Kimberly Howard, as of the Estate of Emma Jean Hall v. Big Sandy Area Development District, Inc. ( 2020 )

RENDERED: DECEMBER 17, 2020
TO BE PUBLISHED
Supreme Court of Kentucky
2018-SC-0601-DG
KIMBERLY HOWARD, AS EXECUTRIX OF APPELLANT
THE ESTATE OF EMMA JEAN HALL,
DECEASED
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2017-CA-0747
MAGOFFIN CIRCUIT COURT NO. 15-CI-00103
BIG SANDY AREA DEVELOPMENT DISTRICT, INC. APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
Kimberly Howard, in her capacity as executrix of the Estate of Emma
Jean Hall, deceased, brought this negligence and wrongful-death action in the
circuit court asserting claims against Big Sandy Area Development District,
Inc. (“BSADD”). The circuit court granted summary judgment, holding that
BSADD was shielded from liability by governmental immunity and that, in any
event, Howard’s evidence did not support the claims as a matter of law. The
Court of Appeals unanimously affirmed on appeal. On discretionary review, we
hold that BSADD does not have governmental immunity because, though a
creature of statute, it does not perform an integral state function. So we
disagree with the Court of Appeals’ decision on that important point of law, but
we affirm the result reached by the Court of Appeals panel and the trial court
because we agree that the trial court properly granted summary judgment on
the merits of Howard’s claims against BSADD.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ninety-three-year-old Emma Jean Hall died of the effects of sepsis that
developed from a bed sore on her lower back. Despite the challenges of
advancing age and declining health during the last decade of her life, Hall was
able to remain in her home with the help of friends, family, and BSADD
homecare aides, who performed basic housekeeping, and periodic bathing.
Hall’s various helpers alternated, making intermittent but frequent visits to her
home.
BSADD is an area development district (“ADD”) that encompasses the
Kentucky counties of Floyd, Johnson, Magoffin, Martin, and Pike.1 BSADD,
like some other ADDs in this state, arranges for assistants, called homecare
aides, to visit elderly clients on a regular basis as part of the state’s “Homecare
Program.”2 This homecare program is specifically designed to allow otherwise
independent elders to remain in their homes and out of nursing homes. This
program is just one of several social and economic projects that BSADD helps
coordinate and facilitate in the Eastern Kentucky region.
BSADD assigned a homecare aide to help Hall with very basic
housekeeping and self-care—sometimes to change her clothes and sometimes
to help her bathe. As a matter of BSADD policy, these aides were otherwise
limited in what they could do for Hall. For instance, BSADD’s homecare
1 Kentucky Revised Statute (KRS) 147A.050(11).
2 910 Kentucky Administrative Regulation (KAR) 1:180(3).
2
services expressly excluded rudimentary medical services, such as handing
prescribed medication to Hall. BSADD merely supplemented Hall’s existing
network of family and neighborhood help.
The BSADD homecare aides were regularly scheduled to visit Hall at her
home twice a week for a period of two hours. During one of these routine
visits, the homecare aide found Hall slumped in her recliner, appearing ill.
Hall told the aide to call her son. Hall was transported by ambulance to
Pikeville Medical Center.
The treating physician at Pikeville Medical diagnosed a severe bedsore on
Hall’s lower back. Sadly, Hall’s condition progressed to sepsis, and she died as
result of the infection. The doctors gave differing accounts of how the condition
progressed and, therefore, how noticeable the bedsore would have been to
Hall’s caretakers.3
Howard, brought this negligence action against BSADD, alleging that
Hall’s condition could have been found and remedied had BSADD’s homecare
aide not been negligently inattentive. BSADD moved for summary judgment
claiming governmental immunity shielded it from suit and that evidence of its
negligence was insufficient as a matter of law.
The trial court granted BSADD’s motion for summary judgment, holding
3 Hall’s treating physician, the physician who diagnosed the bedsore at Pikeville
Medical, testified that a bedsore at the stage it was discovered could have taken
anywhere from 10 to 15 days to develop. This expert opined that only negligence can
explain how the condition progressed to the stage it did without intervention from
BSADD aides, that the BSADD aide would have and should have noticed the condition
and helped Hall before it was too late.
