FROM MCCRACKEN CIRCUIT COURT HONORABLE TIMOTHY KALTENBACH,
JUDGE ACTION NO. 14-CI-00355
FOR APPELLANT: Stacey A. Blankenship Kristen N. Worak
ARGUMENT FOR APPELLANT: Stacey A. Blankenship Paducah,
FOR APPELLEES: Clay Duncan Craig Housman Paducah, Kentucky
ARGUMENT FOR APPELLEE: Clay Duncan Paducah, Kentucky
BEFORE: ACREE, DIXON AND JONES, JUDGES.
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,
Factual and Procedural Background
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
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
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.
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.
judgment was granted on immunity grounds to all defendants in
their official capacities and, except for Mason, to all
defendants in their individual capacities.
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 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
Standard of Review
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).
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.
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.
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.
"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).
"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)).
Knowing which roads are in road supervisor's care is
a ministerial duty.
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.
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.
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. 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
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.
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.
summary, the breach of the non-explicit yet undeniable duty
to know one's duties does not impact the balance of our
Sign replacement is a ministerial duty.
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.
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,
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. 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.
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)). We say again, lack of notice has no impact
on the question whether Mason is immune from suit.
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.
Clearing foliage from along county roads is a
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.
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
Duty to cut foliage along county roads is not found in
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
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 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
term "right-of-way" has many
definitions. 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
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.
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),  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
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