Mark E. Bolton v. Daniella Blaine Administratrix Estate of Kenneth H. Cross, II

RENDERED: FEBRUARY 19, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0396-MR
MARK E. BOLTON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 19-CI-003600
DANIELLA BLAINE,
ADMINISTRATRIX, ESTATE OF
KENNETH H. CROSS, II APPELLEE
OPINION
AFFIRMING IN PART
AND REVERSING IN PART
** ** ** ** **
BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.
DIXON, JUDGE: Mark E. Bolton appeals from the order denying his motion for
summary judgment entered by the Jefferson Circuit Court on February 18, 2020,
asserting he is entitled to qualified immunity as to the negligence claims brought
against him. After careful review of the briefs, record, and the law, we affirm in
part and reverse in part.
FACTS AND PROCEDURAL BACKGROUND
This appeal stems from the death of Kenneth H. Cross, II, while an
inmate with the Louisville Metro Department of Corrections (LMDOC).
On August 25, 2012, at approximately 5:00 p.m., Cross was arrested
pursuant to a warrant that included drug-related charges. He was subsequently
evaluated and booked into the LMDOC facility. At the time of his evaluation by a
booking nurse—a licensed practical nurse—Cross was exhibiting signs of drug
overdose. Consequently, Cross was placed on a detoxification protocol and
assigned a bottom bunk in an observation cell to minimize potential injuries were
he to fall out of bed. Cross was to be checked every eight hours by medical
personnel, as well as periodically by jail personnel, to make sure he was still
breathing. Shortly after arriving at his bunk, Cross fell asleep and was snoring
loudly. LMDOC policy at that time did not require jail personnel to attempt to
wake Cross to see if he was still conscious, and none did.
At approximately 8:47 p.m., another inmate alerted jail personnel that
something was wrong with Cross. By the time jail personnel arrived, Cross was
not breathing; he was pale; his lips were blue; and he was unresponsive. Despite
attempts to revive him, Cross passed away. It was later determined by the coroner
that the cause of death was an overdose of drugs ingested prior to his booking.
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At the time of Cross’s arrest, LMDOC policies prohibited the
admission of unconscious arrestees to the facility; rather, policy required an
unconscious arrestee be taken to a hospital. Pursuant to those same policies, jail
personnel were only expected to assess arrestees before admission for
unconsciousness where they might appear merely to be sleeping. Consequently,
none of the jail personnel responsible for Cross’s care had been trained to wake
intoxicated individuals to ensure that they did not fall into a state of
unconsciousness after their admission. Ironically, both drug overdose and
unconsciousness were considered medical emergencies in the jail.
Cross’s estate brought the instant action against Bolton, the LMDOC
Director, alleging negligence and gross negligence.1 Bolton moved the trial court
for summary judgment, alleging he is entitled to qualified immunity as to these
negligence claims. The trial court denied Bolton’s motion, and this appeal
followed.
QUALIFIED OFFICIAL IMMUNITY
Bolton filed an interlocutory appeal, arguing the negligence claims
against him in his individual capacity are barred by qualified official immunity.
This appeal is properly before us because an order denying a substantial claim of
qualified official immunity is immediately appealable. Harrod v. Caney, 547
1
The estate sued other entities as well, but they are not at issue here.
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S.W.3d 536, 540 (Ky. App. 2018); Breathitt Cty. Bd. of Educ. v. Prater, 292
S.W.3d 883, 887 (Ky. 2009); Mattingly v. Mitchell, 425 S.W.3d 85, 89 (Ky. App.
2013).
On appeal, Bolton argues the trial court erred by determining he is not
entitled to qualified immunity for the negligence claims against him in his
individual capacity. This is the sole issue before us as “the scope of appellate
review of an interlocutory appeal of the trial court’s determination of the
application of qualified official immunity is limited to the specific issue of whether
the immunity was properly denied and nothing more.” Baker v. Fields, 543
S.W.3d 575, 578 (Ky. 2018).
The standard for immunity is well-settled:
“Official immunity” is immunity from tort liability
afforded to public officers and employees for acts
performed in the exercise of their discretionary functions.
It rests not on the status or title of the officer or
employee, but on the function performed. Salyer v.