BSADD’s doctor testified, after reviewing the case, that even though a bed sore
this severe took roughly 10 to 15 days to develop, the sore and its progression were
largely subcutaneous (under the skin) for most of that time, Hall’s condition probably
could not have been apparent by visual inspection until it was far too late.
3
that BSADD enjoyed governmental immunity and that the facts supported no
special duty on BSADD’s part, much less a breach of such duty. The Court of
Appeals unanimously affirmed the decision of the circuit court. We granted
Howard’s motion for discretionary review.
II. ANALYSIS
We review a trial court’s grant of summary judgment de novo, and in
doing so, we owe no deference to the legal conclusions of the courts below.4
The primary issue is whether BSADD enjoys governmental immunity
from negligence claims as a “quasi-governmental” entity. As a rule, state
government and its agencies are protected by sovereign immunity from civil
suit.5 In some cases, this immunity can extend to non-governmental or quasi-
governmental bodies under a different name: governmental immunity.6
The controlling authority on whether a quasi-governmental entity enjoys
governmental immunity is Comair, Inc. v. Lexington-Fayette Urban County
Airport Corp.7 Under Comair, governmental immunity extends to a quasi-
governmental entity if (1) it has immune “parentage” and (2) it performs an
“integral” function of state government.
An entity has immune “parentage” if it owes its origin to an entity that is
itself entitled to sovereign or governmental immunity and if it operates as “an
4 Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013).
5Yanero v. Davis, 65 S.W.3d 510, 523 (Ky. 2001). See Bryant v. Louisville Metro
Housing Authority, 568 S.W.3d 839, 845–46 (Ky. 2019).
6 Bryant, at 846 (“[G]overnmental immunity is an extension of the parent’s
sovereign immunity.”).
7 295 S.W.3d 91 (2009).
4
agency (or alter ego) of [said] clearly immune entity.”8 A government function is
“integral” if, taken as a whole and on balance,9 it involves a statewide policy
concern and its function is necessary or essential to address that concern.10
The state government engages in many programs and projects, but “state-level
government concerns” for our purposes include fundamental functions like
“police, public education, corrections, tax collection, and public highways.”11
The Comair analysis is thus a fact-sensitive, case-by-case analysis.12 We
must acknowledge that under Kentucky law, “while the state enjoys immunity
from suit, a level of constraint must be exercised in its application to other
entities in order to respect both constitutional and important public policy
limitations.”13 And “certainly not every business can be immunized simply
because it is established by act of the General Assembly.”14 With these
principles in mind, we can now wade into the muddy waters of governmental
immunity.
A. BSADD has immune parentage.
This first element concerns the nature of the entity in question, or what
it is, with specific regard to its legal origin and its governance.15 ADDs are
8 Id. at 99 (emphasis added).
9 Id. at 98. See, e.g., Stanford v. U.S., 948 F. Supp. 2d 729, 736 (2013); N.
Kentucky Area Planning Comm’n v. Cloyd, 332 S.W.3d 91, 95–96 (Ky. App. 2010)
(assessing the balance of an area planning commission’s activities).
10 Comair, at 99.
11 Id.12 Id.13 Bryant v. Louisville Metro Housing Auth, 568 S.W.3d 839, 846 (Ky. 2019).
(citing Coppage Constr. Co. v. Sanitation Dist. No. 1, 459 S.W.3d 855, 859 (Ky. 2015)).
14 Kentucky Ctr. for the Arts Corp. v. Berns, 801 S.W.2d 327, 331 (Ky. 1990).
15 See Comair, at 99.
5
creatures of statute, established and authorized to operate in their respective
regions under KRS 147A.050. Statutes and regulations refer to the ADDs as
“public agencies” or “special districts” of state and local government.16 ADDs
are therefore created by statute; owe their origin directly to the legislature,
which is an immune entity; and are at least nominally “public agencies” by
statute. This makes them potentially entitled to immunity.
