J. Chris Lane v. Kentucky Department of Corrections

• Court: Court of Appeals of Kentucky
• Decided: September 19, 2025
• Docket: 2024-CA-0597
• Status: Published

Opinion

RENDERED: SEPTEMBER 19, 2025; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0597-MR

J. CHRIS LANE;1 DARLENE WEATHERS, AS ADMINISTRATRIX OF THE ESTATE OF FREDERICK N. O’BANNON, JR.; HEAVEN O’BANNON; IESHA BOOKER, AS MOTHER AND GUARDIAN OF J.O. AND F.O. III; AND TONIKA MITCHELL, AS MOTHER AND GUARDIAN OF F.O. APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NO. 22-CI-002711

KENTUCKY DEPARTMENT OF CORRECTIONS; AMBER RYAN, IN HER OFFICIAL CAPACITY AND INDIVIDUALLY; BRIAN PATTERSON, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY; CHRISTOPHER MULL, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY; COOKIE CREWS, IN HER OFFICIAL CAPACITY AND INDIVIDUALLY; AND ERICA

1 James Chris Lane. HARGIS, IN HER OFFICIAL CAPACITY AND INDIVIDUALLY APPELLEES

OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

** ** ** ** **

BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES.

JONES, A., JUDGE: This appeal arises from a tragic shooting on November 29,

2021, during a highway construction project in Jefferson County, Kentucky.

While off duty and engaged in a private traffic-control assignment, Officer James

Lane was shot in the face and critically injured. Frederick O’Bannon, a civilian

working on the same construction site, was shot and killed. The shooter, Keyshaun

Stewart, was a felony probationer under the supervision of the Kentucky

Department of Corrections (KDOC) at the time.

O’Bannon’s Estate and Lane filed suit against KDOC and several of

its employees, alleging negligence, negligent supervision, and vicarious liability

for failing to adequately monitor and respond to Stewart’s probation violations.

The Jefferson Circuit Court granted summary judgment in favor of all defendants.

Appellants seek review of that decision as a matter of right.

For the reasons set forth below, we affirm the dismissal of

Appellants’ official-capacity claims and their individual-capacity claims against

Director Hargis, Supervisor Patterson, and Assistant Supervisor Ryan. We reverse

-2- the dismissal of the individual-capacity claim against Officer Christopher Mull and

remand that claim for further proceedings.

I. BACKGROUND

A. The Parties.

The Appellants are James Lane and the Estate of Frederick O’Bannon.

At the time of these events, Lane was employed as a police officer and was

working a private, off-duty traffic-control detail at a construction site on I-264 in

Jefferson County. O’Bannon was a civilian contractor working as a paver on the

same site.

The Appellees are KDOC and several of its current or former

employees: Commissioner Cookie Crews; Director of Probation and Parole Erica

Hargis; District 18 Supervisor Brian Patterson; District 18 Assistant Supervisor

Amber Ryan; and Probation Officer Christopher Mull. Officer Mull was directly

responsible for supervising Keyshaun Stewart, a high-risk probationer assigned to

KDOC’s Probation and Parole District 18. Appellants sued all KDOC employees

in both their official and individual capacities.

B. Factual and Procedural History.

On August 26, 2019, Keyshaun Stewart was sentenced in Jefferson

Circuit Court to a five-year term of probation following convictions for third-

degree burglary, first-degree possession of a controlled substance

-3- (methamphetamine), and third-degree criminal mischief. Stewart was classified as

a high-risk probationer and placed under the supervision of KDOC’s Probation and

Parole District 18, with Probation Officer Christopher Mull assigned as his

supervising officer.

Under KDOC policy and the terms of his probation, Stewart was

required, among other things, to report regularly, refrain from criminal activity,

notify his officer of any arrests, avoid possession of firearms, and remain in

Kentucky unless given permission to leave the state. Despite these conditions,

Stewart was arrested in Davidson County, Tennessee, on May 31, 2020, and

charged with aggravated assault and arson. He remained incarcerated there until

August 11, 2020.

Although Officer Mull filed a violation report in July 2020 citing

Stewart for absconding and failing to report, he failed to mention Stewart’s arrest

or incarceration in Tennessee. Officer Mull’s violation report, lacking any

reference to Stewart’s pending felony charges in Tennessee, prompted the

Commonwealth’s motion to revoke Stewart’s probation, and a revocation hearing

was scheduled.2 Although it is unclear whether Officer Mull knew of the

Tennessee charges when he filed his report, it is undisputed that he later received

2 The revocation hearing was originally scheduled for September 15, 2020, but was continued to November 4, 2020.

-4- confirmation of them from another probation officer, yet he took no action to

supplement his report or notify either the circuit court or the Commonwealth.

When Stewart pled guilty to the Tennessee charges on September 16, 2020, that

information likewise went unreported.

On November 4, 2020, the Jefferson Circuit Court held a hearing on

the Commonwealth’s motion to revoke Stewart’s probation, which was based

solely on his absconding from supervision. Officer Mull did not appear. After

noting that Stewart had reestablished contact with Probation and Parole, the

Commonwealth withdrew its motion on the condition that Stewart remain

compliant with his reporting obligations. No mention was made at the hearing of

Stewart’s arrest in Tennessee or his guilty plea.

In June 2021, Stewart was sentenced in Tennessee to four years’

probation. As part of that sentence, he was ordered to serve his probationary term

under the supervision of KDOC in Jefferson County, Kentucky. On July 29, 2021,

Stewart’s Tennessee conviction was entered into the Interstate Compact Offender

Tracking System (ICOTS), a web-based system that facilitates the transfer of

supervision for probationers and parolees from one state to another, and he was

formally transferred to KDOC supervision.3 On August 5, 2021, Officer Mull

3 “Each year, the 50 states and 3 territories that comprise the Interstate Compact for Adult Offender Supervision (ICAOS) use ICOTS to process approximately 150,000 transfer requests

-5- received an ICOTS assignment email notifying him that Stewart had been formally

convicted in Tennessee and would be serving his probationary sentence in

Kentucky under KDOC supervision. Six days later, on August 11, 2021, Officer

Mull formally accepted the ICOTS assignment, assuming responsibility for

supervising Stewart’s Tennessee probation in Jefferson County. Despite accepting

the ICOTS assignment, Officer Mull did not report Stewart’s Tennessee conviction

as required by KDOC procedures.

In the months that followed, Stewart received a speeding citation,

was caught driving on a suspended license, failed to appear in court, and ultimately

failed to report to Officer Mull in mid-November. A bench warrant for his arrest

was issued on November 5, 2021.

On November 29, 2021, Stewart shot and killed O’Bannon and

critically injured Lane at a construction site in Jefferson County. Following the

shooting, KDOC conducted an internal investigation. The Department concluded

that Officer Mull had failed to report Stewart’s Tennessee charges as required by

departmental policy and later misrepresented that he had disclosed those charges to

the court during the revocation process. As a result, KDOC terminated Officer

Mull’s employment.

and more than 1,000,000 compact activities for nearly 102,000 active supervision cases.” https://interstatecompact.org/icots/what‑is‑icots (last visited Aug. 25, 2025).

-6- Lane filed a complaint against KDOC and several of its employees on

June 1, 2022, in Jefferson Circuit Court. The complaint was later amended to add

O’Bannon’s Estate as a co-plaintiff. As amended, the complaint asserted claims

for negligence, negligence per se, vicarious liability, and negligent hiring,

supervision, and retention against KDOC, Commissioner Crews, Director Hargis,

Supervisor Patterson, Assistant Supervisor Ryan, and Officer Mull. The KDOC

employees were sued in both their individual and official capacities.

