RENDERED: OCTOBER 24, 2024 TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0248-DG
JAIME MORALES APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2022-CA-0009 SCOTT CIRCUIT COURT NO. 19-CI-00593
CITY OF GEORGETOWN, KENTUCKY; APPELLEES OFFICER JOSEPH ENRICCO, INDIVIDUALLY AND IN HIS CAPACITY AS A DEPUTY WITH THE GEORGETOWN POLICE DEPARTMENT; GEORGETOWN POLICE DEPARTMENT; AND LIEUTENANT JAMES WAGONER, INDIVIDUALLY AND IN HIS CAPACITY AS A LIEUTENANT WITH THE GEORGETOWN POLICE DEPARTMENT
AND
2023-SC-0265-DG
LIEUTENANT JAMES WAGONER, APPELLANT INDIVIDUALLY AND IN HIS CAPACITY AS A LIEUTENANT WITH THE GEORGETOWN POLICE DEPARTMENT
ON REVIEW FROM COURT OF APPEALS V. NO. 2022-CA-0009 SCOTT CIRCUIT COURT NO. 19-CI-00593
JAIME MORALES; CITY OF GEORGETOWN, APPELLEES KENTUCKY; OFFICER JOSEPH ENRICCO, INDIVIDUALLY AND IN HIS CAPACITY AS A DEPUTY WITH THE GEORGETOWN POLICE DEPARTMENT; AND GEORGETOWN POLICE DEPARTMENT
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING Jaime Morales was employed as a Sheriff’s Deputy with the Scott County
Sheriff’s Office (“SCSO”) when he was tragically shot in the line of duty, and
paralyzed, during a September 2018 law enforcement operation to apprehend
an alleged bank robber. Morales thereafter brought a negligence suit against
multiple employees of the City of Georgetown (“City”) and the Georgetown Police
Department (“GPD”). More than six years after Morales sustained his injuries,
this Court is now tasked with determining whether the Scott Circuit Court
erred in ruling that each of the government defendants was immune from suit.
After a thorough review of the record, the applicable law, and the arguments of
the parties, we affirm the decision of the Court of Appeals in part, reverse in
part, and remand to the Scott Circuit Court for further proceedings consistent
with this Opinion.
I. FACTS AND BACKGROUND
On September 11, 2018, deputies of the United States Marshals Service
requested assistance from local law enforcement authorities in apprehending
alleged fugitive bank robber, Edward Reynolds. The U.S. Marshals Service had
tracked Reynolds to an interstate rest area off I-75 in Scott County where he
was purportedly asleep in his car.
At the time of the U.S. Marshals Service’s request for assistance, Jaime
Morales served as a member of the SCSO and GPD Joint Special Response
Team (“SRT”), a joint law enforcement group comprised of members of the
SCSO and the GPD who are specially trained in tactical operations. On
September 11, 2018, GPD Lieutenant Michael Wagoner (“Lt. Wagoner”) was the
2 SRT’s Co-Commander and the on-duty supervisor that evening. Upon receiving
the U.S. Marshals Service’s request for assistance, members of the GPD
undertook a threat matrix assessment to determine the appropriate level of law
enforcement response. The GPD’s threat matrix assessment produced a score
of fourteen, which, according to the record, did not necessitate a formal
response, or “call-out,” from the SRT. Nonetheless, Lt. Wagoner did utilize SRT
members, including members of the SCSO, in his response to the U.S.
Marshals Service’s request for assistance.
Lt. Wagoner specifically testified at deposition that there were several
SRT-trained GPD officers on-duty the night of September 11, 2018, and that he
planned “to take those officers that were SRT-trained and take the [SRT’s
armored] truck and go to the rest area and call [Reynolds] out.” Lt. Wagoner
testified that, prior to engaging with Reynolds, he drove several GPD-affiliated
SRT members to a local Cracker Barrel restaurant where they planned to meet
with multiple SCSO members of the SRT.
Lt. Wagoner testified that, at the Cracker Barrel, he gathered everyone
around the SRT armored truck and explained the plan he had formulated to
apprehend Reynolds. According to Lt. Wagoner, he planned to park the SRT’s
armored truck behind Reynolds’s car, blocking him in. The SRT members
would then exit the armored truck, line up behind the truck, and order
Reynolds to exit his car peacefully. If Reynolds refused to surrender, a trained
hostage negotiator would then negotiate with Reynolds.
3 The actual events that transpired the night of September 11, 2018,
however, did not unfold according to the purported plan. Once Lt. Wagoner had
parked the SRT armored truck behind Reynolds’s car, the SRT members did
indeed exit the truck. But rather than line up behind the truck, SCSO Deputies
Jordan Jacobs and Jaime Morales immediately approached the driver’s side of
Reynolds’s car. GPD Officer Joseph Enricco and SCSO Sergeant Devon
Brinegar thereafter followed, so that all four were positioned on the driver’s side
of Reynolds’s car, shoulder to shoulder. When the SRT members yelled for
Reynolds to exit his vehicle, Reynolds awoke, started his vehicle, and tried to
reverse but was blocked in by the SRT armored truck. Morales then broke the
driver’s side window of Reynolds’s car, and Reynolds subsequently reached for
a handgun from his center console. When the SRT members saw that Reynolds
was brandishing a gun, they fired their own weapons, killing Reynolds. This
entire encounter, from the time the SRT members exited the armored truck to
the time that gunfire had ceased, lasted approximately thirty-four seconds.
Amid this chaos, however, Morales was also shot in the spine, rendering
him paraplegic. The bullet that injured Morales is still lodged in his spine, and
therefore unable to be subjected to ballistics testing. Accordingly, no one knows
for certain who fired the shot paralyzing Morales; we do know, however, that
Reynolds did not fire any shots from his gun. Morales alleges that it was GPD
Officer Enricco, positioned to his right, who inadvertently shot him from
behind.
