RENDERED: APRIL 23, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2019-CA-1766-MR
ERIC JONES; ELIZABETH WILLOUGHBY; IAN ROBERTS; JEREMY POWER; AND PAIGE CLARK APPELLANTS
APPEAL FROM MONTGOMERY CIRCUIT COURT v. HONORABLE WILLIAM EVANS LANE, JUDGE ACTION NO. 18-CI-90100
JENNIFER WRIGHT SMALLWOOD, AS ADMINISTRATRIX OF THE ESTATE OF RYAN ALAN SMALLWOOD, DECEASED; BRIANNA NICOLE SIMPSON, AS THE PARENT, NATURAL FRIEND, AND GUARDIAN OF JOHNNY AND JANIE DOE (MINORS); AND KLOUD JONES APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: The Jailer and Deputy Jailers of Montgomery County
Regional Jail appeal from the Montgomery Circuit Court’s order denying their motion for summary judgment in a wrongful death action brought by the family
and heirs of Ryan Smallwood. The jail had filed a cross-claim against Kloud
Jones, an inmate at the jail. We affirm.
Ryan Smallwood became an inmate at the jail in April 2017, when he
was incarcerated for a burglary conviction. His intake psychiatric evaluation
(performed by a healthcare provider at Pathways, Inc., and mandatory under the
jail’s policies and procedures because Smallwood had a history of suicidal
behavior) indicated that Smallwood suffered from schizoaffective disorder
(schizophrenia), causing him to hear voices and react violently. Smallwood was
thereafter deemed a high-risk inmate. He transferred to the Kentucky State
Reformatory/Kentucky Correctional Psychiatric Center, where he remained for
about three weeks. Smallwood returned to the Montgomery County Regional Jail
on May 19, 2017.
In August of that year, because of behavioral changes and suicidal
ideation as well as confrontations with another inmate, Smallwood’s prescription
was increased. He was placed in an observation cell and safety smock but was
released as lower risk within 48 hours. The following month, Smallwood suffered
from panic attacks, and his medication was again adjusted. On November 20,
2017, after another confrontation with the same inmate, Smallwood was again
placed in an observation cell for three days.
-2- Two days later, inmate Kloud Jones was processed into the jail. Jones
was patted down and frisked, given a change of clothing, and placed in the same
cell as Smallwood. Unbeknownst to the jail personnel, Jones was in possession of
fentanyl which he later passed on to Smallwood. Smallwood ingested the drugs,
became unconscious, and was later pronounced dead at St. Joseph Hospital in Mt.
Sterling. The cause of death was “acute fentanyl toxicity.”
On May 3, 2018, Jones was indicted in federal court for distributing
fentanyl and causing Smallwood’s death. He later entered a guilty plea and
received 300 months’ imprisonment.
On May 24, 2018, Smallwood’s estate filed a wrongful death action
against the Montgomery County Regional Jail, Eric Jones (the Jailer), Lieutenant
Elizabeth Willoughby, and Deputies Paige Clark and Jeremy Power. In February
2019, the complaint was amended to include Chief Ian Roberts as a defendant.1
Meanwhile, the previous month, the defendants filed a third-party complaint
against Kloud Jones for indemnity, contribution, and apportionment in relation to
Smallwood’s death.
The circuit court ordered a discovery deadline of March 1, 2019 and
scheduled trial to begin on November 4 of that year. On October 14, 2019, the
Jailers moved for summary judgment, arguing that they were entitled to dismissal
1 We refer to these parties collectively as “the Jailers.”
-3- under qualified official immunity. The parties briefed the issue, and a hearing was
held on October 25, 2019. The circuit court entered its order denying the motion
on November 6, 2019, and the Jailers filed an interlocutory appeal two weeks later.
We begin by stating our standard of review of summary judgment
denial, especially as it relates to qualified official immunity:
Our standard of review in an appeal from a summary judgment is well-settled in the Commonwealth. “The standard of review on appeal when a trial court grants a motion for summary judgment is ‘whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.’” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001), citing Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); Palmer v. International Ass’n of Machinists & Aerospace Workers, 882 S.W.2d 117, 120 (Ky. 1994); CR 56.03. “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, 56 S.W.3d at 436, citing Scifres, 916 S.W.2d at 781; Estate of Wheeler v. Veal Realtors and Auctioneers, Inc., 997 S.W.2d 497, 498 (Ky. App. 1999); Morton v. Bank of the Bluegrass and Trust Co., 18 S.W.3d 353, 358 (Ky. App. 1999). With this standard in mind, we shall review the judgment on appeal.