As a matter of practice BSADD is apparently quite independent from
state government, both legally and functionally, which undercuts any
argument that BSADD is an “alter ego” of the state legislature. BSADD is not
part of the legislative or executive branches of state government like the
Department for Health and Family Services (hereinafter “the Cabinet”), the
Department for Aging and Independent Living, or the Department of Local
Government. Instead, BSADD is a distinct corporate entity. It does not
apparently create, direct, or influence policy at any significant level, such as by
regulation. Interestingly, KRS 147A.060 states that “[a] person who is a state
officer, a deputy state officer, or a member of the General Assembly may serve
only in a nonmember advisory capacity to the board of directors of an area
development district.” These facts make it hard to say how it acts as an alter
ego or even as a legal extension of its immune parent, the legislature, in the
same way other public agencies do.
Further, BSADD operates relatively independently and is subject to
minimal direction and oversight from state agencies.17 It is instead subject to
16 See KRS 65.005, KRS 147A.040(15), and 147A.080(10).
17 See Bryant, at 846–47 (discussing entity’s independence from the legislature
in determining whether it is a “state agency” for purposes of Comair) (“There is
6
the control of a board of directors that can independently sue and be sued.18
In sum, BSADD is not even functionally part of the state government, even by
statute. Rather, it sometimes serves as a corporate instrumentality of different
state agencies. It is not an “agency” or part of an agency in any meaningful
sense of that term.
B. BSADD does not perform an integral function of government.
This second element of Comair concerns the nature and scope of what an
entity actually does, focusing on the entity’s relationship to state government.19
This is the weightier of the two factors under consideration.20 This bigger,
more complex issue, discussed at length by the Court of Appeals, requires us
to determine whether BSADD performs an “integral” function of state
government, i.e., (a) as a whole and on balance, it is (b) necessary and essential
to the execution of (c) a state-level policy. For the following reasons, we find
that BSADD plays a proprietary role, is not necessary to the execution of state-
level policy or services, and thus does not perform an integral state function.
sufficient control authorized [by statute] to find a connection adequate for this prong
of the Comair test . . . . These statutes portray a definitive, albeit more removed than
other agencies of the government, control from the legislative and executive branches
over LMHA.”).
18 KRS 147A.080(2).
19Comair, at 99 (“[S]overeign immunity should extend . . . to the departments,
boards or agencies that are such integral parts of state government as to come within
the regular patterns of administrative organization and structure.”) (quoting Kentucky
Center for the Arts Corp. v. Berns, 801 S.W.2d at 332) (emphasis added).
20See id. (“The more important aspect of Berns is the focus on whether the
entity exercises a governmental function, which that decision explains means a
‘function integral to state government . . . . [Past decisions] clearly demonstrate a shift
in focus to the nature of the entity.’”) (citing Berns, at 332, other citations omitted).
7
1. BSADD’s role is proprietary—advising, planning, contracting,
and coordinating various regional projects.
Under Comair, an entity’s “function” must be identified and understood
as the sum of its discrete functions.21 The Court of Appeals seems to have
correctly described BSADD’s homecare program and how it functions, its
limited role within a broader state and federal scheme of services, and how
beneficial it is to homecare clients. But the Court of Appeals did not
adequately consider the homecare program as only a discrete part of what
BSADD does, seemingly missing what BSADD is in a fuller sense. This crucial
misstep distorts what should have been a more holistic analysis under
Comair.22
The legislature established BSADD to support social and economic
development, a notably broad purpose. On the ground, BSADD supports the
coordination of various social services and state projects, but it does not, for
the most part, seem to provide government services directly. Its services may
indeed help the government accomplish various projects more expeditiously,
but it does not generally complete the projects itself. And though it happens to
implement its limited homecare program, that is about as “hands on” as
BSADD gets in support or furtherance of government programs.
