Faith Ashton Individually v. A. A. a Minor, by and Through Her Mother and Next Friend

RENDERED: MARCH 12, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0224-MR
FAITH ASHTON, IN HER OFFICIAL
CAPACITY AND INDIVIDUALLY;
CAROLYN FASSIO, IN HER OFFICIAL
CAPACITY AND INDIVIDUALLY;
JAHI PEAKE, IN HIS OFFICIAL
CAPACITY AND INDIVIDUALLY;
LAURIE WORKMAN, IN HER
OFFICIAL CAPACITY AND
INDIVIDUALLY; ALLEN BAKER,
IN HER OFFICIAL CAPACITY AND
INDIVIDUALLY; AND THE ESTATE
OF BESSIE E. WADLINGTON, IN
ITS OFFICIAL CAPACITY AND INDIVIDUALLY,
BY AND THROUGH THE ADMINISTRATOR,
RICHARD E. WADLINGTON APPELLANTS
v. APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 17-CI-000059
A. A., A MINOR, BY AND THROUGH
HER MOTHER AND NEXT FRIEND,
MARY AMES
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Faith Ashton, in her official capacity and individually;
Carolyn Fassio, in her official capacity and individually; Jahi Peake, in his official
capacity and individually; Laurie Workman, in her official capacity and
individually; Allen Baker, in her official capacity and individually; and the Estate
of Bessie E. Wadlington, in its official capacity and individually, by and through
the administrator, Richard E. Wadlington, bring this interlocutory appeal from a
January 16, 2020, Opinion and Order of the Jefferson Circuit Court denying
appellants the shield of qualified official immunity. We reverse and remand.
This case involves the alleged sexual assault of a kindergarten student,
A.A., by another kindergarten student, L.E., while both were attending Whitney
Young Elementary School. A.A. and L.E. attended kindergarten during the 2015-
2016 school year. On February 13, 2016, A.A.’s mother, Mary Ames, informed
Principal Mary Minyard that L.E. had put his hand down A.A.’s pants. Ames also
informed A.A. and L.E.’s primary teacher, Faith Ashton, of the allegation. Ashton
and other teachers instituted several measures to prevent L.E. from having contact
with A.A. during the school day. Nonetheless, on February 24, Ames again
informed Principal Minyard that L.E. had once more put his hand down A.A.’s
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pants. Ames also informed Ashton of the allegation. Additional measures were
put in place to ensure L.E. did not have direct contact with A.A.
The Cabinet for Health and Family Services conducted an
investigation of the allegations and found the allegations to be unsubstantiated.
The Jefferson County Public Schools, Office of Compliance and Investigations,
also investigated and found “the allegations that the . . . staff were aware of
[L.E.’s] sexual behavior toward other students and did not address or ensure the
safety of the students to be unsubstantiated.” Report at 11.
On January 4, 2017, A.A., by her mother and next friend, Ames, filed
a complaint in the Jefferson Circuit Court and named as defendants Donna
Hargans, Superintendent of Jefferson County Public Schools, in her official and
individual capacities, and Mary Minyard, Principal of Whitney Young Elementary
School, in her individual and official capacities. A.A. also named as defendants:
(1) the primary kindergarten teacher - Faith Ashton, in her official and individual
capacities; (2) the music teacher - Carolyn Fassio, in her official and individual
capacities; (3) the art teacher - Jahi Peake, in his official and individual capacities;
(4) the gym teacher - Laurie Workman, in her official and individual capacities; (5)
the classroom volunteer - Allen Baker, in her official and individual capacities; and
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(6) the instructional assistant, the Estate of Bessie E. Wadlington, in its official and
individual capacities.1 In the complaint, it was particularly alleged:
1. This is a case about an innocent five year
old girl who was sexually assaulted twice by
another child while in school at Whitney Young
Elementary School. The second incident of sexual
assault occurred after Whitney Young
administrators purportedly put measures into place
to prevent another sexual assault from happening.
2. A.A. is a minor child, having been born June
5, 2010 and having no guardian, curator, or
committee, sues by her mother, Mary Ames, as her
mother and next friend.
....
24. Each Defendant had a duty, pursuant to
common law and/or statute and/or other written or
unwritten policies, regulations and/or rules to A.A.
to exercise due care for her safety while A.A. was
under their direction and control.