On May 21, 2024, the Jefferson Circuit Court granted summary

judgment in favor of all defendants. The court concluded that KDOC and the

individual defendants sued in their official capacities were entitled to sovereign

immunity. It further determined that no special relationship existed between the

defendants and the victims sufficient to impose a legal duty, and that the individual

defendants were therefore not liable as a matter of law. The court declined to

reach the issue of qualified immunity and found insufficient evidence to support

Appellants’ negligent hiring and vicarious liability claims. This appeal followed.

II. STANDARD OF REVIEW

Summary judgment is appropriate 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

-7- that the moving party is entitled to a judgment as a matter of law.” CR4 56.03.

The movant bears the initial burden of demonstrating that there is no genuine issue

of material fact in dispute.

The party opposing the motion then has the burden to present “at least

some affirmative evidence showing that there is a genuine issue of material fact for

trial.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 482 (Ky. 1991);

Watson v. Landmark Urology, P.S.C., 642 S.W.3d 660, 666 (Ky. 2022). “A party

responding to a properly supported summary judgment motion cannot merely rest

on the allegations in its pleadings.” Versailles Farm Home & Garden, LLC v.

Haynes, 647 S.W.3d 205, 209 (Ky. 2022) (citing Continental Cas. Co. v. Belknap

Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky. 1955)). “[S]peculation and

supposition are insufficient to justify a submission of a case to the jury, and . . . the

question should be taken from the jury when the evidence is so unsatisfactory as to

require a resort to surmise and speculation.” O’Bryan v. Cave, 202 S.W.3d 585,

588 (Ky. 2006) (quoting Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953,

955 (Ky. 1951)).

“An appellate court’s role in reviewing a summary judgment is to

determine whether the trial court erred in finding no genuine issue of material fact

exist[ed] and the moving party was entitled to judgment as a matter of law.”

4 Kentucky Rules of Civil Procedure.

-8- Feltner v. PJ Operations, LLC, 568 S.W.3d 1, 3 (Ky. App. 2018). The standard of

review is de novo because only legal issues are involved. Isaacs v. Sentinel Ins.

Co. Ltd., 607 S.W.3d 678, 681 (Ky. 2020).

Whether a duty exists is a question of law, reviewed de novo.

Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003). So too is the

determination of whether the public duty doctrine or a special relationship

exception applies. McCuiston v. Butler, 509 S.W.3d 76, 80 (Ky. App. 2017).

Similarly, whether a public employee’s conduct was discretionary or ministerial

for purposes of qualified immunity is a legal question subject to de novo review.

Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001); Haney v. Monsky, 311 S.W.3d

235, 241 (Ky. 2010).

III. ANALYSIS

A. Scope of Appeal.

At the outset, we note that Appellants have not challenged the circuit

court’s dismissal of any claims against KDOC or the official-capacity claims

against the individual Appellees.5 They have also expressly conceded all claims—

both individual- and official-capacity—against Commissioner Crews.

5 Kentucky law affords absolute sovereign immunity to the Commonwealth and its officials sued in their official capacities unless immunity is expressly waived by the General Assembly. Commonwealth v. Whitworth, 74 S.W.3d 695, 699 (Ky. 2002). No waiver applies here, and none has been identified by appellants. Dismissal of the official-capacity claims was therefore proper.

-9- Accordingly, the only claims properly before this Court concern the circuit court’s

entry of summary judgment in favor of Director Hargis, Supervisor Patterson,

Assistant Supervisor Ryan, and Officer Mull.

Appellants contend that genuine issues of material fact preclude

summary judgment on their claims for negligence, negligent supervision, and

vicarious liability, and that the circuit court erred in concluding these Appellees

owed no legal duty to Appellants as a matter of law. Appellees respond that the

circuit court correctly determined the duty issue. They further argue that, with

respect to Director Hargis, Supervisor Patterson, and Assistant Supervisor Ryan, it

was unnecessary for the circuit court to reach the duty question because, even

assuming a duty was owed, these three Appellees are entitled to qualified

immunity as the challenged conduct involved discretionary acts undertaken within

the scope of their authority.6

B. Qualified Immunity.

When a government official or employee is sued in his or her

individual capacity, Kentucky law provides for qualified immunity, which “affords

6 The circuit court analyzed the case under the public duty doctrine without first addressing the Appellees’ qualified immunity arguments. Qualified immunity is not merely a defense to liability; it is an immunity from suit, shielding officials from the burdens of litigation. Rowan Cnty. v. Sloas, 201 S.W.3d 469, 487 (Ky. 2006). The public duty doctrine, by contrast, is a substantive defense on the merits, negating the element of duty in a negligence claim. McCuiston, 509 S.W.3d at 80. Accordingly, the proper analytical sequence is to address immunity first, and we proceed in that order.

-10- protection from damages liability for good faith judgment calls made in a legally

uncertain environment.” Haney, 311 S.W.3d at 240 (quoting Yanero, 65 S.W.3d at

522). A public employee is entitled to qualified official immunity for the alleged

negligent performance of duties when three elements are satisfied: (1) the acts in

question are discretionary in nature, (2) undertaken in good faith, and (3) within

the scope of the employee’s authority. Morales v. City of Georgetown, 709

S.W.3d 146, 154 (Ky. 2024). Conversely, no immunity attaches for the negligent

performance of a ministerial act. Yanero, 65 S.W.3d at 522.

The analysis of qualified official immunity follows a two-step

process. First, courts determine whether the defendant was a government

employee acting within the scope of his authority and whether the act was

discretionary or ministerial. If the act is ministerial, the inquiry ends, and the court

does not proceed to consider negligence. Sheehy v. Volentine, 706 S.W.3d 229,

237 (Ky. 2024). If the act is discretionary, the burden shifts to the plaintiff to

produce evidence that it was not performed in good faith. Yanero, 65 S.W.3d at

523. As emphasized in Sheehy, “[t]hese two steps must not be confused. The first

has the burden upon the defendant but does not consider the actions of the

defendant, i.e., whether they were negligent or acting in good faith. The second

step shifts the burden to the plaintiff only after the defendant has made a prima

-11- facie showing that his actions were discretionary and within the scope of his

authority.” Sheehy, 706 S.W.3d at 237.

A discretionary act is one that involves the exercise of personal

judgment, deliberation, and decision-making. Morales, 709 S.W.3d at 154

(quoting Yanero, 65 S.W.3d at 522); Armstrong v. Estate of Ifeacho by and

through Ifeacho, 633 S.W.3d 333, 339 (Ky. App. 2021). In contrast, a ministerial

act is performed under absolute, certain, and imperative requirements, leaving no

room for personal judgment, and involves merely executing a specific act arising

from fixed and designated facts. Morales, 709 S.W.3d at 154; Peterson v. Foley,

559 S.W.3d 346, 349 (Ky. 2018). A ministerial function is one the employee must

perform “without regard to his or her own judgment or opinion concerning the

propriety of the act to be performed.” Bryant v. Louisville Metro Hous. Auth., 568

S.W.3d 839, 851 (Ky. 2019) (citation omitted).

Because few acts are purely discretionary or purely ministerial, courts

determine the “dominant nature of the act” by examining agency policies,

procedures, and the degree of discretion typically exercised in performing the

function. Meinhart v. Louisville Metro Gov’t, 627 S.W.3d 824, 832 (Ky. 2021)

(quoting Haney, 311 S.W.3d at 240); Morales, 709 S.W.3d at 155, 161.

-12- 1. Individual Capacity Claims Against Director Hargis, Supervisor

Patterson, and Assistant Supervisor Ryan.

