I.L. a Minor by and Through His Natural Parents and Next Friends v. Donna Hargans Individually ( 2020 )

RENDERED: NOVEMBER 6, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0954-MR
I.L., A MINOR, BY AND THROUGH HIS
NATURAL PARENTS AND NEXT FRIENDS,
CHRISTIE LAUGHLIN AND MATT LAUGHLIN APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 16-CI-000420
DONNA HARGANS, SUPERINTENDENT OF
JEFFERSON COUNTY PUBLIC SCHOOLS, IN
HER OFFICIAL CAPACITY AND INDIVIDUALLY;
SHERVITA WEST-JORDAN, PRINCIPAL OF
BRANDEIS ELEMENTARY SCHOOL, IN HER
OFFICIAL CAPACITY AND INDIVIDUALLY;
SHERRY MCKENZIE, IN HER OFFICIAL CAPACITY
AND INDIVIDUALLY; AND SAMUEL COWAN, IN
HIS OFFICIAL CAPACITY AND INDIVIDUALLY APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: I.L.’s parents brought this action on behalf of their child against
his teacher and other school officials.1 The Jefferson Circuit Court granted
summary judgment motions in favor of all appellees to this appeal, and I.L. now
seeks review. Finding no error, we affirm.
BACKGROUND
At all relevant times, I.L. was a seven-year-old male, first-grade
student in the Jefferson County Public School (JCPS) system, assigned to Sherry
McKenzie’s class. On March 11, 2015, while I.L. was taking a test in class, two
female students, E.S. and T.E., fondled his penis and digitally penetrated his anus.
I.L. did not call out for help or report the incident to McKenzie, who had recently
discouraged her students from “tattling” on each other.2 While home, I.L. began
singing a song that included the word “butthole” and his mother chastised him for
using the word. He then told her of the incident at school.
Later that evening, I.L.’s mother e-mailed McKenzie detailing the
incident. McKenzie reported the e-mail to the assistant principal.3 McKenzie
1
Defendants below and appellees in this Court are: (1) Sherry McKenzie, I.L.’s teacher; (2)
Donna Hargans, the Jefferson County Superintendent; (3) Shervita West-Jordan, the school’s
principal; and (4) Samuel Cowan, the former assistant principal.
2
She testified in deposition that she had discussed with her class the difference between
“tattling” about insignificant matters and “telling” adults about things that could cause or had
caused harm.
3
Samuel Cowan was not the assistant principal at the time of the incident, but he was when I.L.
filed suit.
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testified that while her students were taking the test, she monitored them by
walking among the students, focusing their attention or aiding them as needed.
She did not recall any disturbances and did not observe anything out of the
ordinary. Ultimately, the school contacted both Child Protective Services and the
Crimes Against Children Unit of the Louisville Metro Police Department. Both
agencies determined the incident needed to be addressed by the school district and
declined to investigate further. At the behest of the principal, JCPS conducted
investigations to determine: (1) if I.L. was sexually assaulted; and (2) whether
McKenzie adequately supervised the classroom.
After conducting interviews, the investigation concluded that
McKenzie properly supervised the classroom. The investigation resulted in a two-
day, in-school suspension for each of the female students.
I.L.’s mother deemed the investigation and punishment inadequate.
She expected the students to be expelled or, at least, transferred from I.L.’s class.
This prompted her to initiate this action against school officials. She asserted
claims of negligence, negligent supervision, and negligent hiring, training,
supervision, and retention against McKenzie, Cowan, West, and Hargans.4 All
four moved for summary judgment. Each claimed the defense of qualified official
4
The notice of appeal misspells the superintendent’s name “Hargans,” but the name is spelled
correctly elsewhere in the record as “Hargens.” This Opinion adopts the spelling from the
document that initiated this appeal.
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immunity and that I.L.’s injuries were unforeseeable as a matter of law. The
circuit court granted the motion as to Hargans, West, and Cowan because they
were entitled to qualified immunity. The circuit court granted summary judgment
to McKenzie because I.L. did not present sufficient evidence to create a genuine
issue of material fact “whether the risk of injury was reasonably foreseeable.”
Gonzalez v. Johnson, 581 S.W.3d 529, 532 (Ky. 2019) (citation omitted). This
appeal followed.
STANDARD OF REVIEW
“The proper standard of review on appeal when a trial judge has
granted a motion for summary judgment is whether the record, when examined in
its entirety, shows there is ‘no genuine issue as to any material fact and the moving
party is entitled to a judgment as a matter of law.’” Hammons v. Hammons, 327
S.W.3d 444, 448 (Ky. 2010) (quoting Kentucky Rules of Civil Procedure (CR)
56.03). “Because summary judgment does not require findings of fact but only an
examination of the record to determine whether material issues of fact exist, we
generally review the grant of summary judgment without deference to either the
trial court’s assessment of the record or its legal conclusions.” Id. (citing Malone
v. Ky. Farm Bureau Mut. Ins. Co., 287 S.W.3d 656, 658 (Ky. 2009)).
