Carrie Johnson, Individually and as Administratrix of the Estate of Denver Stephen Johnson v. Gumbo Ya-Ya, L.L.C. ( 2023 )

RENDERED: OCTOBER 13, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1113-MR
CARRIE JOHNSON, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF DENVER STEPHEN
JOHNSON APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE M. GOODMAN, JUDGE
ACTION NO. 22-CI-00041
D. HENRY; CHARLES BOWEN;
GUMBO YA-YA, L.L.C.; MICHELLE
HAYNES; AND NICK ERSKINE APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Carrie Johnson, individually and as administratrix of the
estate of Denver Stephen Johnson (“the Estate”), appeals from the Fayette Circuit
Court’s order granting Dawn Henry’s (“Henry”) motion to dismiss. Finding no
error, we affirm.
BACKGROUND
On June 2, 2021, Mr. Johnson suffered an allergic reaction after eating
at Gumbo Ya-Ya, a Cajun-Creole restaurant in Lexington, Kentucky. Mr. Johnson
went to his truck in the parking lot and called 911. He told Henry, the 911
operator, that he was having an allergic reaction to shellfish and could not breathe.
Henry asked the address and Mr. Johnson told her he was at Gumbo Ya-Ya’s on
Harrodsburg Road. Henry confirmed the exact address and then told Mr. Johnson
she was sending help.
Emergency medical services (“EMS”) arrived on the scene within five
minutes and searched the restaurant and nearby area, but could not locate Mr.
Johnson, who was unconscious inside his vehicle. Although Mr. Johnson was
eventually found when a citizen noticed him and called 911, he later died at the
hospital. His Estate filed a wrongful death claim in Fayette Circuit Court,1 alleging
Henry was negligent in failing to identify Mr. Johnson’s exact location when
dispatching EMS.2
1
Carrie Johnson, Mr. Johnson’s widow, filed the complaint individually and on behalf of the
estate.
2
The complaint also alleged negligence of the restaurant, Gumbo Ya-Ya, but those claims are
not part of this appeal.
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Henry filed a motion to dismiss, arguing she owed no duty to Mr.
Johnson as a matter of law, citing McCuiston v. Butler, 509 S.W.3d 76, 80 (Ky.
App. 2017). The trial court agreed and granted the motion.3 This appeal followed.
STANDARD OF REVIEW
The standard of review of a trial court’s granting of a motion to
dismiss is de novo. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (citation omitted).
“In any negligence action under Kentucky law, a plaintiff must prove the existence
of a duty, breach thereof, causation, and damages.” Boland-Maloney Lumber Co.
v. Burnett, 302 S.W.3d 680, 686 (Ky. App. 2009) (citations omitted). Whether a
duty is owed is a question of law. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89
(Ky. 2003) (citation omitted). If no duty is owed to the plaintiff, there can be no
breach and thus no actionable negligence. Jenkins v. Best, 250 S.W.3d 680, 688
(Ky. App. 2007) (citation omitted).
ANALYSIS
The Estate argues the trial court erred in finding Henry owed no duty
to Mr. Johnson as a matter of law. Specifically, it argues the “special relationship”
exception to the public duty doctrine applies and that McCuiston is distinguishable.
“The public duty doctrine originated at common-law and shields a public employee
3
Henry filed two motions to dismiss, one on March 1, 2022, which was denied as premature, and
a second on August 11, 2022, which was granted.
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from suits for injuries that are caused by the public employee’s breach of a duty
owed to the public at large.” McCuiston, 509 S.W.3d at 79 (quoting Ezell v.
Cockrell, 902 S.W.2d 394, 397 (Tenn. 1995)). Our Supreme Court explained the
doctrine’s rationale as follows:
persons who serve the public must be allowed to carry
out their function without fear of having to answer for
harm caused to an individual by events which are outside
the control of the public official. Public officials are not
an insurer of the safety of every member of the public,
nor are they personally accountable in monetary damages
only because the individual is a public official charged
with a general duty of protecting the public. . . . The
imposition of a universal duty of care severely reduces
the ability of those public officials to engage in any
discretionary decision-making on the spot.
City of Florence, Kentucky v. Chipman, 38 S.W.3d 387, 393 (Ky. 2001), as
amended (Feb. 26, 2001).