Appellants allege that Director Hargis, Supervisor Patterson, and

Assistant Supervisor Ryan were negligent in their supervision of Officer Mull and

in their handling of various internal reporting and documentation responsibilities

within Probation and Parole. More specifically, Appellants contend these

Appellees failed to correct or detect issues within certain electronic information

systems and failed to file or ensure the accuracy of certain internal reports

concerning Stewart’s status as a probationer. They argue these failures enabled

Officer Mull to continue supervising Stewart and Stewart’s subsequent convictions

to go undetected, ultimately allowing the events underlying this litigation to occur.

The actions challenged by Appellants fall squarely within the scope of

discretionary functions protected by qualified official immunity. Supervising the

conduct of others is a duty largely left to the independent discretion and judgment

of the individual supervisor. Haney, 311 S.W.3d at 244. As recently reaffirmed by

the Kentucky Supreme Court, deciding when, how, or to what degree one will

supervise subordinates is an inherently discretionary function deserving of

qualified official immunity. Morales, 709 S.W.3d at 158.

While Appellants suggest that certain reports and documentation were

required, they identify no statute, regulation, or internal policy imposing an

-13- absolute, certain, and imperative ministerial duty with respect to the creation,

content, or review of those materials. Nor do they cite any provision eliminating

the exercise of judgment in how Director Hargis, Supervisor Patterson, or Assistant

Supervisor Ryan were to use or manage KDOC’s internal systems. The discretion

afforded in making supervisory decisions—including how to monitor subordinates,

how to verify data, and when, and even if, to intervene or escalate concerns—

underscores the discretionary nature of these functions.

Because Director Hargis, Supervisor Patterson, and Assistant

Supervisor Ryan were acting within the scope of their discretionary authority, and

Appellants have offered no evidence that their actions were taken in bad faith,

these Appellees are entitled to qualified official immunity.7

2. Individual Capacity Claims Against Officer Mull.

This brings us to Appellants’ claims against Officer Mull. Before

addressing those claims substantively, we must first resolve a procedural matter.

Director Hargis, Supervisor Patterson, and Assistant Supervisor Ryan are

represented by Peter Ervin, who filed an appellees’ brief on their behalf. Officer

Mull, however, is represented by Kevin Glogower, who neither filed a brief nor

7 The same analysis applies to Appellants’ vicarious liability claims. “[P]ersons entitled to [qualified] official immunity cannot be held vicariously liable for the negligence of those employed by them, if they’ve employed persons of suitable skill.” Rowan Cnty., 201 S.W.3d at 476.

-14- submitted any statement adopting the arguments of the other appellees. In fact,

Counsel Glogower did not enter an appearance or take any affirmative action in

this appeal until oral argument, when he appeared on Officer Mull’s behalf.

Although we permitted Counsel Glogower to very briefly address the Court to

answer a few of our questions, we cautioned that appearing at oral argument

without first filing a brief is highly irregular and improper. The purpose of oral

argument is to allow the Court to question counsel about issues already briefed.

Most assuredly, oral argument is not a substitute for briefing. Accordingly, we

decline to consider any arguments Counsel Glogower made that differ from those

presented by Counsel Ervin, who briefed all issues relevant to his clients.

When no responsive brief is filed, we may: (i) accept the appellant’s

statement of the facts and issues as correct; (ii) reverse the judgment if the

appellant’s brief reasonably appears to support such action; or (iii) treat the

appellee’s failure as a confession of error and reverse without reaching the merits.

RAP8 31(H)(3). The choice among these remedies lies within our discretion.

Lankford v. Lankford, 688 S.W.3d 536, 537 n.1 (Ky. App. 2024). Here, we

conclude the appropriate course is to accept Appellants’ statement of the facts and

issues, as they pertain to Officer Mull, as correct. Having dealt with this

8 Kentucky Rules of Appellate Procedure.

-15- procedural irregularity, we now turn to the substance of Appellants’ individual-

capacity claims against Officer Mull.

Unlike the supervisory Appellees, Officer Mull’s alleged conduct

involved the direct handling of Stewart’s probation supervision. Appellants assert

that Officer Mull failed to report Stewart’s out-of-state conviction to the

appropriate authorities and failed to take appropriate action in response to

Stewart’s noncompliance with the conditions of his probation. According to

Appellants, KDOC policies required Officer Mull to report these developments,

and his failure to do so was a proximate cause of the harms they suffered.

As discussed above, the availability of qualified official immunity turns on

whether the challenged conduct was discretionary or ministerial. “[A] ministerial

act or function is one that the government employee must do ‘without regard to his

or her own judgment or opinion concerning the propriety of the act to be

performed.’” Bryant, 568 S.W.3d at 851 (citation omitted). Where the duty is

“absolute, certain, and imperative,” qualified official immunity does not apply.

Yanero, 65 S.W.3d at 522.

Here, KDOC’s internal Probation and Parole Policies and Procedures

Manual imposed an affirmative, nondiscretionary obligation on probation officers

-16- to report subsequent criminal charges and convictions.9 This mandatory reporting

requirement leaves no room for deliberation or personal judgment. While Officer

Mull’s position may have required some preliminary assessment of the facts before

reporting, the existence of such threshold evaluation does not convert the duty

itself into a discretionary act. Kentucky law recognizes that ministerial duties may

involve “the exercise of some judgment in the manner of carrying out the task”

without altering their mandatory nature. Yanero, 65 S.W.3d at 522. Here, once the

factual basis for a violation existed, Officer Mull’s duty to report was purely

ministerial. Moreover, the record affirmatively establishes that Officer Mull knew

of the Tennessee charges and conviction long before the shooting, yet failed to

report them. Because Officer Mull’s duty to report was unquestionably ministerial,

he is not entitled to qualified immunity.

C. The Public Duty Doctrine.

Citing Fryman v. Harrison, 896 S.W.2d 908, 909 (Ky. 1995), the

circuit court determined that because no special relationship existed between the

9 Corrections Policies and Procedures 27-15-01(II)(C) and 27-15-01(II)(E)(1) require KDOC probation officers to report new arrests and new probation violations within ten days of notice. Similarly, Officer Mull had a statutory duty to file any reports required by the regulations. Kentucky Revised Statutes (KRS) 439.480(7).

-17- victims, Lane and O’Bannon, and the public-official Appellees, the Appellees

owed no affirmative legal duty to Appellants.10 The court reasoned:

[Appellants] were not in state custody or otherwise restrained by the state at the time of the incident, and Keyshaun Stewart was not a state actor. Therefore, there is no special relationship, and further, officials do not owe individual citizens a duty to protect them from crime absent said special relationship. Ultimately, because there are no facts that exist to support that a special relationship existed between the parties, summary judgment is appropriate as to the Defendants in their individual capacities.

05/21/2024 Order at 7.

Application of the public duty doctrine is not as straightforward as the

circuit court’s order suggests. The doctrine is intensely fact-specific, shaped by

numerous exceptions, and, in Kentucky, complicated by the absence of a clearly

defined rule or analytical framework. Rather than adopting a comprehensive test,

our courts have applied the doctrine on an ad hoc basis, resolving only the issues

necessary in each case. This makes reliance on any single precedent impractical;

instead, guidance must be drawn from the body of decisions as a whole.

To apply the doctrine here, we begin with a general overview of its

development and use in other jurisdictions. We then turn to Kentucky case law,

10 Since we have already concluded that Director Hargis, Supervisor Patterson, and Assistant Supervisor Ryan are entitled to qualified immunity, there is no need to address the public duty doctrine as it relates to their conduct. The remainder of this Opinion will be limited to considering the doctrine’s applicability to Officer Mull.

-18- supplementing our analysis, when appropriate, with decisions from states that

approach the doctrine in a manner similar to ours, as well as the RESTATEMENT

(SECOND) OF TORTS. While it would be cleaner and doctrinally preferable to

confine our review to Kentucky precedent, our survey will illustrate why that

approach is not feasible in this case.

