Kristian Brock v. Colton T. Hinkel

• Court: Court of Appeals of Kentucky
• Decided: March 7, 2024
• Docket: 2022 CA 001330
• Status: Unknown

Opinion

RENDERED: MARCH 8, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-1330-MR

KRISTIAN BROCK AND CHRISTOPHER STONE APPELLANTS

APPEAL FROM HENRY CIRCUIT COURT v. HONORABLE JERRY D. CROSBY, II, JUDGE ACTION NO. 18-CI-00164

COLTON T. HINKEL, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF CHARLES L. HINKEL, III APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND KAREM, JUDGES.

KAREM, JUDGE: Kristian Brock and Christopher Stone appeal from a Henry

Circuit Court order granting in part and denying in part their motion for summary

judgment. Brock, an EMT, and Stone, a paramedic, were employees of Henry County Emergency Medical Services (“Henry County EMS”). They were sued in

their official and individual capacities for alleged negligence in providing

emergency medical services to a patient who suffered a fatal heart attack. The trial

court held that Brock and Stone were not entitled to qualified official immunity for

claims relating to (1) their use of a cell phone application (“app”) to navigate to the

patient’s home and (2) their alleged failure to perform a routine check of the

defibrillator in their ambulance. Upon careful review, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Charles L. “Luke” Hinkel, III awoke in the early morning hours of

September 14, 2017, experiencing severe chest pain. He was forty-eight years of

age and had previously suffered a heart attack. He called his son, Zachary, who

lived about a mile away. Zachary came to Hinkel’s home and called 911 about

thirty minutes later, at 2:08 a.m. Brock and Stone were dispatched to pick up

Hinkel. They used Active 911, a GPS navigation app on a cell phone, to guide

them to Hinkel’s residence, approximately 3.8 miles from their station. The app

misdirected them, and they had trouble locating the house, a difficulty exacerbated

by the dark and rainy conditions. They arrived about sixteen minutes after they

departed from the ambulance bay.

They found Hinkel lying on the floor experiencing extreme pain in the

center of his chest. Because Hinkel’s home was difficult to access with a stretcher,

-2- Brock and Stone asked if he would be able to get up and walk to the ambulance.

He agreed and walked out to the ambulance with their assistance. After he got into

the ambulance, he went into full cardiac arrest. Stone attempted to defibrillate

Hinkel with the LifePak 12 defibrillator with which the ambulance was equipped,

but the monitor on the device failed. Stone attempted to restart the LifePak several

times without success. He then began CPR, intubated Hinkel, and administered

lidocaine and epinephrine. They contacted another paramedic with a functioning

defibrillator who met them on their way to the hospital. They unsuccessfully

attempted to defibrillate Hinkel. They arrived at the hospital and transferred

Hinkel at 3:18 a.m. Hinkel passed away at 3:31 a.m.

On September 14, 2018, Zachary S. Hinkel as Administrator of the

Estate of Charles L. “Luke” Hinkel, III, and Kimberly Hinkel, as Mother and next

Friend of Colton T. Hinkel (Luke Hinkel’s then-minor son) (“the Estate”) brought

an action against Brock, Stone, and Henry County EMS, raising claims of

negligence/gross negligence and loss of parental consortium.1

On October 8, 2018, the defendants filed a motion to dismiss, arguing

that the claims against Henry County EMS and Brock and Stone in their official

capacities were barred by sovereign immunity and that Brock and Stone were

1 The record shows that Colton T. Hinkel, individually and as Administrator of the Estate of Charles L. Hinkel III was substituted as the plaintiff on February 26, 2021. The notice of appeal does not, however, reflect the substitution.

-3- entitled to qualified official immunity in their individual capacities. After lengthy

discovery and additional briefing, the trial court entered an order on January 13,

2021, finding that Henry County EMS and its employees in their official capacities

were entitled to sovereign immunity and governmental immunity. Accordingly,

the claims against Henry County EMS were dismissed and the claims against

Brock and Stone in their official capacities were dismissed. The trial court further

ruled, however, that valid questions remained regarding the performance of certain

duties by Brock and Stone, including whether the LifePak defibrillator had been

appropriately tested before the ambulance run. The court allowed the suit to

remain active against Brock and Stone in their individual capacities.