Thus, “recovery from a public official in tort is possible only where
the victim shows . . . . the public official and the party were engaged in a special
relationship.” McCuiston, 509 S.W.3d at 80. “To reiterate, there must be a special
duty owed by the public official to a specific, identifiable person and not merely a
breach of a general duty owed to the public at large.” Id. (citing Fryman v.
Harrison, 896 S.W.2d 908, 910 (Ky. 1995)). Fryman established a two-part test
for demonstrating a special relationship: “1) the victim must have been in state
custody or otherwise restrained by the state at the time the injury producing act
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occurred, and 2) the violence or other offensive conduct must have been committed
by a state actor.” Chipman, 38 S.W.3d at 392.
Our Court first considered the public duty doctrine in the context of a
911 call in McCuiston. There, McCuiston had called 911 to report a theft and told
the dispatcher, Butler, that she was unable to come to the door because she was
dehydrated. Butler forgot to relay this information to responders who assumed no
one was home when McCuiston failed to answer the door. Three days later,
McCuiston was found dead inside her home. Her estate sued Butler, alleging
negligence.
On appeal, a panel of our Court held the public duty doctrine applied
to 911 operators. McCuiston, 509 S.W.3d at 80. After reviewing the public duty
doctrine, the Court analyzed whether a special relationship existed between Butler
and McCuiston. It first cited the Fryman test, and then noted that in at least one
instance, Kentucky courts have found a duty even where the Fryman test was not
specifically satisfied.
In Gaither v. Justice & Public Safety Cabinet, 447 S.W.3d 628 (Ky.
2014), as corrected (Sept. 15, 2014), our Supreme Court examined whether police
had a duty of care to a confidential informant and held “[t]he Fryman-Ashby[4] test
4
Fryman adopted the test described in Ashby v. City of Louisville, 841 S.W.2d 184, 190 (Ky.
App. 1992). The Court in Gaither referred to this test as the Fryman-Ashby test. In this case, we
refer to it simply as the Fryman test.
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is ill-suited to circumstances of a confidential police informant while actively
engaged in an undercover operation.” Id. at 638. It noted that the concerns behind
the Fryman test – lack of foreseeability of injury and lack of direct connection
between the state agency and injured claimant – were absent in Gaither where the
injury was uniquely foreseeable and the police had created “a connection with the
injured claimant, and then repeatedly fostered the continuation of that
relationship[.]” Id. The Court concluded the police’s actions “created a ‘special’
relationship between Gaither and the KSP that does not exist between the KSP and
members of the general public who may by happenstance indirectly fall victim to
police negligence.” Id. at 639.
Based upon this holding, the McCuiston Court questioned “whether
the reasoning in Gaither can be extended to other matters, and in particular, to this
case – the relationship between a 911 dispatcher and a caller.” McCuiston, 509
S.W.3d at 81. However, it ultimately held the two cases were distinguishable.
Unlike in Gaither, the estate could not
establish that Butler, outside his role as a 911 dispatcher,
created a connection with Ms. McCuiston and repeatedly
fostered the continuation of that relationship. Instead, he
performed his regular duties, took the call, and sent help
in a non-emergency situation. Butler never created a
“special relationship” with Ms. McCuiston where her
death was uniquely foreseeable based on the connection
with the 911 dispatcher.
Id. at 82.
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The Court held that instead of a special relationship, McCuiston “can
appropriately be classified as a member of the general public with whom Butler
interacted as a 911 dispatcher.” Id. Absent a special relationship, “Butler’s action
fell under the ‘public duty’ doctrine, which does not make public officials
guarantors of public safety with a universal duty of care to protect the general
public from harm or accident.” Id.The Estate argues McCuiston is distinguishable from this case.
Specifically, it contends “Henry formed a special relationship with Denver Stephen
Johnson as the last human being to ever speak to him” and Mr. Johnson’s “death
was foreseeable due to an allergic reaction and statements by Johnson that he could
not breathe.” It also notes the call in McCuiston was a non-emergency as opposed
to the emergency call in this case.
