Jennifer Kishman, Individually and as Next of Friend and Guardian of N.K., a Minor v. Oldham County School District Finance Corporation

• Court: Court of Appeals of Kentucky
• Decided: July 3, 2025
• Docket: 2024-CA-0255
• Status: Unpublished

Opinion

RENDERED: JULY 3, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0255-MR

JENNIFER KISHMAN, INDIVIDUALLY AND AS NEXT OF FRIEND AND GUARDIAN OF N.K., A MINOR AND KEN KISHMAN, INDIVIDUALLY AND AS NEXT OF FRIEND AND GUARDIAN OF N.K., A MINOR APPELLANTS

APPEAL FROM OLDHAM CIRCUIT COURT v. HONORABLE JERRY CROSBY, II, JUDGE ACTION NO. 15-CI-00237

OLDHAM COUNTY SCHOOL DISTRICT FINANCE CORPORATION; CAROL HUGHEY; DAN ORMAN; DR. WILLIAM WELLS; JAMES LEWIS STEWART; AND KAREN OTTE APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND A. JONES, JUDGES.

-1- JONES, A., JUDGE: Appellants, Jennifer and Ken Kishman, individually and as

next friends and guardians of their minor son, N.K.,1 (collectively referred to

herein as “Appellants”) appeal from the Oldham Circuit Court’s January 29, 2024,

order granting summary judgment on the basis of qualified official immunity in

favor of the Oldham County School District Finance Corporation and five

individual school officials: Dr. William Wells, Carol Hughey, James Lewis

Stewart, Karen Otte, and Dan Orman (collectively referred to herein as

“Appellees”). The circuit court determined that Appellees were immune from suit

in their individual capacities because the acts alleged against them were

discretionary, not ministerial. After careful review of the record and applicable

law, we affirm.

I. BACKGROUND

A. The Parties

Jennifer and Ken Kishman are the parents and legal guardians of

N.K., a minor child with Down syndrome who is largely nonverbal and enrolled in

a special needs’ preschool program operated by the Oldham County School

District. The Kishmans filed suit individually and on behalf of N.K., asserting

claims arising from an incident in which N.K. was left unattended on a school bus

1 “N.K.” is a pseudonym for the minor child, which was used below by both the parties and the circuit court. -2- for several hours. Gregory Clickner was the school bus driver responsible for

transporting N.K. to school on the day of the incident, and Sharon Machi served as

the monitor on the bus.2

In addition to Clickner and Machi, Appellants filed suit against the

Oldham County School District Finance Corporation; Superintendent Dr. William

Wells; Assistant Superintendent Dan Orman; Director of Pupil Transportation

James Lewis Stewart; Preschool Coordinator Carol Hughey; and Karen Otte,

N.K.’s preschool teacher.

B. The Incident

On the morning of April 21, 2014, five-year-old N.K. boarded his

assigned Oldham County school bus with the assistance of his mother, Jennifer

Kishman. N.K. was secured in a child-proof five-point harness restraint system.

Upon arrival at the school, Machi customarily unbuckled the children and helped

them exit the bus, where teachers or aides were waiting to escort them to their

classrooms. Those staff did not board the bus and relied on the driver and monitor

to ensure that all students had disembarked. On this occasion, neither Clickner nor

Machi removed N.K. from his seat. Instead, they drove the bus to the district’s bus

2 Although the circuit court’s order did not dispose of the Kishmans’ claims against Clickner and Machi, the court designated its judgment as final and appealable and included the necessary recitation under Kentucky Rules of Civil Procedure (“CR”) 54.02. Accordingly, this appeal is properly before us. -3- compound and exited, leaving N.K. still restrained and unattended. It was later

determined that neither Clickner nor Machi completed their required post-route

check of the bus to ensure all students and belongings were off of the bus.

Approximately three hours later, Jennifer Kishman arrived at the

school to pick N.K. up for a scheduled swim lesson. At that time, N.K.’s teacher,

Karen Otte, informed her that N.K. had not arrived at school. Upon learning this,

Jennifer advised that she had personally placed N.K. on the bus that morning.

School officials initiated a search, and N.K. was located approximately thirty

minutes later, still strapped into his seat on the parked bus at the compound.