25. Each Defendant breached said duty, and said
breach caused injury to A.A.
....
28. In or about January 2016, A.A. was sexually
assaulted by a male student hereinafter referred to
for anonymity purposes as “[L.E.]” while both
1
Bessie E. Wadlington was an instructional assistant at Whitney Young Elementary School at
the time of the alleged incidents. Wadlington passed away on July 17, 2016, prior to the filing of
the complaint. Wadlington’s estate and its administrator were named parties to the action for the
alleged claims against her.
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students were under the supervision of certain
Defendants herein.
29. Specifically, without the consent of A.A.,
[L.E.] put his hands in A.A.’s pants and digitally
penetrated A.A.’s vagina.
....
31. A.A. should not have been sexually
assaulted.
32. Immediately after learning of the foregoing
incident, A.A.’s mother Mary informed Whitney
Young administration, including some or all
Defendants, that A.A. had been sexually assaulted
during school hours.
33. Mary was informed that A.A. was not the
first female student sexually assaulted in this
manner by [L.E.], and that administration would
assign another adult to stay with [L.E.] at all times
to prevent him from sexually assaulting anyone
else.
....
36. A.A. was sexually assaulted again.
37. Specifically, on or about February 23, 2016,
[L.E.] again put his hands in A.A.’s pants and
again digitally penetrated A.A.’s vagina, again
while both students were under the supervision of
certain Defendants herein.
....
41. The foregoing incidents of sexual assault
occurred because A.A. and/or [L.E.] were either
not being supervised or was [sic] not being
supervised adequately by Defendants.
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42. Pursuant to common law and/or statute
and/or other written or unwritten policies,
regulations and/or rules, Defendants herein had a
ministerial duty to adequately supervise students in
their charge, including A.A.
43. The conduct of Defendants was ministerial
in nature, and/or was taken in bad faith, and/or was
outside of the scope of their respective
employment or authority, and/or violated
Plaintiff’s constitutional, statutory, or other well-
established rights (which include but are not
limited to rights contained in policies or
procedures and/or case law and/or Kentucky
Administrative Regulations), and/or is otherwise
conduct for which Defendants are not entitled to
immunity.
44. Defendants negligently and inadequately
supervised A.A., thus breaching their ministerial
duty.
45. Defendants had a duty to reasonably
supervise A.A. while A.A. was at school to prevent
A.A. from being sexually assaulted and to
otherwise avoid and minimize injury to A.A., and
that Defendants breached this duty.
46. Defendants had a duty to reasonably
supervise [L.E.] while [L.E.] was at school to
prevent [L.E.] from assaulting (sexually or
otherwise) other students, and Defendants
breached this duty, causing harm and damages to
A.A.
....
50. Defendants’ special relationship with A.A.,
particularly when coupled with their knowledge
that [L.E.] had a history of sexually assaulting
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A.A. and other female students, required them to
take all reasonable steps to protect A.A. from
harm, ensure A.A.’s safety, and otherwise prevent
A.A. from needlessly being injured and/or sexually
assaulted by fellow students.
51. The Defendants herein failed to take
reasonable steps to protect A.A., and Defendants
took no action to prevent A.A.’s injury and
damages.
52. The Defendants herein further had a
common law duty to A.A. requiring them to
exercise reasonable care to ensure her safety while
at Whitney Young Elementary School.
53. Defendants’ acts and/or omissions described
herein above breached their duty to exercise
reasonable care to ensure A.A.’s safety at Whitney
Young Elementary School.
54. Each Defendant was negligent in failing to
exercise due care for A.A.’s safety.
55. Each Defendant was negligent in failing to
provide supervision reasonably necessary to
safeguard A.A.
56. Defendants’ failure to appropriately
supervise A.A. constituted a violation of Kentucky
law, including but not limited to law regarding the
general supervision of the general conduct of the
schools pursuant to KRS 160.370 and law
requiring the implementation and enforcement of
student discipline guidelines pursuant to KRS
158.148 et seq., and Defendants are therefore
negligent per se.
57. Defendants’ negligence per se caused A.A.
to endure and will continue to endure in the future
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extensive mental and physical pain and suffering
and medical expenses all in an amount sufficient to
invoke the jurisdiction of this Court.
58. Plaintiff’s injury was further directly and
proximately caused by Defendants’ negligent
hiring, training, supervision, and/or retention of
others, including but not limited to employees,
independent contractors, or volunteers.