Patrick, 874 F.2d 374 (6th Cir. 1989). . . . [W]hen an
officer or employee of a governmental agency is sued in
his/her representative capacity, the officer’s or
employee’s actions are afforded the same immunity, if
any, to which the agency, itself, would be entitled . . . .
But when sued in their individual capacities, public
officers and employees enjoy only qualified official
immunity, which affords protection from damages
liability for good faith judgment calls made in a legally
uncertain environment. 63C AM. JUR. 2d, Public Officers
and Employees, § 309 (1997). Qualified official
immunity applies to the negligent performance by a
public officer or employee of (1) discretionary acts or
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functions, i.e., those involving the exercise of discretion
and judgment, or personal deliberation, decision, and
judgment, id. § 322; (2) in good faith; and (3) within the
scope of the employee’s authority. Id. § 309;
RESTATEMENT (SECOND) [OF THE LAW OF TORTS § 895D
cmt. g. (A.L.I. 1979)]. An act is not necessarily
“discretionary” just because the officer performing it has
some discretion with respect to the means or method to
be employed. Franklin [Cty.] v. Malone, [957 S.W.2d
195, 201 (Ky. 1997) (quoting Upchurch v. Clinton Cty.,
330 S.W.2d 428, 430 (Ky. 1959))]. Qualified official
immunity is an affirmative defense that must be
specifically pled. Gomez v. Toledo, 446 U.S. 635, 100 S.
Ct. 1920, 64 L. Ed. 2d 572 (1980).
Conversely, an officer or employee is afforded no
immunity from tort liability for the negligent
performance of a ministerial act, i.e., one that requires
only obedience to the orders of others, or when the
officer’s duty is absolute, certain, and imperative,
involving merely execution of a specific act arising from
fixed and designated facts. Franklin [Cty.] v. Malone,
supra, at 201. “That a necessity may exist for the
ascertainment of those facts does not operate to convert
the act into one discretionary in nature.” Upchurch v.
Clinton [Cty.], supra, at 430. See also RESTATEMENT
(SECOND) TORTS, supra, § 895D cmt. h; 63C AM. JUR.
2d, Public Officers and Employees, §§ 324, 325 (1997).
Yanero v. Davis, 65 S.W.3d 510, 521-22 (Ky. 2001).
Here, we must determine what qualified immunity Bolton enjoys, if
any, as an affirmative defense to the claims against him. We note that qualified
immunity is not a blanket shield for all tort claims. Yanero, the seminal authority
on governmental immunity in Kentucky, held that qualified official immunity
protects discretionary acts negligently performed by public officials so long as
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they are acting within their authority and in good faith. Id. “Qualified immunity
gives government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who knowingly
violate the law.” Stanton v. Sims, 571 U.S. 3, 6, 134 S. Ct. 3, 5, 187 L. Ed. 2d 341(2013) (per curiam) (emphasis added) (citations and internal quotation marks
omitted). “[W]hen sued in their individual capacities, public officers and
employees enjoy only qualified official immunity, which affords protection from
damages liability for good faith judgment calls made in a legally uncertain
environment.” Yanero, 65 S.W.3d at 522 (emphasis added) (citation omitted).
Here, the trial court found Bolton was not entitled to qualified official
immunity because his actions were ministerial rather than discretionary. The trial
court opined:
Director Bolton properly asserts that supervising
employees is a discretionary function protected by
qualified immunity. He also properly asserts that
establishing jail policy is a discretionary function. But
those are not the Plaintiff’s claims here. Plaintiff alleges
Director Bolton was negligent in failing to properly
enforce [LMDOC] policy regarding medical
emergencies. Specifically, Plaintiff claims Director
Bolton failed to train employees to awaken intoxicated
individuals to ensure they have not fallen into a state of
unconsciousness. The Court finds this is a ministerial
function to which qualified immunity does not apply.
(Emphasis added.)
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Our review requires us to first revisit the estate’s claims in its
complaint. Count I of the complaint asserts the defendants—including Bolton—
“were negligent and grossly negligent.” Count IV alleges Cross’s death was
substantially caused by Bolton’s failure “to properly or conscientiously train and
supervise the conduct of [his] employees and subordinates, and/or to promulgate
appropriate operating policies and procedures either formally or by custom and
practice to protect inmates like Mr. Cross.” For purposes of this appeal, we first
discuss whether immunity applies to the gross negligence claims and then whether
immunity applies to the other, ordinary negligence claims against Bolton.