Following his discovery, N.K. was transported by his mother to the

hospital for evaluation. He did not sustain any physical injuries, but the Kishmans

later asserted that he exhibited signs of trauma and was subsequently diagnosed

with post-traumatic stress disorder. They allege ongoing emotional and

psychological effects requiring continued treatment.

C. Procedural History

The Kishmans filed suit in Oldham Circuit Court on April 21, 2015,

asserting claims individually and on behalf of N.K. against Appellees, Clickner

and Machi. All defendants were sued in both their official and individual

capacities. The complaint alleged negligence and other tort claims arising from the

incident in which N.K. was left unattended on the school bus.

-4- Following discovery, the Oldham County School District Finance

Corporation and the five individual school officials moved for summary

judgment.3 They argued that the official capacity claims and claims against the

Finance Corporation were barred by governmental immunity, and that the

individual capacity claims failed under the doctrine of qualified official immunity.

The circuit court granted the motion in full. It held that the claims

against the defendants in their official capacities and against the Finance

Corporation were barred by governmental immunity. As to the individual capacity

claims, the court concluded that each moving defendant was entitled to qualified

official immunity. Specifically, the court found that “[e]ven in the light most

favorable to the Plaintiffs, the Court can find no absolute, certain or imperative

obligation derived from a rule, policy, procedure, regulation, statute or practice

from which these six Defendants are alleged to have deviated and violated.” The

court therefore determined that the acts at issue were discretionary, not ministerial,

and immunity applied. This appeal followed.

II. STANDARD OF REVIEW

Summary judgment is proper 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

3 Neither Clickner nor Machi joined in the motion for summary judgment. -5- that the moving party is entitled to a judgment as a matter of law.” CR 56.03. The

appellate court reviews the grant of summary judgment de novo, viewing the

record in the light most favorable to the nonmoving party and drawing all

reasonable inferences in that party’s favor. Steelvest, Inc. v. Scansteel Serv. Ctr.,

Inc., 807 S.W.2d 476, 480 (Ky. 1991).

“In the context of qualified official immunity, ‘[s]ummary judgments

play an especially important role’, as the defense renders one immune not just from

liability, but also from suit itself.” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky.

2010) (quoting Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006)). Where

there are no disputed facts at issue, whether a defendant is entitled to qualified

official immunity is a question of law making it appropriate for the court to resolve

as part of a motion for summary judgment. Id. at 239.

III. ANALYSIS

On appeal, the Kishmans do not challenge the circuit court’s ruling

that the official capacity claims against the individual Appellees and the claims

against the Oldham County School District Finance Corporation are barred by

governmental immunity. Rather, they limit their challenge to the circuit court’s

conclusion that Dr. William Wells, Carol Hughey, James Lewis Stewart, Karen

Otte, and Dan Orman are entitled to official qualified immunity.

-6- Under Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001), “[w]hen sued

in their individual capacities, public officers and employees enjoy only qualified

official immunity, which affords protection from damages liability for good faith

judgment calls made in a legally uncertain environment.” Qualified official

immunity applies to the negligent performance by a public officer or employee of:

(1) discretionary acts or functions; (2) performed in good faith; and (3) within the

scope of the employee’s authority. Id.

Kentucky courts apply a two-step burden-shifting framework when

determining whether qualified official immunity applies. First, the defendant must

show that the conduct in question was discretionary and performed within the

scope of his or her duties. If this threshold is met, the burden shifts to the plaintiff

to establish – through direct or circumstantial evidence – that the discretionary act

was not performed in good faith. Yanero, 65 S.W.3d at 523; Sheehy v. Volentine,

706 S.W.3d 229, 237 (Ky. 2024). These steps must not be conflated. The first step

is resolved as a matter of law and does not require inquiry into negligence or good

faith. Only if the act is found to be discretionary does the analysis move to the

second step. Id.

Discretionary functions are those “involving the exercise of discretion

and judgment, or personal deliberation, decision, and judgment.” Morales v. City

of Georgetown, 709 S.W.3d 146, 154 (Ky. 2024) (quoting Yanero, 65 S.W.3d at

-7- 522). By contrast, ministerial duties are those “that require 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. at 155 (internal quotation marks and citation omitted). The rationale for

imposing liability for ministerial failures is that “a governmental agent can

rightfully be expected to adequately perform the governmental function required

by the type of job he does. To the extent his job requires certain and specific acts,

the governmental function is thwarted when he fails to do or negligently performs

the required acts.” Id. (citation omitted).

