Ricky Ray Downey v. Richard Jaehnigen ( 2021 )

RENDERED: APRIL 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0693-MR
RICKY RAY DOWNEY APPELLANT
APPEAL FROM HENRY CIRCUIT COURT
v. HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 16-CI-00143
RICHARD JAEHNIGEN APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.
LAMBERT, JUDGE: Ricky Ray Downey appeals from the Henry Circuit Court’s
order granting summary judgment to Richard Jaehnigen on Downey’s claim for
excessive use of force. Downey argues that the circuit court erred in finding that
Jaehnigen was acting in his capacity as constable when the incident occurred and
that the circuit court’s award of summary judgment was erroneous. We affirm.
We begin by repeating the facts and procedural history as stated by
the circuit court in its April 12, 2019, order:1
This matter is before the Court on Defendant’s
renewed Motion for Summary Judgment following
second deposition of Herman Moore, witness for
[Downey].
Two depositions have been taken of Mr. Herman
Moore. The first in 2017 and the second in 2018 after the
Court declined to grant Summary Judgment to
[Jaehnigen] based upon a lack of clarity from
[Downey’s] eye witness who is his neighbor Herman
Moore, residing across the street from [Downey] and
who indicated he was on the porch at the time the
incident involving the injury to Mr. Downey occurred.
In a previous order signed by this Court on June 7,
2018, the Court had noted that Mr. Moore’s first
deposition presented questions as to whether Defendant
Jaehnigen’s actions were committed in good or bad faith
and whether he acted within the scope of his authority,
and whether he was negligent.
As pointed out by [Jaehnigen] in his renewed
Motion for Summary Judgment, in a situation where a
claim is made against an officer for excessive force,
negligence is not an issue. There is no doubt that there is
force used, the question is whether it was too much force
for the situation which was presented.
1
Downey’s complaint, filed in 2016, named the following defendants: Henry County Fiscal
Court; Henry County EMS; Henry County Judge Executive (John Logan Brent); Henry County
Magistrates (Scott Bates, Rickey Timberlake, Jason Stanley, Tony Moffett, Michael Fisher, and
Jerry Beasley); and Jaehnigen, in his official and individual capacities. The circuit court granted
summary judgment in 2018, to all defendants except Jaehnigen but ruled that Jaehnigen was
acting in his capacity as constable on the date of the incident. Downey’s appeal here is from the
order granting Jaehnigen’s second motion for summary judgment.
-2-
The Court does not repeat the facts except to say
that the injury to Mr. Downey occurred when the
Defendant Mr. Jaehnigen returned to the scene following
an earlier call to EMS. Mr. Jaehnigen, who is an EMT,
responded to that call and he as well as the police, who
were also called, left after a few minutes. The call had
been placed by Mr. Downey’s son Jason pertaining to
Mr. Ricky Downey’s behavior, which included
intoxication. After the police and EMT Jaehnigen and
the ambulance left, another call came in, this time only
for the police. Mr. Jaehnigen was at a convenient
store/gas station when the call came in[,] and he asked
Officer John Wilson, who was going to respond to the
call, if he needed back up or assistance. [Jaehnigen] did
not ride in the same vehicle with [Officer] Wilson but
rather drove the vehicle he had at the service station.
Previously, this Court determined that on the
second visit when Mr. Jaehnigen was present, he was not
there in his capacity as an EMT since there was no call
for one. Rather, he went to assist the police and the
Court notes that as an elected constable with powers of
arrest, he was there to act as “back-up” for the
responding officers. The Court has recently overruled a
motion to alter, amend or vacate its Order finding that
Mr. Jaehnigen was there in his capacity as a constable
when the injury occurred.
The police witnesses as well as Mr. Jaehnigen
testified that on the second visit, Officer Wilson was
standing in the front yard talking to Ricky Downey’s son
Jason when from around the corner behind Officer
Wilson, Ricky Downey came running with a metal pole
toward the two men.
The Defendant Jaehnigen had been standing back
watching the scene as was his custom when assisting or
providing back-up only to police. Per his statement and
deposition, he heard Mr. Downey state he was going to
“f-ing kill you” and thought he meant Officer Wilson.
-3-
He immediately stepped out and lowered his shoulder in
[a] “tackle” sort of move which knocked Mr. Downey to
the ground and Mr. Jaehnigen fell on top, causing Mr.