The Court of Appeals further erred when it incorrectly conflated the
homecare program with more direct and comprehensive public services meant
to aid under-resourced persons. This was evident, for instance, in the Court of
21 See Berns, at 332.
22 Comair, at 98 (citing Berns, at 332).
8
Appeals’ comparison between BSADD’s homecare service and a state-run
mental hospital operated by the Cabinet in Hamblen ex rel. Byars v. Kentucky
Cabinet for Health and Family Services.23 In that case, Hamblen, by and
through his guardian Byars, sued the Cabinet for Health and Family Services,
the Kentucky Department for Mental Health and Mental Retardation Services,
and the state hospital and its employees for negligence. Hamblen was sixty-
one years old, severely disabled mentally and physically, and a resident at the
state hospital for over thirty years.24 The Court of Appeals held in Byars that
the defendants, as legal extensions of the state via the Cabinet, were clearly
performing government functions and were therefore protected from suit by
governmental immunity.25
The Court of Appeals erred when, in the present case, it compared
BSADD to a Cabinet-run state hospital “provid[ing] for the health and welfare
of [the state’s] dependent classes.”26 Provision of long-term, comprehensive
mental-health services by the Cabinet at a brick-and-mortar state hospital,
sometimes to persons as severely disabled as Hamblen in Byars, is different
from BSADD’s services helping independent-living elders with basic, non-
medical household tasks in their own homes. And the plaintiffs in Byars sued
the Cabinet itself, an agency that is indisputably a part of state government.
23 322 S.W.3d. 511 (Ky. App. 2010).
24 Id. at 514.
25 Id. at 516.
26 Howard v. Big Sandy Area Dev. Dist., Inc., No. 2017-CA-000747-MR, 2018 WL
3672708, at *5 (Ky. App. Aug. 3, 2018).
9
Even the Court of Appeals’ quote from the Byars case demonstrates a
serious distinction between the Byars defendants and BSADD, as the mental-
health services were “carried out under the direct auspices of state government
and were functions integral to state government.”27 BSADD does not truly
operate “under the auspices” of the Cabinet or any other government agency,
even with respect to the homecare program. The record shows that BSADD’s
interactions with the Cabinet and the Department of Aging and Independent
Living are rather limited and infrequent. The relationship is more contractual
and proprietary than supervisory.
Even if this homecare service in isolation could be characterized as a
type of integral government service, which it cannot, it still only amounts to
part of what BSADD does. On balance, BSADD does not serve the sort of
integral welfare functions the Court of Appeals described. Rather, BSADD is
mostly a facilitator, a point of contact, and an organizer. BSADD itself simply
does not disburse welfare, provide other services directly to the public, or
provide shelter or healthcare to those in need as characterized by the Court of
Appeals.
2. BSADD is not “necessary” or “essential” to the execution of
public services and projects.
Next, Comair requires that an entity be “necessary” or “essential” to the
execution of a government function to the point that it is practically part and
parcel of the legal and operational structure supporting the program.28 The
27 Id. (citing Byars, at 516–17) (emphasis added).
28 There is conceptual overlap here with the “alter ego” point under the first
Comair factor, but this factor focuses more on the degree of integration of an entity’s
corporate structure into state government.
10
Court of Appeals did not directly reach this point, though it did briefly discuss
BSADD’s statutory relationship with the Cabinet for Health and Family
Services.29 BSADD’s various projects can be accomplished, legally and
functionally, by government agencies themselves or by other entities, according
to the statute cited.30 BSADD’s cooperation with the Cabinet with respect to
the homecare program does not define BSADD, and the Cabinet’s cooperation
with BSADD does not define its general provision of public services and
resources to needy Kentuckians. BSADD’s role can be, and is in fact,
accomplished by other private or public entities that can assume the same
coordinating, planning, and organizing role BSADD plays. Without BSADD,
the government’s ability to implement state or local policy would not cease to
be, it would simply be accomplished by other means.
Unlike the Cabinet or its constituent departments, for instance, BSADD
has not obviously “come within regular patterns of administrative organization
and structure” of state government.31 Granted, BSADD happens to have an
internal corporate structure through which it coordinates its homecare services
in the Big Sandy region. But BSADD’s role is complementary to state
government, not necessary to it. In other words, while BSADD does good work
for the elderly by providing homecare, one can imagine that service being
29 See KRS 205.460(1) (“The (Health and Family Services) cabinet shall fund,
directly or through a contracting entity or entities, in each district, a program of
essential services which shall have as its primary purpose the prevention of
unnecessary institutionalization of functionally impaired elderly persons.”) (emphasis
added)).