4 According to the circuit court record, Morales understandably enjoyed an
outpouring of support from his community after this tragic incident. After
Morales was wounded in the line of duty, members of the Georgetown and
Scott County community held fundraisers and made t-shirts to raise money for
his recovery and care.
In September 2019, nearly a year after the SRT operation to apprehend
Edward Reynolds, Morales filed a Complaint in Scott Circuit Court naming
both Officer Enricco and Lt. Wagoner as defendants in their official and
individual capacities. Morales alleged that both Officer Enricco and Lt.
Wagoner were negligent in the fulfillment of their law enforcement duties, thus
causing his injuries. Morales’s Complaint also asserted negligence and
vicarious liability claims against the City of Georgetown and the GPD. More
than two years later, in December 2021, the Scott Circuit Court entered an
order granting summary judgment to each of the government defendants on
immunity grounds. Specifically, the circuit court concluded that both Officer
Enricco and Lt. Wagoner were entitled to qualified official immunity from any
alleged torts arising from their “discretionary” actions in apprehending
Reynolds. Further, the circuit court ruled that the City and the GPD were each
immune from Morales’s claims of vicarious liability and negligence.
On appeal, the Court of Appeals affirmed the judgment of the circuit
court in part, and reversed in part, after concluding that Lt. Wagoner, the City,
and the GPD were not immune from all of Morales’s claims. Specifically, the
Court of Appeals held that some of Lt. Wagoner’s actions on the day that
5 Morales was shot were “ministerial” actions, undeserving of qualified official
immunity. The Court of Appeals also held that the City and the GPD could be
held vicariously liable for Lt. Wagoner’s alleged negligent performance of these
ministerial actions, and that the City and the GPD could each be held directly
liable for their own alleged negligence.
This Court thereafter granted the parties’ cross-motions for discretionary
review.
II. STANDARD OF REVIEW
“The proper standard of review on appeal when a trial judge has granted
a motion for summary judgment is whether the record, when examined in its
entirety, shows there is ‘no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law.’” Hammons v.
Hammons, 327 S.W.3d 444, 448 (Ky. 2010) (quoting CR 56.03). “Determination
that a fact is material or immaterial rests on the substantive law’s identification
of which facts are critical and which facts are irrelevant.” Kearney v. Univ. of
Ky., 638 S.W.3d 385, 397 (Ky. 2022) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). “An issue of material fact is ‘genuine’ at the summary
judgment phase when discovery has revealed facts which make it possible for
the non-moving party to prevail at trial.” Id. (citing Welch v. Am. Publ’g Co. of
Ky., 3 S.W.3d 724, 730 (Ky. 1999)). Summary judgment is not a substitute for
trial, and “should not be granted unless ‘it appears that it would be impossible
for the respondent to produce evidence at the trial warranting a judgment in
6 his favor and against the movant.’” Id. (quoting Paintsville Hosp. Co. v. Rose,
683 S.W.2d 255, 256 (Ky. 1985)).
“The record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved
in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480
(Ky. 1991). “It is vital that we not sever litigants from their right of trial, if they
do in fact have valid issues to try, just for the sake of efficiency and
expediency.” Id. at 483. “Because summary judgment does not require findings
of fact but only an examination of the record to determine whether material
issues of fact exist, we generally review the grant of summary judgment
without deference to either the trial court’s assessment of the record or its legal
conclusions.” Hammons, 327 S.W.3d at 448 (citing Malone v. Ky. Farm Bureau
Mut. Ins. Co., 287 S.W.3d 656, 658 (Ky. 2009)).
III. ANALYSIS
The doctrines of sovereign and governmental immunity have vexed this
Court and the subsidiary courts of the Commonwealth for decades. It is
abundantly clear, however, that “pure sovereign immunity, for the state itself,
has long been the rule in Kentucky.” Comair, Inc. v. Lexington-Fayette Urb.
Cnty. Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009). Rather, it is determining the
immune status of lesser governmental entities—like counties, municipal
corporations, and state agencies—and their agents that has proven to be the
more arduous task.
7 “Counties are unincorporated political subdivisions of the state,
preexisting its formation, whose existence is provided for constitutionally[.]”
Calvert Invs., Inc. v. Louisville & Jefferson Cnty. Metro. Sewer Dist., 805 S.W.2d
133, 138 (Ky. 1991); see also KY. CONST. §§ 63–65. A county is “created at the
will of the sovereign, without special regard to the consent or will of those
residing in it. It is a necessary instrumentality in carrying out the policy of the
state and in governing its people. It is governmental in its purpose and nature.”
Downing v. Mason Cnty., 8 S.W. 264, 265 (Ky. 1888). Accordingly, counties, as
political subdivisions of the Commonwealth, enjoy the same sovereign
immunity as the Commonwealth itself. Lexington–Fayette Urb. Cnty. Gov’t v.
Smolcic, 142 S.W.3d 128, 132 (Ky. 2004); see also Yanero v. Davis, 65 S.W.3d
510, 526 (Ky. 2001). A county “is not, in the strict legal sense, a municipal
corporation, like a city.” Downing, 8 S.W. at 265.
A municipal corporation is:
A city, town, or other local political entity formed by charter from the state and having the autonomous authority to administer local affairs; [especially] a public corporation created for political purposes and endowed with political powers to be exercised for the public good in the administration of local civil government.
Municipal Corporation, BLACK’S LAW DICTIONARY (12th ed. 2024). At common law,
municipal corporations, like the City of Georgetown, do not enjoy the same
sovereign immunity from suit shared by the Commonwealth and its counties.
See Mason v. City of Mt. Sterling, 122 S.W.3d 500 (Ky. 2003); Gas Serv. Co., Inc.
v. City of London, 687 S.W.2d 144 (Ky. 1985); Haney v. City of Lexington, 386
S.W.2d 738 (Ky. 1964). Rather, this Court has held that Kentucky’s cities only
8 enjoy common law immunity from tort liability “in the limited circumstances
when they are exercising legislative or judicial or quasi-legislative or quasi-
judicial functions.” Mason, 122 S.W.3d at 504.
