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Howard v. Big Sandy Area Development District, Inc.

Court of Appeals of Kentucky

August 3, 2018



          BRIEF FOR APPELLANT: Ross F. Mann Robert E. Salyer Lexington, Kentucky

          BRIEF FOR APPELLEE, BIG SANDY AREA DEVELOPMENT DISTRICT, INC.: Johnathan C. Shaw Paintsville, Kentucky



          KRAMER, JUDGE.

         Kimberly Howard, as Executrix of the Estate of Emma Jean Hall (the Estate), appeals a summary judgment of the Magoffin Circuit Court dismissing a negligence and wrongful death action the Estate filed against the appellee, Big Sandy Area Development District, Inc. Upon review, we affirm. Big Sandy Area Development District, Inc., operates a regional homecare program for eligible individuals in conformity with 910 Kentucky Administrative Regulations (KAR) 1:180. The program's primary function is to prevent unnecessary institutionalization of functionally impaired persons over the age of 60 who lack adequate support, and to allow those individuals to live safer and more comfortable lives at home, by providing them supplementary in-home assistance with housekeeping, personal care, and a variety of other as-needed services.[1]

         Beginning in 2004, Emma Jean Hall qualified for and was provided these homecare services. As an aside, there is no dispute that at all relevant times Hall retained the mental capacity to ask for help when she needed it, control her own finances, otherwise make her own decisions in every other facet of her life, and that she was adamantly opposed to living in a nursing home. But, Hall had become less physically capable as her age advanced, spent much of her days and nights sitting on her living room recliner, and needed assistance performing activities of daily living. Accordingly, she maintained an informal but regular network of support from friends, neighbors, and family members, and her individualized homecare plan was designed merely as a supplement. Thus, under the terms of her individualized homecare plan, an aide employed by Big Sandy would visit Hall twice per week for periods of two hours, Wednesdays and Fridays; and the aide would assist Hall with various household chores (such as laundry and dishes), and personal hygiene tasks (such as bathing and dressing). The scope of Hall's plan did not include the provision of health or medical services.

         Big Sandy aides continued to visit Hall twice per week as described until May 21, 2014. On that date Big Sandy aide, Carol Miller, discovered Hall hunched over in the living room recliner where Hall usually sat. Hall appeared to be ill. Miller asked Hall if she needed help, and she called Howard Bacon, Hall's son, after Hall instructed her to do so. After speaking with Carol, Bacon contacted his wife and his daughter who arrived about an hour later and asked Hall what was going on. Hall told them she was feeling ill. They asked Hall if they could take her to a hospital, and Hall agreed. Thereafter, Hall was taken by ambulance to Pikeville Medical Center. Upon examination, a severe bedsore was discovered in the region of Hall's coccyx. Hall ultimately passed away on June 6, 2014, due to complications from the bedsore. At the time, she was ninety-three years old.

         On May 18, 2015, Kimberly Howard, as Executrix of the Estate of Emma Jean Hall (the Estate), filed suit in Magoffin Circuit Court against Big Sandy Area Development District, Inc. The Estate asserted various civil claims based upon Big Sandy's provision of homecare services to its decedent from 2004 until May 21, 2014, alleging in sum that Big Sandy's provision of homecare services to Hall was negligent and was a substantial factor in bringing about Hall's death. In this respect, the Estate's arguments focused upon the fact that when Big Sandy's aides visited twice per week, one of the tasks Hall typically asked them to perform for her was assisting her with bathing. The Estate postulated that if the visiting aides had bathed Hall in a non-negligent fashion, Hall's bedsore would not have formed, or would have been detected earlier with fewer ill consequences.

         Following a period of discovery and two motions for summary judgment from Big Sandy, however, the circuit court dismissed the Estate's action on several bases. Namely, it concluded Big Sandy was entitled to governmental immunity from suit; the Estate had failed to demonstrate the nature of the applicable duty or standard of care Big Sandy had owed to its decedent; and, that the Estate had failed to demonstrate any action or inaction from Big Sandy had proximately caused or could have prevented Hall's bedsore and resulting death. This appeal followed.

         Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991). Therefore, we operate under a de novo standard of review with no need to defer to the trial court's decision. Davis v. Scott, 320 S.W.3d 87, 90 (Ky. 2010) (citation omitted). Likewise, whether an individual or governmental entity is entitled to immunity is a question of law reviewed de novo. Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006). Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, 807 S.W.2d at 480.