Complaint at 3-9. Defendants filed an answer and asserted the defense of
immunity and subsequently filed a motion for summary judgment arguing
entitlement to qualified official immunity. Defendants maintained that decisions as
to appropriate measures to implement in the classroom in the wake of A.A.’s
allegations required the use of judgment and discretion by them. In A.A.’s
response, she maintained that the supervision of students was a ministerial act for
which defendants enjoyed no official immunity.
By Opinion and Order entered January 16, 2020, the circuit court
granted in part and denied in part the motion for summary judgment. The circuit
court concluded that Superintendent Hargans and Principal Minyard were entitled
to qualified official immunity. The circuit court observed that the superintendent
and principal did not directly supervise children, and the principal acted in a
discretionary function by investigating and implementing policies. However, the
court also noted that Ashton, Fassio, Peake, and Workman were teachers directly
tasked with supervising students. Likewise, Baker, a classroom volunteer, and
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Wadlington, an instructional assistant, also directly supervised students. The
circuit court concluded that the direct supervision of students by teachers or
teachers’ aids was a ministerial act. As a result, the circuit court held that Ashton,
Fassio, Wadlington, Baker, Workman, and Peake (collectively referred to as
appellants) were performing ministerial functions during their supervision of A.A.
and were not entitled to qualified official immunity. This appeal follows.
To begin, summary judgment is proper where there exists no material
issue of fact and movant is entitled to judgment as a matter of law. Kentucky
Rules of Civil Procedure 56; Steelvest, Inc. v. Scansteel Service Center, Inc., 807
S.W.2d 476 (Ky. 1991). Our review proceeds de novo. Brown v. Griffin, 505
S.W.3d 777, 781 (Ky. App. 2016).
Appellants contend that the circuit court erred by denying their motion
for summary judgment and concluding they were not entitled to qualified official
immunity. Appellants maintain that their supervision of A.A. was fundamentally
discretionary acts to which qualified official immunity applies. For the reasons set
forth, we agree.
In Kentucky, a public official sued in his individual capacity for
negligence may be entitled to the shield of qualified official immunity. To be
entitled to qualified official immunity, the public official must have engaged in a
discretionary as opposed to a ministerial act. A ministerial act is generally “one
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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.” Yanero v. Davis, 65 S.W.3d 510, 522
(Ky. 2001). Conversely, a discretionary act is one “involving the exercise of
discretion and judgment, or personal deliberation, decision, and judgment[.]” Id.If the public official performs a discretionary act, the official is entitled to qualified
immunity if such act was carried out within the scope of her employment and in
good faith. Yanero, 65 S.W.3d at 523.
Under facts very similar to those presented in this case, the Supreme
Court held that supervision of students by a kindergarten teacher constituted a
discretionary act. In Turner v. Nelson, 342 S.W.3d 866 (Ky. 2011), a kindergarten
student, F.B., alleged that another kindergarten student, C.Y., sexually assaulted
her while at school and brought an action against the kindergarten teacher for
negligent supervision. The Supreme Court held that the teacher’s supervision of
F.B. and C.Y. was discretionary:
[W]e consider Turner’s actions in supervising the
children to have been discretionary. While there may be
legitimate disagreement as to the approach taken by
Turner, the consequences of liability under such
circumstances would injuriously “deter independent
action and impair the effective performance of [teaching]
duties.” [Haney v. Monsky, 311 S.W.3d 235, 245 (Ky.
2010).]
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It is imperative that teachers maintain the
discretion to teach, supervise, and appropriately
discipline children in the classroom. To do this, they
must have appropriate leeway to do so, to investigate
complaints by parents, or others, as to the conduct of
their students, to form conclusions (based on facts not
always known) as to what actually happened, and
ultimately to determine an appropriate course of action,
which may, at times, involve reporting the conduct of a
child to the appropriate authorities. In fact, protection of
the discretionary powers of our public officials and
employees, exercised in good faith, is the very
foundation of our doctrine of “qualified official
immunity.”
Id. at 876.
