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Patton v. Bickford

Supreme Court of Kentucky

August 24, 2017


          CORRECTED: APRIL 1, 2016

          RENDERED: MARCH 17, 2016


          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.




         Stephen Patton (Stephen) was an eighth-grader at Allen Central Middle School (ACMS) when he committed suicide, allegedly because he was being bullied at school.[1] Sheila Patton, as Administratrix of Stephen's estate, [2] filed this lawsuit alleging various teachers[3] and administrators[4] knew of, or should have known of, the bullying and taken steps to prevent it.

         The 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.

         The 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.

         We 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.

         Contrary 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.

         Nevertheless, 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 required.

         In 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 different reasons.


         Thirteen-year 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.

         Whether 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.

         The 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.


         Summary 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.

         A 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.


         We 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.

         The 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."[5] 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).

         Categorizing 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.

         A 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.

         In 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 well.

         A. The Administrators Were Entitled to Qualified Official Immunity as to the Estate's Claim that ACMS's Policies Were Inadequate.

         The Administrators, with perhaps the exception of Principal Bickford in very limited circumstances, were not tasked with supervising students.[6] 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.

         In 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.

         Such is 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.[7] Consequently, the Administrators are entitled to qualified official immunity against the Estate's claim that the policies were inadequate.

         B. The Administrators Were Entitled to Summary Judgment on the Estate's Failure to Supervise Claim, but the Teachers Were Not.

         Before 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.

         The 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.

         The 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.''[8] 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 school transportation[.]

• Grabbing;
• Pinching;
• Twisting body parts;
• Tripping;
• Pushing;
• Shoving;
• Flip/throw/toss objects at another ...

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