Chris Armstrong v. the Estate of Star Ifeacho by and Through the Administrator of His Estate ( 2021 )

RENDERED: AUGUST 20, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0435-MR
CHRIS ARMSTRONG APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 17-CI-04343
THE ESTATE OF STAR IFEACHO,
BY AND THROUGH THE ADMINISTRATOR
OF HIS ESTATE, PEACE IFEACHO; AND
PEACE IFEACHO INDIVIDUALLY APPELLEES
AND
NO. 2020-CA-0436-MR
PEACE IFEACHO, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE
OF STAR IFEACHO APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 17-CI-04343
CODY BEGLEY, IN HIS
INDIVIDUAL CAPACITY APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON,
JUDGES.
CLAYTON, CHIEF JUDGE: Chris Armstrong (“Armstrong”) appeals from the
Fayette Circuit Court’s order denying his motion for summary judgment on the
grounds that he was not entitled to either qualified official immunity or statutory
immunity under Kentucky Revised Statutes (“KRS”) 411.148 or KRS 311.668
from the negligence claims asserted against him by the Estate of Star Ifeacho (the
“Estate”) and Peace Ifeacho (“Peace”).
Additionally, the Estate and Peace appeal from the Fayette Circuit
Court’s order granting Cody Begley’s (“Begley”) motion for summary judgment
on the grounds that he was entitled to both qualified official immunity and
statutory immunity under KRS 411.148 and KRS 311.668 from the negligence
claims asserted against him by the Estate and Peace.
Upon review of the applicable facts and case law, we affirm the trial
court’s opinion and order as to Begley’s entitlement to qualified official immunity
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but agree with Armstrong that he was also entitled to summary judgment based on
qualified official immunity. Accordingly, we reverse the Fayette Circuit Court’s
opinion and order insofar as it denies Armstrong’s motion for summary judgment
and remand this matter with instructions to enter judgment in favor of Armstrong
based upon qualified official immunity.
FACTUAL AND PROCEDURAL BACKGROUND
On April 26, 2017, Star Ifeacho (“Star”), a sophomore enrolled at Paul
Laurence Dunbar High School (“Dunbar”), attended an after school basketball
“open gym.” Armstrong, a teacher and assistant boys’ basketball coach, was
present at the open gym to supervise the participating students and to provide
instruction and feedback.
During the open gym, Star complained to other students that he was
having trouble breathing, describing it as feeling as though he had asthma.
Thereafter, Star went to the athletic trainers’ office to speak with Begley, an
athletic trainer who worked at Dunbar pursuant to a contract with Fayette County
Public Schools (“FCPS”) through the University of Kentucky’s Department of
Orthopedic Surgery & Sports Medicine (the “Contract”). The Contract provided
athletic trainer coverage for athletic activities sanctioned by the Kentucky High
School Athletic Association (“KHSAA”), as well as athletic training services to all
athletes of any interscholastic sport offered at each high school.
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Specifically, Star complained to Begley that his heart was racing. As
Star turned to leave the trainers’ office, he turned back to Begley, stated, “it’s
doing it,” and then collapsed. Begley went to Star’s side, rolled him onto his back,
and checked his breathing and pulse. Thereafter, Begley instructed a football
player who had been in Begley’s office receiving shoulder treatment to call 911.
Begley also began applying cardiopulmonary resuscitation (“CPR”) to Star and
instructed another student to find a coach. Armstrong entered the trainers’ office,
knelt down to assist Begley, and grabbed Star’s hand. Begley asked Armstrong to
remain with him to assist, if necessary.
Begley instructed one of those students to call another athletic trainer,
Gabrielle Sombelon, who had taken the only portable automated external
defibrillator (“AED”) with her to an in-season baseball practice. An AED is a
medical device used to help those experiencing sudden cardiac arrest by analyzing
the heart’s rhythm and, if necessary, delivering an electrical shock – or
defibrillation – to help the heart re-establish an effective rhythm. According to the
FCPS policy concerning the placement of AEDs in a building, “[t]he optimal
response time is three (3) minutes or less . . . . Survival rates decrease by 7-10%
for every minute defibrillation is delayed.”