By so holding, the Supreme Court recognized that an “apparent
incongruity with our precedent” existed as the Court had previously held that the
direct supervision of students by a teacher constituted a ministerial act. Turner,
342 S.W.3d at 876. The Court resolved this apparent incongruity by pointing out
the factual distinctions between the cases:
In Yanero, this Court deemed “enforcement of a
known rule requiring that student athletes wear batting
helmets during baseball batting practice” to be
ministerial. 65 S.W.3d at 522. Unlike the teacher’s
decision-making in this case, a helmet requirement
constitutes “an essentially objective and binary
directive.” Haney, 311 S.W.3d at 242 (discussing
Yanero, 65 S.W.3d 510). As a result, “[t]here is no
substantial compliance with such an order and it cannot
be a matter of degree: its enforcement was absolute,
certain, and imperative, involving merely execution of a
specific act arising from fixed and designated facts.” Id.(citation omitted) (internal quotation omitted). You do it
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or you don’t—and unlike here, there is no factual
determination required for its application.
Admittedly, we have also “rejected the notion that
the failure of teachers . . . to supervise their students in
the face of known and recognized misbehavior was a
discretionary act.” Id. at 244 (discussing Williams, 113
S.W.3d at 150). This decision stemmed from the
requirement in KRS 161.180(1) that teachers must “hold
pupils to strict account for their conduct on school
premises, on the way to and from school, and on school
sponsored trips and activities.” Id. The dispute in this
case, though, concerns the means of supervision rather
than a failure to supervise students who were drinking
and driving to and from a school-sponsored function as
occurred in Williams.
Id. at 876-77.
We too are cognizant of a line of Supreme Court cases holding that
the supervision of students by a teacher/coach constitutes a ministerial act. See
Ritchie v. Turner, 559 S.W.3d 822 (Ky. 2018); Patton v. Bickford, 529 S.W.3d 717(Ky. 2016); Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014); Williams v. Ky.
Dep’t of Educ., 113 S.W.3d 145 (Ky. 2003); Yanero, 65 S.W.3d 510. In these
cases, the teachers’ supervision involved enforcement of a known, specific rule or
the complete failure to supervise. For instance, Yanero, 65 S.W.3d 510, involved
enforcement of a helmet mandate during ball practice; and Marson, 438 S.W.3d at
301, involved implementation of an unwritten “standard procedure[.]”
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In the case at hand, we believe the particular facts herein are wholly
consistent with those in Turner, 342 S.W.3d 866.2 As in Turner, appellants were
kindergarten teachers faced with allegations of sexual assault made by one
kindergarten student against another kindergarten student. And, in both cases,
appellants were not enforcing a specific rule or a standard procedure with only
binary options. Rather, appellants necessarily utilized their judgment and
discretion on a daily basis to govern the interaction between the kindergarten
students during each class.3
Accordingly, we hold that appellants’ supervision of A.A. and L.E.
constituted discretionary acts. As discretionary acts, appellants are entitled to
qualified immunity if such acts were carried out within the scope of their
employment and in good faith. Yanero, 65 S.W.3d at 523. It is clear that
appellants were acting within the scope of their employment at the elementary
school. As to good faith, there has not been an allegation that appellants failed to
2
A.A., a minor by and though her mother and next friend, Mary Ames, argues that Turner v.
Nelson, 342 S.W.3d 866 (Ky. 2011) has been impliedly “overruled,” constitutes “bad law” and
should be “ignored” by this Court. A.A.’s Brief at 12. As an intermediate appellate court, we
are bound to follow Supreme Court precedent. Rules of the Supreme of Court 1.030(8)(a).
3
A.A. also cites to Kentucky Revised Statutes 161.180 and Jefferson County Public School
Policy 09.221 as support for the conclusion that appellants’ supervision constituted a ministerial
function. However, neither the foregoing statute or policy changes the fundamental discretionary
nature of appellants’ supervision under the unique facts of this case. On the contrary, this case is
controlled by the Supreme Court’s holding and reasoning in Turner, 342 S.W.3d 866.
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act in good faith. Therefore, we are of the opinion that appellants are entitled to
the shield of qualified official immunity.
For the foregoing reasons, the Opinion and Order of the Jefferson
Circuit Court is reversed and remanded for proceedings consistent with this
Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF AND ORAL ARGUMENT
FOR APPELLEE:
Mark S. Fenzel
Dana L. Collins A. Nicholas Naiser
Elisabeth S. Gray Louisville, Kentucky
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANTS:
Dana L. Collins
Louisville, Kentucky
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