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ANALYSIS
In Kentucky, when government officials are sued in their individual
capacities, they may claim the defense of qualified immunity. Yanero v. Davis, 65
S.W.3d 510, 522 (Ky. 2001) (citation omitted). “Qualified official immunity
applies to the negligent performance by a public officer or employee of (1)
discretionary acts or functions, i.e., those involving the exercise of discretion and
judgment, or personal deliberation, decision, and judgment; (2) in good faith; and
(3) within the scope of the employee’s authority.” Id. (citations omitted). As a
result, “[w]hether the employee’s act is discretionary, and not ministerial, is the
qualifier that must be determined before qualified immunity is granted to the
governmental employee.” Marson v. Thomason, 438 S.W.3d 292, 296 (Ky. 2014).
“[P]roperly performing a ministerial act cannot be tortious, but negligently
performing it, or negligently failing to perform it, can be.” Id. (citing Yanero, 65
S.W.3d at 522). Alternatively, “[n]egligently performing, or negligently failing to
perform, a discretionary act cannot give rise to tort liability, because our law gives
qualified immunity to those who must take the risk of acting in a discretionary
manner.” Id. (citing Yanero, 65 S.W.3d at 521-22).
Therefore, liability analysis begins by determining whether an
individual’s actions were ministerial or discretionary. A duty is ministerial “when
it is absolute, certain, and imperative, involving merely execution of a specific act
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arising from fixed and designated facts[.]” Upchurch v. Clinton County, 330
S.W.2d 428, 430 (Ky. 1959). A ministerial act is “one that requires only obedience
to the orders of others” or is done “without regard to his or her own judgment or
opinion concerning the propriety of the act to be performed.” Marson, 438 S.W.3d
at 297 (citations omitted). Alternatively, discretionary duties are those “calling for
a good faith judgment call made in a legally uncertain environment” and include
“the exercise of discretion and judgment, or personal deliberation, decision and
judgment.” Id. (internal quotation marks, brackets, and citations omitted). As
explained in Marson, “[t]o some extent, this [differentiating between discretionary
and ministerial acts,] says that governing cannot be a tort, but failing to properly
carry out the government’s commands when the acts are known and certain can
be.” Id. at 296. Additionally, such distinction between ministerial and
discretionary “rests not on the status or title of the officer or employee, but on the
function performed.” Yanero, 65 S.W.3d at 521 (emphasis added) (citation
omitted).
As I.L. noted, the duty to supervise students and the nature of that
duty owed by school officials is set out in the school system’s Policy 09.221 and in
Kentucky Revised Statutes (KRS) 161.180. We focus first on I.L.’s claims against
the superintendent, principal, and vice principal of negligent supervision of the
students. Analysis of those defenses is best guided by Ritchie v. Turner, 559
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S.W.3d 822 (Ky. 2018). In Section II of that Opinion entitled, “The School
Officials’ Duty to Supervise Was a Discretionary Act[,]” our Supreme Court said,
in pertinent part:
Kentucky school administrators are required by
statute to “hold pupils to a strict account for their conduct
on school premises, on the way to and from school, and on
school sponsored trips and activities.” KRS 161.180.
[JCPS] Policy 09.221, titled “Supervision of Students,”
citing KRS 161.180, likewise provides that “[e]ach teacher
and administrator shall hold pupils to a strict account for
their conduct on the premises, on the way to and from
school, and on school sponsored trips and activities.” That
policy also states that “[s]tudents will be under the
supervision of a qualified adult. . . .”
. . . Policy 09.221 . . . contained only general
supervisory duties regarding students rather than specific
ones and, consequently, the school officials were entitled
to qualified immunity. In Marson, we addressed whether
the principal was entitled to qualified immunity when a
child fell off a set of bleachers which were not properly
extended. Having observed that principals have a “duty to
provide a safe school environment, but they are not
insurers of children’s safety[,]” we held that the principal
was entitled to immunity because she “did not have the
specific duty to extend the bleachers properly, nor did she
choose to undertake that duty.” 438 S.W.3d at 299.