Despite this fundamental difference between counties and cities, this
Court has treated suits against their respective employees similarly. In the
foundational decision on the extent of the immunity afforded to government
employees, Yanero v. Davis, we stated that:
When an officer or employee of a governmental agency is sued in his/her representative capacity, the officer’s or employee’s actions are afforded the same immunity, if any, to which the agency, itself, would be entitled . . . . But when 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.
65 S.W.3d at 521–22 (emphasis added). A public employee, sued in his
individual capacity, is deserving of qualified official immunity from suit for the
alleged negligent performance of (1) discretionary acts or functions, (2)
undertaken in good faith, and (3) within the scope of the employee’s authority.
Id. at 522.
A discretionary action is one “involving the exercise of discretion and
judgment, or personal deliberation, decision, and judgment[.]” Id. “Conversely,
an officer or employee is afforded no immunity from tort liability for the
negligent performance of a ministerial act[.]” Id. Ministerial actions 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. “That a necessity may exist for the
9 ascertainment of those facts does not operate to convert the act into one
discretionary in nature.” Id. (quoting Upchurch v. Clinton Cnty., 330 S.W.2d
428, 430 (Ky. 1959)). Ministerial acts are “direct and mandatory.” Marson v.
Thomason, 438 S.W.3d 292, 297 (Ky. 2014).
The rationale behind exposing a public employee to individual liability for
the negligent performance of his ministerial acts 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. at 296. However, the courts
generally immunize public employees in their exercise of discretionary
functions because those employees “would be unduly hampered, deterred and
intimidated in the discharge of their duties . . . if those who act improperly or
even exceed the authority given them were not protected in some reasonable
degree by being relieved from private liability.” RESTATEMENT (SECOND) OF TORTS
§ 895D cmt. b (Am. L. Inst. 1979).
When 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,
regulations that shed the most light on the distinction. Internal government
rules, policies, and regulations necessarily constrain the individual discretion
of public employees, and in some instances limit their discretion so greatly as
to render their employment functions “absolute, certain, and imperative,” and,
10 therefore, ministerial in nature. Yanero, 65 S.W.3d at 522. However, even an
unwritten yet generally known rule or policy can impart ministerial obligations
on public employees. See id. at 529; Gaither v. Just. & Pub. Safety Cabinet, 447
S.W.3d 628, 635–36 (Ky. 2014). “[W]e have also recognized that a common law
duty—if specific and affirmative in its command—could render an act or
function essentially ministerial in the absence of any statute or regulation on
point[.]” Haney v. Monsky, 311 S.W.3d 235, 245 (Ky. 2010).
Thus, examining the pertinent rules, policies, or regulations governing
the public employee’s challenged conduct may sometimes be all that is
necessary to make the distinction between ministerial and discretionary.
Meinhart v. Louisville Metro Gov’t, 627 S.W.3d 824, 830 (Ky. 2021).
“Compliance with the rule, policy, or regulation simply is not relevant in that
calculus. Rather, compliance is relevant to negligence[.]” Id. Again, “whether 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.”
Marson, 438 S.W.3d at 297.
A. Morales’s Claims Against Officer Enricco and Lt. Wagoner in Their Individual Capacities
Here, Morales alleges that Officer Enricco and Lt. Wagoner breached
several ministerial duties during the SRT mission to apprehend the alleged
bank robber Edward Reynolds. Accordingly, Morales argues that Officer
Enricco and Lt. Wagoner should each be held individually liable for their
alleged negligence, and that they are not entitled to qualified official immunity.
11 Morales does not allege that Officer Enricco’s or Lt. Wagoner’s actions exceeded
the scope of their authority or that they were undertaken in bad faith.
Therefore, whether Officer Enricco or Lt. Wagoner are entitled to qualified
official immunity, as a matter of law, turns on whether their actions and
employment functions were ministerial or discretionary. We examine each of
Morales’s allegations in turn.
1. Officer Enricco’s act of firing his service weapon was not ministerial.
After adverse treatment of this issue from the circuit court and the Court
of Appeals, Morales now attempts to convince this Court that Officer Enricco’s
act of firing his weapon at Reynolds was ministerial. Specifically, Morales
argues that Officer Enricco had a ministerial duty to “ascertain the location of
those around him (including but not limited to fellow officers) prior to firing his
weapon.” This Court, however, is unpersuaded.
In support of his contention, Morales fails to point this Court to any
written SRT rules, policies, or regulations that purported to instruct Officer
Enricco when or how to fire his service weapon after he was confronted with an
armed suspect. Rather, Morales primarily relies on the testimony of expert
witness, retired Chief of the Paris, Kentucky, Police Department, Kevin Sutton
(“Chief Sutton”) to demonstrate that there was a known rule or standard
procedure constraining Officer Enricco’s individual discretion in this instance.
Chief Sutton authored an expert report reviewing the SRT’s “actions,
policies, and training” relevant to the September 11, 2018, incident that
injured Morales. Relevant to Morales’s negligence claim against Officer Enricco, 12 Chief Sutton opined that, “Once a target is acquired, an officer must determine
what or who is behind the target and the surroundings and location of
additional persons around prior to discharging a weapon.” Chief Sutton further
testified during his deposition that, “there comes a point when you are
discharging your weapon you also have to be aware of your surroundings.”
We are unpersuaded by Morales’s attempts to paint an inherently
discretionary action—the decision to use deadly force—as one that involves
“merely execution of a specific act arising from fixed and designated facts.”
Yanero, 65 S.W.3d at 522. Once he was confronted with an armed suspect,
Officer Enricco was forced to make a split-second decision whether or not to
fire his own weapon in defense of himself and his fellow officers. Whatever
considerations that Officer Enricco was entrusted to make in that fraction of a
second—including ascertaining the whereabouts of his fellow officers—were
obviously exercises in “personal deliberation, decision, and judgment.” Id. To
hold otherwise, and to subject Officer Enricco’s actions in this chaotic moment
to dissecting scrutiny, would be to impair the independent discretion of all law
enforcement officers charged with protecting the greater public from would-be
gunmen. As with many duties entrusted to law enforcement officers, “[i]t is
difficult to imagine a situation in which the exercise of significant, independent
professional judgment would be more necessary.” Meinhart, 627 S.W.3d at 834.