While the two cases certainly have factual differences, we do not
believe them so great as to compel a different result here.5 Like in McCuiston,
5
One factual difference worth noting is that unlike in McCuiston, the 911 call in this case was a
medical emergency. Thus, according to the Estate, Mr. Johnson’s injury was foreseeable to
Henry, bringing it closer to the circumstances of Gaither. Arguably, this distinction is
significant. Foreseeability was a leading factor in the Gaither Court finding a special
relationship between police and a confidential informant, despite the Fryman test not being met.
Gaither involved a confidential informant who was killed by a drug dealer one day after
he testified against the dealer in a grand jury proceeding. At Gaither’s grand jury appearance,
police made no effort to conceal the fact that he was a witness for the Commonwealth, which led
to his identity being disclosed to the dealer. Police then used Gaither as an informant against the
dealer the very next day. Based on these facts, the Court found Gaither’s death “was not only
foreseeable, it was entirely predictable[.]” Gaither, 447 S.W.3d at 638. Noting that “lack of
foreseeability was the compelling force for the prongs used to define the ‘special relationship’
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Henry did nothing beyond her responsibility as a 911 operator that would create a
special relationship with Mr. Johnson. She answered the 911 call and sent help, as
she would for any other citizen. She also did not create a connection with Mr.
Johnson and repeatedly foster the continuation of that relationship, like the officers
in Gaither. Simply put, the Estate has not shown Henry owed any special duty to
Mr. Johnson, beyond the duty owed by a 911 operator to the public at large.
Without a special relationship, Henry owed no duty to protect Mr. Johnson from
harm or accident. While Mr. Johnson’s death is tragic, Henry cannot be held liable
under the public duty doctrine.
The Estate cites several cases from other states and urges us to follow
their holdings. However, those states have different tests for establishing a special
relationship and McCuiston is a published case from our Court and is thus binding
precedent. See SCR 1.040(5) (“On all questions of law the circuit and district
courts are bound by and shall follow applicable precedents established in the
rule[,]” it concluded there was no sound reason to “apply a rule based upon the lack of a
foreseeable injury in a case where the injury was uniquely foreseeable.” Id.
Here, Mr. Johnson told Henry he was having an allergic reaction and could not breathe.
That Mr. Johnson could die without proper treatment was arguably foreseeable. However, this
fact would alone would likely not be sufficient to create a duty on the part of Henry. Chipman,
38 S.W.3d at 393 (“Foreseeability does not create a duty. Rather, duty can only be created by
showing the existence of a special relationship between the individual and the public official.”);
but see Gaither, 447 S.W.3d at 638 (quoting Fryman v. Harrison, 896 S.W.2d 908, 909 (Ky.
1995)) (“We noted in Fryman: ‘In this analysis of legal duty, we have determined that the major
issue is the question of foreseeability. . . . If the ultimate injuries were not foreseeable to the
governmental officials in their individual capacity, and if the victim of the injury was not
identifiable, there was no duty to prevent such an injury.’”).
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opinions of the Supreme Court and its predecessor court and, when there are no
such precedents, those established in the opinions of the Court of Appeals.”).
Further, against those cases cited by the Estate, other states have held that a 911
operator’s duty is general and owed to the public at large and that in order to
establish a special relationship, something more is required than simply performing
those duties negligently. See Wanzer v. District of Columbia, 580 A.2d 127, 132
(D.C. 1990) (citations omitted) (“A one-time call to 911 for help does not establish
a special relationship. It is not enough to allege ineptitude, even shameful and
inexcusable ineptitude, by a municipal agency in failing to respond adequately to a
call for help. To give rise to a special relationship, the agency’s response to the
private party must in some demonstrable way exceed the response generally made
to other members of the public.”); Koher v. Dial, 653 N.E.2d 524, 526 (Ind. Ct.
App. 1995) (“Standing alone, a governmental entity’s dispatch of emergency
services does not create a private duty.”). Pursuant to McCuiston, Henry had no
special relationship with Mr. Johnson. Absent a special relationship, Henry owed
no duty to Mr. Johnson and cannot be liable for his wrongful death as a matter of
law. Therefore, the trial court did not err in granting Henry’s motion to dismiss.
CONCLUSION
Based upon the foregoing, the order of the Fayette Circuit Court is
affirmed.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE D. HENRY:
Joshua D. Hicks J. Todd Henning
Gregory M. Funfsinn Lexington, Kentucky
Cayla N. Combs
Lexington, Kentucky
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