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Mason v. Barnett

Court of Appeals of Kentucky

November 2, 2018



          BRIEFS FOR APPELLANT: Stacey A. Blankenship Kristen N. Worak Paducah, Kentucky

          ORAL ARGUMENT FOR APPELLANT: Stacey A. Blankenship Paducah, Kentucky

          BRIEF FOR APPELLEES: Clay Duncan Craig Housman Paducah, Kentucky

          ORAL ARGUMENT FOR APPELLEE: Clay Duncan Paducah, Kentucky



          ACREE, JUDGE:

         The McCracken County Road Supervisor, Perry Mason, brings this interlocutory appeal to challenge the McCracken Circuit Court's denial of his claim of qualified official immunity. We conclude the circuit court correctly held Mason's duty to replace a stop sign is ministerial and, as to that duty, Mason is not entitled to immunity. However, we find a road supervisor's duty to clear foliage involves discretion and, therefore, the circuit court erred when it found this duty to be ministerial. Mason is entitled to qualified official immunity against claims he breached his duty to clear foliage. We affirm, in part, reverse, in part, and remand.

         I. Factual and Procedural Background

         On June 25, 2013, John Barnett was injured in an automobile accident at the intersection of Ashland Avenue and Old Highway 60 in Paducah, Kentucky. He alleges Mason's failures to replace a missing stop sign and to clear overgrown foliage at the intersection were substantial factors in causing the accident.

         Law enforcement officers who responded to the accident observed the "STOP AHEAD" sign just before the intersection and the white stop bar on Old Highway 60, but saw the stop sign itself was missing. Presuming the old state highway was the Commonwealth's responsibility, the officers contacted the State Highway Department, which replaced the sign that very evening.

         The Barnetts later learned that maintenance of Old Highway 60 was the responsibility of the McCracken County Road Department. They sued the Road Department, County Road Supervisor Mason, and two other department employees, in their official and individual capacities, for negligent failure to replace the missing stop sign and negligent failure to remove foliage at the intersection of Ashland Avenue and Old Highway 60.

         The area in question had been mowed in accordance with the Road Department's cyclical mowing operations on February 5, 2013, May 7, 2013, and July 11, 2013. The accident in this case occurred on June 25, 2013. Mason asserts there was no indication that the mowing plan was inadequate, and there were no complaints made by the public about the foliage at the intersection. Additionally, Mason points out that there was heavy rainfall and flooding in June 2013 requiring the road department's full attention elsewhere in the county.

         Summary judgment was granted on immunity grounds to all defendants in their official capacities and, except for Mason, to all defendants in their individual capacities.

         The circuit court denied Mason's claim to qualified official immunity. After discussing the public duty doctrine and concluding Mason's statutory duties were owed to Barnett, the circuit court stated the law of this case as follows:

Pursuant to KRS[1] 179.070(1), the duty to maintain county roads in a safe condition and remove trees or other obstacles is imposed upon . . . the county road supervisor . . . . [and] that removing downed trees was a ministerial act for which the county [supervisor] was not entitled to qualified immunity. . . . [Further, ] the failure to replace a missing sign was a ministerial act for which [county supervisors] were not entitled to qualified immunity.

(Summary Judgment, R. 806). "Applying these rules," the circuit court said:

Mason, as county road supervisor, owed a special duty to [Barnett] pursuant to KRS 179.070(1). Being aware of his responsibility for maintaining the section of Old Highway 60 where the accident occurred, detecting and replacing the missing stop sign at the intersection, and removing any obstructions to view of the county roads adjoining the intersection were ministerial acts for which he is not entitled to official immunity. . . . As to Mason acting [in his] individual[ capacity], summary judgment will be denied.

(Id., R. 806-07). Additional facts will be discussed as necessary.

         II. Standard of Review

         We review summary judgments to determine "whether the trial court correctly found there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012). Entitlement to immunity is a question of law subject to de novo review. Rowan Cty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006); Estate of Clark ex rel. Mitchell v. Daviess Cty., 105 S.W.3d 841, 844 (Ky. App. 2003).

         Summary judgments are especially important in the context of qualified official immunity because the defense "renders one immune not just from liability, but also from suit itself." Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010); Sloas, 201 S.W.3d at 474.

         III. Analysis

         Public officials and employees may be shielded from tort liability by qualified immunity when sued in their individual capacities. Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). Whether qualified immunity extends to the public employee turns on whether the acts in question were discretionary or ministerial. Marson v. Thomason, 438 S.W.3d 292, 296 (Ky. 2014) (citing Yanero, 65 S.W.3d at 522). The doctrine applies only to discretionary acts negligently performed by a public official when performed in good faith and within the scope of the official's authority or employment. Yanero, 65 S.W.3d at 522.