Officer Enricco’s act of firing his weapon at Reynolds, whether it was the
correct decision or not, was a discretionary action deserving of qualified official
13 immunity. Summary judgment as to this claim was appropriate as a matter of
law.
2. Lt. Wagoner had a ministerial obligation to formulate a plan to apprehend Reynolds.
Morales argues that Lt. Wagoner had a ministerial duty to formulate a
“tactical” and “operational” plan prior to attempting to apprehend Reynolds,
and that Lt. Wagoner is not entitled to qualified official immunity from his
claim that he breached that duty.
As support for this contention, Morales references City of Georgetown,
Division of Police, General Order No. 047 (“General Order”), a collection of
internal policies which purports to regulate the actions of the SCSO and GPD
Joint SRT. General Order, Sec. III(A) is entitled “Command/Supervision” and
relevantly states that, “The Special Response Commander and Team Leaders
will be in charge of the tactical planning and execution of the plan at any and
all call-outs.” General Order, Sec. III(A)(2). The General Order then goes on to
state in a different subsection that, “The SRT will not be deployed without
sufficient information as to be able to effectively develop an operational plan.”
General Order, Sec. III(D)(2). When read in conjunction, the plain language of
these policies seemingly indicates that members of the SRT leadership, like Co-
Commander Lt. Wagoner, are explicitly charged with developing a plan before
SRT team members are dispatched to respond to emergencies. Such a
requirement would certainly be logical considering the sensitive, high-risk
nature of the SRT’s line of work.
14 Regardless, even aside from these policies, there is also testimonial
evidence in the record suggesting that SRT supervisors are expected to
formulate some plan before they dispatch SRT team members. SCSO
Lieutenant Josh Hudnall (“Lt. Hudnall”), the highest-ranking member of the
SCSO on the SRT, relevantly testified that regardless of whether a tactical
mission is labeled as a formal SRT “call-out,” there should be some planning if
team members are going to engage in a vehicle assault. Lt. Hudnall testified
that there should be a plan in place before any tactical incident, and that
sometimes SRT leadership may also make contingency plans. Lt. Hudnall also
testified that if Lt. Wagoner was acting as the commander of a tactical or SRT
mission, it would be his responsibility to develop the plan. Expert witness Chief
Sutton agreed and also testified that it was Lt. Wagoner’s responsibility, as the
officer in charge of the tactical mission, to decide on and formulate a tactical
plan to apprehend Reynolds.
After reviewing the record, this Court is convinced that Lt. Wagoner had
an “absolute, certain, and imperative” obligation to formulate some plan to
apprehend Reynolds before the SRT team members were dispatched. Yanero,
65 S.W.3d at 522. That is not to say, however, that Lt. Wagoner would not later
be engaging in discretionary actions, deserving of qualified official immunity,
while formulating that plan. Indeed, deciding how to apprehend an alleged
fugitive bank robber, and deciding which SRT resources or personnel to utilize
in the process, would certainly be exercises in “personal deliberation, decision,
and judgment.” Id.
15 Put more simply, the record indicates that Lt. Wagoner was free to devise
how the SRT would attempt to apprehend Reynolds, but he was not free to
abstain from creating any plan at all. In this limited sense, his obligation was
ministerial, requiring only “execution of a specific act arising from fixed and
designated facts.” Id. Accordingly, to the limited extent that Morales alleges
that Lt. Wagoner failed to create a plan and that Lt. Wagoner’s alleged
nonfeasance caused his injuries, Lt. Wagoner is not entitled to qualified official
immunity from that claim. Nonetheless, this Court is still empowered to affirm
the circuit court’s grant of summary judgment in favor of Lt. Wagoner if
Morales has failed to produce “at least some affirmative evidence to show that a
material issue of fact exists for a jury to consider.” Kearney, 638 S.W.3d at 397
(citing Steelvest, 807 S.W.2d at 482).
Morales, however, devotes a substantial portion of his brief to
highlighting various pieces of evidence in the record that he argues tend to
prove that Lt. Wagoner failed to formulate a plan to apprehend Reynolds on
September 11, 2018. For instance, SCSO Sgt. Devon Brinegar testified that
there was no discussion about a potential vehicle assault when the SRT met at
the Cracker Barrel prior to engaging with Reynolds—only discussion about
ordering Reynolds out of his vehicle. According to Sgt. Brinegar, there was no
plan in place if Reynolds refused to comply with the SRT’s orders. SCSO
Deputy Jordan Jacobs testified that he did not recall whether there was any
discussion at the Cracker Barrel about a plan to apprehend Reynolds. Deputy
Jacobs did, however, testify that there was some discussion of a plan involving
16 a vehicle assault while the SRT traveled to the I-75 rest area in the SRT
armored truck. Officer Enricco testified that there was “not necessarily” a plan
for what the SRT members would do after they made contact with the back of
Reynolds’s car.
Again, whether Lt. Wagoner, in fact, breached any ministerial duty to
formulate a plan, and was therefore negligent, is not relevant to the question of
qualified official immunity and is, rather, a question left to the finder of fact.
Meinhart, 627 S.W.3d at 830. The above-cited evidence, when viewed in a light
most favorable to Morales, is sufficient to create a genuine issue of material
fact regarding Lt. Wagoner’s alleged negligence. That is not to say, however,
that Morales will prevail on remand, or even that he has a high likelihood of
prevailing in his claim against Lt. Wagoner. Rather, our review on appeal is
limited to whether it would be impossible for Morales to produce evidence at
trial warranting a judgment in his favor. Kearney, 638 S.W.3d at 397. “It is
vital that we not sever litigants from their right of trial, if they do in fact have
valid issues to try, just for the sake of efficiency and expediency.” Steelvest, 807
S.W.2d at 483. Summary judgment was inappropriate as to this claim at this
time.