On August 25, 2022, Brock and Stone filed a motion for summary

judgment, asserting the defense of qualified official immunity. The Estate filed a

response, arguing that the issue was stare decisis because the issue of qualified

official immunity had been resolved by the trial court’s prior order. On October

11, 2022, the trial court entered an order rejecting this argument, holding that it had

not previously ruled on the issue of qualified immunity. It held there were two acts

or omissions allegedly committed by Brock and Stone that were ministerial in

character and thus not entitled to qualified immunity: (1) the allegation of a failure

to perform a routine equipment check of the LifePak and, (2) the use of the Active

911 app, instead of the paper maps or GPS located in the ambulance, to navigate to

-4- Hinkel’s home. The trial court ruled that because these acts or omissions were

administrative and/or required adherence to orders or protocols, they were

inherently ministerial and not protected by qualified official immunity.

The case proceeded to trial against Brock and Stone in their individual

capacities regarding the allegations that they used the wrong navigation tool and

failed to check the defibrillator. Following a trial lasting six days, the jury

announced it was deadlocked. The trial court declared a mistrial on November 4,

2022.

Brock and Stone then filed this interlocutory appeal from the October

11, 2022, order.

STANDARD OF REVIEW

Summary judgment is proper when the record reflects there is no

genuine issue as to any material fact and the moving party is entitled to a judgment

as a matter of law. Ritchie v. Turner, 559 S.W.3d 822, 830 (Ky. 2018) (citing

Kentucky Rules of Civil Procedure (“CR”) 56.03). Generally, the “denial of a

motion for summary judgment is . . . not appealable because of its interlocutory

nature[.]” Transportation Cabinet, Bureau of Highways, Commonwealth of Ky. v.

Leneave, 751 S.W.2d 36, 37 (Ky. App. 1988). An exception is made for an order

denying a substantial claim of absolute immunity or qualified official immunity,

which is immediately appealable. Harrod v. Caney, 547 S.W.3d 536, 540 (Ky.

-5- App. 2018). The scope of our review on appeal is strictly limited “to the issue of

immunity, and no substantive issues.” Baker v. Fields, 543 S.W.3d 575, 578 (Ky.

2018). An appeals court reviews the issue of whether an official is entitled to

qualified official immunity de novo. Ritchie, 559 S.W.3d at 830 (citation omitted).

ANALYSIS

Qualified official immunity is intended to protect public officers and

employees sued in their individual capacities “from damages liability for good

faith judgment calls made in a legally uncertain environment.” Yanero v. Davis,

65 S.W.3d 510, 522 (Ky. 2001) (citation omitted). This type of immunity applies

only “to the negligent performance by a public officer or employee of (1)

discretionary acts or functions, i.e., those involving the exercise of discretion and

judgment, or personal deliberation, decision, and judgment . . . ; (2) in good faith;

and (3) within the scope of the employee’s authority[.]” Id. (citations omitted). By

contrast, “[a] government official is not afforded immunity from tort liability for

the negligent performance of a ministerial act.” Patton v. Bickford, 529 S.W.3d

717, 724 (Ky. 2016), as modified on denial of rehearing (Aug. 24, 2017).

“[P]romulgation of rules is a discretionary function; enforcement of

those rules is a ministerial function.” Id. (quoting Williams v. Kentucky

Department of Education, 113 S.W.3d 145, 150 (Ky. 2003)). A “ministerial act or

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

-6- own judgment or opinion concerning the propriety of the act to be performed.”

Marson v. Thomason, 438 S.W.3d 292, 297 (Ky. 2014) (internal quotation marks

and citation omitted).

Discretionary acts, by contrast, “are those involving quasi-judicial or

policy-making decisions.” Id. Immunity is provided for discretionary acts because

the “courts should not be called upon to pass judgment on policy decisions made

by members of coordinate branches of government in the context of tort actions,

because such actions furnish an inadequate crucible for testing the merits of social,

political or economic policy.” Yanero, 65 S.W.3d at 519.

As a preliminary matter, we note that this appeal is taken from the

order entered on October 11, 2022, several days before the trial. We are not

permitted to consider any evidence that entered the record after the entry of that

order, because we are “without authority to review issues not raised in or decided

by the trial court.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky.

1989).

In its order, the trial court held that Brock and Stone had a ministerial

duty to use the GPS and maps located in the ambulance. The trial court found this

duty stemmed from the Henry County EMS Standard Operating

Procedures/Guidelines, Section 3: Operations, Article 6, which is entitled “Map

Utilization.” It states:

-7- In order to respond to all emergencies in a quick and efficient manner, all employees must become familiar with, and be able to use the maps, response directions, and GPS systems located in all units. On all responses, both emergency and non-emergency[,] the non-driving crewmember shall look up the location on the map before going in route, or shortly thereafter.

Even though most employees are familiar with the location of runs, required map use will reinforce map utilization and allow quick reference should a detour or alternate route need to be selected.