Immunity Unavailable for Gross Negligence
To establish negligence, a plaintiff must prove “that (1) the defendant
owed the plaintiff a duty of care, (2) the defendant breached the standard by which
his or her duty is measured, and (3) consequent injury.” Pathways, Inc. v.
Hammons, 113 S.W.3d 85, 88 (Ky. 2003) (citation omitted). By contrast, a gross
negligence claim has only two elements: (1) “a finding of failure to exercise
reasonable care” and (2) “an additional finding that this negligence was
accompanied by wanton or reckless disregard for the lives, safety, or property of
others.” Gibson v. Fuel Transp., Inc., 410 S.W.3d 56, 59 (Ky. 2013) (citation
omitted). Stated another way, “there must be an element either of malice or
willfulness or such an utter and wanton disregard of the rights of others as from
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which it may be assumed the act was malicious or willful.” City of Middlesboro v.
Brown, 63 S.W.3d 179, 181 (Ky. 2001) (citation omitted).
In Martin v. O’Daniel, 507 S.W.3d 1 (Ky. 2016), the Supreme Court
explained:
Acting with malice and acting in good faith are
mutually exclusive. . . . But, it is also a fact that defeats
the defendant’s assertion of qualified official immunity.
Official immunity is unavailable to public officers who
acted “with the malicious intention to cause a deprivation
of constitutional rights or other injury . . . .” Yanero, 65
S.W.3d at 523 (quoting Harlow v. Fitzgerald, 457 U.S.
800, 815, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)).
It thus becomes apparent that the very same
evidence that establishes the eponymous element of a
malicious prosecution action simultaneously negates the
defense of official immunity. In simpler terms, if a
plaintiff can prove that a police officer acted with malice,
the officer has no immunity; if the plaintiff cannot prove
malice, the officer needs no immunity.
Id. at 5 (emphasis added). The same logic applies to gross negligence actions.
Consequently, and pursuant to Martin, Bolton is not entitled to summary judgment
on grounds of qualified official immunity pertaining to any claim of gross
negligence. If Bolton acted with malice, he is not entitled to immunity; if he had
no malice, he needs no immunity, since proof of malice is a necessary element to
prevail on a claim of gross negligence. Id. Accordingly, the trial court correctly
denied summary judgment to Bolton on the gross negligence claim as it was not
barred by qualified official immunity, and we must affirm this part of its decision.
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Ordinary Negligence:
Immunity for Discretionary but Not Ministerial Acts
This now leaves us to determine whether the trial court properly
denied summary judgment as to the ordinary negligence claims against Bolton on
grounds of lack of qualified official immunity. Under Yanero, whether qualified
official immunity is available to Bolton will depend on the characterization of each
of his actions, whether they are discretionary or ministerial in nature.
It is well-established that “[p]romulgation of rules is a discretionary
function; enforcement of those rules is a ministerial function.” Williams v.
Kentucky Dep’t of Educ., 113 S.W.3d 145, 150 (Ky. 2003). Thus, to the extent the
estate attempts to pursue any claims against Bolton concerning promulgation of
rules, such claims are barred; however, to the extent the estate pursues its claims
against Bolton for enforcement of said rules, such claims are not typically barred
on qualified official immunity grounds.
We further note, “the determination of whether a particular act is
discretionary or ministerial focuses on the ‘dominant nature of the act’ and is
inherently fact-sensitive. [Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010).]”
Hedgepath v. Pelphrey, 520 Fed. App’x 385, 389 (6th Cir. 2013) (emphasis in
original). Although factual issues cannot be resolved at this stage of the litigation,
we must still bear these principles in mind during our immunity analysis. As
previously stated, we lack jurisdiction to consider factual issues on appeal; rather,
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we only review legal questions as to whether Bolton is entitled to qualified official
immunity.