Our Supreme Court’s opinion in Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), is the seminal case on sovereign immunity in the Commonwealth. On the issue of official immunity, the Court instructs that this “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
-4- performed.” Id. at 521, citing Salyer v. Patrick, 874 F.2d 374 (6th Cir. 1989). The Yanero Court explained that official immunity may be either absolute, when an officer or employee of the state or a governmental agency is sued in his representative capacity, or qualified, when the officer or employee is sued in his individual capacity. Id. at 521-22. The question of whether a defendant is protected by the doctrine of official qualified immunity is a question of law, which we review de novo. Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (citations omitted).
Qualified official immunity “affords protection from damages liability for good faith judgment calls made in a legally uncertain environment” and “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.” Yanero, 65 S.W.3d at 522 (citations omitted). However, “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.” Id. citing Franklin County v.
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RENDERED: APRIL 23, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2019-CA-1766-MR
ERIC JONES; ELIZABETH WILLOUGHBY; IAN ROBERTS; JEREMY POWER; AND PAIGE CLARK APPELLANTS
APPEAL FROM MONTGOMERY CIRCUIT COURT v. HONORABLE WILLIAM EVANS LANE, JUDGE ACTION NO. 18-CI-90100
JENNIFER WRIGHT SMALLWOOD, AS ADMINISTRATRIX OF THE ESTATE OF RYAN ALAN SMALLWOOD, DECEASED; BRIANNA NICOLE SIMPSON, AS THE PARENT, NATURAL FRIEND, AND GUARDIAN OF JOHNNY AND JANIE DOE (MINORS); AND KLOUD JONES APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: The Jailer and Deputy Jailers of Montgomery County
Regional Jail appeal from the Montgomery Circuit Court’s order denying their motion for summary judgment in a wrongful death action brought by the family
and heirs of Ryan Smallwood. The jail had filed a cross-claim against Kloud
Jones, an inmate at the jail. We affirm.
Ryan Smallwood became an inmate at the jail in April 2017, when he
was incarcerated for a burglary conviction. His intake psychiatric evaluation
(performed by a healthcare provider at Pathways, Inc., and mandatory under the
jail’s policies and procedures because Smallwood had a history of suicidal
behavior) indicated that Smallwood suffered from schizoaffective disorder
(schizophrenia), causing him to hear voices and react violently. Smallwood was
thereafter deemed a high-risk inmate. He transferred to the Kentucky State
Reformatory/Kentucky Correctional Psychiatric Center, where he remained for
about three weeks. Smallwood returned to the Montgomery County Regional Jail
on May 19, 2017.
In August of that year, because of behavioral changes and suicidal
ideation as well as confrontations with another inmate, Smallwood’s prescription
was increased. He was placed in an observation cell and safety smock but was
released as lower risk within 48 hours. The following month, Smallwood suffered
from panic attacks, and his medication was again adjusted. On November 20,
2017, after another confrontation with the same inmate, Smallwood was again
placed in an observation cell for three days.
-2- Two days later, inmate Kloud Jones was processed into the jail. Jones
was patted down and frisked, given a change of clothing, and placed in the same
cell as Smallwood. Unbeknownst to the jail personnel, Jones was in possession of
fentanyl which he later passed on to Smallwood. Smallwood ingested the drugs,
became unconscious, and was later pronounced dead at St. Joseph Hospital in Mt.
Sterling. The cause of death was “acute fentanyl toxicity.”
On May 3, 2018, Jones was indicted in federal court for distributing
fentanyl and causing Smallwood’s death. He later entered a guilty plea and
received 300 months’ imprisonment.
On May 24, 2018, Smallwood’s estate filed a wrongful death action
against the Montgomery County Regional Jail, Eric Jones (the Jailer), Lieutenant
Elizabeth Willoughby, and Deputies Paige Clark and Jeremy Power. In February
2019, the complaint was amended to include Chief Ian Roberts as a defendant.1
Meanwhile, the previous month, the defendants filed a third-party complaint
against Kloud Jones for indemnity, contribution, and apportionment in relation to
Smallwood’s death.
