598 FLOYD
CIRCUIT COURT NO. 08-CI-00653
COUNSEL FOR APPELLANT: Vanessa B. Cantley Bahe, Cook, Cantley
& Nefzger, PLC.
COUNSEL FOR APPELLEES DAVIDA BICKFORD, PAUL FANNING AND
RONALD "SONNY" FENTRESS: Michael J. Schmitt
Jonathan C. Shaw Porter, Banks, Baldwin, & Shaw.
COUNSEL FOR APPELLEES JEREMY HALL, ANGELA MULLINS, LYNN
HANDSHOE AND GREG NICHOLS: Neal Smith Todd P. Kennedy Smith
Thompson & Kennedy, PLLC.
Patton (Stephen) was an eighth-grader at Allen Central Middle
School (ACMS) when he committed suicide, allegedly because he
was being bullied at school. Sheila Patton, as Administratrix
of Stephen's estate,  filed this lawsuit alleging various
teachers and administrators knew of, or should have
known of, the bullying and taken steps to prevent it.
circuit court granted summary judgment in favor of the
Teachers and the Administrators, ruling that they were
entitled to the protection of qualified official immunity
from this lawsuit. The circuit court also held that
Stephen's suicide was a superseding intervening cause
interrupting any potential liability of the Teachers and
Administrators, and thus, the Estate could not succeed in its
claims, in any event.
Court of Appeals upheld the summary judgment solely on the
intervening cause issue. The Court of Appeals disagreed with
the circuit court's ruling on qualified official
immunity, holding that neither the Administrators nor the
Teachers were immune from liability because the duties of
both of these sets of defendants were ministerial in nature.
disagree with the Court of Appeals and hold that the trial
court correctly determined that the Administrators were
protected by qualified immunity and entitled to summary
judgment on that ground. We also conclude that the Teachers
are not immune from suit on the basis of qualified official
immunity. We further conclude that the Estate presented
multiple affidavits from ACMS students attesting that Stephen
was persistently bullied at school and that the Teachers were
aware of it, thus creating a genuine issue of material fact
concerning whether the Teachers were negligent either in
their duty to supervise their pupils or in their duty to
handle bullying reports appropriately.
to the holdings of the lower courts, we further determine
that bullying and tormenting behavior, if shown to be the
proximate cause of a suicide, may form the basis for a
wrongful death claim by the decedent's estate.
under the facts and circumstances as presented in the record
before us, we further hold that the Estate has failed to make
a prima facie showing that the Teachers' conduct
of failing to prevent the bullying of Stephen Patton was the
cause-in-fact (the "but-for" cause) or the
proximate cause of Stephen's suicide. For that reason,
summary judgment in favor of the Appellee Teachers was
summary, while we reject the Court of Appeals'
determinations that the Teachers were cloaked with qualified
official immunity and that suicide is a superseding
intervening event that necessarily severs any potential
liability for bullying, we affirm its opinion to uphold the
summary judgment. However, we do so for substantially
FACTUAL AND PROCEDURAL BACKGROUND
old Stephen Patton was a well-liked, personable young man in
the eighth grade at Allen Central Middle School (ACMS) in
Floyd County. At six feet, three inches in height, and
weighing 196 pounds, Stephen was large for his age. He was
physically awkward, he had a stuttering problem, he had more
facial hair than most eighth graders, and at times he dressed
unconventionally. Stephen had suffered from migraine
headaches since the age of six, and his doctor had recently
indicated that Stephen may have agoraphobia-an abnormal fear
of open, public spaces. He was also bothered by noise, and at
the time of the suicide, his school's family planning
program was using noisy crying-baby simulators which
apparently aggravated his discomfort.
Stephen was actually bullied by his peers and, if so, whether
Appellees were aware of the bullying, are disputed issues of
fact. Whether the bullying to which he may have been
subjected induced him to commit suicide is also a disputed
factual issue. The Teachers' and Administrators'
evidence suggested that the underlying cause of Stephen's
suicide was linked to the chronic pain he suffered due to
persistent migraine headaches, or alternatively, that he
suffered from a mental disorder which led to the suicide.