The trial court noted that Brock and Stone in their depositions

admitted the standard operating procedures required the use of maps, response

directions, and GPS units located in the vehicles. On the day in question, however,

the trial court found they “utilized a cellphone app called Active 911 instead of the

maps, response directions, and GPS units located in the vehicle to attempt to locate

the decedent’s residence. Unfortunately, they were misdirected, not immediately

able to locate Mr. Hinkel’s home, and were delayed arriving at the location to

provide services.”

In her deposition, Brock and Stone’s supervisor was asked whether

there was a policy and procedure that required an EMT or paramedic to map the

route before going on a run. She replied that there was not. She stated:

We have what’s called the Active 911 system, . . . it’s an app you can download on your phone – and when the run gets dispatched over the radio, they send out this alert through this app. It doesn’t always work. It doesn’t always give you the right directions. But we do have a

-8- map book, as well, in our ambulances. So . . . it’s good to have an idea of where you’re going in the county before you take off, but a lot of people – . . . the app gives you the city that you’re going to, so a lot of people head for that city and then once . . . they’re close to the address, then they figure that part out.

The defendants’ attorney read aloud the “Map Utilization” procedure set forth

above and asked: “And did Henry County EMS tell the employees to double-

check with the map book, or were they allowed to use their telephone, or did you

guys give them any direction on that?” The supervisor responded: “Whatever they

felt most comfortable with.” She explained that the GPS systems in the

ambulances did not all work and “most people felt more comfortable using their

phones.” She stated: “There is a GPS feature on the Active 911 that we used. So,

most people used that and the map book. They didn’t usually fool with the GPSs

on the truck.”

The trial court further noted that Brock and Stone in their depositions

admitted that Henry County EMS protocols and procedures required them

to complete a check sheet of the equipment and supplies in their ambulance unit. This check was to occur at the beginning of each shift. That check sheet includes the LifePak and directions to run a test of its functionality at the beginning of each shift. Upon completion of the daily check sheet, it was to be submitted to the EMS Director for filing. There remains a question of material fact whether the Defendants completed the daily check list and the test of the LifePak at the start of their shift. There is no dispute the LifePak malfunctioned and the

-9- daily check list for the day in question has never been produced.

The record contains a copy of the Daily Ambulance Check form. The

supervisor testified in her deposition that they were required to keep the completed

check forms and a copy of the printout from the LifePak to indicate it had been

tested for functionality. Neither of these documents was produced.

Brock and Stone argue that the trial court’s analysis is flawed as a

matter of law. They contend that the threshold question in determining whether a

defendant is entitled to qualified official immunity is not whether an act is

ministerial or discretionary, but whether the act is causally related to the “violation

of constitutional, statutory, or other clearly established right of the complainant.”

Rowan County v. Sloas, 201 S.W.3d 469, 476 (Ky. 2006), as corrected (Sep. 26,

2006) (internal quotation marks and citation and omitted). According to the

appellants, the Estate must initially prove that any delay attributable to the

appellant’s use of the app and their alleged failure to test the defibrillator were the

actual and proximate cause or causes of Hinkel’s death. They argue that they were

entitled to summary judgment because the Estate failed to come forward with non-

speculative evidence that Brock and Stone did not check the defibrillator. They

further contend that the alleged failure to check the defibrillator and the use of the

Active 911 App were not the “but for” causes or the proximate causes of Hinkel’s

death. In other words, they contend that the trial court improperly analyzed

-10- whether the duties at issue were discretionary or ministerial without first

determining whether the alleged acts and omissions were the actual and proximate

cause of harm to Hinkel.

This is an interlocutory appeal from an order denying summary

judgment to Brock and Stone specifically on their claim of qualified official

immunity. Determining causation is beyond the scope of our review, which is

strictly limited “to the issue of whether immunity was properly denied, nothing

more.” Baker, 543 S.W.3d at 578. In Baker, a student filed suit against school

officials after she slipped on ice in the school’s parking lot. Fields and Rain, two

members of the grounds crew, sought qualified official immunity. The trial court

denied the motion on the grounds that snow and ice removal duties were

ministerial in nature. Fields and Rain filed an interlocutory appeal. This Court

affirmed the trial court’s ruling that the removal of ice and snow was a ministerial

duty and further decided that the defendants were entitled to summary judgment as

a matter of law based on the facts of the case, specifically, that Fields and Rain did

not have a duty to remove the ice and snow. The Kentucky Supreme Court

reversed this decision because it exceeded the scope of appellate review by

deciding the substantive issue of negligence:

Conclusively determining the claim of negligence in this case was outside the scope of interlocutory appellate review. Determining whether the act of snow and ice removal is a discretionary or ministerial function is

-11- different from determining whether Fields and Rains had a duty to remove such snow and ice. In other words, at this point, the trial court has simply determined that the act of snow and ice removal is a ministerial function as a matter of law; the factfinder must determine whether Fields and Rain possessed the requisite duty to remove the snow and ice based on the factual circumstances of this case, as this, in part, determines the substantive claim of negligence. Only the issue of qualified official immunity may be decided upon an interlocutory appeal of such issue, not additional issues not presented on appeal, such as the substantive claim of negligence.

