Jane Layman v. Johnson County Board of Education ( 2022 )

RENDERED: DECEMBER 9, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0566-MR
JANE LAYMAN APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
v. HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 19-CI-00236
JOHNSON COUNTY BOARD OF
EDUCATION APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, JONES, AND K. THOMPSON, JUDGES.
JONES, JUDGE: Jane Layman was injured when she tripped on an inflatable
eagle and fell to the ground while attending a football game in Johnson County.
She sued the Johnson County Board of Education (“Board”) alleging that school
personnel were negligent in their use and placement of the inflatable. The circuit
court granted summary judgment to the Board on the basis that it was entitled to
governmental immunity. Layman now appeals, arguing that the circuit court erred
because use of the inflatable was not integral to the football game. Having
reviewed the record as well as applicable law, we must affirm.
I. BACKGROUND
On October 19, 2018, Layman attended a high school football game at
Johnson Central High School in Johnson County, Kentucky. The home team used
an inflatable tunnel for the players to run through and onto the field at the start of
the game. Afterwards, and while the game was underway, school officials deflated
the tunnel on the track surrounding the football field. While waiting for the large
structure to deflate, school officials laid the tunnel’s black cover on top of it. The
track was also black, making it difficult to distinguish the asphalt track from the
inflatable. Layman was walking along the track while going to or from her seat
and tripped over the tunnel cover, suffering multiple injuries.
Layman filed the underlying complaint in Johnson Circuit Court
alleging the school was negligent in deflating the tunnel on the track where
spectators were repeatedly told to walk. After discovery and unsuccessful
mediation, the Board filed a motion for summary judgment, arguing Layman’s
claims were barred by governmental immunity. Layman argued the inflatable
tunnel was not integral to the football game, so governmental immunity did not
apply. After oral arguments and briefing, the circuit court granted the Board’s
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motion. Layman filed a motion to alter, amend, or vacate the order that was
subsequently denied. This appeal followed.
II. STANDARD OF REVIEW
The issue of whether a defendant is entitled to the defense of
governmental immunity is a question of law. On appeal, we review questions of
law de novo. Bryant v. Louisville Metro Housing Authority, 568 S.W.3d 839, 845
(Ky. 2019) (citations omitted).
III. ANALYSIS
Layman argues the use of the inflatable tunnel was not integral to the
football game, and therefore, the Board is not entitled to governmental immunity.1
The Kentucky Supreme Court has defined governmental immunity as follows:
“‘[G]overnmental immunity’ is the public policy, derived
from the traditional doctrine of sovereign immunity, that
limits imposition of tort liability on a government
agency.” 57 Am. Jur. 2d, Municipal, County, School and
State Tort Liability, § 10 (2001). The principle of
governmental immunity from civil liability is partially
grounded in the separation of powers doctrine embodied
in Sections 27 and 28 of the Constitution of Kentucky.
The premise is that courts should not be called upon to
pass judgment on policy decisions made by members of
coordinate branches of government in the context of tort
actions, because such actions furnish an inadequate
crucible for testing the merits of social, political or
1
Layman also argues the Board should be denied governmental immunity up to their insurance
policy limits and that Layman should be permitted to sue the Board because she was an invitee.
Because we hold the Board is entitled to governmental immunity, we need not address these
arguments.
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economic policy. 63C Am. Jur. 2d, Public Officers and
Employees, § 303 (1997). Put another way, “it is not a
tort for government to govern.” Dalehite v. United
States, 346 U.S. 15, 57, 73 S. Ct. 956, 979, 97 L. Ed.
1427 (1953) (Jackson, J., dissenting). Thus, a state
agency is entitled to immunity from tort liability to the
extent that it is performing a governmental, as opposed to
a proprietary, function. 72 Am. Jur. 2d, States,
Territories and Dependencies, § 104 (1974).
Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001) (internal footnote omitted).2
Further, our highest court has held that a county board of education
cannot be sued in tort for any negligence in performance of its governmental
function of sponsorship and conduct of an interscholastic sporting event. Id. at
527; Schwindel v. Meade County, 113 S.W.3d 159, 168-69 (Ky. 2003).
Layman argues that, although the holdings in Yanero and Schwindel
provide the Board is entitled to governmental immunity in terms of the football
game generally, it is not immune from the act of using the inflatable tunnel during
the game. Under well-settled caselaw, Layman would have to demonstrate that use
of the tunnel during the football game was somehow a proprietary function,
separate and removed from everything else happening at the event. This argument
has no merit. Even though Layman paid admission to the football game, receipt of
2
A proprietary function is defined as “the type normally engaged in by businesses or
corporations and will likely include an element of conducting an activity for profit.” Caneyville
Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 804 (Ky. 2009)
(citation omitted).
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income from admission fees and sales of refreshments do not convert an
interscholastic athletic event into a proprietary function. Schwindel, 113 S.W.3d at
168-69. Stated differently, even if we agreed with Layman that the inflatable
tunnel was not absolutely necessary to the football game, the simple act of using it
is not a proprietary function nor does it make the football game itself a proprietary
function.
While Layman makes some persuasive arguments, the test laid out by
the Supreme Court is centered on the proprietary nature of the activity not whether
the activity itself is absolutely integral to the game. We are not at liberty to apply a
different test that departs from the precedent established by our Supreme Court.
The circuit court correctly applied Supreme Court precedent to conclude the Board
was immune from suit. Accordingly, we must affirm.
IV. CONCLUSION
For the foregoing reasons, the Johnson Circuit Court is affirmed.
DIXON, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Michael J. Curtis Elizabeth Deener
Ashland, Kentucky Lexington, Kentucky
Patrick M. Hedrick
Catlettsburg, Kentucky
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