1. History and Development of the Public Duty Doctrine.

Although often confused with immunity, the public duty doctrine is a

distinct concept. Whereas immunity serves as a shield to suit itself, the public duty

doctrine focuses on the absence of duty, one of the essential elements of a

negligence claim. Because a plaintiff who cannot establish duty has no viable

cause of action, the doctrine operates as an affirmative defense.

The public duty doctrine originated as a judicially created rule first

articulated by the United States Supreme Court in South v. State of Maryland for

Use of Pottle, 59 U.S. 396, 15 L. Ed. 433 (1855). In that case, the plaintiff was

kidnapped and held for ransom. Upon his release, he sued the county sheriff,

alleging that, despite his request for protection, the sheriff neglected and refused to

protect him or otherwise keep the peace. In rejecting the claim, the Court held that

the sheriff’s duty to preserve the public peace was “a public duty, for neglect of

which he is amenable to the public, and punishable by indictment only.” Id. at

403. The public duty doctrine was thus established.

-19- After South, most—but not all—states adopted some form of the

public duty doctrine as part of their common law jurisprudence. Over time,

however, the doctrine has devolved into a complex and fragmented area of

American tort law, with little national consistency in how it is applied, or even

whether it is recognized at all. Once widely accepted, its application has fractured

among the states, creating what courts and scholars alike have described as

doctrinal chaos; see John Cameron McMillan, Jr., Government Liability and the

Public Duty Doctrine, 32 VILL. L. REV. 505, 530 (1987).

Some states, including Alaska, Illinois, Missouri, Nebraska, New

Mexico, Oregon, Vermont, Wisconsin, and Wyoming, abolished (or refused to

adopt) the doctrine, rejecting it as confusing, outdated, or incompatible with

modern tort principles.11 Others, like Arizona, Colorado, Massachusetts, and

North Dakota, saw their courts reject the doctrine only for their legislatures to

reinstate it in some form via statute. 12 Still other states, such as Louisiana,

11 Adams v. State, 555 P.2d 235, 241 (Alaska 1976); Coleman v. East Joliet Fire Protection Dist., 46 N.E.3d 741, 755 (Ill. 2016); Southers v. City of Farmington, 263 S.W.3d 603, 613 (Mo. 2008); Drake v. Drake, 618 N.W.2d 650, 657 (Neb. 2000); Schear v. Board of Cnty. Com’rs of Bernalillo Cnty., 687 P.2d 728, 731(N.M. 1984); Brennen v. City of Eugene, 591 P.2d 719, 725 (Or. 1979); Hudson v. Town of East Montpelier, 638 A.2d 561, 568 (Ver. 1993); Coffey v. City of Milwaukee, 247 N.W.2d 132, 137-39 (Wis. 1976); Palm-Egle v. Briggs, 545 P.3d 828, 835 (Wyo. 2024). 12 Ryan v. State, 656 P.2d 597 (Ariz. 1982), abrogated by enactment of Ariz. Rev. Stat. Ann. § 12-820.02; Leake v. Cain, 720 P.2d 152 (Colo. 1986), abrogated by enactment of Colo. Rev. Stat. Ann. § 24-10-106.5; Jean W. v. Commonwealth, 610 N.E.2d 305 (Mass. 1993), abrogated by enactment of Mass. Gen. Laws Ann. ch. 258, § 10; Ficek v. Morken, 685 N.W.2d 98 (N.D. 2004), abrogated by enactment of N.D. Cent. Code Ann. § 32-12.1-03.

-20- Nevada, and West Virginia, have codified variations of the public duty doctrine by

statute without the doctrine having been abolished by court decision.13

Among states that retain the doctrine, there is little uniformity in its

scope or application. Many jurisdictions recognize exceptions to the doctrine

where a “special relationship” or “special duty” exists, but the contours of those

exceptions vary significantly.14 Some states, like Michigan, limit the doctrine’s

reach to the actions of police officers.15 Others apply it only to discretionary, as

opposed to ministerial, functions.16 Certain other jurisdictions draw distinctions

13 La. Stat. Ann. § 9:2798.1; Nev. Rev. Stat. Ann. § 41.0336; W. Va. Code Ann. § 29-12A-5. 14 Finley v. Patterson, 705 So. 2d 826, 828 (Ala. 1997); Zelig v. Cnty. of Los Angeles, 45 P.3d 1171 (Cal. 2002); Gordon v. Bridgeport Housing Authority, 544 A.2d 1185, 1190 (Conn. 1988); GSN Capital, LLC v. Shoshone City & Rural Fire District, 541 P.3d 703, 710 (Idaho 2024); Williams v. C-U-Out Bail Bonds, LLC, 450 P.3d 330, 340 (Kan. 2019); Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806-07 (Minn. 1979); Ferreira v. City of Binghamton, 194 N.E.3d 239, 247-48 (N.Y. 2022); Multiple Claimants v. North Carolina Dept. of Health and Human Services, Div. of Facility Services, Jails and Detention Services, 646 S.E.2d 356, 358 (N.C. 2007); Johnston Equities Associates, LP v. Town of Johnston, 277 A.3d 716, 740 (R.I. 2022); Steinke v. S.C. Dep’t of Labor, Licensing and Regulation, 520 S.E.2d 142 (S.C. 1999); Fodness v. City of Sioux Falls, 947 N.W.2d 619, 626 (S.D. 2020); Commonwealth v. Burns, 639 S.E.2d 276, 278 (Va. 2007); Norg v. City of Seattle, 522 P.3d 580, 585 (Wash. 2023). 15 Beaudrie v. Henderson, 631 N.W.2d 308, 317 (Mich. 2001) (“[F]or purposes of determining the liability of public employees other than police officers, we will determine a government employee’s duty using the same traditional common-law duty analysis applicable to private individuals.”); Gregory v. Clive, 651 S.E.2d 709, 711 (Ga. 2007) (holding “the public duty doctrine applies only to police protection services.”). 16 Trianon Park Condominium Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 920 (Fla. 1985) (explaining the lack of an individual common law duty for exercising a discretionary police power function).

-21- between acts of misfeasance and nonfeasance,17 while some allow claims to

proceed where the government’s conduct was grossly negligent or reckless.18

These examples illustrate the near impossibility of framing the public

duty doctrine in general terms. The variances and exceptions are so numerous that

any attempt to do so is destined either to fail outright or to become so overly

complicated as to render the doctrine meaningless. Nevertheless, as will become

apparent in our review of Kentucky precedent, understanding how the doctrine is

applied cross-jurisdictionally is essential to understanding both its use in Kentucky

and the gaps in our jurisprudence. With this framework in mind, we now turn to

Kentucky-specific case law.

2. Kentucky’s Case-By-Case Approach to the Public Duty Doctrine.

Because Kentucky has yet to articulate a comprehensive framework

for the public duty doctrine, its scope and application cannot be discerned from any

one precedent alone. A lone decision, standing apart, is like a single square cut

17 Stevenson v. City of Doraville, 751 S.E.2d 845, 848 (Ga. 2013) (“[T]he public duty doctrine’s limitation on liability is restricted to cases involving police nonfeasance.”); Estate of Kahn by Rowe v. City of Clermont, 22 N.W.3d 252, 260 (Iowa 2025) (citations omitted) (“In cases involving nonfeasance, the public-duty doctrine generally applies, and the governmental entity thus may not be held liable unless the plaintiff can otherwise show it had a special relationship with the governmental entity. In cases involving misfeasance, the public-duty doctrine generally does not apply.”); Cope v. Utah Valley State College, 342 P.3d 243, 253 (Utah 2014) (“In summary, the genesis of the public duty doctrine, the great weight of foreign authority, and our prior caselaw all limit the doctrine’s application to omissions.”). 18 Cooper v. Rodriguez, 118 A.3d 829, 853 (Md. 2015); Estate of Graves v. Circleville, 922 N.E.2d 201, 208 (Ohio 2010).