         Discretionary acts involve "the exercise of discretion and judgment, or personal deliberation, decision, and judgment[.]" Id. They "require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued." Haney, 311 S.W.3d at 240.

         Conversely, "ministerial acts or functions-for which there are [sic] no immunity-are those that require 'only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.'" Id. (quoting Yanero, 65 S.W.3d at 522).

         Ultimately, "the decision as to whether a public official's acts are discretionary or ministerial must be determined by the facts of each particular case[.]" Jerauld ex rel. Robinson v. Kroger, 353 S.W.3d 636, 640-41 (Ky. App. 2011) (quoting Caneyville Vol. Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 809 n.9 (Ky. 2009)).

         1. Knowing which roads are in road supervisor's care is a ministerial duty.

         The Barnetts argued and the circuit court concluded, in effect, that KRS 179.070 imposed upon a county road supervisor the duty of knowing the scope of his duties. We will not bicker about the source of this duty; it is not explicitly stated in statute or regulation. However, it can hardly be denied that an official has a duty to know his duty. And it is illogical to conclude that an official can somehow exercise discretion regarding what part of his duties to know, and what part he need not know. We cannot hold otherwise than that an official's duty to know the scope of his duties is ministerial. But we are not finished analyzing this duty - a duty we have already implicitly acknowledged exists.

         We said in Wales v. Pullen that "[t]here is no . . . safe harbor for a government employee who does not know the duties of his or her job." 390 S.W.3d 160, 166 (Ky. App. 2012). But the duty to know one's duty is coterminous with other duties that are expressed in statute or regulation. Breach of this overarching duty to know one's duty means nothing in the absence of the breach of a specific ministerial duty, or the bad faith performance (or non-performance) of a discretionary one. An official's lack of awareness of his specific duty merely explains how or why he breached it.

         A government official's failure to perform a ministerial duty of which he is unaware constitutes nonfeasance and the official "is liable as well for nonfeasance as for misfeasance or malfeasance." Id. at 167 (citation and internal quotation marks omitted). Immunity will not be available for the non-performance of a ministerial duty no matter the reason, including ignorance.[2] But breach of this duty to know one's duty does not constitute a separate, independent cause of action, nor will it enhance compensatory damages a plaintiff is entitled to recover for breach of the underlying, specific duty.

         When the unknown duty is discretionary, the analysis is slightly more complicated. The question becomes whether the lack of knowledge of one's own duties constitutes bad faith. If not, the official is immune.

         Although we are tempted to discuss the impact of an official's ignorance of his duty on the bad-faith analysis, we would be expressing dicta. The Barnetts do not claim Mason performed a discretionary duty in bad faith. We will be satisfied here to note only that "[b]ad faith is . . . not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." Sloas, 201 S.W.3d at 483 (quoting Bad faith, Black's Law Dictionary (rev. 4th ed. 1968); emphasis added by Supreme Court). The Barnetts do not assert a bad faith claim, perhaps because the evidence in this record fails to demonstrate it.

         In summary, the breach of the non-explicit yet undeniable duty to know one's duties does not impact the balance of our immunity analysis.

         2. Sign replacement is a ministerial duty.

         "[M]aintenance of traffic-control devices is a ministerial function." Lexington-Fayette Urban Cty. Gov't v. Smolcic, 142 S.W.3d 128, 136 (Ky. 2004) (citing Estate of Clark, 105 S.W.3d at 846 (replacing warning sign is ministerial duty)). The circuit court, citing Estate of Clark, concluded Mason was not immune.

         Mason argues that even if he had known the road was his responsibility, the fact he had no notice the sign was missing distinguishes his case from Estate of Clark in which the responsible official did have notice. Estate of Clark, 105 S.W.3d at 846. This is a defense to liability, but in the context of the immunity analysis it does not distinguish Mason's case; it is, in fact, irrelevant.

         Similarly, his explanation of the four methods he employs to monitor the need for replacing signage and other problems along more than 800 roads in McCracken County does not impact our review.[3] Mason explains that none of these methods alerted him. If they had, the County Road Department policy required that the downed or missing road sign be replaced within one (1) hour during business hours, and within two (2) hours at all other times.