However, few acts are purely discretionary or purely ministerial.

Accordingly, courts must assess the “dominant nature of the act.” Meinhart v.

Louisville Metro Gov’t, 627 S.W.3d 824, 832 (Ky. 2021) (quoting Haney, 311

S.W.3d at 240). In making that determination, courts look primarily to internal

rules, regulations, and policies governing the conduct of the employee. Morales,

709 S.W.3d at 161.

As our Supreme Court emphasized, “[w]hen the courts of this

Commonwealth are asked to conclude, as a matter of law, whether a government

employee’s actions are discretionary or ministerial, it is often the government

agency’s own internal rules, policies, [and] regulations that shed the most light on

the distinction.” Id. at 155. Where a policy or law mandates a course of conduct to

-8- be followed “without regard to [the employee’s] own judgment or opinion,” the act

is ministerial. Bryant v. Louisville Metro Housing Authority, 568 S.W.3d 839, 851

(Ky. 2019); Peterson v. Foley, 559 S.W.3d 346, 349 (Ky. 2018).

Additionally, supervising others is consistently recognized as a

discretionary function. “[S]upervising the conduct of others is a duty often left to a

large degree – and necessarily so – to the independent discretion and judgment of

the individual supervisor.” Haney, 311 S.W.3d at 244. “Deciding when, how, or to

what degree one will supervise his subordinates is an inherently discretionary

function deserving of qualified official immunity.” Morales, 709 S.W.3d at 158.

Several Kentucky cases help illuminate the distinction between

ministerial and discretionary duties in the context of educating and supervising

children.

In Knott County Board of Education v. Patton, 415 S.W.3d 51 (Ky.

2013), the Court considered a straightforward example: the Board of Education

had a ministerial duty to adopt a school curriculum, as required by statute, but

retained discretion in selecting which subjects to include – such as whether to offer

French or Spanish when neither was legally mandated. Id. at 58. The act of

adopting a curriculum was therefore both ministerial in its obligation and

discretionary in its implementation.

-9- In Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014), the Court

addressed a claim brought by the parents of a visually impaired student who fell

from bleachers that had not been fully extended. Although the duty to physically

extend the bleachers was a ministerial duty regularly performed by the custodian

on duty, that ministerial duty did not apply to the named school principals, who

neither performed the task themselves nor had a specific obligation to do so. Their

role was limited to assigning and overseeing custodial tasks and ensuring a safe

school environment, a function the Court characterized as discretionary. Id. at 299-

300. As the Court explained, “[l]ooking out for children’s safety is a discretionary

function for a principal, exercised most often by establishing and implementing

safety policies and procedures.” Id. at 299. In sum, while the failure to extend the

bleachers may have constituted a breach of ministerial duty by custodial staff, it

did not impose personal liability on the administrators who were more removed

from day-to-day execution.

Patton v. Bickford, 529 S.W.3d 717 (Ky. 2016), involved the tragic

suicide of an eighth-grade student who had been bullied at school. The student’s

estate sued various school personnel, alleging that they failed to intervene despite

being aware of the bullying. The Supreme Court affirmed qualified immunity for

school administrators, who had enacted extensive anti-bullying policies pursuant to

their statutory obligation to adopt a code of student conduct. Id. at 725. The

-10- content and structure of those policies, however, were deemed discretionary. By

contrast, the teachers were not entitled to immunity. The Court found that school

policy imposed a clear, mandatory duty on teachers to report bullying incidents,

and that they had been specifically trained to recognize and respond to such

behavior. Id. at 726-27.

Finally, in James v. Wilson, 95 S.W.3d 875 (Ky. App. 2002), the Court

considered claims against teachers, administrators, and school board members

arising from a fatal school shooting. Plaintiffs alleged negligence in failing to

implement safety protocols, to discipline the shooter, and to respond to troubling

writings submitted by the student. This Court rejected those claims, holding that

the defendants were entitled to qualified official immunity. There was no evidence

that the employees acted in bad faith or outside the scope of their authority, and

their conduct – ranging from evaluating student work to handling discipline – was

discretionary in nature. Id. at 908-09. While acknowledging that hindsight might

cast their decisions in a negative light, we emphasized that qualified immunity

shields school officials from liability for difficult judgment calls made in good

faith.