-22- from a patchwork quilt. Its colors and patterns hint at a larger design, but the full

picture remains obscured. Only when the squares are joined together, each

contributing its shape and color, does the quilt’s complete pattern—and the

doctrine’s contours—come into view.

The first time the public duty doctrine was expressly referenced by

name in Kentucky appellate jurisprudence occurred in 2017. See McCuiston v.

Butler, 509 S.W.3d 76, 79 (Ky. App. 2017). It would be incorrect, however, to

treat McCuiston as the proper springboard for our analysis. Although McCuiston

may represent the first occasion on which the doctrine was expressly labeled as

such in Kentucky appellate jurisprudence, a review of our case law makes clear

that the principles underlying what is now called the public duty doctrine have

been embedded in our jurisprudence for decades.19

The beginning of Kentucky’s modern public duty jurisprudence

occurred at least four decades before McCuiston, in Commonwealth, Department

of Banking and Securities v. Brown, 605 S.W.2d 497 (Ky. 1980). There, the

Kentucky Supreme Court was asked to decide whether the Department of Banking

and Securities could be held liable in negligence for the malfeasance of its

19 In McCuiston, the Court considered claims against a 911 dispatcher whose alleged omissions preceded a decedent’s death. The Court referenced the public duty doctrine and purported to apply the “special relationship” exception, but offered no framework for doing so. Instead, it simply concluded—without substantive analysis—that no special relationship existed. 509 S.W.3d at 82-83. Given the fact-intensive nature of public duty cases, this absence of analysis renders McCuiston of marginal relevance beyond its historical labeling role.

-23- examiners in regulating two building and loan associations pursuant to statutory

mandate. The Court undertook “to define the duty and liability of state

government to those persons injured by [the negligent] performance [of a

regulatory function].” Id. at 498.

The Court first observed that the General Assembly had partially

waived the Commonwealth’s immunity by permitting negligence claims to be

brought before the Board of Claims, but emphasized that the waiver was “limited,”

placing the Commonwealth in the same posture as municipalities under the

common law. Id. at 499. Although the Court recognized that the Commonwealth

was not immune from suit before the Board of Claims, it nonetheless declined to

indulge in “the niceties of academic analysis” to define whether the result reflected

the absence of a duty or instead the presence of a duty shielded by immunity. Id. at

500. The Court instead explained the “pragmatic effect” of its holding:

[U]nder the Board of Claims Act, the Commonwealth has no common law liability for the malfeasance of its agents in the performance of obligations running to the public as a whole. It follows that in the matter at bar, the Commonwealth is not liable for the derelictions of its bank examiners in the performance of their regulatory function.

Id.

Thus, Brown answers the narrow question presented: when the

Commonwealth is sued in its official capacity, it cannot be held liable before the

-24- Board of Claims for the malfeasance of its agents in carrying out statutory duties

owed to the public at large. The Court did not address whether individual officers

might be liable in their personal capacities, whether exceptions might exist, or

whether its reasoning extended to nonfeasance. More importantly, as the Court

later observed in Collins v. Commonwealth of Kentucky Natural Resources and

Environmental Protection Cabinet, 10 S.W.3d 122, 126 (Ky. 1999), Brown “was

rendered prior to the enactment of the 1986 amendment [to the Board of Claims

Act] that clearly waived sovereign immunity for the negligent performance of

ministerial acts.” This makes Brown only marginally relevant to cases involving

the negligent performance of ministerial acts. Still, it is useful to understand when

and how the concept of public duty worked its way into our common law;

specifically, that it did so prior to the Commonwealth’s decision to partially waive

its immunity for negligence in the performance of ministerial acts.

The next significant case in this line is Fryman, 896 S.W.2d 908,

holding modified by Gaither v. Justice & Public Safety Cabinet, 447 S.W.3d 628

(Ky. 2014). There, Harrison was assaulted by Robert Custard after Custard had

been released from jail without a proper bond being posted. Harrison sued the

jailer and circuit clerk, alleging their negligence in releasing Custard caused his

injuries. The central question before the Court was whether those officials, sued in

their individual capacities, owed Harrison a legal duty to protect him from

-25- Custard’s criminal acts. In holding that the jailer and circuit clerk owed no duty to

protect Harrison from Custard, the Court expressly adopted the “special

relationship” requirement articulated in Ashby v. City of Louisville, 841 S.W.2d

184 (Ky. App. 1992).20

The Court explained that public officials owe no affirmative duty to

protect individual citizens from the criminal acts of third parties absent a special

relationship. Because Harrison was not in custody and Custard was not a state

actor, the Court concluded no special relationship existed. The Court further

emphasized that “[t]he assault by Custard was an intervening or superseding cause

which was not under the control of either [the jailer or the clerk].” Fryman, 896

S.W.2d at 911. The Court also went on to note that neither the jailer nor the clerk

owed a statutory duty to the victim, and there were no facts alleged that either the

clerk or the jailer knew that the assailant was likely to cause bodily harm to the

victim if not controlled.

The next significant case is City of Florence v. Chipman, 38 S.W.3d

387 (Ky. 2001). There, the administrator of Conni Black’s estate brought a

wrongful death negligence claim against three Florence police officers and the City

20 In Ashby v. City of Louisville, 841 S.W.2d 184 (Ky. App. 1992), the estate of a murder victim brought suit against the city and its police officers, alleging negligence in failing to protect her from a known assailant. We held that, absent a custodial relationship or other special circumstances, public officials owed no duty to protect individual citizens from private violence. Id. at 186-87.

-26- after Black was killed in a vehicle crash shortly after leaving the scene of a traffic

stop with her intoxicated boyfriend. The trial court granted summary judgment for

the defendants, but the Court of Appeals reversed, finding a special relationship

existed and that the officers’ discretion became ministerial once Black was “in

custody.”

The Supreme Court reversed. Applying Fryman and Ashby, the Court

reaffirmed that a special relationship exists only when (1) the victim is in state

custody or otherwise restrained by the state at the time of the injury-producing act,

and (2) the harm is caused by a state actor. The Court rejected the Court of

Appeals’ reliance on foreseeability as a substitute for the custody requirement,

holding that foreseeability cannot create a duty absent a special relationship.

Because Black voluntarily left with her boyfriend, was never in police custody or

otherwise restrained, and the harm was caused by a private actor, no special

relationship existed and thus no duty was owed.

The Court further held that even if custody had been established, the

fatal crash resulted from a superseding, intervening cause—the altercation between

Black and her boyfriend while driving—which was wholly outside the control of

the police officers.

The next case we must consider is Pile v. City of Brandenburg, 215

S.W.3d 36 (Ky. 2006), a wrongful death action arising after a police officer left his

-27- cruiser running and unattended with a handcuffed arrestee inside. The arrestee

managed to steal the vehicle and drove it into oncoming traffic, colliding head-on

with another vehicle and killing its driver.

The Court first addressed the nature of the officer’s duty. Controlling

and securing a police cruiser, particularly when leaving it unattended with a

detainee inside, was deemed a ministerial act—a routine, regulated responsibility

governed by both departmental procedures and statute. In particular, KRS 189.430

requires that before leaving a vehicle unattended, an officer must stop the engine,

lock the ignition, and remove the key. The Court concluded that this statutory duty

existed for the protection of the public and that the decedent was within the class of

persons the statute intended to protect. Consequently, the officer was not entitled

to qualified immunity.

