DocketNumber： NO. 2014-CA-001126-MR
Judges： Dixon, Jones, Kramer
Filed Date： 3/4/2016
Status： Precedential
Modified Date： 11/14/2024
OPINION
Linda Smith appeals from a summary judgment the Jefferson Circuit Court entered dismissing various tort claims she asserted against the above-captioned ap-pellees. Upon review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts, procedural posture of this case, and the issues to be resolved in this appeal, are largely discussed in the circuit court’s order of summary judgment. In relevant part, it provides:
This matter comes before the-Court on Motions- for Summary Judgment filed by Defendants Norton Suburban Hospital (“Norton”),. David Rednour (“David”), Securitas Security Services, USA, Inc.*27 (“Securitas”), and Tony Rednour (“Tony”). Plaintiff Linda Smith (“Smith”) has responded, and the matter is now submitted.
On March 21, 2012, Smith visited her son, who was a patient at Norton -Suburban Hospital. An off-duty Louisville Metro Department of Corrections officer, Benjamin Phillips (“Phillips”) was working security at Norton and was stationed outside Smith’s son’s room. Security was assigned to the room because Smith’s son had allegedly made threats to Norton’s staff. According to Smith, Phillips was dressed in plain clothes, and was sitting in a chair across the hall from her son’s room and was playing a handheld video game. When Smith approached her son’s room,- she claims she did not see his name on the door and became upset, fearing him to be dead. She alleges Phillips refused to let her enter the room, and yelled at her to get out of the hallway. Phillips claims he advised her she needed to check in at the nurses’ station prior to visiting the patient. Smith admits that after being refused immediate entry to' her son’s room, she said either “What if I have a gun in my purse?” or “I have a gun in my purse” and turned to walk away. Believing there to be an immediate threat to his safety, and those nearby, Phillips attempted to grab Smith’s purse to check for a gun. During this incident, Smith’s son came out of his room and began verbally assaulting Phillips and attempted to hit him. Smith alleges Phillips violently pushed her against a wall and detained her, causing her injuries that required back surgery. A gun was not found in Smith’s purse.
We add that in her various pleadings and appellate brief in this matter, Smith admits that Phillips identified himself as “a cop” shortly before she said-either “What if I have a gun in my purse?” or “I have a gun in my purse.”
Based upon these event's, Smith brought claims of negligence, assault, battery, false imprisonment, and intentional infliction of emotional distress directly against Phillips. She' asserted the same claims against three other individuals who were working as security guards at Norton (David and Tony Rednour, and Kelvin -Brooks). Through the doctrines of vicarious liability and re-spondeat superior, she also sought to impute liability for these claims upon what she asserted were the employers and principals of these individuals (ie., Norton, along with Securitas and Brooks Security). Lastly, and also relating to the above-described events, she brought claims of negligent hiring and supervision directly against Norton, Securitas, and Brooks Security.
For the various reasons discussed below, the circuit court ultimately dismissed the balance of Smith’s claims in response to the motions for summary judgment mentioned in the preface of the above-quoted order.
STANDARD OF REVIEW
Summary judgment serves to terminate litigation 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
On appeal, we must consider the evidence of record in the light most favorable to the nonmovant and must further consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996). “Because summary judgment involves only legal questions and the existence of any . disputed material issues .of fact, an appellate court need not defer to the trial court’s decision and will review the issue de novo.” Lewis v. B&R Corp., 56 S.W.3d 432, 436 (Ky.App.2001) (footnote omitted). .
■.ANALYSIS
1. Vicarious liability claims against Norton and Securitas
The circuit court found that Norton and Securitas could not be held vicariously liable for,Phillips’s conduct toward Smith because, by virtue of qualified immunity, Phillips’s conduct was not legally actionable.
Qualified immunity for tort liability applies, to (1) discretionary acts or functions (2) performed in good faith (3) that are within the scope of an official’s authority. See Yanero v. Davis, 65 S.W.3d 510, 522 (Ky.2001). Smith concedes that metropolitan and urban-county government correctional officers such as Phillips. are entitled to qualified immunity for their official conduct. However, she argues that the defense of qualified immunity should have failed in the'instant matter because: (1) at the time of the events allegedly giving rise to tort liability described above, Phillips was off duty, working a different job away from any correctional facility, and thus was working outside the scope of his employment as a correctional officer;
But, the first prong of Smith’s argument is inconsistent with the breadth of Phillips’s statutory authority as a “peace officer.” Pursuant to Kentucky Revised Statutes (KRS) 446.010(31), “peace officers are] sheriffs, constables, coroners, jailers, metropolitan and urban-county government correctional officers, marshals, policemen, and other persons with ’ similar authority to make arrests.”