3. Lt. Wagoner’s actions in supervising his subordinates were discretionary.
Morales next argues that Lt. Wagoner’s act of supervising his
subordinates was a ministerial function undeserving of qualified official
immunity. Specifically, Morales attempts to make a material distinction
between Lt. Wagoner’s “obligation” to supervise his subordinates and the 17 “manner” in which he supervised them. This Court, however, is unpersuaded
by Morales’s attempt to split hairs and reframe this issue. Deciding when, how,
or to what degree one will supervise his subordinates is an inherently
discretionary function deserving of qualified official immunity.
The General Order states that, “[SRT] supervision will consist of a
Commander and two Team Leaders designated by the Chief of Police.” General
Order, Sec. III(A)(1). The General Order also provides that the “commander and
team leaders will be responsible for unit training, coordination of assigned
team members, and informing the Chief of Police of team activities and status.”
Id. The General Order further states that, “No other team member shall
supervise, direct, or attempt to control any element of the SRT unless
authorized by one of the following: Commander, Chief of Police or his designee.”
General Order, Sec. III(A)(3). When read in conjunction, these provisions would
seem to place the sole authority to supervise the SRT squarely on Lt. Wagoner
and the other members of the SRT leadership.
The General Order, however, lacks any meaningful policies that
significantly constrained Lt. Wagoner’s discretion in deciding how, when, or to
what extent he would supervise the SRT during its mission to apprehend an
alleged fugitive bank robber. The absence of any such policies is significant,
and is likely a reflection on the notion that “supervising 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 v. Monsky, 311
S.W.3d 235, 244 (Ky. 2010).
18 In Haney, a summer camp counselor at the Louisville Zoo was alleged to
have negligently supervised the children in her care during a nighttime hiking
activity. Id. at 239. Despite receiving an instruction to “keep the children in the
middle of the path,” one of the children under Haney’s supervision was injured
when he fell from the hiking path. Id. at 243. In concluding that Haney’s
supervisory actions were discretionary, and thus deserving of qualified official
immunity, this Court stated that Haney was merely under a “general and
continuing supervisory duty . . . which depended upon constantly changing
circumstances[.]” Id. We further stated that the limited instructions that Haney
received to supervise the children were “subjective and ‘left to the will or
judgment of the performer[.]’” Id. (quoting Upchurch, 330 S.W.2d at 430).
Here, Lt. Wagoner was charged with supervising a dangerous law
enforcement mission—one so sensitive that he chose to utilize the specially
trained members of the SRT in his response. Accordingly, the manner in which
Lt. Wagoner was to lead this mission was not certain, fixed, or prescribed for
him; he had to rely on his own judgment, experience, and discretion to
accomplish the objective of the mission. Further, from the moment that the
SRT arrived at the I-75 rest area, Lt. Wagoner and his team were forced to react
and adapt to changing circumstances. Lt. Wagoner’s actions in this instance
were discretionary and deserving of qualified official immunity. Accordingly,
summary judgment was appropriate as to this claim.
19 4. Lt. Wagoner did not have a ministerial obligation to ensure that his subordinates wore their SRT-issued tactical vests.
Morales next alleges that Lt. Wagoner had a ministerial duty to ensure
that the SRT team members were each wearing their tactical safety vests
during the mission to apprehend Reynolds.
The General Order relevantly states that, “SRT members will be issued
tactical clothing and personal use equipment. The team member will keep this
equipment with him/her and always carry them while on duty. When off duty,
the team member will keep the equipment at home and accessible in case of
call out.” General Order, Sec. III(E)(1). The General Order then goes on to state
that, “Each team member will be responsible for the maintenance and up keep
of their equipment and clothing. In the event that a team member resigns
from—or is removed from—the team, the team member will immediately return
all issued clothing and equipment.” General Order, Sec. III(E)(2).
These two provisions, however, are the extent of the General Order’s
explicit mandates concerning SRT equipment and clothing. And when read in
their entirety, it is evident that these policies lack any directive requiring SRT
members to wear tactical vests during SRT missions. Further, the above
policies appear only to impose affirmative obligations on individual SRT team
members—not on the SRT Commander.
In the absence of a concrete, written rule on the matter, Morales argues
that there was an unwritten yet generally known rule requiring that tactical
vests be worn during all SRT missions, and that Lt. Wagoner was duty-bound
20 to enforce such a rule. After a thorough review of the record, this Court is
unpersuaded.
Lt. Wagoner relevantly testified that he believed SRT members “knew that
they were expected to wear their given equipment,” because “it was probably
said at some point.” Lt. Wagoner also testified that he “[did not] know who
would have told them that it was expected, but it was expected.” However, Lt.
Wagoner then testified that he believed he did not have the authority to direct
Morales to put on a tactical vest during the mission to apprehend Reynolds.
SCSO Lt. Josh Hudnall testified that if SRT members are responding to
an SRT call-out they should wear their tactical gear, but if their operation is
not an SRT call-out then it would be their decision as to what to wear and what
not to wear.
At his own deposition, Morales relevantly testified that he kept his own
tactical vest in the trunk of his SCSO cruiser. Upon arriving at the Cracker
Barrel on September 11, 2018, and before departing for the I-75 rest area,
Morales observed some of his fellow SRT members wearing tactical vests while
others were not. Morales specifically noted that his SCSO supervisor, Sgt.
Brinegar, was not wearing a tactical vest. According to Morales, he asked Sgt.
Brinegar, “if we should wear our vests or why he wasn’t wearing his vest,
something along those lines.” Morales does not remember what Sgt. Brinegar
told him in response to this question, but Morales testified that he interpreted
Sgt. Brinegar’s response to mean that he did not need to wear his tactical vest.
