RENDERED: MARCH 22, 2024; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0439-MR
MARK EDWARD PORTWOOD APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE DIANE MINNIFIELD, JUDGE ACTION NO. 17-CI-03892
DOWELL HOSKINS-SQUIER; ALBERT MILLER; CASEY KAUCHER; DEREK PAULSEN; DOUGLAS BURTON; JEFFREY NEAL; KEITH LOVAN; MARK FEIBES; ROBERT BAYERT; ROGER T. MULVANEY; AND WALTER HALL APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.
CETRULO, JUDGE: On October 31, 2016, Appellant Mark Portwood
(“Portwood”), a pedestrian, crossed Clays Mill Road in Lexington at the
intersection of Blue Ash Drive. He was struck by a motorist and suffered serious injuries. There were no crosswalks in that area of Clays Mill Road at that time. A
few weeks prior to the accident, the local authorities had approved and
subsequently installed a crosswalk at Rosemont Garden and Clays Mill Road,
about 1,200 feet from where Portwood was struck.
On October 30, 2017, Portwood sued Lexington Fayette Urban
County Government (“LFUCG”) and individual employees for negligence in
causing his injuries. The Complaint alleged that LFUCG, and certain individual
employees with LFUCG (“Appellees”), had previously determined that pedestrian
crosswalks were needed at or near the area where Portwood was injured, but that
they had failed to install them. In response to the lawsuit, LFUCG and its
employees moved the trial court to dismiss the action on grounds of immunity.
The trial court granted the motion to dismiss all claims, and the matter was
appealed to this Court in 2020.
In the prior appeal, this Court initially affirmed the trial court’s
dismissal of all claims. Portwood by and Through Schmelz v. LFUCG, No. 2018-
CA-001210-MR, 2020 WL 1332982, at *8-9 (Ky. App. Mar. 20, 2020). Portwood
then filed a petition for rehearing, which this Court granted, and withdrew the
previous opinion. In the revised opinion, this Court upheld the grant of summary
judgment in favor of LFUCG and the LFUCG employees acting in their official
capacities on the basis of sovereign immunity. Portwood by and Through Schmelz
-2- v. LFUCG, No. 2018-CA-001210-MR, 2020 WL 4725958, at *5 (Ky. App. Aug.
14, 2020). However, the final opinion remanded the matter to the trial court to
allow “limited discovery regarding whether the LFUCG employees, acting in their
individual capacities, are entitled to qualified official immunity pursuant to Yanero
v. Davis, 65 S.W.3d 510 (Ky. 2001), and for further proceedings following the trial
court’s resolution of that issue.” Id. at *1. The Supreme Court denied
discretionary review, and the matter returned to the trial court for further
proceedings.
The trial court then entered an order allowing for discovery as
directed by this Court. It appears that there are no further complaints of
insufficient discovery opportunity. In early 2023, the individual defendants moved
again for summary judgment on grounds of qualified official immunity. On
March 28, 2023, the trial court granted the motion for summary judgment,
specifically ruling that the actions or failure of the LFUCG employees to install a
crosswalk was discretionary and thereby entitled them to qualified immunity. The
court further held that any delay in construction of the crosswalk was not the
proximate, legal cause of the accident which caused Portwood’s injuries as he was
not struck at that location:
Taking [Portwood’s] March 13, 2023 affidavit as true, even if [LFUCG’s] failure to construct a crosswalk at the Clays Mill/Lane Allen/Rosemont Garden intersection was the but-for cause of [Portwood’s] injuries, the Court does
-3- not see it as appropriate to hold [LFUCG] liable for an accident which occurred at a different intersection nearly a quarter of a mile (approximately 1200 feet) away.
This appeal followed.