(a) In obedience to a warrant; or
(b) Without a warrant when a felony is . committed in his or her presence; or
(c) Without a warrant, when he or she has probable cause to belfeve that- the person being arrested has committed a felony; or
(d) Without a warrant when a misdemeanor, as defined in KRS 431.06Ó, has been committed in his or her presence; or
(e) Without a warrant when a violation of KRS 189.290, 189.393, 189.520, 189.580, 511.080, or 525.070 has been committed in his or her presence,' except that a violation of KRS 189A.010 or KRS 281A.210 need not be committed in his or her presence in order to make an arrest without a warrant if the officer has probable cause to believe that the person being arrested has violated KRS 189A.010 or KRS 281A.210; or
(f)Without a warrant when a violation of KRS 508.030 has occurred in' the emergency room of.-a hospital without the officer’s presence .if the officer has probable cause to believe that the person being arrested has violated KRS 508.030. For the purposes of this paragraph, “emergency room” means that portion of a licensed hospital which has the primary purpose of providing emergency medical care, twenty-four (24) hours per day, seven (7) days per week, and three hundred sixty-five (365) days peryear[.]
Peace officers also have authority to issue citations for misdemeanors committed in their presence. See generally ICRS 431.015.
With that said, nothing in KRS 431.005 or KRS 431.015 limits a ■ peace officer’s arrest or citation authority to any particular location or facility; subject to exceptions, a peace officer’s jurisdiction to arrest and to issue citations typically encompasses the territorial limits of the appointing authority. See 8 Ky. Prac.Crim. Prac. & Proc. § 18:114 (5th ed.); see also Kentucky Attorney General Opinion (Ky. OAG) 82-422 (explaining a validly appointed deputy jailer can make arrests for misdemeanors in the county including drunkenness and traffic violations. Even though the deputy may be remiss in his duties at the jail, he may still make such arrests.).
Similarly, nothing in either statute limits a peace officer’s arrest or citation authority to on-duty hours. To the contrary,'the Kentucky Supreme Court has explained that one reason the General Assembly regulates the off-duty employment of peace officers is
[i]n the event a police officer observes an altercation or other possible criminal activity, a decision must be made whether a criminal violation has occurred and whether an arrest is warranted. Frequently, the decision is not clear-cut and requires the exercise of considerable discretion. In such circumstances, an off-duty officer employed by the proprietor of the business establishment would face a dilemma as to the extent, if any, the officer’s duties should be influenced by the command of the off-duty employer. It is a virtual fait accompli that official conduct would be influenced by the wishes of the employer.
Puckett v. Miller, 821 S.W.2d 791, 795 (Ky.1991). ...
With ⅛⅛ in mind, the first prong of Smith’s argument is wholly without merit. Even though Phillips was. an off-duty metropolitan and urban-county government correctional officer during the eyents forming the basis of this matter, Phillips remained a peace officer and retained the authority of that office because he was in a location within the territorial limits of the authority that appointed him as á peace officer.
Furthermore, Phillips acted in response to what Smith' admitted was her “distraught” manner, her admitted threat that she was carrying a gun in a public place (ie., a hospital), and the clear implication of her threat that she might use it at that time. Thus, while Smith’s conduct could certainly be characterized as offensive, to the interests of the hospital and Phillips’s private security employers, it was also an offense against the Commonwealth and could reasonably have formed the basis of a legal misdemeanor arrest; as the circuit court put it, Smith’s threatening behavior “breached the peace.”
Moving on, the second prong of Smith’s argument, is that Phillips’s deci
With the above in mind, we find no error in the circuit court’s determination that Phillips was entitled to defend against Smith’s claims .of negligence, assault, battery, false imprisonment, and intentional infliction of emotional distress— all of which Smith alleged stemmed from Phillips’s decision to forcibly stop her and search her -purse for the weapon she threatened to have — on the basis of qualified immunity. Nor, for that matter, do we find any error in the circuit court’s decision to cite qualified immunity as a basis for dismissing these claims; Smith’s arguments on appeal (as they were below) are not directed toward whether the actions Phillips took in the course and scope of his authority as a peace officer were indicative of bad faith.