Downey’s leg to break.
Deputy Keith Perry was present[,] and he stated
that the situation of Mr. Downey charging with a metal
pole toward Officer Wilson and Mr. Downey’s son
screaming “I’m going to f-ing kill you” merited the use
of deadly force, meaning the police would have been
justified in shooting Mr. Downey.
In this suit, Mr. Downey has claimed that
Defendant Jaehnigen used excessive force.
Herman Moore claimed to be an eyewitness from
his front porch. In his first deposition, he stated that he
saw the incident with Mr. Jaehnigen and Mr. Downey
and saw Mr. Downey go down. He states that there was
fighting going on on the porch when [Jaehnigen] threw
down Mr. Downey, and then the fighting stopped.
[Moore] further claimed that Mr. Downey was not
screaming that he would kill someone until after he was
down on the ground. There was another witness who
also states this to be his recollection. The Defendant
Jaehnigen as well as Deputy Perry and Officer Wilson all
state that Mr. Downey was screaming about killing
someone as he ran toward Wilson and Jason Downey.
Mr. Moore in his first deposition gives no detail
about whether [Downey] was running with a metal pole
at Officer Wilson and Mr. Downey’s son Jason.
Mr. Moore gave a second deposition following the
Court’s denial of summary judgment based upon lack of
clarity in the testimony. In the second deposition he
states that he did not see the incident with [Downey] and
Defendant Jaehnigen where [Downey] landed on the
ground. In fact, he also stated he had no recollection of
giving a prior deposition but stated in response to
-4-
[Downey’s] counsel that whatever he said in that
deposition was true.
Jaehnigen contends that the second deposition
testimony demonstrates that Mr. [Moore] is incompetent
so that he may not even testify at trial. [Downey] argues
it is a question of credibility for the jury when two
depositions have differing statements.
This Court holds that it does not matter if Mr.
[Moore] is incompetent because [Downey] can use the
first deposition at trial so long as a witness is unavailable
for trial. In the event Mr. [Moore] were to be deemed
incompetent, he would be therefore “unavailable” for
trial and the first deposition stating that he actually saw
the incident could be used.
In this case, it makes no difference based upon this
Court’s holding that [Downey] cannot meet his burden of
proof.
First, there is no dispute that the actions of
[Jaehnigen] resulted in [Downey’s] falling to the ground.
It may be that Mr. Moore chooses to call it throwing him
to the ground, and [Jaehnigen] chooses to call it tackling
him. The question is the use or not of “excessive force”
for which [Downey] bears the burden of proof.
[Jaehnigen] has presented more than sufficient
evidence be it depositions of [Jaehnigen’s] Officer John
Wilson and Deputy Keith Perry as well as his own
deposition as to the nature of [Downey’s] actions in
“charging” Officer Wilson and Jason Downey, and
screaming his intent to kill. As the officers testified, the
use of deadly force was warranted. [Downey] has not
presented any testimony that overcomes this, and it is
[Downey’s] burden to demonstrate [Jaehnigen] used
more force than was necessary given the situation.
-5-
[Downey] has failed in this burden. His
“eyewitness” Herman Moore, who says he saw
[Jaehnigen] “throw down” [Downey], does not contradict
or rebut the testimony that, given the circumstances, the
use of deadly force would have been warranted. As such,
[Downey] is unable to meet his burden to demonstrate
this was a case where excessive force was used. A
“tackle” to stop [Ricky Downey’s] charge of Wilson and
Jason Downey is certainly far less force than shooting to
kill. Similarly, throwing a person charging with a metal
pole to the ground is also far less force than shooting to
kill.
Given this lack of evidence by [Downey], the
Court cannot see how [Downey] can prevail given his
burden to show the force used by [Jaehnigen] was
unwarranted and excessive.
As such, the Court further finds that Richard
Jaehnigen, as a Constable, acted within the scope of his
authority, and acted in good faith in that there is
absolutely no showing he intended to do anything other
than prevent an injury due to Mr. Downey’s action on
that evening while charging with a metal pole. The Court
hereby grants Summary Judgment to the Defendant
Richard Jaehnigen and dismisses this case, with
prejudice.