         With that in mind, the focus of our opinion is upon the circuit court's conclusion that Big Sandy was entitled to governmental immunity under the circumstances presented. That issue is dispositive of this appeal. Governmental immunity is "a policy-derived offshoot of sovereign immunity" that protects government agencies and entities from civil liability. Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 801 (Ky. 2009) (citing Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001)). Under the doctrine, "a state agency [or entity] is entitled to immunity from tort liability to the extent that it is performing a governmental, as opposed to a proprietary, function." Yanero, 65 S.W.3d at 519. In other words, immunity is a conditional status for a government agency or entity that turns on whether the agency or entity is performing an essential government function. Caneyville, 286 S.W.3d at 804.

         The test for whether an entity qualifies for governmental immunity is two pronged. First, the Court must examine the origin, or "parent," of the entity to determine if the entity is an agency or alter ego of a clearly immune parent. Comair, Inc. v. Lexington-Fayette Urban Cty. Airport Corp., 295 S.W.3d 91, 99 (Ky. 2009). Second, the Court must assess whether the entity performs a "function integral to state government." Id.

         Regarding the first prong, the circuit court concluded Big Sandy satisfied it; we agree with the circuit court's conclusion; and the Estate offers no argument to the contrary. Big Sandy is one of Kentucky's fifteen statutory "area development districts" (ADDs), and its service area includes the counties of Johnson, Magoffin, Martin, Floyd, and Pike. See Kentucky Revised Statute (KRS) 147A.050(11). ADDs provide a wide array of services for local governments in their respective regions, and they receive funding from a variety of sources. The long version is that they are statutorily-created, nonprofit, quasi-governmental inter-county bodies and independent contractors with contractual and regulatory duties imposed by federal and state law, designed in part to comply with Kentucky's participation in various federal programs. The short version is that ADDs are types of political subdivisions known as "special districts."[2]

         As to the second prong, the circuit court also determined Big Sandy's administration and provision of homecare services -- the central focus of the Estate's various causes of action -- qualified as a function integral to state government. The Estate argues the circuit court erred on this point. As to why, the Estate summarizes its argument most succinctly on page fifteen of its appellate brief:

The State has not taken on a general duty to provide home health for Kentucky's sick and elderly, as laudable as such a function may be. Big Sandy and its authorizing legislation could disappear tomorrow, and the Commonwealth would not be substantially altered as a polity and a commonwealth. In contrast, it is unimaginable that the Commonwealth would stop taking responsibility for policing, public education, public water and waste, [3] the corrections system, and public highways and airway infrastructure.

         We disagree. In determining whether an entity's function is integral to state government the court's examination should focus "on state level governmental concerns that are common to all of the citizens of this state, even though those concerns may be addressed by smaller geographic entities (e.g., by counties)." Comair, 295 S.W.3d at 99. Here, the Estate is correct in stating that functions that have been traditionally considered integral to state government include policing, public education, the corrections system, and the provision of public highways and airway infrastructure. Id.

         However, functions that have not been traditionally considered integral to state government, such as the provision of social welfare programs, can be made integral through legislation. That much is also implicated in Comair, which explained that making "provisions for the poor" qualified as an integral governmental function. Id. at 100 (quoting Marion County v. Rives & McChord, 133 Ky. 477, 118 S.W. 309, 311 (1909)). In Bowman v. Frost, 289 Ky. 826, 158 S.W.2d 945 (1942), our former High Court elaborated further on this point in the context of discussing the constitutionality of an act of the General Assembly extending aid to the needy blind, explaining in relevant part:

Care of the poor and those unable to care for themselves has long been recognized as a public duty, and as civilization progressed the care of the state for its dependent classes grew and expanded. Today social services unknown to former generations are being extended to the less fortunate members of society, and are being demanded and obtained as of right. Food and shelter have become the clearly recognized obligation of society to every inhabitant of the state. Various methods have been adopted to fulfill this obligation, including the construction and operation by the state or its subdivisions of asylums for the insane, hospitals for the sick, and poorhouses for the destitute. To sensitive persons confronted with the necessity of accepting public assistance, the typical poorhouse is an object of dread. As organized society becomes more conscious of its obligations to its dependent members, more humane methods for caring for them are being adopted.
. . . .
The aid provided for in the act before us is not a mere gift or bounty, but is a payment by the state in discharge of a duty to a recipient who is entitled to it as of right, having established his eligibility under the act. It is true his legal right results solely from statute, since there was no common-law obligation on the state to care for the poor, but when the state undertakes by statute to assume the obligation, his right attaches. In 21 R.C.L. 701, it is said: "The care of the state for its dependent classes is considered by all enlightened people as a measure of its civilization, and the care of the poor is generally recognized as among the unquestioned objects of public duty, but in spite of this, the duty under the common law was purely moral and not legal. There is therefore no legal obligation at common law on any of the instrumentalities of government to furnish relief ...

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