Finally, Smith’s claims against any of the other appellees on the basis of vicarious liability for those same claims necessarily fail. “Vicarious liability extends only to negligent acts of an agent committed in the course and scope of the principal’s business.” Roethke v. Sanger,
2. Direct liability claims against Norton, Securitas, David Rednour, and Tony Rednour
Smith brought direct claims of negligent hiring and retention against ap-pellees Norton and Securitas which, as noted, the circuit court dismissed. Generally speaking, in order to prevail in claims of this nature an injured party must prove that “(1) the employer knew or reasonably should have known that an employee was unfit for the job for which he was employed, and (2) the employee’s placement or retention, at that job created an unreasonable risk of harm to the plaintiff.” Ten Brooks Dupont, Inc. v. Brooks, 283 S.W.3d 705, 733 (Ky.2009)(citing Oakley v. Flor-Shin, Inc. 964 S.W.2d 438, 442 (Ky.App. 1998)). Similarly, an employer may be held liable for negligent supervision if he or she knew or had reason to know of the risk that the employment created. McDonald’s Corp. v. Ogborn, 309 S.W.3d 274, 291 (Ky.App.2009). On appeal, Smith’s argument is as follows:
Here, the Corporate Defendants did hot specifically argue for dismissal of these direct liability claims in their Motion for Summary Judgment, and instead chose to focus on the immunity issues discussed above. The reason for this is*33 clear — regardless of whether the Corporate Defendants are entitled to an immunity defense, Plaintiff may still pursue these direct negligence claims for negligent hiring, training, supervision, and retention against the Corporate Defendants. Summary judgment, therefore, is inappropriate -on these claims. Moreover, a review of Mr. Phillips’ Metro Corrections employment file reveals a pattern of conduct raising a jury question as to whether' he was fit to- provide security at a local hospital. Specifically, Mr. Phillips altered and falsified at least one, and perhaps two, off-work statements from a doctor’s office in order to cover for time he took off work. For conduct, Mr. Phillips was cited for Dereliction of Duty and a violation 'of the Employee Code of Ethics & Conduct. On a separate occasion, Mr. Phillips was cited for significant and repeated absenteeism. Most significantly, though admittedly after the conduct at issue in this case, Mr. Phillips was disciplined for using' unreasonable force. Specifically, when confronted with a verbally uncooperative inmate, Mr. Phillips “used a hip toss to take him to the floor”. This pattern of disciplinary issues should have, at a minimum, indicated to the Corporate Defendants that he was unfit for the job and that Mr. Phillips’ placement and retention created an unreasonable risk of harm. Plaintiffs direct negligence claims against the Corporate Defendants, therefore, should be permitted to proceed.
In sum, Smith, argues that (1) Norton and Securitas did not ask the circuit court for summary judgment regarding these claims; and (2) even if they did, it was inappropriately granted because the evidence of record demonstrated genuine is-súes of material fact existed. In addition, Smith argues (3) with respect to the various tort claims she asserted against Tony Rednour and David Rednour, that she
has not received ah “ample opportunity to complete discovery” as required by the Kentucky Supreme Court in Pendle-ton Btos. Vending, Inc. v. Commonwealth Finance & Admin. Cabinet, 758 S.W.2d 24, 29 (Ky.1988); indeed, she has not taken the depositions of either David Rednour or Tony Rednour to determine their involvement. David Rednour has not provided any evidence whatsoever regarding his role in -Linda’s assault and ■detention. Tony Rednour has merely provided a self-serving affidavit drafted by his lawyer. ‘ r
The first part of Smith’s argument is a misrepresentation of the record. Below, Securitas, Norton, and David Rednour filed memoranda in support of summary judgment regarding these claims (which actually responded to the very argument Smith has put forth in this appeal).
D. There is No Evidence Or Even An Articulated Basis For The Direct Claims Against Norton Suburban And David Rednour And The y Should Be Dismissed.