Id.

If we did as the appellants argue and decide whether their alleged

breaches of duty were the cause of Hinkel’s death, we would conclusively

determine the Estate’s substantive claim of negligence – in clear contravention of

the holding in Baker. Significantly, the cases relied upon by the appellants that

address underlying negligence claims are appeals taken from the grant, not the

denial, of summary judgment, and consequently, they are not interlocutory. For

example, Rowan County. v. Sloas, 201 S.W.3d 469, 473 (Ky. 2006), as corrected

(Sep. 26, 2006), is an appeal taken from the circuit court’s grant of summary

judgment on immunity grounds to a county, its jailer and a deputy jailer in a suit

brought by a prisoner; Patton v. Bickford, 529 S.W.3d 717, 721-22 (Ky. 2016) is

an appeal from a grant of summary judgment on the grounds of qualified official

immunity to a group of teachers and administrators in a lawsuit brought by the

estate of a student who committed suicide after being bullied at school. By

-12- contrast, Haney v. Monsky involved an interlocutory appeal in which the Kentucky

Supreme Court reversed the trial court and the Court of Appeals. It ruled that the

appellant was protected by qualified official immunity because her duties were

discretionary and consequently, she was entitled to summary judgment. The Court

arrived at this ruling without assessing the underlying claims of negligence against

the appellee. 311 S.W.3d 235, 237 (Ky. 2010), as corrected (May 7, 2010)

The bulk of Brock and Stone’s arguments go to the heart of the

Estate’s substantive claims of negligence and may not be resolved at this stage.

“Otherwise, interlocutory appeals would be used as vehicles for bypassing the

structured appellate process.” Baker, 543 S.W.3d at 578.

On the other hand, Brock and Stone’s argument that the trial court

erred when it found their use of the Active 911 app was ministerial rather than

discretionary is well within the scope of our review. The duty they were alleged to

have breached is the duty of reasonable care to Hinkel. This duty encompasses the

duty to proceed expeditiously to his residence.

At its most basic, a ministerial act is one that requires only obedience to the orders of others, or when the officer’s duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts. That a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in nature. And an act is not necessarily outside the ministerial realm just because the officer performing it has some discretion with respect to the means or method to be employed. . . .

-13- In reality, 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. In other words, if the employee has no choice but to do the act, it is ministerial.

Marson v. Thomason, 438 S.W.3d 292, 297 (Ky. 2014) (internal quotation marks

and citations omitted).

Brock and Stone had no choice but to proceed to Hinkel’s residence as

quickly as safely possible. They had no choice but to do the act; it had to be

performed without regard to their judgment or opinion. Questions of fact remain,

however, about their choice of a navigation tool. The written operating procedure

dictates the use of the paper maps and GPS located in the ambulance, whereas the

testimony of their supervisor suggests that they were encouraged to use the Active

911 app in conjunction with the paper maps. Factual issues remain for the jury to

determine whether they were negligent in not complying with written policy and

procedure by using the app rather than the ambulance GPS and paper maps, or

whether it was acceptable to use the app in light of the testimony from their

supervisor, or whether they were negligent in not consulting the paper maps in

conjunction with the app. “[W]hether a ministerial act was performed properly,

i.e., non-negligently, is a separate question from whether the act is ministerial, and

is usually reserved for a jury.” Id.

-14- Brock and Stone do not challenge the trial court’s holding that their

duty to check the defibrillator was ministerial and consequently this ruling will not

be reviewed here.

CONCLUSION

For the foregoing reasons, the trial court’s order is affirmed insofar as

Brock and Stone are not entitled to qualified official immunity for the claims that

they were negligent in using the Active 911 app to navigate to Hinkel’s residence

and in allegedly failing to perform the routine check of the LifePak defibrillator.

THOMPSON, CHIEF JUDGE, CONCURS.

ECKERLE, JUDGE, CONCURS IN RESULT ONLY.

BRIEFS AND ORAL ARGUMENT BRIEF FOR APPELLEE: FOR APPELLANTS: Hans G. Poppe Ed Monarch Scarlette Burton Kelty William G. Carroll Louisville, Kentucky Louisville, Kentucky ORAL ARGUMENT FOR APPELLEE:

Scarlette Burton Kelty Louisville, Kentucky

-15-