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Commonwealth v. Russell

Court of Appeals of Kentucky

June 28, 2019

COMMONWEALTH OF KENTUCKY, JUSTICE AND PUBLIC SAFETY CABINET, DEPARTMENT OF CORRECTIONS APPELLANT
v.
TOMMY RUSSELL AND KENTUCKY BOARD OF CLAIMS APPELLEES

          APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 15-CI-00312

          BRIEFS FOR APPELLANT: Linda M. Keeton Frankfort, Kentucky.

          BRIEF FOR APPELLEE: Kenneth C. Human Lexington, Kentucky.

          BEFORE: ACREE, LAMBERT, AND SPALDING, JUDGES.

          OPINION

          SPALDING, JUDGE.

         The Commonwealth of Kentucky, Department of Corrections, appeals from a judgment of the Franklin Circuit Court reversing the Kentucky Board of Claims'[1] 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.

         While a 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.

         In 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.

         In 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.

         Appellate 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.

         KRS 44.073(2) provides:

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 ...

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