The plaintiff asks the Court not to dismiss, her direct negligent training and supervision claim'against Norton Suburban even if the claims based on Mr. Phillips’s actions and oihissions are dismissed based on immunity. Response at 8. However, the plaintiff has not articulated any facts that would support such a claim, nor has she produced any r supporting evidence. Instead, the plain*34 tiffs complaint sets forth generic language that Norton Suburban was negligent in not “prohibiting” the altercation. Amended Complaint at ¶ 16, and was negligent in hiring, training, supervising, and retaining Mr. Phillips and the other individual defendants. Amended Complaint at ¶ 18. There are absolutely no facts alleged in the complaint that would support such a claim. Further, although extensive written discovery has taken place, the only evidence the plaintiff points to as support for these claims is Mr. Phillips’s employment file. She first points to two instances of a possible dispute regarding Mr. Phillips inappropriately taking time off work, which has no bearing on. whether Mr. Phillips would act appropriately when faced with a deadly threat. Response at 9. She then points to a document regarding an incident in 2013 in which Mr. Phillips may have used excessive force with an uncooperative inmate. Response at 9, Exhibit B. However, the altercation with the plaintiff occurred in March 2012, the preceding year. Thus, there is no way this incident could have put Norton Suburban on notice that it could be negligent to hire or retain Mr. Phillips in 2012. There is simply no evidence or articulated basis for the direct claims asserted against Norton Suburban, and those claims should be dismissed. Similarly, there is no basis for the claim or claims asserted against David Redn-our. The plaintiff claims she needs discovery to support the claim against Mr. Rednour, but the discovery to date conclusively establishes that he cannot be liable to'Ms. Smith. She claims “David Rednour has not provided any evidence whatsoever regarding his' role in Linda’s assault and detention.” Response at 11. However, David Rednour has provided written responses to her discovery requests, and she has not offered any affidavit or testimony to support a claim against David Rednour. Surely if he was present during the altercation she would have said so by- now. She offers no evidence or even allegation in the Response,1 and she does not offer an affidavit to support the claim or to state what she expects discovery will show as to the alleged direct claim against David Rednour. There is a simple explanation for why none of this is offered. They do not exist. Such claims should be dismissed. .
Securitas offered a roughly identical argument in favor of summary judgment on these claims.
In short, the first part of Smith’s argument has no merit. Smith, did not file any kind of post-judgment motion asserting that it was error for the circuit court to dispose of these particular claims in its summary judgment. Moreover, even if she had preserved the matter for review, we find no error in the circuit court’s decision to make a ruling on these claims; the viability of these claims was an issue squarely before the circuit court at the time.
As to the second part of Smith’s'argument, Norton and David Rednour’s counter-argument, as it appears above, is an accurate summary of the record' and characterization of the evidence. We are well aware that in a summary judgment motion the facts are to be construed favorably to the nonmovant, but here no evidence of record supported any of Smith’s direct claims against any individual.
Additionally, the third part of Smith’s argument misunderstands the burden of proof in this matter. It was not David and Tony’s obligation to prove they were'wot involved in any tortious conduct toward her; rather, it was her obligation to prove they were. CR 43.01. Moreover, Smith’s
Thus, as it relates not only to Smith’s claims against Norton and Securitas, but also to her separate claims against David and Tony Rednour, we find no error in the circuit court’s decision to dismiss.
3. Claims against Brooks Security, LLC, and Kelvin Brooks
In her complaint, Smith asserted the same vicarious and direct liability claims against Brooks Security that she asserted against Norton and Securitas and the same claims against Kelvin Brooks that she asserted against Tony and David Rednour. The circuit court dismissed those claims for exactly the same reasons discussed above. Smith’s argument on appeal is that it was error for the circuit court to do so because, as the record demonstrates, Brooks . Security and Kelvin Brooks never actually moved for summary judgment.
We find no fault in the circuit court’s granting of summary judgment under the narrow circumstances of this case. “Generally speakings Kentucky law strongly discourages sua sponte dismissals[.]” Doster v. Kentucky Parole Board, 308 S.W.3d 231, 232 (Ky.App.2010). Neverthe less, the circuit court is authorized to grant a summary judgment in favor of a party who has not requested it in the limited and rare situation where a motion for summary judgment has been made by some party to the action, the court has all of the perti-nent issues before it at the time the case is submitted, and where overruling the mov-ant’s motion for summary judgment necessarily would require a determination that the nonmoving party was entitled to the relief áskéd. The rationale for not requiring á formal motion for summary judgment under these circumstances is' that there is no prejudice to the party against whom summary judgment is granted. See Storer Communications of Jefferson County, Inc. v. Oldham County Bd. of Educ., 850 S.W.2d 340, 342 (Ky.App.1993). Here, the circuit court’s summary judgment in favor of Brooks Security and Kelvin Brooks in this matter is the limited and rare situation envisioned by this exception.
