COMMONWEALTH OF KENTUCKY, JUSTICE AND PUBLIC SAFETY CABINET, DEPARTMENT OF CORRECTIONS APPELLANT
TOMMY RUSSELL AND KENTUCKY BOARD OF CLAIMS APPELLEES
FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE,
JUDGE ACTION NO. 15-CI-00312
FOR APPELLANT: Linda M. Keeton Frankfort, Kentucky.
FOR APPELLEE: Kenneth C. Human Lexington, Kentucky.
BEFORE: ACREE, LAMBERT, AND SPALDING, JUDGES.
Commonwealth of Kentucky, Department of Corrections, appeals
from a judgment of the Franklin Circuit Court reversing the
Kentucky Board of Claims' denial of benefits to appellee
Tommy Russell for injuries he sustained while cutting down a
large tree. Because we are convinced that the circuit court
correctly concluded that the Board erred in applying settled
law to the facts of this case, we affirm.
state inmate at the Frankfort Career Development Center,
appellee Russell participated in a work release program at
the National Guard Boone Center Headquarters in Frankfort,
Kentucky. That program provides on the job training for
inmates pursuant to a memorandum of agreement between the
Department of Corrections and the Kentucky Department of
Military Affairs. On August 18, 2008, supervisors at the
Department of Military Affirms directed Russell to cut down a
rotten tree which was in danger of falling on a jogging path.
When felled, the tree landed on Russell's left leg,
resulting in injuries which ultimately required amputation of
that limb below the knee. At the time of the incident,
Russell was working under the direct supervision of Josh
Broughton, a Military Affairs employee.
2009, Russell filed a negligence action in Franklin Circuit
Court against Kimberly Whitley, warden of the Frankfort
Career Development Center; Michael Adcock, a supervisor at
Military Affairs; and Josh Broughton, a Military Affairs
employee who had immediate training and supervisory control
of Russell. He also filed the instant action in the Kentucky
Board of Claims. The circuit court action was stayed pending
resolution of the proceedings before the Board. After
conducting a hearing in September 2014, a hearing officer
recommended that Russell receive no award on his claim on the
basis that the state actors' conduct was discretionary,
thus affording the Commonwealth immunity for its actions, and
that, at the time of the accident, Russell was under the
exclusive control of Military Affairs. The Board affirmed the
hearing officer's recommendation and issued its final
order in February 2015. Russell then appealed the Board's
decision to the Franklin Circuit Court. On December 28, 2018,
the circuit court rendered the opinion and judgment which is
the subject of this appeal.
reversing the decision of the Board, the circuit court
concluded that the Board erred 1) in finding Kentucky Revised
Statute ("KRS") 441.125(2)(b) inapplicable to
Russell's claim; 2) in concluding that the Department of
Corrections was entitled to immunity under KRS 44.073(2)
because the act of felling a tree is discretionary; and 3) in
concluding that at the time of his injury, Russell was under
the exclusive control of Military Affairs. The Department of
Corrections' primary arguments for reversal center on its
entitlement to the shield of immunity and error in the
circuit court's conclusion that Russell was not in the
exclusive control of Military Affairs.
review of decisions of the Board of Claims is confined by the
language of the Act itself:
The statute [creating the Board] provides that on an appeal
from an award or judgment of the Board the circuit court
shall dispose of the appeal in a summary manner, the court
being limited to determining whether: (1) the Board acted in
excess of its powers; (2) the award was procured by fraud;
(3) the award is not in conformity with the statute; (4) the
finding of fact supports the award of judgment.
Commonwealth v. Mudd, 255 S.W.2d 989, 990 (Ky.
1953). We commence our analysis of the circuit court's
judgment with those principles in mind.
The Board of Claims shall have primary and exclusive
jurisdiction over all negligence claims for the negligent
performance of ministerial acts against the
Commonwealth, any of its cabinets, departments, bureaus, or
agencies, or any officers, agents, or employees thereof while
acting within the scope of their employment by ...