Morales also testified that he asked SCSO Sgt. Jeremy Nettles if he should
21 “plate up” while they were in the SRT armored truck, and that Sgt. Nettles
“acted like it was my decision.” Morales testified that it was “not always”
customary for him to wear his tactical vest during SRT call-outs.
Officer Enricco testified that he wore his tactical vest during the mission
to apprehend Reynolds, and that he had previously been instructed to wear his
tactical vest during any SRT call-out. Officer Enricco testified that the SRT’s
“general orders” provided this instruction.
SCSO Deputy Jordan Jacobs, a member of the SRT, testified that he
decided to wear his tactical vest during the mission to apprehend Reynolds.
Deputy Jacobs testified that no one ever told him whether or not he should
wear his tactical vest during SRT missions, and that he believed such a
decision was left to the discretion of the individual officer.
Upon a review of the record, we cannot conclude that Lt. Wagoner’s
duties and job functions in this instance were ministerial. Regardless of
whether SRT team members were obligated, instructed, or directed to wear
their tactical vests on September 11, 2018, there seems to be no indication that
Lt. Wagoner himself was under an “absolute, certain, and imperative” directive
to individually ensure that the SRT team members indeed wore their tactical
vests. Yanero, 65 S.W.3d at 522. The General Order certainly does not impose
a requirement on Lt. Wagoner to individually ensure that each SRT member is
wearing their tactical vest during SRT missions, and there seems to be no
evidence in the record tending to prove the existence of such an unwritten
affirmative duty. Rather, Lt. Wagoner conversely testified that he believed he
22 did not have the authority to direct Morales to wear a tactical vest during the
mission to apprehend Reynolds. Of course, the General Order entrusted Lt.
Wagoner, as Co-Commander of the SRT, with general supervisory authority
over the SRT’s team members, but the record does not reflect that Lt.
Wagoner’s supervisory discretion was constrained, and his actions
circumscribed and predetermined, in this respect.
Morales argues that his claim against Lt. Wagoner is similar to the
plaintiff’s claim against two baseball coaches in Yanero. There, a junior varsity
baseball player, Yanero, was injured after he was struck by an errant pitch
during batting practice. Id. at 517. Despite the existence of an unwritten yet
known rule requiring that players wear a helmet during batting practice,
Yanero was not wearing a helmet at the time he was injured. Id. at 529. This
Court concluded that the two coaches charged with supervising Yanero were
not entitled to qualified official immunity from the plaintiff’s negligence claims
because they each had a ministerial duty to enforce the known rule regarding
batting helmets. Id. However, the coaches’ actions in that instance were not
ministerial simply because such a rule existed, but rather because this Court
determined the coaches had a common law duty to “exercise that degree of care
that ordinarily prudent teachers or coaches engaged in the supervision of
students of like age as the plaintiff would exercise under similar
circumstances.” Id. More simply, the coaches had a ministerial duty to ensure
that the minors they were supervising complied with the relevant rules
regarding batting helmets. Id.
23 Here, Morales has failed to point this Court to any policies, rules, or
regulations, written or unwritten, that indicate that it was Lt. Wagoner’s duty
to ensure that SRT team members wore their tactical vests during the mission
to apprehend Reynolds. Rather, the only evidence in the record that purports
to contravene Lt. Wagoner’s own testimony on the matter is that of expert
witness Chief Sutton. Chief Sutton relevantly testified that, in his expert
opinion, Lt. Wagoner should have “absolutely” made sure that all SRT members
wore their tactical vests during the mission to apprehend Reynolds. Chief
Sutton also testified that, “somewhere in [the] policy that should be written
that absolutely anytime there’s a tactical situation if you have that plated
armor that’s available, it must be worn.” However, in this Court’s review of the
record, Chief Sutton’s expert opinion on what actions Lt. Wagoner should have
taken or what policies should be written and enforced has little bearing on
what actions Lt. Wagoner was actually bound or required to take on September
11, 2018. In determining whether a public employee’s actions are ministerial or
discretionary, the greatest benchmarks are the internal policies governing the
employee’s conduct and any evidence regarding the discretionary
considerations the employee typically makes in performing that expected
function. To this Court, Lt. Wagoner’s actions in the present instance were
discretionary, not ministerial. Accordingly, summary judgment was appropriate
as to this claim.
24 5. Lt. Wagoner did have a ministerial obligation to enforce certain mandatory training requirements.
Morales next alleges that Lt. Wagoner breached a ministerial duty to
enforce certain training attendance requirements imposed by the General
Order.
The General Order relevantly states that, “The [SRT] commander and
team leaders will be responsible for unit training[.]” General Order, Sec.
III(A)(1). The General Order further imposes certain training attendance
requirements on individual members of the SRT and SRT leadership:
a. Team members must have 100% participation in all monthly training unless absence is approved by the Team Commander, or Team Leaders. ...
e. Any team member who missed training or any testing must have approval by the commander or a team leader. If a team member misses testing due to an illness or injury, that individual will be retested when he/she is released back to work.
f. Any team member, who has three unexcused absences from call outs within a six-month period will be removed from the team.
g. Each team member will be required to attend all team training exercises as scheduled. If a team member has three unexcused absences from training within a six- month period, the team member will be removed from the team.
General Order, Sec. III(C)(2)(a), (e)–(g).
Upon our review of these relevant policies, it seems clear that the only
ministerial obligation these policies impose on Lt. Wagoner, as Co-Commander
of the SRT, is to remove team members from the SRT if they have accumulated
25 three unexcused absences from call-outs or training. General Order, Sec.
III(C)(2)(f)–(g). In these two instances, Lt. Wagoner’s duties are “absolute,
certain, and imperative, involving merely execution of a specific act arising
from fixed and designated facts.” Yanero, 65 S.W.3d at 522. If a team member
has three unexcused absences from either training or call-outs in a six-month
period, then Lt. Wagoner is bound to remove them from the SRT. In this
respect, the General Order’s instructions are clear, mandatory, and direct,
leaving no room for Lt. Wagoner to exercise any discretion in fulfilling his duty.