Together, these cases reinforce a consistent theme in Kentucky

jurisprudence: when a school employee violates a clear, mandatory rule or policy,

liability may attach. But when decisions involve personal judgment, discretion, or

-11- situational adaptation – even if later second-guessed – the law affords qualified

immunity.

Appellants challenge the circuit court’s grant of summary judgment

solely as to their individual capacity claims against Appellees. They argue that

these five school officials violated ministerial duties and are therefore not entitled

to qualified official immunity. In support, Appellants point to Superintendent Dr.

Wells’ testimony that the school “takes full responsibility” and that Appellees “did

not do their job as they should have.” Appellants also rely on Dr. Orman’s

testimony that a JC-3 form (used to report educational neglect) was not filed

immediately after the incident. Additionally, Appellants generally cite 702 KAR4

5:030, an administrative regulation governing school transportation procedures, as

evidence that the conduct at issue was subject to clear, mandatory requirements.

Drilling down into the substance of their claims, Appellants allege

that the Appellees failed to contact the Kishmans when N.K. did not arrive at

school; allowed N.K. to remain unsupervised on the bus; failed to conduct a

headcount as students exited the bus; failed to properly train Gregory Clickner and

Sharon Machi to conduct such a headcount; failed to provide adequate medical

treatment once N.K. was discovered; and failed to notify the Cabinet for Health

and Family Services following N.K.’s discovery. Appellants argue that each of

4 Kentucky Administrative Regulation. -12- these failures involved routine, clearly defined duties that did not require the

exercise of discretion or personal judgment. Accordingly, they maintain that

summary judgment was inappropriate because these officials violated ministerial

duties.

Appellants first argue that school officials breached a ministerial duty

by failing to notify them when N.K. was marked absent. The record reflects,

however, that Oldham County Schools maintained a policy requiring parental

notification only after a student had been absent for two consecutive days. N.K.

was present at school the day before the incident, so the policy was not triggered.

While Appellants believe that the policy was ill-advised or that an exception

should have been made in this instance, the adoption of a policy, including its

specific terms, is a discretionary act. Patton, 529 S.W.3d at 725 (noting that

school officials had a ministerial duty to implement a code of student conduct, but

the content of that policy was discretionary). Likewise, any decision to override

the established policy and notify parents earlier would have required personal

judgment and discretion. Because the district followed its written policy and no

ministerial duty to notify on the first day of absence existed, Appellees’ failure to

contact the Kishmans when N.K. was marked absent does not support a claim for

the breach of a ministerial duty.

-13- Appellants next assert that school officials allowed N.K. to remain

unattended on the bus. However, once N.K. was discovered, he was promptly

removed and cared for. Appellants cite no written policy or statute imposing a

ministerial duty on these school officials to perform a headcount as students exited

the bus. Instead, the record reflects that the school’s established policy placed the

responsibility for checking the bus at the end of the route on the bus driver and

monitor, Gregory Clickner and Sharon Machi, whose actions remain at issue in the

circuit court and are not before us on appeal. There is a qualitative distinction

between assigning and overseeing a task and personally performing it. Marson,

438 S.W.3d at 300. Here, the Appellees had no ministerial obligation to inspect

the bus themselves; their role was supervisory and, therefore, discretionary. Id. at

299-300.

Appellants also contend that school officials failed to train Clickner

and Machi to conduct a headcount. However, the general duty to supervise or train

subordinates is widely recognized as discretionary in nature. Morales, 709 S.W.3d

at 158 (“Deciding when, how, or to what degree one will supervise his

subordinates is an inherently discretionary function deserving of qualified official

immunity.”).

-14- Regarding the claim that school officials failed to report the incident

to the Cabinet for Health and Family Services, Appellants rely on KRS5 620.030.

This statute provides, in relevant part that:

(1) Any person who knows or has reasonable cause to believe that a child is dependent, neglected, or abused shall immediately cause an oral or written report, including but not limited to electronic submissions, to be made to a local law enforcement agency or to the Department of Kentucky State Police, the cabinet or its designated representative, the Commonwealth’s attorney, or the county attorney by telephone or otherwise. If the cabinet receives a report of abuse or neglect allegedly committed by a person other than a parent, guardian, fictive kin, person in a position of authority, person in a position of special trust, or person exercising custodial control or supervision, the cabinet shall refer the matter to the Commonwealth’s attorney or the county attorney and the local law enforcement agency or the Department of Kentucky State Police. Nothing in this section shall relieve individuals of their obligations to report.