The circuit court ordered a discovery deadline of March 1, 2019 and
scheduled trial to begin on November 4 of that year. On October 14, 2019, the
Jailers moved for summary judgment, arguing that they were entitled to dismissal
1 We refer to these parties collectively as “the Jailers.”
-3- under qualified official immunity. The parties briefed the issue, and a hearing was
held on October 25, 2019. The circuit court entered its order denying the motion
on November 6, 2019, and the Jailers filed an interlocutory appeal two weeks later.
We begin by stating our standard of review of summary judgment
denial, especially as it relates to qualified official immunity:
Our standard of review in an appeal from a summary judgment is well-settled in the Commonwealth. “The standard of review on appeal when a trial court grants a motion for summary judgment is ‘whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.’” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001), citing Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); Palmer v. International Ass’n of Machinists & Aerospace Workers, 882 S.W.2d 117, 120 (Ky. 1994); CR 56.03. “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, 56 S.W.3d at 436, citing Scifres, 916 S.W.2d at 781; Estate of Wheeler v. Veal Realtors and Auctioneers, Inc., 997 S.W.2d 497, 498 (Ky. App. 1999); Morton v. Bank of the Bluegrass and Trust Co., 18 S.W.3d 353, 358 (Ky. App. 1999). With this standard in mind, we shall review the judgment on appeal.
Our Supreme Court’s opinion in Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), is the seminal case on sovereign immunity in the Commonwealth. On the issue of official immunity, the Court instructs that this “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
-4- performed.” Id. at 521, citing Salyer v. Patrick, 874 F.2d 374 (6th Cir. 1989). The Yanero Court explained that official immunity may be either absolute, when an officer or employee of the state or a governmental agency is sued in his representative capacity, or qualified, when the officer or employee is sued in his individual capacity. Id. at 521-22. The question of whether a defendant is protected by the doctrine of official qualified immunity is a question of law, which we review de novo. Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (citations omitted).
Qualified official immunity “affords protection from damages liability for good faith judgment calls made in a legally uncertain environment” and “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.” Yanero, 65 S.W.3d at 522 (citations omitted). However, “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.” Id. citing Franklin County v. Malone, 957 S.W.2d 195, 201 (Ky. 1997). In Marson v. Thomason, 438 S.W.3d 292, 302 (Ky. 2014), the Supreme Court of Kentucky stressed that “[t]he nature of the acts performed by the teacher, or any governmental employee, determines whether they are discretionary or ministerial[,]” (emphasis in original), and continued:
Immunity is reserved for those governmental acts that are not prescribed, but are done, such as policy-making or operational decisionmaking, without clear directive. The responsibility for such acts
-5- rests on the individual who has made a decision to act based on his judgment, without established routine, or someone else in the process to allow burden-shifting. For this reason, and to ensure that governmental officials will exercise discretion when needed, our law allows qualified immunity from suit on the performance of discretionary acts. This is a policy decision that has long been the law of the Commonwealth.
City of Brooksville v. Warner, 533 S.W.3d 688, 692-93 (Ky. App. 2017).
‘“[O]nce the material facts are resolved, whether a particular
defendant is protected by [qualified] official immunity is a question of law[.]’ The
converse is also true, if material factual issues remain, it cannot be determined
whether a particular defendant is protected by qualified official immunity at
the summary judgment stage.” Harrod v. Caney, 547 S.W.3d 536, 542 (Ky.
App. 2018) (emphasis added) (citation omitted).
Here, the circuit court, in its order denying the motion for summary
judgment, merely stated, “The Defendants/Third-Party Plaintiffs’ Motion for
Summary Judgment is denied as genuine issues of fact remain[,] and the Court
with the information at hand does not find that they are entitled [to judgment] as a
matter of law at this time.”
Booking, classifying, and housing an inmate is a matter of duty and
training, and it is not subject to deliberation or judgment but rather to following
-6- mandatory procedures. Warner, 533 S.W.3d at 694-95. Even though discovery
had closed, whether some or all the appellants followed those mandatory
procedures involves material factual determinations, making granting the motion
for summary judgment premature at the pretrial level. Harrod, 547 S.W.3d at 544.
Accordingly, we hold that the circuit court did not err as a matter of
law in denying the appellants’ motion for summary judgment on the issue of
whether they were entitled to immunity for the allegedly negligent actions which
led to Smallwood’s death.
The interlocutory order of the Montgomery Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
D. Barry Stilz Elliott C. Miller Lynn Sowards Zellen Thomas W. Miller Lexington, Kentucky Elizabeth C. Woodford Lexington, Kentucky
-7-