Accordingly, to the limited extent that Morales alleges that Lt. Wagoner failed to
remove SRT team members who accumulated three unexcused absences from
SRT training sessions or call-outs, and that Lt. Wagoner’s alleged nonfeasance
caused his injuries, Lt. Wagoner cannot claim qualified official immunity from
such a claim.
However, this Court is empowered to affirm the circuit court’s grant of
summary judgment in favor of Lt. Wagoner if Morales has failed to produce any
evidence in the record that creates a genuine issue of material fact regarding
Lt. Wagoner’s alleged nonfeasance. Kearney, 638 S.W.3d at 397 (citing
Steelvest, 807 S.W.2d at 482). Logically, if there is no evidence tending to
support Morales’s negligence theory, it is immaterial that Lt. Wagoner is not
entitled to qualified official immunity. But that is not the case here.
There is at least some evidence in the record supporting the theory that
the SRT leadership failed to enforce the General Order’s training attendance
requirements. Morales himself testified that all SRT members were required to
26 attend training once a month, but that the SRT’s training attendance
requirements were not enforced. SCSO Deputy Jordan Jacobs testified that
SRT members were only encouraged to go to trainings, that training attendance
was not actually required, and that there was no penalty if SRT members
missed the SRT trainings. Sgt. Nettles testified that the SRT held monthly
training sessions, but there was no penalty if SRT members failed to attend.
There is also evidence in the record tending to support the theory that
members of the SRT did not attend every SRT training exercise. Lt. Hudnall
testified that there were times when SRT members would have to miss
trainings, resulting in both excused and unexcused absences. Officer Enricco
testified that there was at least one SRT training session that he did not attend,
and that he could not remember or recall other specific SRT training exercises.
Deputy Jacobs testified that he personally did not attend two SRT trainings.
Sgt. Nettles also testified that he attended all of the SRT trainings that he
could, but that he did not attend every training.
The above evidence, when viewed in a light most favorable to Morales,
creates a genuine issue of material fact regarding Lt. Wagoner’s alleged failure
to remove SRT members who accumulated three unexcused absences from
mandatory SRT training exercises. Summary judgment as to this specific claim
was therefore inappropriate at this juncture.
27 B. Claims of “Vicarious Liability” and “Direct Liability” Against the City and GPD
Morales next argues that the City and the GPD should each be held
“vicariously liable” for the alleged negligence of their employees, Officer Enricco
and Lt. Wagoner.
As previously stated, since the mid-twentieth century, the general rule in
this Commonwealth has been that cities and municipalities only enjoy common
law immunity from tort liability “in the limited circumstances when they are
exercising legislative or judicial or quasi-legislative or quasi-judicial functions.”
Mason, 122 S.W.3d at 504. After this Court reaffirmed its abrogation of the
existing doctrine of municipal immunity in favor of broader municipal liability,
see Gas Serv. Co., 687 S.W.2d at 150, the General Assembly swiftly elected to
codify that principle in the Claims Against Local Governments Act (CALGA).
See KRS 65.200–2006. This enactment was evidently part of a larger movement
among state legislatures attempting to regulate the liability of local government
entities. See 5 AMERICAN LAW OF TORTS § 17:23. In enacting CALGA, the General
Assembly importantly disclaimed any intent to modify the then-existing
immune status of any local government. Schwindel v. Meade Cnty., 113 S.W.3d
159, 164–65 (Ky. 2003) (citing KRS 65.2001(2)).
KRS 65.2003(3) relevantly mirrors this Court’s holdings on municipal
liability and states that, “[A] local government shall not be liable for injuries or
losses resulting from . . . [a]ny claim arising from the exercise of judicial, quasi-
judicial, legislative or quasi-legislative authority or others, exercise of judgment
28 or discretion vested in the local government[.]” In interpreting KRS 65.2003(3),
this Court has previously stated that the subsection “obviously pertains to
‘claims disallowed’ against municipalities[.]” Schwindel, 113 S.W.3d at 166.
Aside from broadly defining the types of municipal functions deserving of
immunity, KRS 65.2003(3) conveniently includes a non-exhaustive list of
examples:
(a) The adoption or failure to adopt any ordinance, resolution, order, regulation, or rule;
(b) The failure to enforce any law;
(c) The issuance, denial, suspension, revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization;
(d) The exercise of discretion when in the face of competing demands, the local government determines whether and how to utilize or apply existing resources; or
(e) Failure to make an inspection.
KRS 65.2003(3)(a)–(e).
While the statute’s non-exhaustive list of immune actions is indeed
instructive in determining the boundaries of municipal liability, perhaps even
more illuminating is the statute’s explicit caveat that, “Nothing contained in
this subsection shall be construed to exempt a local government from liability
for negligence arising out of acts or omissions of its employees in carrying out
their ministerial duties.” KRS 65.2003(3). This provision makes clear that, to
the extent a municipal employee is performing a ministerial function, the
municipality is not immune from claims arising from the employee’s alleged
29 negligence. Accordingly, to the extent that we have held Lt. Wagoner was
engaging in ministerial functions, and to the extent that Morales alleges Lt.
Wagoner’s negligent performance of those ministerial actions caused his
injuries, the City can be held liable for its employee’s alleged negligence. The
City is not immune from these claims.
Morales finally argues that the City and the GPD are not immune from
his claims of “direct” negligence. Upon our review of the record, it appears that
Morales generally alleges that the City and the GPD each (1) negligently failed
to train their employees in accordance with the General Order’s training
requirements and that (2) they negligently failed to select qualified and
adequately trained individuals to participate in the September 11, 2018,
mission to apprehend Reynolds. Morales’s Complaint specifically alleges that
[t]he GPD breached his [sic] duties as on the Reynolds call-out by failing . . . to have [SRT team members] properly trained, by permitting inadequately trained GPD SRT members to serve on the call-out . . . and by failing to ensure that policies and procedures were known and enforced.