We next enunciate our standard of review of an order granting
summary judgment:
Our standard of review in an appeal from a
summary judgment is well-settled in the Commonwealth.
“The standard of review on appeal when a trial court
grants a motion for summary judgment is ‘whether the
trial court correctly found that there were no genuine
issues as to any material fact and that the moving party
was entitled to judgment as a matter of law.’” Lewis v. B
& R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001), citing
-6-
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996);
Palmer v. International Ass’n of Machinists & Aerospace
Workers, 882 S.W.2d 117, 120 (Ky. 1994); [Kentucky
Rules of Civil Procedure] CR 56.03. “Because summary
judgment involves only legal questions and the existence
of any disputed material issues of fact, an appellate court
need not defer to the trial court's decision and will review
the issue de novo.” Lewis, 56 S.W.3d at 436, citing
Scifres, 916 S.W.2d at 781; Estate of Wheeler v. Veal
Realtors and Auctioneers, Inc., 997 S.W.2d 497, 498
(Ky. App. 1999); Morton v. Bank of the Bluegrass and
Trust Co., 18 S.W.3d 353, 358 (Ky. App. 1999). With
this standard in mind, we shall review the judgment on
appeal.
City of Brooksville v. Warner, 533 S.W.3d 688, 692 (Ky. App. 2017).
Kentucky courts have repeatedly stated, and we
continue to adhere to these bedrock principles, that
summary judgment is an extraordinary remedy, it is to be
“cautiously applied[,]” and it “should not be used as a
substitute for trial.” Steelvest, Inc. v. Scansteel Service
Center, Inc., 807 S.W.2d 476, 483 (Ky. 1991). “The trial
court must review the evidence, not to resolve any issue
of fact, but to discover whether a real fact issue exists.”
Shelton v. Kentucky Easter Seals Soc’y, 413 S.W.3d 901,
905 (Ky. 2013) (footnote omitted). This requires both
the trial court and this Court to review the record “in a
light most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in
his favor.” Steelvest, 807 S.W.2d at 480.
Joiner v. Kentucky Farm Bureau Mutual Insurance Company, 582 S.W.3d 74, 77-
78 (Ky. App. 2019). Here, the facts must be viewed in a light most favorable to
Downey. Id. at 78.
-7-
We first address Downey’s claim that it was an issue for the jury to
decide whether Jaehnigen was acting in his capacity as a constable/peace officer
when he returned to Downey’s residence on July 25, 2015. In this vein, Downey
also claims as error the circuit court’s ruling which excluded Downey’s proffered
expert testimony regarding emergency medical services (on the basis that
Jaehnigen was not acting as an EMT but rather as a constable).
We decline to address substantively this aspect of Downey’s argument
because we agree with Jaehnigen that it is not properly before us. Downey
contends, in his preservation statement pursuant to CR 76.12(4)(c)(v), that the
issue was preserved “upon filing of Appellant’s Motion to Reconsider the court’s
June 7, 2018 and August 6, 2018 Orders.” However, as Jaehnigen points out,
Downey’s notice of appeal (as well as the appendix to his corrected brief before
this Court) only references the circuit court’s April 12, 2019, order granting
summary judgment to Jaehnigen. See CR 73.03 and 76.12(4)(c)(vii). Downey
failed to attempt to remedy these omissions or address Jaehnigen’s assertions by
filing a reply brief. CR 76.12(2)(a).
Downey next contends that the circuit court erred in granting
summary judgment because genuine issues of material fact remained regarding
whether Jaehnigen used excessive force in tackling Downey. Downey insists that
-8-
two witnesses’ deposition testimony would have supported his theory regarding the
issue of excessive force. Downey himself had no memory of the incident.
The circuit court considered those depositions in its determination that
excessive force could not be proven by Downey. “[T]he party opposing summary
judgment [must] present ‘at least some affirmative evidence showing that there is a
genuine issue of material fact for trial.’” Lewis v. B & R Corporation, 56 S.W.3d
432, 436 (Ky. App. 2001) (citing Steelvest, 807 S.W.2d at 482) (other footnoted
citations omitted). It was incumbent upon Downey to present such evidence, and
he failed to meet that burden.
Hence, the order of the Henry Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Steven R. Romines Carol S. Petitt
Louisville, Kentucky Kyle M. Vaughn
Pewee Valley, Kentucky
-9-