Estate's complaint alleged that both the Administrators
and Teachers were negligent in discharging their duties to
Stephen. The Estate claimed that the Teachers knew, or should
have known, that Stephen was being bullied and mistreated by
other students under their watch and they failed to do
anything to stop it, and the Administrators failed to
implement sound policies to address bullying at ACMS and
proper protocols for student supervision.
STANDARD OF REVIEW
judgment is a remedy to be used sparingly, i.e.
"when, as a matter of law, it appears that it would be
impossible for the respondent to produce evidence at the
trial warranting a judgment in his favor and against the
movant." Shelton v. Kentucky Easter Seals Society,
Inc., 413 S.W.3d 901, 905 (Ky. 2013) (citations
omitted). We frequently caution, however, the term
"impossible" is to be used in a practical sense,
not in an absolute sense. See id. (citing
Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky.
1992)). The trial court's primary directive in this
context is to determine whether a genuine issue of material
fact exists; if so, summary judgment is improper.
Steelvest, Inc: v. Scansteel Service Center, Inc.,
807 S.W.2d 476, 480 (Ky. 1991). This requires that the facts
be viewed through a lens most favorable to the party opposing
summary judgment, here the Estate. Id. It is
important to point out that "a party opposing a properly
supported summary judgment motion cannot defeat it without
presenting at least some affirmative evidence showing that
there is a genuine issue of material fact for trial."
Id. at 482.
motion for summary judgment presents only questions of law
and "a determination of whether a disputed material
issue of fact exists." Shelton, 413 S.W.3d at
905. Our review is de novo, and we afford no deference to the
trial court's decision.
SCHOOL ADMINISTRATORS MAKING SCHOOL POLICIES HAVE QUALIFIED
OFFICIAL IMMUNITY; TEACHERS IMPLEMENTING SCHOOL POLICIES DO
begin by more clearly delineating the Estate's arguments.
The Estate asserts that the Teachers, and to a limited extent
the Administrators, negligently supervised students and
failed to follow school policy, which resulted in a culture
of bullying at ACMS. The Estate also alleges that the
Teachers and Administrators were negligent because students
told them that Stephen was being bullied and they did nothing
to stop it. The latter claim focuses on the negligent
implementation of the school's policies. The Teachers and
Administrators respond that, regardless of their alleged
negligence, the Estate's claims should be dismissed
because they are entitled to qualified official immunity.
application of qualified official immunity to particular
activities has long been problematic, and this case is no
different. Qualified official immunity, generally speaking,
is "immunity from tort liability afforded to public
officers and employees for acts performed in the exercise of
their discretionary " functions." Yanero v.
Davis, 65 S.W.3d 510, 521 (Ky. 2001). Qualified immunity
applies only to the negligent performance of duties that are
discretionary in nature. A government official is not
afforded immunity from tort liability for the negligent
performance of a ministerial act. The act of "governing
cannot be a tort, but failing to carry out the
government's commands properly when the acts [to be
performed] are known and certain can be." Marson v.
Thomason, 438 S.W.3d 292, 296 (Ky. 2014).
actions as either the performance, of a discretionary duty or
the performance of a ministerial duty is vexing to litigants
and courts alike. We recently affirmed that the distinction
"rests not on the status or title of the officer or
employee, but on the function being performed. Indeed, most
immunity issues are resolved by examining the nature of the
functions with which a particular official or class of
officials has been lawfully entrusted." Id. at
296-297 (internal quotes and citation omitted). A somewhat
rudimentary expression of the distinction between
discretionary and ministerial acts provides that
"[promulgation of rules is a discretionary function;
enforcement of those rules is a ministerial function."
Williams v. Kentucky Department of Education, 113
S.W.3d 145, 150 (Ky. 2003) (citations omitted). This is, of
course, too simple for most circumstances, but it serves as a
sound point from which to begin.
ministerial duty is one that "requires only obedience to
the orders of others." Marson, 438 S.W.3d at
297 (quoting Yanero, 65 S.W.3d at 522). In other
words, a duty is ministerial "when the officer's
duty is absolute, certain, and imperative, involving merely
execution of a specific act arising from fixed and designated
facts." Id. Be that as it may, a ministerial
duty does not demand the simple rote application of a set of
rules. A ministerial duty may involve "ascertainment of.