Like the general duty in Marson to provide a safe
school environment, the duty in KRS 161.180(1) [and]
Policy 09.221 . . . to provide student supervision “is a
discretionary function for [school officials] exercised most
often by establishing and implementing [supervision]
policies and procedures,” which is qualitatively different
from actually supervising the students, a ministerial duty
for those who are assigned such supervision. Marson, 438
S.W.3d at 299, 302. . . . [T]he school officials only had a
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general supervisory duty over [the student]. . . . Marson
resolves the question in favor of the school officials as to
whether they are entitled to qualified immunity as to [the
students’] supervision, or the lack thereof . . . .
Id. at 831-32 (emphasis added).
We cannot distinguish Ritchie and must affirm the summary judgment
as to claims of negligent supervision of the offending students by the
superintendent, principal, and vice principal because they are entitled to qualified
official immunity.
Regarding I.L.’s claims of negligent retention by those same school
officials, the circuit court said: “[D]etermining whether to retain [McKenzie]
absent commission of an infraction that mandates termination is inherently
discretionary . . . .” (Record (R.) at 960.) This is consistent with case law –
“school officials had a common law duty to use reasonable care in making their
decision regarding disciplining, dismissing or retaining [the teacher]. Ten Broeck
Dupont, Inc. v. Brooks, 283 S.W.3d 705, 732 (Ky. 2009). That decision is
inherently a discretionary function . . . .” Ritchie, 559 S.W.3d at 842.
The circuit court went further in its analysis, however. Despite
anecdotal and general disparagement of McKenzie, the circuit court effectively
held that no reasonable juror could conclude on McKenzie’s record (no discipline,
no record of subpar performance, no corrective actions taken) that “McKinzie’s
[sic] performance as a teacher was so poor as to mandate her termination,
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rendering it a ministerial act.” (R. at 960.) That is, no school official with
authority to terminate teachers was obliged by a ministerial duty to fire McKenzie,
i.e., to not retain her.
The school officials are entitled to qualified immunity as to I.L.’s
claims of negligent retention.
As to the school officials other than McKenzie, that leaves I.L.’s
claim for negligent supervision of McKenzie herself, as opposed to supervision of
students. “[A]n employer may be held liable for the negligent supervision of its
employees ‘only if he or she knew or had reason to know of the risk that the
employment created.’” Carberry v. Golden Hawk Transp. Co., 402 S.W.3d 556,
564 (Ky. App. 2013). The applicable Restatement section elaborates, as follows:
The principal may be negligent because he has reason to
know that the servant or other agent, because of his
qualities, is likely to harm others in view of the work or
instrumentalities entrusted to him. If the dangerous
quality of the agent causes harm, the principal may be
liable under the rule that one initiating conduct having an
undue tendency to cause harm is liable therefor. See the
Restatement of Torts, § 308.
The dangerous quality in the agent may consist of
his incompetence or unskillfulness . . . . with reference to
the act to be performed. . . .
One who employs another to act for him is not liable
under the rule stated in this Section merely because the one
employed is incompetent . . . or careless. If liability results
it is because, under the circumstances, the employer has
not taken the care which a prudent man would take in
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selecting the person for the business in hand. What
precautions must be taken depend upon the situation. One
can normally assume that another who offers to perform
simple work is competent. . . .
Liability results under the rule stated in this Section,
not because of the relation of the parties, but because the
employer antecedently had reason to believe that an
undue risk of harm would exist because of the
employment. The employer is subject to liability only for
such harm as is within the risk. If, therefore, the risk exists
because of the quality of the employee, there is liability
only to the extent that the harm is caused by the quality of
the employee which the employer had reason to suppose
would be likely to cause harm.
RESTATEMENT (SECOND) OF AGENCY § 213 cmt. d (1958)5 (emphasis added); see
MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 336 (Ky. 2014) (following
RESTATEMENT (SECOND) OF AGENCY § 213).
5
The text of this section of the Restatement reads as follows:
A person conducting an activity through servants or other agents is
subject to liability for harm resulting from his conduct if he is
negligent or reckless:
(a) in giving improper or ambiguous orders of in failing to make
proper regulations; or
(b) in the employment of improper persons or instrumentalities in
work involving risk of harm to others:
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious
conduct by persons, whether or not his servants or agents, upon
premises or with instrumentalities under his control.
RESTATEMENT (SECOND) OF AGENCY § 213 (emphasis added).
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A material fact to be determined before principals6 are held
independently liable for failing to supervise an agent is what the officials knew or
reasonably should have known. There is no evidence at all that these school
officials knew or reasonably should have known that McKenzie’s employment
risked making one of her students the victim of sexual assault by a fellow student
or students. Again, Ritchie v. Turner is illuminating.