Negligent Training and Supervision
Herein, the complaint explicitly alleges that Bolton failed “to properly
or conscientiously train and supervise the conduct of [his] employees and
subordinates, and/or to promulgate appropriate operating policies and procedures
either formally or by custom and practice to protect inmates like Mr. Cross.” The
first part of this allegation contends that Bolton negligently trained and supervised
his employees. “These legal questions are well-settled. As to training, although
deciding on the content of policies and training is a discretionary function, the
training of employees to adhere to their duties once that content is decided is a
ministerial function. See Yanero, 65 S.W.3d at 529.” Hedgepath, 520 Fed. App’x
at 391.
In Hedgepath, the Court discussed claims concerning negligent
training and supervision, explaining:
Hedgepath’s claim is that the contents of the policy were
decided and that the Supervisory Jailers simply failed to
train the jailers on how to comply with those policies.
Because this claim implicates a ministerial duty, the
District Court’s denial of qualified immunity will be
affirmed. With respect to the negligent supervision
claim, the supervision of employees is a ministerial act
when it merely involves enforcing known policies. See
Yanero, 65 S.W.3d at 522. Hedgepath claims that the
Supervisory Jailers did not enforce known policies.
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Consequently, the Supervisory Jailers are not entitled to
qualified immunity because their duty to supervise the
Deputy Jailers was ministerial.
Id. at 391-92 (emphasis added). Again, we note our lack of jurisdiction to consider
any factual issues raised by Bolton. According to the estate’s claims, LMDOC’s
policies specifically listed drug overdose and unconsciousness as medical
emergencies, but inadequate training and supervision allowed Cross to experience
these conditions without proper medical treatment, which led to his otherwise
preventable death. Looking only at the legal issue of immunity, we agree with the
trial court that—as observed in Hedgepath—qualified official immunity does not
apply to the training or supervision claims brought herein.
We disagree with Bolton that the case herein is less like Hedgepath
and Finn v. Warren County, Kentucky, 768 F.3d 441 (6th Cir. 2014)—cases
concerning immunity of jailers—and more similar to Wales v. Pullen, 390 S.W.3d
160 (Ky. App. 2012)—which concerned immunity of a director of public works
but not a county engineer. In Finn, the Court held that although a supervisor’s
decision “on the content of policies and training is a discretionary function, the
training of employees to adhere to their duties once that content is decided is a
ministerial function.” 768 F.3d at 449 (citation omitted). This is essentially
identical to allegations in the complaint herein. In Wales, the Court found the
director of public works was entitled to qualified official immunity, but the county
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engineer who had a statutory duty to remove trees was not entitled to qualified
official immunity. 390 S.W.3d at 167. Here, the buck does not necessarily stop
with a lower level in the chain-of-command, as Bolton argues. There can be no
doubt that the case herein bears more resemblance to Hedgepath and Finn than
Wales in its fact pattern and (un)availability of qualified official immunity.
Following the guidance of these cases, we affirm the trial court’s denial of
summary judgment based on lack of qualified official immunity for Bolton against
the estate’s claims of negligent training and supervision.
Negligent Promulgation of Policies and Procedures
We next turn to the portion of the complaint concerning Bolton’s
promulgation of policies and procedures—more specifically, the allegation that
Bolton failed “to promulgate appropriate operating policies and procedures either
formally or by custom and practice to protect inmates like Mr. Cross.” As
previously noted, Bolton is clearly entitled to immunity for that claim. See
Williams, 113 S.W.3d at 150. Consequently, the trial court erred in not granting
Bolton’s motion for summary judgment against that claim, and we must reverse in
part only.
Negligent Enforcement of Policies
The trial court noted that the estate alleged Bolton was negligent in
failing to properly enforce LMDOC policy regarding medical emergencies and in
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failing to train employees to wake intoxicated individuals to ensure they did not
fall into a state of unconsciousness. The trial court viewed these actions as
ministerial functions to which qualified immunity does not apply. This is
consistent with Williams in that “enforcement of those rules is a ministerial
function.” Id. Therefore, we cannot say the trial court erred in denying Bolton’s
motion for summary judgment requesting the trial court find him entitled to
qualified official immunity for that claim. Accordingly, we also affirm that part of
the trial court’s order.
CONCLUSION
Therefore, and for the foregoing reasons, the order entered by the
Jefferson Circuit Court is AFFIRMED in part and REVERSED in part.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
J. Denis Ogburn Gregory A. Belzley
Louisville, Kentucky Prospect, Kentucky
Paul Brizendine
Jeffersonville, Indiana
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