         These protocols are not relevant to our analysis. Again, lack of notice, like lack of knowledge of responsibility, may be a defense to the claim that Mason is liable. See Freeport Transport, Inc. v. Commonwealth, Dep't of Highways, 408 S.W.2d 193, 194-95 (Ky. 1966) (no liability because no actual notice to Department or road hazard, reversed on finding constructive notice as a matter of law); City of Dayton v. Thompson, 372 S.W.2d 407, 408 (Ky. 1963) (To hold someone "liable for dangerous conditions for travel . . ., some officer or agency . . . having in charge their maintenance must have knowledge of the unsafe condition, or it must have existed for such a length of time . . . that knowledge of it could have been obtained by the exercise of ordinary care." (citation and internal quotation marks omitted)).[4] We say again, lack of notice has no impact on the question whether Mason is immune from suit.

         We simply repeat the Supreme Court's holding in Smolcic that "maintenance of traffic-control devices is a ministerial function." 142 S.W.3d at 136.

         3. Clearing foliage from along county roads is a discretionary duty.

         Our Supreme Court said, "the nature of a particular act or function demands a more probing analysis than may be apparent at first glance." Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010). The questions raised here demand nothing less than that kind of analysis.

         The circuit court ruled that performing the duties of "removing any obstructions to view of the county roads adjoining the intersection were ministerial acts for which [Mason] is not entitled to official immunity . . . ." (Summary Judgment, R. 806-07). What is that duty's source? The circuit court found it to be KRS 179.070(1), and cited Wales and Ezell v. Christian County, 245 F.3d 853 (6th Cir. 2001) as support. The circuit court's legal conclusion is erroneous because it interprets the statute too broadly and inconsistently with Wales. And to the extent the Sixth Circuit case of Ezell v. Christian County appears to support the circuit court's ruling, it also misinterprets Kentucky law.

         a. Duty to cut foliage along county roads is not found in KRS 179.070(1)(j)

         The subsection the circuit court believes is applicable here says, "The county engineer shall . . . [r]emove trees or other obstacles from the right-of-way of any publicly dedicated road when the tree or other obstacles become a hazard to traffic . . . ." KRS 179.070(1)(j). Because neither the term "obstacle" nor the term "right-of-way" is defined in this chapter, we must discern what the Legislature meant by "obstacles from the right-of-way."

         We do not know why the Legislature used the word "obstacles" rather than "obstructions" - a term it defined for this chapter more than a hundred years ago. 1914 Ky. Acts ch. 80 (codified as KS[5] 4338; re-codified as KRS 179.010(3) (as revised) ("'Obstructions' includes any object which prevents the easy, safe and convenient use of a county road for public travel.")). We consider the words synonymous, as the Legislature apparently did.

         The term "right-of-way" has many definitions.[6] But when this legislation was enacted a hundred years ago, the traveled portion of the road and the right-of-way were understood as being co-extensive. "[P]ersons driving in vehicles or riding on horseback are not required to confine themselves to that part of the road that is most traveled . . . [recognizing] the right of the traveling public to the use of the entire right of way of the road[.]" Harvey v. Illinois Cent. R. Co., 159 Ky. 492, 167 S.W. 875, 877 (1914). When or if that understanding changed we do not and need not know because the Supreme Court recently articulated the meaning of subsection (1)(j) in this context, and consistently with Harvey.

         In Storm v. Martin, the Supreme Court addressed the duties of a county road engineer when "a significant windstorm resulted in downed power lines and trees across the Louisville area." 540 S.W.3d 795, 797 (Ky. 2017), reh'g denied (Mar. 22, 2018). "Three days [after the windstorm], Martin was driving his motorcycle on Phillips Lane in Louisville when he collided with a downed tree in the roadway." Id. As here, the focus in Storm was the road engineer's duty under of KRS 179.070(1)(j). "Clearly[, ]" said the Supreme Court, "the intent behind KRS 179.070(1)(j) is to ensure that trees or other obstacles do not block a public roadway." Id. at 801.

         The Supreme Court thus interpreted the statutory phrase "obstacles from the right-of-way" as the equivalent of "obstructions from the roadway." As noted, the definition for this chapter of "Obstructions" has not changed in a century. KRS 179.010(3). "Roadway" is not defined in chapter 179, but because it has not taken on any special or technical meaning, see KRS 446.080(4), [7] there is no reason to interpret the word other than as commonly used, or as used in Storm, or as defined in other laws. See KRS 189.010(10) ("'Roadway' means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder."); see also KRS 304.39-020(9) ("'Public roadway' means a way open to the use of the public for purposes of motor vehicle travel.").

         In sum, Storm tells us the ministerial duty expressed in the statute is to keep a roadway clear of obstacles that suddenly impede traffic. Storm, 540 S.W.3d at 797 ("downed tree in the roadway"); Wales, 390 S.W.3d at 163 ("branches of a tree . . . in the middle of the roadway"). Storm does not recognize in KRS ...

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