. . facts, " Upchurch v. Clinton County, 330
S.W.2d 428, 430 (Ky. 1959), and an officer may be'
permitted "some discretion with respect to the means or
method to be employed, " id.; see also 63C Am.
Jur. 2d Public Officers and Employees § 319
(2016) ("Even a ministerial act requires some
discretion."). The point is that a government official
performing a ministerial duty does so without particular
concern for his own judgment; or, as we said in
Marson, the act is ministerial "if the employee
has no choice but to do the act." 438 S.W.3d at 297.
contrast, discretionary acts or duties are "those
involving the exercise of discretion and judgment, or
personal deliberation, decision, and judgment."
Knott County Board of Education v. Patton, 415
S.W.3d 51, 57 (Ky. 2013) (quoting Yanero, 65 S.W.3d
at 522). In Yanero, the seminal case in this arena,
we described discretionary acts as "good faith judgment
calls made in a legally uncertain environment." 65
S.W.3d at 522. The underlying rationale for providing
immunity to discretionary acts is that "courts should
not be called upon 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." Id. at 519. This
rationale makes clearer that discretionary acts are those
performed at the policy-making level, but acts performed at
the operational level are included within this category as
The Administrators Were Entitled to Qualified Official
Immunity as to the Estate's Claim that ACMS's
Policies Were Inadequate.
Administrators, with perhaps the exception of Principal
Bickford in very limited circumstances, were not tasked with
supervising students. The Estate does not contend the
Administrators negligently supervised or monitored students;
rather, the Estate faults the Administrators for not
promulgating adequate policies, and otherwise, for not
following the policies they had enacted.
promulgating behavioral policies for schools, the
Administrators operated under a legislative directive
requiring "each local board of education" to
"formulat[e] a code of acceptable behavior and
discipline to apply to the students in each school operated
by the board." KRS 158.148(4) (currently codified within
KRS' 158.148(5)(a)); see also KRS 158.440. The
legislative mandate to formulate a code of student behavior
does not cast the formation of particular code provisions as
a ministerial function. We dealt with this question in
Knott County Board of Education, where school
administrators had a statutory duty to adopt a school
curriculum and establish a policy for assessing curriculum
needs. The duty to adopt a curriculum was held to be a
ministerial duty because it was mandated by1 statute, but the
policy choice of what subjects to include within the
curriculum (i.e., whether to teach Spanish or French when
neither was mandated by law) was held to be a discretionary
duty to which qualified immunity attached. 415 S.W.3d at 58.
the case here. The duty to implement a code of appropriate
student behavior was a ministerial duty. The Administrators
complied by enacting extensive policies regarding bullying
and harassment. The choice of specific provisions and the
assessment of their adequacy to address all concerns are
purely of a discretionary character. Consequently, the
Administrators are entitled to qualified official immunity
against the Estate's claim that the policies were
The Administrators Were Entitled to Summary Judgment on the
Estate's Failure to Supervise Claim, but the Teachers
reviewing the claims that the Administrators failed to follow
the very policies they promulgated, a claim closely related
to the Estate's claim that the Teachers negligently
supervised students, an overview of the policies ACMS had in
place to prevent or resolve harassment is helpful.
ACMS policy clearly expressed its intention to create a safe
school environment for students. Critical to the success of
that goal was the elimination and prevention of bullying:
What parents want most is for their children to be safe on
their way to/from and at school. When a child does not feel
safe at school, it affects other areas of that child's
life. Students who feel anxious about their personal safety
are sometimes reluctant to attend. Once students and
community are aware that bullying is not tolerated at school,
students will be less guarded and concentrate more on
learning than staying safe. The victim, the bully, as well as
witnesses to bullying acts are more comfortable when they
know the community, students, staff and administration stand
together against bullying. Our school will then be viewed as
a safe school.
ACMS code of conduct included the following definition:
"Bullying is defined as (but not limited to)
communicating verbally and nonverbally using: teasing;
mocking; sending/writing negative/hurtful notes;
rude/negative/hurtful/off color comment; rude gestures/
flipping off another person; isolating another from a
group.'' The school's code of conduct also
included the following physical acts as examples of bullying
"on school property, at any school function, or on
• Twisting body parts;
• Flip/throw/toss objects at another ...