Turning to the special relationship doctrine, the Court recited the

Ashby–Fryman formulation requiring (1) that the victim be in state custody or

otherwise restrained, and (2) that the harm be inflicted by a state actor. However,

without reconciling the apparent inconsistency, the Court found “no question” that

the first prong was met because the perpetrator—the arrestee who stole the

cruiser—was in custody. This reasoning creates uncertainty over whether Pile

-28- silently expanded the doctrine so that custody over the perpetrator can also satisfy

the first prong.21

The Kentucky Supreme Court revisited Fryman’s special-relationship

framework in Gaither, 447 S.W.3d 628, a wrongful death action brought by the

estate of a confidential informant killed during an undercover “buy/bust” narcotics

operation. Gaither’s identity had been compromised before the operation, yet

Kentucky State Police (KSP) officers nonetheless directed him to participate.

During the controlled buy, the suspects discovered Gaither was cooperating with

police and murdered him. The Board of Claims awarded damages for the

negligent performance of ministerial duties, but the Franklin Circuit Court and

Court of Appeals reversed, concluding that the actions complained of were

discretionary.

The Supreme Court reinstated the award, clarifying two important

aspects of public-duty and immunity jurisprudence. First, the Court held that

although many operational decisions by law enforcement are discretionary, a duty

may be ministerial if it is dictated by “a known rule of law enforcement” derived

from statute, regulation, common law, or universally accepted professional

21 Justice Graves, joined by Justice Wintersheimer, dissented, emphasizing that the victim was not in custody and that the majority’s reasoning improperly blurred the Ashby-Fryman requirement. The dissent noted that the majority never addressed this defect, a silence that lends weight to the view that Pile either represents a departure from, or at least a softening of, the Ashby-Fryman custody requirement in special-relationship cases.

-29- practice. Id. at 639-40. The Court found that using an informant whose identity

was compromised violated such a known rule, and that this duty was absolute and

imperative, not subject to the officer’s discretion.

Second—and more pertinent to our discussion—the Court confronted

the absence of a traditional Ashby-Fryman special relationship. Under Ashby-

Fryman, such a relationship exists only where (1) the victim is in state custody or

otherwise restrained at the time of injury, and (2) the harm is inflicted by a state

actor. Gaither was not in custody, and his killers were private actors.

Nevertheless, the Court concluded that KSP owed Gaither a duty because the

agency had an ongoing operational relationship with him, exercised substantial

control over his actions during the operation, and placed him in a position of

foreseeable and extreme danger.

In doing so, Gaither made clear that the Ashby-Fryman custody/state-

actor test, while still the rule in its traditional context, is not the sole pathway to a

duty. Where the facts establish a comparable degree of control, reliance, and

foreseeability, the absence of formal custody will not defeat a negligence claim.

As the Court explained, the essence of the special relationship exception is the

element of control by the government.22

22 Justice Scott, concurring in part and dissenting in part, cautioned that expanding liability beyond Fryman’s formal custody requirement risked unduly broadening governmental exposure. While he agreed that Gaither’s case involved compelling facts and foreseeable harm, he warned

-30- In Collins v. Commonwealth, Transportation Cabinet, Department of

Highways, 516 S.W.3d 320, 320 (Ky. 2017), the administratrix of a school bus

driver’s estate brought a negligence claim against the Department of Highways,

alleging it failed to enforce statutory width and length restrictions on a stretch of

U.S. Highway 119, allowing an oversized tractor-trailer to collide with the bus and

cause the driver’s death. The Board of Claims dismissed the action, concluding the

Department’s duty to enforce was ministerial but reasonably performed; the circuit

court reversed, finding a negligent breach.

The Kentucky Supreme Court affirmed the dismissal but on different

grounds, holding the Department owed no duty—statutory, regulatory, or common

law—to enforce the width and length restrictions. KRS 189.221, which imposes

such restrictions, does not designate the Department as the enforcing authority, and

no evidence suggested the Department had control over Vehicle Enforcement

Officers, the statutorily charged enforcement agents. The Court also declined to

extend the Department’s common-law duty to maintain highways in a reasonably

safe condition to include general traffic law enforcement.

The Court addressed the Court of Appeals’ reliance on the Ashby-

Fryman special relationship test, emphasizing that the doctrine applies in cases

against creating a “generalized duty” in situations lacking the clear custodial relationships recognized in prior precedent. Id. at 645-46 (Scott, J., concurring in part, dissenting in part).

-31- involving the general duty of public officials—usually law enforcement—to

protect the public from criminal acts. That framework was “inapposite” because

the claim in Collins was not based on the negligence of a particular officer, nor on

the universal duty of law enforcement to prevent crime. Instead, the case turned on

whether the Department itself had any duty to enforce the size restrictions, which it

did not.

Lastly, we consider the Kentucky Supreme Court’s decision in Grand

Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 846 (Ky. 2005), a

case that, at first glance, may appear unrelated to the present facts. Nonetheless, its

discussion of the special relationship doctrine, particularly the circumstances under

which such a relationship may arise, provides important guidance for our analysis.

The case arose from a wrongful death action against the national governing body

of the Fraternal Order of Eagles (“Grand Aerie”) following the alcohol-related

death of nineteen-year-old Ashley Carneyhan. Ashley was killed in a single-

vehicle crash after consuming alcohol at a local chapter in a dry county. The

plaintiffs alleged that Grand Aerie negligently supervised and failed to control its

local chapter’s activities.

The Court held that Grand Aerie owed no duty to the decedent under

Kentucky law. Applying the RESTATEMENT (SECOND) OF TORTS §§ 315-320, the

Court explained that absent a “special relationship” between the defendant and

-32- either the injured party or the tortfeasor, there is generally no duty to control the

conduct of a third person. The Court found no such relationship between Grand

Aerie and the local chapter sufficient to impose liability for the decedent’s death.

Although the case had nothing to do with a parolee or probationer, the Court’s

special relationship analysis prompted a lengthy discussion of recognized

relationships in which a duty to control is imposed, including “one who takes

charge of a person with dangerous propensities.” Citing the Restatement and case

law from other jurisdictions, the Court identified custodial and supervisory

contexts such as the relationship between a parole or probation officer and an

offender as examples where the law may impose such a duty.23

This is significant because, while Kentucky has not applied the public

duty doctrine in the context of probation or parole supervision in a published case,

the Court in Grand Aerie expressly acknowledged—albeit in dicta—that such

relationships may give rise to a duty to control under the Restatement’s special-

relationship principles.

23 For example, in Taggart v. State, 822 P.2d 243, 255 (Wash. 1992), the Washington Supreme Court held that parole officers have a duty to protect others from reasonably foreseeable dangers posed by parolees’ dangerous propensities, subject to limits designed to preserve legitimate immunity protections. That duty arises only after the plaintiff pierces both absolute and qualified immunity by showing the officer’s conduct was outside any judicial or quasi-judicial process and violated a statutory duty prescribed by law or superiors. The court later extended this principle to probation officers in Hertog ex rel. S.A.H. v. City of Seattle, 979 P.2d 400, 403 (Wash. 1999), holding that municipal probation counselors have a duty to control probationers to protect others from reasonably foreseeable harm.

-33- 3. Tying Together Kentucky’s Fragmented Public Duty Doctrine

Case Law.

As previously discussed, Kentucky generally applies the public duty

doctrine, which holds that a duty owed to the public at large is not enforceable in

tort by an individual absent an applicable exception. The most clearly recognized

exception is the special relationship doctrine. In Ashby and Fryman, our appellate

courts noted that a special relationship exists where the victim is in state custody.