When Sombelon did not initially answer her phone, Begley instructed
two other students to retrieve another AED located in the school’s foyer,
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approximately 325 feet from the trainers’ office. Once the students arrived with
the AED, Begley applied the AED’s leads to Star and delivered a shock when
prompted by the AED. The AED then prompted Begley to resume providing CPR.
Before Begley could deliver a second shock, the Lexington Fire Department
arrived and assumed resuscitation efforts. Star was transported to the University of
Kentucky Emergency Department but was unfortunately unable to be revived and
passed away.
The Estate and Star’s mother Peace, in her individual capacity,
brought an action in Fayette Circuit Court against several of Dunbar’s and FCPS’s
coaches and administrators, including Armstrong and Begley, in both their
individual and official capacities. The trial court ultimately dismissed all official
capacity claims against both Armstrong and Begley, leaving only the individual
claims.
Specifically, the Estate and Peace claimed that Armstrong was
required under FCPS policies to immediately retrieve an AED. Similarly, the
Estate and Peace claimed that Begley was negligent in having a student attempt to
contact Sombelon to bring the portable AED to the training room rather than
immediately sending a student to obtain the other AED in the foyer.
After a hearing, the Fayette Circuit Court denied Armstrong’s motion
for summary judgment, finding that the Estate’s claims against Armstrong were
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based on ministerial acts and therefore that qualified immunity was not applicable.
Additionally, the trial court found that Armstrong was not immune under either
KRS 311.668 or KRS 411.148 – Kentucky’s AED and Good Samaritan statutes –
because he was not engaged in Star’s medical treatment.
The trial court granted Begley’s summary judgment motion, finding
both that the Estate’s claims against him were based on discretionary acts and that
he was immune under Kentucky’s AED and Good Samaritan statutes. Both
Armstrong and the Estate filed timely appeals, and the two appeals were
consolidated.
Further facts will be discussed as they become relevant to the issues
discussed in this Opinion.
ISSUES
On appeal, Armstrong argues that (1) the trial court erred in denying
qualified immunity to Armstrong based on its determination that the acts involved
were ministerial in nature and (2) the trial court erred in denying Armstrong
statutory immunity under either or both KRS 311.668 or KRS 411.148. The Estate
and Peace argue on appeal that (1) the trial court erred in granting Begley qualified
immunity and (2) the trial court erred in granting Begley statutory immunity under
KRS 311.668 and KRS 411.148.
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ANALYSIS
a. Standard of Review
These matters are properly before this Court as interlocutory appeals
on a question of qualified and statutory immunities. Summary judgment is
generally appropriate where “the pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Kentucky Rule of Civil Procedure
(“CR”) 56.03. The Kentucky Supreme Court has also held that summary judgment
is proper “where the movant shows that the adverse party cannot prevail under any
circumstances.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476,
479 (Ky. 1991).
In either case, “a party opposing a properly supported summary
judgment motion cannot defeat that motion without presenting at least some
affirmative evidence demonstrating that there is a genuine issue of material fact
requiring trial.” Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992) (citation
omitted). A “trial court must then view 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.’” Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006) (quoting
Steelvest, 807 S.W.2d at 480).
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In the context of qualified official immunity, “[s]ummary judgments
play an especially important role as the defense renders one immune not just from
liability, but also from suit itself.” Ritchie v. Turner, 559 S.W.3d 822, 830 (Ky.
2018) (internal quotation marks and citations omitted). An appeals court reviews
the issue of whether a school official is entitled to qualified official immunity de
novo. Id. (citation omitted).
b. Discussion
1. Qualified Official Immunity as to Armstrong
Armstrong first argues that the trial court erred in denying him
qualified immunity based on its determination that the acts involved were
ministerial in nature. As the Kentucky Supreme Court explained in Yanero v.