In Ritchie, parents of a middle school student filed suit against a
similar group of school officials alleging, inter alia, their independent liability for
negligent supervision of a teacher who was having sexual relations with one of his
students at school. 559 S.W.3d at 829-30. The Supreme Court held the school
officials were entitled to qualified official immunity because “there was never any
hint of sexual misconduct . . . .” Id. at 843 (“school officials in this case had no
knowledge whatsoever of any abuse/sexual misconduct”).
Little logic is necessary to apply Ritchie here, and we urge a thorough
reading of that case.7 If, in Ritchie, school officials charged with negligent
supervision were entitled to qualified immunity despite some evidence of
6
Obviously, the context here is the principal/agent relationship and not the head of the school.
7
In Ritchie, there was some reason for suspicions by the school officials. The teacher in that
case was known to have engaged in improper conduct in the form of excessive and personal
texting with the student. Ritchie, 559 S.W.3d at 828 (the school superintendent “found the
excessive messaging inappropriate”).
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inappropriate conduct by the teacher himself, how is it possible that qualified
immunity would be unavailable to officials in defense of I.L.’s claim of negligent
supervision where there was no evidence of inappropriate conduct by I.L.’s fellow
students? 8 We conclude the school officials were entitled to qualified official
immunity as a defense to the claims that they negligently supervised McKenzie.
This leaves only the liability of McKenzie herself. As already noted,
supervision of students is “a ministerial duty for those who are assigned such
supervision.” Id. at 832. Still, negligent supervision of students is a tort claim of
negligence like any other. To survive a summary judgment motion, I.L. needed to
present sufficient evidence to create a genuine issue of material fact regarding each
of the four elements of a negligence claim.
To survive the summary judgment motion, I.L. needed to present
some evidence that (1) McKenzie owed I.L. a duty of care; (2) McKenzie breached
that duty of care; (3) a causal connection existed between McKenzie’s conduct and
I.L.’s damages; and (4) damages occurred. Patton v. Bickford, 529 S.W.3d 717,
729 (Ky. 2016). The causal connection element is composed of two elements:
Cause-in-fact and legal or consequential causation.
Cause-in-fact involves the factual chain of events leading
8
I.L. did not seek to sue the parents of E.S. or T.E., who might have known of any potential risk
to other students posed by their children. If a parent knows of the need to prevent his child from
intentionally harming others, the parent has a duty to do so. Hugenberg v. West American Ins.
Co./Ohio Cas. Group, 249 S.W.3d 174, 181 (Ky. App. 2006).
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to the injury; whereas, consequential causation concerns
the concepts of foreseeability and the public policy
consideration on limiting the scope of responsibility for
damages. In Kentucky, the cause-in-fact component has
been redefined as a “substantial factor” element as
expressed in Restatement (Second) of Torts § 431. The
scope of duty also includes a foreseeability component
involving whether the risk of injury was reasonably
foreseeable.
Gonzalez, 581 S.W.3d at 532 (citation omitted). Seizing on the foreseeability
analysis as a component of “legal or consequential causation,” the circuit court
carefully considered the record and noted that I.L. failed to present sufficient
evidence to create a genuine issue regarding legal or consequential causation – i.e.,
the foreseeability of E.S.’s and T.E’s conduct that caused I.L.’s injury. The order
granting summary judgment states as follows:
Brandeis students are not generally unruly or out of control
. . . . [I]t was not a concern among Brandeis administrators
that first graders would touch one another in the manner
alleged. Further, there was no evidence of previous
misbehavior by E.S. or T.E. or any other student that led
to suspicions they might touch another student similar to
the manner alleged. E.S. and T.E. were regarded as good
students by both Ms. McKinzie [sic] and Ms. Laughlin
[I.L.’s mother], and I.L. testified that his interactions with
E.S. and T.E. were minimal; they rarely, if ever, spoke
even though he had been seated beside E.S. for much of
the school year. There is no evidence that JCPS thought it
necessary to train teachers to watch out for elementary
students touching each other’s genitalia or engaging in
other sexualized behavior. . . . A reasonable teacher would
not recognize undue risk of sexualized touching to
students under the circumstances present at the time of the
alleged touching.
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(R. at 969-70.) McKenzie’s general duty to supervise her students is not at issue.
But to demonstrate that McKenzie’s failure to satisfy that duty caused I.L.’s injury,
I.L. was required to present enough evidence to create a genuine issue that “the
risk of injury was reasonably foreseeable.” Gonzalez, 581 S.W.3d at 532. This,
I.L. did not do. For this reason, McKenzie was entitled to summary judgment.
CONCLUSION
For the foregoing reasons, the Jefferson Circuit Court’s May 29, 2019
order is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
A. Nicholas Naiser Byron E. Leet
Louisville, Kentucky Jordan M. White
Louisville, Kentucky
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