Gaither refined that rule, explaining that “the narrow confines of the Fryman–

Ashby test do not capture the only occasions on which a negligent government

official should reasonably foresee that his negligence is likely to put a specific

individual in harm’s way at the hands of a specifically known and identifiable third

party.” Gaither, 447 S.W.3d at 638. There, the victim was not in formal custody,

yet the Court recognized a duty based on the Commonwealth’s substantial control

over the circumstances leading to the harm, combined with the plaintiff’s reliance

on governmental undertakings. Gaither thus confirms that formal custody is not an

absolute prerequisite; a duty can arise where governmental control and reliance

create a relationship particularized to the plaintiff. In Pile, the Court concluded

that a special relationship existed where the perpetrator—not the victim—was in

custody.

-34- Grand Aerie, citing RESTATEMENT (SECOND) OF TORTS § 315, further

recognized that a special relationship exists when “(a) a special relation exists

between the actor and the third person which imposes a duty upon the actor to

control the third person’s conduct, or (b) a special relation exists between the actor

and the other which gives to the other a right to protection.”24 Parole and probation

supervision was specifically cited as an example of a relationship that could, under

appropriate circumstances, give rise to a special relationship.

Taken collectively, these cases demonstrate that the special

relationship exception is not confined to a single factual scenario. While custody

of the victim remains the most straightforward basis for finding a duty, Kentucky

precedent also supports the conclusion that custody of the perpetrator, substantial

governmental control, or the plaintiff’s reasonable reliance on a governmental

undertaking may suffice. Thus, while Kentucky’s appellate decisions have not yet

crystallized into a comprehensive public duty doctrinal framework, the case law

reflects acceptance of the doctrine, recognition of the special relationship

24 The RESTATEMENT (THIRD) OF TORTS carries forward the same principle. Comment f to Section 41 specifically addresses the parole/probation context: “those who supervise parolees, probationers, or others in prerelease programs engage in more ministerial functions, and they are held to an affirmative duty of reasonable care. The extent of control exercised by the custodian—parole and probation officers have limited control over those whom they supervise— is a factor in determining whether the custodian has breached the duty of reasonable care.” RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 41 cmt. f (2012). This reinforces that such supervisory relationships can give rise to a duty beyond that owed to the public at large, with the scope of that duty shaped by the nature and degree of control exercised.

-35- exception, and openness to other exceptions—particularly those grounded in

statutory duties, affirmative undertakings, reliance, and custodial control. The

precise contours of those exceptions, and their interaction with qualified immunity

and the discretionary/ministerial distinction, remain unsettled and largely

dependent on the specific facts at hand.

Appellants contend that the public duty doctrine should apply only

when public officials act pursuant to discretionary duties, not ministerial ones.

Several jurisdictions have adopted that view. Wallace v. Dean, 3 So. 3d 1035,

1049 (Fla. 2009); Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806-07

(Minn. 1979); Fodness v. City of Sioux Falls, 947 N.W.2d 619, 626 (S.D. 2020).

This is not, however, a universally applied rule.25 While Kentucky’s appellate

courts have not expressly resolved the issue, they have hinted that the doctrine may

not extend to ministerial duties, especially statutory ones.26 However, given the

lack of a clear directive and out of an abundance of caution, we assume without

25 Southers v. City of Farmington, 263 S.W.3d 603, 617 (Mo. 2008). 26 While federal authority is not binding on this Court, it is noteworthy that at least one federal court applying Kentucky law has considered whether the public duty doctrine applies to ministerial acts. In Warner v. Midnight Recovery, Inc., No. 3:19-CV-00453-RGJ, 2020 WL 1105111, at *6 (W.D. Ky. Mar. 6, 2020), the court observed that “[a]lthough Kentucky courts have not considered whether the failure to perform ministerial duties can also abrogate public officials’ protections from liability under the public duty doctrine, it seems possible that a court would find so.”

-36- deciding that the doctrine applies—at least to some extent—to both ministerial and

discretionary actions.

D. Negligence Claim Against Officer Mull.

Having addressed the contours of Kentucky’s public duty doctrine and

its exceptions, we now turn to the specific negligence claim asserted against

Officer Mull. The elements of negligence are well settled. “It is elementary for all

tort cases that the plaintiff must establish a duty, breach thereof, causation, and

injury.” Saint Elizabeth Medical Center, Inc. v. Arnsperger, 686 S.W.3d 132, 138

(Ky. 2024). Duty is a question of law for the court; breach and injury are

ordinarily for the jury, and causation presents a mixed question of law and fact. Id.

We address these elements in turn, beginning with duty—which in this case

implicates the public duty doctrine—before turning to causation and concluding

with breach and injury.

1. Duty.

The record here establishes that Stewart was designated as a high-

supervision offender and placed under Officer Mull’s supervision. While under

supervision, Stewart was arrested and convicted in Tennessee for arson and

aggravated assault—serious crimes of which Officer Mull was aware. Under

KDOC policies, procedures, and relevant Kentucky statutes, Officer Mull had a

mandatory obligation to report these violations. Despite having knowledge of

-37- Stewart’s out-of-state arrest, conviction, and resulting violations—including

leaving the state without authorization—Officer Mull did not report the violations

as required.

The supervisory relationship here—though not involving physical

confinement—was sufficient to establish legal control. The law does not require

constant physical custody; it requires the power and duty to take reasonable steps

to prevent foreseeable harm. Officer Mull’s statutory obligation to monitor and

report probation violations placed him in precisely such a position of control,

triggering the special relationship exception to the public duty doctrine.

We conclude that the supervisory relationship between Officer Mull

and Stewart falls within the type of “special relationship” contemplated by the

Restatement and recognized in Grand Aerie. As Stewart’s parole officer, Officer

Mull had constructive control over his parole status and the authority, through

reporting violations, to initiate proceedings that could have resulted in Stewart’s

return to custody and thereby removing him from the community.

This level of control, while not equivalent to direct physical custody,

is analogous to the custodial or quasi-custodial relationships identified in Pile and

consistent with the Restatement’s examples of relationships giving rise to a duty to

control. Much like the victims in Pile, Appellees were members of the very

community the relevant statutes and regulations were designed to protect. Pile,

-38- 215 S.W.3d at 39 (“The negligent operation of an emergency vehicle by a police

officer which violates existing police procedures or regulations or statutory traffic

regulations is certainly actionable and outside the scope of the common law

doctrine of ‘special relationship’ relied on by the City and Officer Miller.”).

Where, as here, a parole officer is charged with supervising an individual

convicted of violent offenses, it is at least arguably foreseeable that failing to

report serious parole violations could allow the parolee to remain at large and

commit further violent acts against members of the protected community. That

foreseeability, combined with the supervisory authority granted by statute and

regulation, is sufficient to bring this case within the recognized special relationship

exception to the public duty doctrine.

Of course, concluding that Officer Mull owed a duty of care does not

mean liability follows as a matter of law. Even where an affirmative duty exists,

there may still be substantial questions as to whether the defendant’s conduct

actually caused the harm alleged. Those questions, together with proximate cause,

must still be addressed to determine whether the breach of duty was a substantial

factor in bringing about the injury.

2. Causation.

Causation in negligence consists of two elements: cause-in-fact and

proximate cause. Patton v. Bickford, 529 S.W.3d 717, 730-31 (Ky. 2016). Cause-

-39- in-fact requires “a direct, distinct, and identifiable nexus between the defendant’s

breach of duty and the plaintiff’s damages such that the event would not have

occurred ‘but for’ the defendant’s negligent or wrongful conduct.” Id. at 730; see

also Ashland Hosp. Corp. v. Lewis, 581 S.W.3d 572, 577 (Ky. 2019) (conduct

must be a “substantial factor” in causing the injury). Proximate cause, by contrast,

“captures the notion that, although conduct in breach of an established duty may be

an actual but-for cause of the plaintiff’s damages, it is nevertheless too attenuated

from the damages in time, place, or foreseeability to reasonably impose liability.”