Davis, when an officer or employee of the state or county is sued in his or her
individual capacity, that officer or employee is often entitled to qualified official
immunity, “which affords protection from damages liability for good faith
judgment calls made in a legally uncertain environment.” 65 S.W.3d 510, 522
(Ky. 2001) (citation omitted). The application of qualified immunity “rests not on
the status or title of the officer or employee, but on the function performed.” Id. at
521 (citation omitted). Specifically, “the analysis depends upon classifying the
particular acts or functions in question in one of two ways: discretionary or
ministerial.” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010).
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As explained in Haney:
Discretionary acts are, generally speaking, those
involving the exercise of discretion and judgment, or
personal deliberation, decision, and judgment. It may
also be added that discretionary acts or functions are
those that necessarily 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. Discretion in the manner of the
performance of an act arises when the act may be
performed in one or two or more ways, either of which
would be lawful, and where it is left to the will or
judgment of the performer to determine in which way it
shall be performed.
Id. (internal quotation marks and citations omitted).
On the other hand, qualified immunity does not protect one who
negligently performs, or fails to perform, a ministerial duty. “A ministerial duty is
one that requires only obedience to the orders of others.” Patton v. Bickford, 529
S.W.3d 717, 724 (Ky. 2016), reh’g denied (Aug. 24, 2017) (internal quotation
marks and citation omitted). “The act of ‘governing cannot be a tort, but failing to
carry out the government’s commands properly when the acts [to be performed]
are known and certain can be.’” Id. (quoting Marson v. Thomason, 438 S.W.3d
292, 296 (Ky. 2014) (brackets as per Patton)). Put another way, “a duty is
ministerial when the officer’s duty is absolute, certain, and imperative, involving
merely execution of a specific act arising from fixed and designated facts.” Id.(internal quotation marks and citation omitted).
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Here, the Estate argues that the FCPS’s Protocol For Using Medtronic
LifePak CR Plus Automated External Defibrillator (the “Protocol”) imposed a
ministerial duty on Armstrong to retrieve an AED. The Protocol states, in
applicable part:
After School Hours:
Neither the Fayette County Board of Education nor any
of its members, agents, or employees assume liability for
the rendering of care or use of an AED after normal
business/school hours.
1. Athletic trainer-covered events:
a) Confirm unresponsiveness of victim.
b) Activate system:
- At any school, public, or cellular phone,
DIAL 9-1-1 or other local emergency
number.
- Alert athletic staff of emergency by
sending a runner to inform athletic trainer,
athletic director or field/gym manager.
c) If present, the athletic trainer or a designee will
retrieve the AED.
d) If a CPR and/or AED trained individual is
available, CPR and AED procedures should be
initiated until EMS arrives.
e) Follow procedures outlined above in the section
titled During School Hours, starting with
Paragraph 4a.
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2. Other school events (if an AED is available):
a) Confirm unresponsiveness of victim.
b) Activate system:
- At any school, public, or cellular phone,
DIAL 9-1-1 or other local emergency
number.
- Alert the supervising staff member of the
emergency.
c) If CPR + AED trained, supervising staff will
retrieve the AED. CPR and AED procedures
should be initiated until EMS arrives.
d) Follow procedures outlined above in the section
titled During School Hours, starting with
Paragraph 4a. [CPR-trained individual(s) will
assess the emergency and, if needed, begin CPR
until the AED arrives: [gives procedure for CPR].
Thus, the issue before us is whether the language contained in the
Protocol imposed a ministerial duty on Armstrong to retrieve the AED, or whether
his decision was a “good faith judgment call[] made in a legally uncertain
environment.” Haney, 311 S.W.3d at 240 (quoting Yanero, 65 S.W.3d at 522)
(emphasis per Haney) (other citation omitted).