30 See KRS 205.460(1) (“. . . directly or through a contracting entity or
entities. . .”).
31 See Comair, at 99.
11
provided without BSADD, but one cannot imagine provision of that service,
even if just by contract, without the Cabinet itself or the Department for Aging
and Independent Living. The latter are clearly the more necessary and
essential parts of the government’s provision of those services, while BSADD
has merely contracted with the government according to statute to provide that
service among others. We conclude BSADD is not “necessary” or “essential” to
government functions under Comair.
3. BSADD’s role is region-specific by design and in substance, not
statewide.
Finally, Comair requires that an entity’s function predominantly be of
statewide importance.32 BSADD’s operation is not of statewide concern.
BSADD was intended by statute to address region-specific concerns, and that
is all it does. Even its name, the “Big Sandy” Area Development District,
indicates such a local focus. BSADD is clearly authorized to run on an
exclusively regional level with exclusively regional interests in mind. Overall,
BSADD’s existence and operation has primarily regional implications and is not
of “statewide” policy concern under Comair, notwithstanding the General
Assembly’s establishing ADDs in various regions across the state.
C. Summary judgment was proper on the merits of Howard’s negligence
claim.
Having dispensed with the argument that BSADD enjoys governmental
immunity, we turn briefly to the merits of the motion for summary judgment on
the negligence claims. The trial court ruled—and the Court of Appeals
affirmed—that BSADD’s agents owed no identifiable duty of care to Hall and
32 Id. at 98.
12
that there was no evidence of breach under a general standard of care. We
affirm this part of the decision, holding that BSADD and its homecare aides did
not owe a special duty of care to Hall, even by its rendering services to her
through the Homecare Program.
Summary judgment is to be “cautiously applied and should not be used
as a substitute for trial.”33 A party is nonetheless entitled to judgment as a
matter of law when, after viewing the facts in a light most favorable to the
nonmoving party, there is no issue as to any material fact as a matter of law.”34
The trial court correctly stated that under Kentucky law, negligence consists of
a duty, a breach of that duty, and a consequent injury.35 Duty is a matter of
law,36 and where there is no duty, there can be no breach.
The undisputed facts indicate BSADD did not render medical services or
agree to render medical services to its homecare clients. It did not and does
not run a medical facility or operate a nursing home. Its homecare aides
played a role practically identical to Hall’s family members and neighbors, and
it only provided its limited services two days a week. It certainly did not owe
the higher duty of care owed by medical professionals. BSADD cannot be
considered Hall’s agent, and Hall was not dependent on BSADD’s assistance.
The record simply contains no evidence that BSADD breached a standard of
care to Hall, even if Howard could prove a homecare aide could have or should
33Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 483
(Ky. 1991).
34 CR 56.03; Id. at 480.
35 See M&T Chemicals v. Westrick, 525 S.W.2d 740, 741 (Ky. 1974).
36 Pathway v. Hammonds, 113 S.W.3d 85, 89 (Ky. 2003).
13
have noticed Hall’s subcutaneous bedsore early in its progression. Entry of
summary judgment was proper, as no issue of material fact was left for a jury
to resolve. BSADD was entitled to judgment as a matter of law on the
substance of the negligence claim, not because of governmental immunity.
IV. CONCLUSION
The lower courts incorrectly held that the Big Sandy Area Development
District is protected by governmental immunity with respect to this negligence
claim. But the Circuit Court properly entered, and the Court of Appeals
properly affirmed, summary judgment on the negligence claim itself.
Accordingly, we affirm the entry of summary judgment but on different grounds
than the Court of Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Richard Eric Circeo
Circeo Fannin, P.S.C.
Robert Earl. Salyer
Wilkes & McHugh, P.A.
COUNSEL FOR APPELLEES:
Jonathan C. Shaw
Porter, Banks, Baldwin & Shaw, PLLC
14