Anne Leonhardt v. Laura Prewitt ( 2021 )

RENDERED: FEBRUARY 5, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1215-MR
ANNE LEONHARDT APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JOHN E. REYNOLDS, JUDGE
ACTION NO. 18-CI-03477
LAURA PREWITT APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Anne Leonhardt appeals from the Fayette Circuit Court’s
order dismissing her claims against Laura Prewitt, in her individual capacity as
Executive Director of the Kentucky Horse Park. We affirm.
Leonhardt was attending an event at the Horse Park on July 13, 2018,
when she fell in the Park’s stadium. In October 2018, Leonhardt brought her
claim, based on theories of negligence and premises liability, against the
Commonwealth of Kentucky (owner of the Horse Park) and Laura Prewitt, as its
Executive Director and in her individual capacity.1
On November 9, 2018, the Commonwealth was dismissed on grounds
of sovereign immunity, and Prewitt was dismissed in her official capacity. Prewitt
was dismissed in her individual capacity by order dated May 15, 2019. On July
25, 2019, the circuit court entered its “amended order granting summary judgment
[and] dismissal of all claims.” Leonhardt appeals, naming Prewitt in her individual
capacity as appellee.
Leonhardt argues that the circuit court erroneously dismissed her
claim against Prewitt because, as executive director, Prewitt had a ministerial duty
to comply with the applicable building code requirements (particularly those
mandating safety standards such as handrails, which could have prevented
Leonhardt’s fall). Therefore, Leonhardt continues, she should have been entitled
to pursue her action against Prewitt.
1
Leonhardt’s Kentucky Claims Commission action, based on this same incident, against the
Kentucky Horse Park, Department of Kentucky Tourism, Arts, & Heritage Cabinet (CC-2019-
530) has been held in abeyance pending the outcome of this appeal. Additionally, Leonhardt
filed a second action in a different division of Fayette Circuit Court naming Jonathan Lang,
Deputy Director of the Horse Park, and Steve Maynard, its Branch Manager for Maintenance
(the “unknown defendants” in this action), as defendants in their individual capacities. (Fayette
Circuit Court Case No. 19-CI-02450). That complaint was dismissed as barred by the doctrine
of res judicata. It is being considered by a separate panel of this Court in Appeal No. 2019-CA-
1283-MR, also rendered this day.
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We begin by enunciating our standard of review: “[W]hether a
particular defendant is protected by official immunity is a question of law,
Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824, 825 (Ky. 2004), which
we review de novo. Estate of Clark ex rel. Mitchell v. Daviess County, 105 S.W.3d
841, 844 (Ky. App. 2003).” Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky.
2006).
We next turn to the analysis employed by the circuit court, which we
repeat, in pertinent part:
3) For clarification at the request of [Leonhardt], it is
noted that nothing in the Kentucky Horse Park’s enabling
statutes, KRS[2] 148.258 through KRS 148.320, nor its
Administrative Regulation 300 KAR 7:010, creates a
ministerial duty upon any employee of the Kentucky
Horse Park to administer the Kentucky Building Code.
[Leonhardt’s] first theory of liability is that one or more
of the directors or managers at the Kentucky Horse Park
has a ‘ministerial duty’ to comply with the Kentucky
Building Code. While all building owners must comply
with [the] Kentucky Building Code, the duty to
administer the Kentucky Building Code falls upon the
Kentucky Department of Housing, Buildings and
Construction, or as may be delegated to a local
government codes enforcement office, pursuant to KRS
198B.050(1). This is reinforced by KRS 56.491(2),
which expressly requires large construction projects to be
reviewed by the Department of Housing, Buildings and
Construction (versus relying solely on local government
codes enforcement). The suggestion that program
managers at the Kentucky Horse Park who: were hired
to run an equine program; who may have no experience
2
Kentucky Revised Statutes.
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in construction or building codes; and were hired 25
years after the construction of a building, now have their
personal assets at risk due to the design and construction
of a building 25 years earlier is incongruous with good
public policy. Placing such a burden on these and
similarly situated employees would have a chilling effect
on the Commonwealth’s ability to staff offices in the
hundreds of buildings owned throughout the state. A
program manager who is placed in charge of property
makes numerous policy decisions on hiring staff,
supervising staff, and implementing safety programs.
Those decisions are inherently discretionary, and do not
subject him/her to personal liability for those decisions.
Yanero v. Davis, 65 S.W.3d 510 (Ky. [2001]); James v.
Wilson, 95 S.W.3d 875 (Ky. Ap[p]. 2002); Smith v.
McCracken (2016 WL 749904 (unreported), (Ky. Ap[p].
2016).
4) [Leonhardt’s] second theory concerns compliance
with the version of the building code in force when the
“covered arena” was constructed in 1991. All property
owners must comply with the version of the building
code in force when a building is constructed. The duty to
comply with a statute does not equate to a duty to
administer the statute. If that were the case, then every
state employee in the Commonwealth would have a
ministerial duty for every statute, since all people must
comply with all laws of the Commonwealth. However,
only those individuals under a legal obligation to
administer a statute can be held to that higher level of
personal liability conferred by a ministerial duty.
Further, the program managers at the Kentucky Horse
Park have only limited influence over the structures
occupying the property. All state-owned real property is
controlled by the Finance and Administration Cabinet,
and each agency becomes a tenant to that Cabinet. KRS
Chapter 56. Specifically, KRS 56.463(7), grants control
to the Finance and Administration Cabinet over all
construction and major maintenance on state property,
not the program managers occupying any particular
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parcel of state land. And, as noted above, the
Department of Housing, Buildings and Construction
administers the building code. In that regard, the
Commonwealth of Kentucky’s property at the Kentucky
Horse Park is like any private land owner which is under
the regulation of the Department of Housing, Buildings
and Construction as to building code compliance.
[Leonhardt] asks in her Motion to Alter Amend or Vacate
that “the court should find a duty on the firm occupying
the Kentucky Horse Park to maintain compliance and
correct violations of the Kentucky Building Code.” The
firm occupying the Kentucky Horse Park is the
Commonwealth of Kentucky, and not Executive Director
Laura Prewitt, nor any other employee of the Kentucky
Horse Park. If [Leonhardt] has a negligence claim
against the Commonwealth for the condition of its
premises, her remedy lies with the Kentucky Claims
Commission pursuant to KRS 49.010, et seq.
5) The Court therefore FINDS, ORDERS, and
ADJUDGES that there are no employees of the Kentucky
Horse Park with the ministerial duty to administer the
Kentucky Building Code, and DISMISSES this
Complaint against Laura Prewitt in her individual
capacity, and further DISMISSES this Complaint against
any “Unknown Defendant” in his/her individual capacity
employed by the Kentucky Horse Park as identified in
. . . the Complaint, with prejudice.
(Emphases original) (footnote omitted).
Nothing in Leonhardt’s argument convinces us that the circuit court
erred in its determination that Prewitt could not be individually liable for
Leonhardt’s injuries. Prewitt had not acted in bad faith or exceeded the scope of
her authority. Sloas, 201 S.W.3d at 487. See also City of Brooksville v. Warner,
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533 S.W.3d 688, 693 (Ky. App. 2017). The circuit court properly held that the
elements of qualified immunity were satisfied.
Accordingly, the order of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
M. Stanley Goeing Christopher D. Hunt
Matthew S. Goeing Frankfort, Kentucky
Lexington, Kentucky
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