As set out above, the Protocol instructs that certain actions must be
taken when presented with an unresponsive victim: confirm the unresponsiveness
of the victim, call 911, alert athletic and/or supervising staff, retrieve an AED, and
follow CPR and AED procedures until EMS arrives. We conclude that it was
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mandatory and ministerial that the foregoing basic tasks be completed. However,
the exact manner or timeline for how these tasks were to be completed was
discretionary. So long as these tasks were being undertaken by someone with the
appropriate training to perform them, duplicative efforts were not required. The
most important thing under the Protocol was that the AED be retrieved and used,
which is what was done in this case.
In particular, a review of the Protocol indicates that whomever is
required to retrieve the AED during a particular event depends upon whether such
event is considered an “athletic trainer-covered event” or an “other school event.”
While the trial court ultimately – and correctly – concluded that the open gym was
an “other school event,” Armstrong could justifiably have believed at the time that
it was an “athletic trainer-covered event” simply because Begley was present and
was already in the process of rendering the mandated aid. Indeed, Armstrong
entered the training room after Star had collapsed and Begley had already taken
charge of Star’s emergency care. Moreover, it is undisputed that Begley had far
more medical training than Armstrong, as Begley was both an athletic trainer and a
certified EMT, while Armstrong only had CPR and AED training. There is no
doubt that Armstrong was aware that Begley had more expertise in rendering aid
than did Armstrong. Under these circumstances, Armstrong was justified in
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believing that Begley or his “designee” would both retrieve the AED and utilize
the AED, which is in fact what ultimately occurred.
Here, Armstrong responded to an in-progress situation already being
managed in which appropriate care was being rendered (as the Estate concedes in
every respect but for the prompt retrieval of the AED) and students were being
designated to perform other tasks. There is no doubt that Armstrong was prepared
to render aid and was in a position to render aid by remaining by Star’s side.
Therefore, so long as Begley’s aid was appropriate, Armstrong cannot be faulted
for using his discretion in declining to wrest control from an individual with
superior training and experience.
Further, we disagree with the Estate that the language stating “[i]f
CPR + AED trained, supervising staff will retrieve the AED” means that
Armstrong was required to retrieve the AED himself. It strains logic for the Estate
to maintain that Armstrong had to retrieve the AED from outside the office itself,
rather than allow Begley to assign the task of obtaining an AED to a student.
Additionally, under the Estate’s reasoning, Armstrong was mandated to retrieve an
AED device even if Begley had already obtained one. Considering that the
guidance for whether Begley or Armstrong was in charge of this particular setting
was likely confusing at that moment, Armstrong acted appropriately in deferring to
Begley in this in-progress emergency given their relevant training and experience.
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It would be exceedingly unproductive in managing an emergency situation for
Begley and Armstrong to be debating who should be in charge and who should
perform which action.
Furthermore, we disagree with the Estate that a specific ministerial
duty existed to obtain the AED device within a set period of time. While the Estate
references guidance regarding the placement of AED devices which suggests each
area of the school should have a unit available within a three-minute distance and
provides authority as to the diminishing effectiveness of an AED if applied beyond
a three to four-minute window, this guidance and authority does not graft onto the
Protocol a mandatory duty to retrieve a device within three minutes. We do not
believe Armstrong had the mandatory ministerial duty to obtain the AED within an
exact time frame. Rather, Armstrong made a judgment call “in a legally uncertain
environment” when determining that it was more appropriate for him to remain
nearby and prepared to assist Begley in any manner requested – including
potentially taking over the performance of CPR, a duty mandated under the
Protocol if Begley became too tired to continue – rather than seeking out an AED
when a student at Begley’s direction was already attempting to obtain it. Yanero,
65 S.W.3d at 522. Certainly, while at some point the failure to seek out or obtain
an AED could potentially violate the Protocol, we do not believe that a factual
issue was raised in this regard given the timeline of events.