“Despite the general recognition that governmental bodies can act only
through their officers, agents, or employees, courts may distinguish the
tortious acts or omissions of the officers, agents, or employees from acts or
omissions that, independent of the doctrine of respondeat superior, may be
attributed directly to the governmental entity.” 57 AM. JUR. 2D Municipal, etc.,
Tort Liability § 147 (emphasis added). In these instances, a municipality may be
directly liable when the alleged negligent act is “done by the authority and
order of the municipal government or its branches.” Id. Whether the City and
30 the GPD are immune from Morales’s direct negligence claims again turns on
whether his claims arise from their “exercise of judicial, quasi-judicial,
legislative or quasi-legislative authority or others, exercise of judgment or
discretion vested in the local government[.]” KRS 65.2003(3).
Here, it suffices to state that the City’s alleged actions or inactions in this
instance—failing to enforce SRT training requirements and failing to select
qualified employees to respond to an emergency—are exercises in judgment or
discretion vested in the local government, and therefore deserving of immunity.
First, as referenced above, CALGA specifically immunizes municipalities from
liability arising from their adoption of “any ordinance, resolution, order,
regulation, or rule” and likewise from their alleged failure to enforce any of the
laws they have adopted. KRS 65.3002(3)(a)–(b). Second, CALGA immunizes
municipalities from liability arising from their “exercise of discretion when in
the face of competing demands, the local government determines whether and
how to utilize or apply existing resources[.]” KRS 65.2003(3)(d). We interpret
these statutory provisions as broad enough to preclude Morales’s claims that
the City and GPD negligently failed to train the SRT in accordance with their
delineated training requirements and further, failed to select qualified
employees to attempt to apprehend Reynolds.
In the present case, the training of SRT members, the enforcement of the
SRT training requirements, and the ultimate selection of the SRT members who
were called upon to apprehend Reynolds were each exercises in discretion
made during the City’s and the GPD’s consideration of how to best manage and
31 operate the SRT within its finite personnel and resources. These considerations
are inherently discretionary in nature, and therefore cannot be a basis for
liability in this instance because “it is not a tort for government to govern.”
Bolden v. City of Covington, 803 S.W.2d 577, 580 (Ky. 1991) (quoting
RESTATEMENT (SECOND) OF TORTS § 895D cmt. e (Am. L. Inst. 1979)). Accordingly,
summary judgment was appropriate as to these claims.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Court of Appeals
in part, reverse in part, and remand to the Scott Circuit Court for further
proceedings consistent with this Opinion.
All sitting. VanMeter, C.J.; Conley, Lambert and Nickell, JJ. concur.
Thompson, J., concurs in result only. Bisig, J., concurs in part and dissents in
part by separate opinion.
BISIG, J., CONCURRING IN PART AND DISSENTING IN PART. I concur
with much of the well-written Majority Opinion. However, I disagree that the
evidence of record provides any basis on which a jury could find a violation of
either the duty to plan or the duty to train. As such, I would affirm the trial
court’s grant of summary judgment in full.
As to Morales’ claim for violation of the duty to plan, I agree that the
policies and testimony at issue establish Lt. Wagoner had a ministerial duty to
formulate a tactical and operational plan before a call-out. However, I disagree
the evidence could support a jury finding that this duty was violated. As
Morales himself testified, Lt. Wagoner at a minimum assembled the team,
32 instructed them that the plan was to block in the suspect Reynold’s vehicle,
and further directed they would proceed in two teams. Even construed in the
light most favorable to Morales, I would find this testimony sufficient to
establish that Lt. Wagoner complied with his ministerial duty to formulate a
tactical and operational plan before the mission. It is beyond the province of
the judiciary, a judge, or a jury to determine after the fact whether Lt.
Wagoner’s plan was a “good” one or a “bad” one. Moreover, subjecting officers
to potential liability on the basis of such post hoc determinations—made in the
calm of a court room with the benefit of hindsight unavailable to officers on the
street in the heat of a call-out—significantly interferes with the discretion
needed for law enforcement to include flexibility in their planning of missions
and to adapt under the rapidly changing circumstances of each call-out. As
such, I would affirm the trial court’s summary judgment as to the claim for
violation of the duty to plan.
As to the training claim, I agree the relevant policies imposed a
ministerial duty to remove from the team anyone with three unexcused
absences from trainings or call-outs. However, I disagree that the trial court
erred in granting summary judgment against Morales on that claim. While
Morales presented the trial court with evidence regarding a general laxness in
training attendance, documentation, and enforcement, the record reveals no
actual evidence that any member of the SRT was allowed to remain on the
team after having three unexcused absences. In other words, the record is also
devoid of any evidence of an actual violation of the training policies. As such, I
33 would also find the trial court correctly granted summary judgment against
Morales on the training claim, and therefore would affirm the trial court in full.
COUNSEL FOR APPELLANT/CROSS-APPELLEE, JAIME MORALES:
Elliott Clay Miller Thomas Walcutt Miller Elizabeth Catesby Woodford Miller, Griffin & Marks, P.S.C
COUNSEL FOR APPELLEE/CROSS-APPELLANT, LIEUTENANT JAMES WAGONER, INDIVIDUALLY AND IN HIS CAPACITY AS A LIEUTENANT WITH THE GEORGETOWN POLICE DEPARTMENT:
Jason B. Bell Bell, Hess & Van Zant, PLC
COUNSEL FOR APPELLEES, CITY OF GEORGETOWN AND GEORGETOWN POLICE DEPARTMENT:
Maureen Camilla Malles Lyndol Scott Miller Sturgill Turner Barker & Moloney, PLLC
Devon Elise Golden City Attorney, City of Georgetown
COUNSEL FOR APPELLEE, OFFICER JOSEPH ENRICCO, INDIVIDUALLY AND IN HIS CAPACITY AS A DEPUTY WITH THE GEORGETOWN POLICE DEPARTMENT:
Jeffrey Charles Mando Adams Law, PLLC