Patton, 529 S.W.3d at 731; accord Gonzalez v. Johnson, 581 S.W.3d 529, 532

(Ky. 2019).

a. Cause-in-fact. Viewing the record in the light most favorable to

Appellants, a reasonable jury could find that Officer Mull’s failure to report

Stewart’s serious probation violations was a substantial factor in allowing Stewart

to remain at liberty and in a position to commit the shooting. As Gonzalez

recognizes in a different policing context, “an officer can be the cause-in-fact and

legal cause of damages inflicted upon a third party” when negligent law-

enforcement conduct sets the harmful chain of events in motion. 581 S.W.3d at

535. Here, Officer Mull’s non-reporting allegedly prevented initiation of

proceedings that could have resulted in detention, heightened supervision, or other

restraints. That the sentencing court might have declined to revoke even if notified

-40- does not defeat cause-in-fact; the question is whether Officer Mull’s omission was

a necessary condition of the harm, not whether judicial action was guaranteed. See

Patton, 529 S.W.3d at 730 (“but-for” focuses on whether the event would have

occurred without the omission); cf. Zavalas v. State, 809 P.2d 1329, 1334 (Or.

1991) (failure to report parole violations could be found a substantial contributing

cause despite uncertainty of judicial response).

b. Proximate cause. Proximate cause limits liability on grounds of

foreseeability and policy. Patton, 529 S.W.3d at 731 (quoting Ashley Cnty. v.

Pfizer, Inc., 552 F.3d 659, 671 (8th Cir. 2009)). Kentucky measures proximate

cause by whether the injury was the “natural and probable” consequence of the

negligent act and focuses responsibility on those “collective cause or causes for

which [the law] lays responsibility.” House v. Kellerman, 519 S.W.2d 380, 382

(Ky. 1974). In assessing foreseeability, Kentucky expressly adopts the

RESTATEMENT (SECOND) approach: when the hazard that materializes is among the

very risks that made the conduct negligent, intervening criminality does not cut off

liability. Britton v. Wooten, 817 S.W.2d 443, 449-52 (Ky. 1991) (adopting §§ 448,

449, 302B).

Applied here, the purpose of the mandatory reporting and

documentation regime is to identify and mitigate the danger posed by

noncompliant offenders—particularly those with violent histories—by triggering

-41- sanctions, enhanced supervision, or custody. A factfinder could therefore conclude

that the risk which materialized (Stewart’s violent offenses) was precisely the

hazard that rendered Officer Mull’s non-reporting negligent in the first place. See

Britton, 817 S.W.2d at 449 (third-party intentional/criminal acts do not supersede

where such conduct is among the hazards that make the defendant negligent).

Kentucky’s “substantial factor” formulation further supports sending proximate

cause to the jury when the evidence allows competing inferences about how the

defendant’s conduct interacted with subsequent events. Lewis, 581 S.W.3d at 577;

Gonzalez, 581 S.W.3d at 532. And Patton underscores that proximate cause is

ultimately a legal limitation, but one typically resolved on the facts unless only one

conclusion is reasonably possible. 529 S.W.3d at 731 (citing House, 519 S.W.2d

at 382).

The type of harm that befell Appellees was not so extraordinary or

unforeseeable as to sever the chain of proximate cause as a matter of law. The

very purpose of requiring probation officers to report violations—particularly

violent or weapons-related violations—is to mitigate the risk of future criminal

conduct by supervisees. See Britton, 817 S.W.2d at 451 (no superseding cause

where the harm was among the hazards making the conduct negligent). Thus,

violent reoffending was within the class of foreseeable risks that made the duty to

report necessary. On this record, reasonable minds could differ regarding whether

-42- Officer Mull’s non-reporting left the public exposed to a foreseeable danger the

reporting rules were designed to prevent.

c. Superseding cause. The superseding-cause doctrine “interplays

with proximate causation” and relieves a negligent actor of liability only when a

third party’s conduct is “extraordinary” and “unforeseeable.” NKC Hosps., Inc. v.

Anthony, 849 S.W.2d 564, 568 (Ky. App. 1993). NKC identifies factors

illustrating a true superseding cause: an intervening act of independent origin that

was itself capable of producing the harm and was not reasonably foreseeable,

coupled with the original act being merely a remote condition rather than a

substantial factor. Id. When, however, “the likelihood that a third person may act

in a particular manner is the hazard or one of the hazards which makes the actor

negligent,” the intervening act—even if “innocent, negligent, intentionally tortious,

or criminal”—does not supersede. Britton, 817 S.W.2d at 449 (quoting § 449).

Under these principles, Stewart’s crimes do not categorically break

the chain. The allegations are that Officer Mull failed to report serious violations

by a high-risk offender—conduct that foreseeably increases the chance of further

violent crime. A jury could therefore find the later shooting neither

“extraordinary” nor “unforeseeable” in the NKC sense but rather within the very

risk that made the omission negligent. See Britton, 817 S.W.2d at 449-52. That

conclusion is consistent with Kentucky’s treatment of law-enforcement negligence

-43- where officers’ acts or omissions can be both the factual and legal cause of third-

party harms when foreseeability aligns with the risk their conduct created.

Gonzalez, 581 S.W.3d at 535.

d. Summary-judgment posture. Finally, causation “presents a

mixed question of law and fact.” Patton, 529 S.W.3d at 729. Kentucky courts

reserve proximate-cause or superseding-cause determinations for the court only

when the essential facts are undisputed and “but one conclusion may reasonably be

drawn from the evidence.” House, 519 S.W.2d at 382; see also Lewis, 581 S.W.3d

at 577. Given evidence that (i) mandatory reporting existed to precisely address

the danger at issue, (ii) Officer Mull knew of Stewart’s charges and conviction but

failed to report, and (iii) Stewart remained at large and committed violent offenses,

reasonable jurors could differ on whether Officer Mull’s omission was a

substantial factor and whether Stewart’s crimes were within the foreseeable scope

of the risk. Summary judgment on causation was therefore inappropriate.

IV. CONCLUSION

Summary judgment was properly granted to Director Hargis,

Supervisor Patterson, and Assistant Supervisor Ryan. Their challenged conduct

was discretionary, and they are entitled to qualified official immunity.

Officer Mull’s failure to report Stewart’s repeated probation violations

was a ministerial act subject to an affirmative obligation. By virtue of his

-44- supervisory authority over Stewart, Officer Mull exercised sufficient control to

create a special relationship removing this case from the protection of the public

duty doctrine.

As a matter of law, proximate cause cannot be decided in Mull’s

favor. The risk of harm that materialized was within the scope of hazards that

made his omission negligent. The remaining question of but-for causation presents

a genuine issue of material fact for the jury.

Accordingly, the Jefferson Circuit Court’s judgment is affirmed in

part, reversed in part, and remanded for further proceedings consistent with this

Opinion.

ALL CONCUR.

-45- BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES DEPARTMENT OF Tad Thomas CORRECTIONS, AMBER RYAN, Lindsy Lopez BRIAN PATTERSON, ERICA Julie P. Anderson HARGIS, AND COOKIE CREWS: Louisville, Kentucky Peter Ervin ORAL ARGUMENT FOR Allison R. Brown APPELLANTS J. CHRIS LANE Robert Chaney AND ESTATE OF FREDERICK Frankfort, Kentucky O’BANNON: ORAL ARGUMENT FOR Tad Thomas APPELLEES AMBER RYAN, Prospect, Kentucky BRIAN PATTERSON, ERICA HARGIS, AND COOKIE CREWS:

Peter F. Ervin Frankfort, Kentucky

ORAL ARGUMENT FOR APPELLEE CHRISTOPHER MULL:

Kevin M. Glogower Louisville, Kentucky

-46-