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Thus, we reverse the trial court’s order denying Armstrong’s motion
for summary judgment and instruct the court to enter a new order granting
Armstrong summary judgment on the basis of qualified immunity.
Additionally, because we have determined that Armstrong is entitled
to qualified immunity, we decline to address whether Armstrong had statutory
immunity under either KRS 311.668 or KRS 411.148.
2. Qualified Immunity as to Begley
The Estate and Peace argue on appeal that the trial court erred when it
found that Begley was immune to their claims based on qualified immunity.
Specifically, the Estate and Peace first argue that because the case of Gould v.
O’Bannon, 770 S.W.2d 220, 222 (Ky. 1989), states that “[t]he administration of
medical care is a ministerial function by employees, including doctors[,]” Begley’s
functions that day were purely ministerial. This situation, however, is
distinguishable. The Estate and Peace conceded that there was no allegation that
Begley negligently administered the AED or that he was negligent in performing
CPR on Star. Therefore, it was not Begley’s rendering of medical care that was the
basis of the claim, but rather Begley’s decision-making process in determining
how to retrieve the AED in this emergency situation. Such process included
instructing others present on how to proceed, assigning the responsibility for
retrieving the AED by designating other individuals to carry out that task, and how
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long to wait before designating different individuals to retrieve a different AED.
We agree with the trial court that the foregoing actions were clearly discretionary
in nature. As a result, Gould is inapplicable.
Additionally, the Estate argues that Begley’s actions were ministerial
based on a 2015 Emergency Action Plan (“EAP”), which provided that “[t]he
person in charge will designate someone to gather any emergency equipment
necessary for the situation.” In this case, however, the EAP is not applicable to an
open gym, but only to KHSAA-sanctioned games and practices. Additionally,
although the EAP made it mandatory for Begley to designate someone to retrieve
the AED, his exercise of that discretion in who to designate, which AED to instruct
that designee to retrieve, and how long to wait prior to designating someone else to
retrieve an alternate AED were not specified by the EAP and instead remained in
Begley’s discretion. Moreover, Begley did, in fact, comply with his duty by
instructing the two high school students to retrieve the AED from the foyer, an
instruction with which they ultimately complied. We see Begley’s actions to be
discretionary in this case, and we therefore affirm the trial court’s determination
that he is entitled to qualified immunity.
Because we have determined that the trial court did not err in granting
Begley qualified immunity and properly dismissed the claims against Begley, we
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decline to address whether Begley had statutory immunity under either KRS
311.668 or KRS 411.148.
CONCLUSION
For the foregoing reasons, we affirm in part and reverse and remand
in part with instructions to enter judgment in favor of Armstrong based upon
qualified official immunity.
ALL CONCUR.
BRIEFS FOR CHRIS ARMSTRONG: BRIEF FOR PEACE IFEACHO,
INDIVIDUALLY AND AS
John G. McNeill ADMINISTRATRIX OF THE
Elizabeth A. Deener ESTATE OF STAR IFEACHO:
Lexington, Kentucky
Sheila P. Hiestand
ORAL ARGUMENT FOR CHRIS Louisville, Kentucky
ARMSTRONG:
ORAL ARGUMENT FOR PEACE
Elizabeth A. Deener IFEACHO, INDIVIDUALLY AND
Lexington, Kentucky AS ADMINISTRATRIX OF THE
BRIEF FOR CODY BEGLEY: ESTATE OF STAR IFEACHO:
Donald P. Maloney, II Sheila P. Hiestand
Andrew D. DeSimone Jarret Smith
Donald C. Morgan Louisville, Kentucky
William E. Thro
Margaret M. Pisacano
Lexington, Kentucky
ORAL ARGUMENT FOR CODY
BEGLEY:
Donald P. Maloney, II
Andrew D. DeSimone
Donald C. Morgan
Lexington, Kentucky
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