(2) (a) Any person, including but not limited to a physician, osteopathic physician, nurse, teacher, school personnel, social worker, coroner, medical examiner, child-caring personnel, resident, intern, chiropractor, dentist, optometrist, emergency medical technician, paramedic, health professional, mental health professional, peace officer, or any organization or agency for any of the above, who knows or has reasonable cause to believe that a child is dependent, neglected, or abused, regardless of whether the person believed to have caused the dependency, neglect, or abuse is a parent, guardian, fictive kin, person in a position of authority, person in a position of special trust, person exercising custodial control or supervision, or another person, or who has

5 Kentucky Revised Statutes. -15- attended such child as a part of his or her professional duties, shall:

1. Immediately make an oral or written report, including but not limited to electronic submissions, in accordance with subsection (1) of this section;

2. Immediately notify the supervisor of the institution, school, facility, agency, or designated agent of the person in charge; and

3. If requested, in addition to the report required in subsection (1) or (3) of this section, file with the local law enforcement agency or the Department of Kentucky State Police, the cabinet or its designated representative, the Commonwealth’s attorney, or county attorney within forty-eight (48) hours of the original report a written report, including but not limited to electronic submissions, containing:

a. The names and addresses of the child and his or her parents or other persons exercising custodial control or supervision;

b. The child’s age;

c. The nature and extent of the child’s alleged dependency, neglect, or abuse, including any previous charges of dependency, neglect, or abuse, to this child or his or her siblings;

d. The name and address of the person allegedly responsible for the abuse or neglect; and

e. Any other information that the person making the report believes may be helpful in

-16- the furtherance of the purpose of this section.

(b) Upon notification, the supervisor or the designated agent, if any, shall facilitate the cooperation of the institution, school, facility, or agency with the investigation of the report.

(c) Any person who knowingly causes intimidation, retaliation, or obstruction in the investigation of the report shall be guilty of a Class A misdemeanor.

(d) This section shall not require more than one (1) report from any institution, school, facility, or agency.

Id. This statute imposes a duty to report suspected abuse or neglect to either a law

enforcement agency or the Cabinet. The record indicates that multiple calls and

reports were placed to the police department shortly after N.K. was found,

including by Principal Ketchum and others. There is no statutory requirement that

simultaneous dual reports be made to both the police and the Cabinet.

Accordingly, the statutory duty was satisfied, and any decision to go further would

have been discretionary.

Appellants further claim that school officials failed to obtain prompt

medical treatment for N.K. after he was located. However, the record contains no

evidence of any written policy or statute requiring emergency medical services to

be summoned under the circumstances. School officials determined that N.K. was

alert and not in visible physical distress. The decision whether to treat the situation

-17- as a medical emergency was necessarily a judgment call, and therefore

discretionary.

Finally, Appellants cite 702 KAR 5:030 as support for their position

that the school district violated ministerial duties. The regulation contains various

provisions regarding pupil transportation, including that the superintendent is

responsible for the safe operation of the transportation program and that the

principal must implement a system of adequate supervision for students as they

enter and exit buses. However, none of these provisions dictate specific steps such

as conducting a headcount or inspecting each bus seat. While the regulation

mandates the existence of supervisory systems, the form and application of those

systems remain discretionary. James, 95 S.W.3d at 906 (“The enactment of safety

rules is a discretionary function for which the school employees cannot be held

liable due to their qualified official immunity.”).

That N.K. was left on the bus was deeply unfortunate. With the

benefit of hindsight, the supervision protocols in place may appear insufficient.

But the law does not allow liability to be imposed on school officials merely for

imperfect discretionary decisions. Id. at 910 (“Applying such an unrealistic

standard is not only unjust, [it is] unauthorized.”). Appellees implemented school

policies and made decisions within their discretionary authority. Appellants have

identified no statute, regulation, or written policy that imposed an absolute, certain,

-18- and imperative duty on these Appellees that they failed to perform. As the party

opposing summary judgment, Appellants were required to present affirmative

evidence of a genuine issue of material fact. They have not done so. The circuit

court properly concluded that Appellees were entitled to qualified official

IV. CONCLUSION

For the foregoing reasons, we affirm the order of the Oldham Circuit

Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

James M. Gary William A. Hoback Louisville, Kentucky Mark S. Fenzel Louisville, Kentucky

-19-