CONCLUSION
Smith has put forth no basis for reversing the circuit court’s judgment in this matter. We therefore AFFIRM.
DIXON, JUDGE, CONCURS.
JONES, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
. Phillips is no longer a party to this litigation; Smith decided not to pursue her suit against Phillips and dismissed her suit against him after he filed for bankruptcy. Also, and as discussed in our analysis, Brooks Security and Kelvin Brooks did not move for summary judgment.
. Smith derives her support for this aspect of her argument entirely from non-Kentucky : case law. Suffice it to say that some jurisdictions support her point-of: view, while others do not. For a general overview of the various approaches employed in this context by differing jurisdictions, See' generally Patricia Ku-bovsak Golla, Annotation, Performance of Public Duty by Off-Duty Police Officer Acting as Private Security Guard, 65 A.L.R.5th 623 (1999)'(collecting cases).- It is unnecessary to address the various approaches taken in those
. KRS 446.010(31) has provided the definition of "peace officer” since July 12, 2012. At the time of the events forming the basis of this litigation, this same definition applied but was instead' provided by KRS 446,010(25).
. In a similar vein, see also Ky. OAG 80-231:
[Sjince the county jailer and his deputies are peace officers they may issue traffic citations pursuant to and in accordance with the provisions,of KRS 431.015 for misdemeanors or violations committed in their-presence.... While the county jailer and his deputies may under the proper circumstances utilize the provisions of KRS 431.015, their primary function is to attend to the county jail and the .persons confined in the jail. They have no statutory obli*30 gation to patrol the streets and highways and their duties associated with the jail must not be neglected in favor of apprehending traffic violators, a function which would normally be handled by police officers.
While we are not bound by opinions of the Attorney General, this Court can afford them great weight. Louisville Metro Dept, of Corrections v. King, 258 S.W.3d 419, 421-22 (Ky, App.2007) (citation omitted), Our review of these OAG opinions reveals that the OAG’s opinions are carefully considered, clearly stated, and based upon a correct understanding of the law.
. As noted in Howard v. Transportation Cabinet, Com. of Ky., 878 S.W.2d 14, 17 (Ky.1994),
KRS 189.520(2) states, “No peace officer or state police officer shall fail to enforce rigidly this section and KRS 189A.010 through 189A.090, [the DUI statutes].” , Such a powerful imperative makes obvious the legislature's direct intention .to institute a policy whereby all peace officers with varying jurisdictions, both geographical and otherwise, are mandated to arrest offenders of DUI statutes.
. The circuit court generally characterized Smith's behavior as a breach of the peace. Among other things, it could have been categorized as misdemeanor terroristic threatening. See KIRS 508.080(1), providing in relevant part:
. A panel of this Court clarified this point in Dunn v. Felty, No. 2004-CA-001029-MR, 2005 WL 736596 at *2 (Ky.App. April 1, 2005), an opinion we find persuasive and proper to cite per Kentucky Rules of Civil Prpcedure (CR) 76,28(4)(c). Dunn explains that in an action for false imprisonment, false arrest, or assault or battery arising in the course thereof, the focus is on whether the peace officer "had reasonable grounds to believe and did believe in good faith that the plaintiff had committed an arrestable offense, and whether the officer used excessive force in making the arrest. The officer is liable for false arrest and battery if he lacked reasonable grounds for the arrest, or if the officer had a reasonable basis for the arrest but used more-force than was necessary.”
We add that a claim for intentional infliction of emotional distress is also intended as a “gap-filler,” providing redress for extreme emotional distress where traditional common law actions do not. Where, as here, an actor’s conduct allegedly amounts to the commission of one of the traditional torts such as assault, battery, or negligence for which recovery for emotional distress is allowed and the conduct was not intended only to -cause extreme emotional distress in the victim, the tort of outrage will not lie. Banks v. Fritsch, 39 S.W.3d 474, 481 (Ky.App.2001) (citing Brewer v. Hillard, 15 S.W.3d 1, 8 (Ky.App.1999), and Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 299 (Ky.App.1993)).
. As dicta, we note that Smith did not join the Louisville Metro Department of Corrections, Phillips's appointing authority, as a party herein.
. Smith’s argument, as it appears above, is the same argument she incorporated into her response brief before the circuit court. Norton and Securitas responded to it in the man- ■ ner indicated below in their respective reply briefs.