STANDARD OF REVIEW
We review summary judgments to determine whether the trial court
properly found that there were “no genuine issues of material fact” and that “the
moving party is entitled to judgment as a matter of law.” Carter v. Smith, 366
S.W.3d 414, 419 (Ky. 2012) (citation omitted). “Because no factual issues are
involved and only a legal issue is before the Court on the motion for summary
judgment, we do not defer to the trial court and our review is de novo.” Univ. of
Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013) (citation omitted).
ANALYSIS
“[P]ublic officers and employees are entitled to ‘qualified official
immunity’ for negligent conduct when the negligent act or omissions were (1)
discretionary acts or functions, that (2) were made in good faith . . . and (3) were
within the scope of the employee’s authority.” Rowan Cnty. v. Sloas, 201 S.W.3d
469, 475 (Ky. 2006) (citation omitted), as corrected (Sep. 26, 2006).1
Discretionary acts have been defined as “those involving the exercise of discretion
1 Portwood addresses only steps 1 and 2. As such, we address only those elements.
-4- and judgment, or personal deliberation, decision, and judgment[.]” Id. at 477
(citing Yanero, 65 S.W.3d at 522).
“Conversely, no immunity is afforded for the negligent performance
or omissions of a ministerial act, or if the officer or employee willfully or
maliciously intended to harm” another. Id. at 475 (citing Yanero, 65 S.W.3d at
523). “[A] duty is ministerial when the officer’s duty is absolute, certain, and
imperative, involving merely execution of a specific act,” i.e., where the employee
“has no choice but to do the act.” Patton v. Bickford, 529 S.W.3d 717, 724 (Ky.
2016) (internal quotation marks and citations omitted), as modified on denial of
rehearing (Aug. 24, 2017).
Recently, the Supreme Court provided additional guidance for
analyzing a qualified official immunity claim involving public employees. In
Meinhart v. Louisville Metro Government, 627 S.W.3d 824, 829-30 (Ky. 2021),
the Court stated that
[w]e recognize trial courts must make certain factual findings when deciding a party’s entitlement to qualified official immunity, and a modicum of discovery may be necessary before the court can reasonably make the determination. Those findings should be complete enough to enable adequate appellate review but must necessarily be limited to the very narrow issues required to determine if immunity is applicable, including the actor’s status as a government official; the ministerial/discretionary distinction; if the act was ministerial, was the actor negligent; and, if the act was discretionary, was it done in good faith and within the
-5- scope of the officer’s authority. However, the question of immunity is one of law that involves no disputed facts. Thus, examining the pertinent rule, policy, or regulation governing the challenged conduct is all that is necessary to make the characterization.
In Portwood’s prior appeal to this Court, the panel concluded, upon
rehearing, that discovery was necessary before the trial court could reasonably
make the determination and render factual findings of whether these individual
employees were entitled to immunity. Portwood by and Through Schmelz v.
LFUCG, No. 2018-CA-001210-MR, 2020 WL 4725958, at *1 (Ky. App. Aug. 14,
2020). On remand, the trial court permitted discovery to proceed, and nearly all of
the individual employees were deposed. Each LFUCG employee submitted a copy
of his or her job description. Appellees argued below that nothing in their
respective job duties, nor in any ordinance, statute, or regulation imposed a duty
upon any of them to install any crosswalk on Clays Mill Road.
In contrast, Portwood argued that the employees were on notice of the
dangerous pedestrian area where the collision occurred and that they had
determined that pedestrian crosswalks, crosswalk markings, pedestrian signs, or
support poles were necessary near the area where the collision occurred, but that
they failed to implement that decision. In support, Portwood presented a 2002
safety benefit study LFUCG had conducted that recommended installing
crosswalks. Additionally, local citizens had requested installation of crosswalks.
-6- Discovery confirmed that LFUCG decided to install crosswalks at Rosemont
Garden2 in early October 2016. A purchase order to do so was signed on
October 27, and a work order was issued on October 31, 2016. Tragically,
Portwood was injured on that very same date. Crosswalk markings and signals
were installed at the Rosemont Garden intersection a few weeks later in November
2016.
Portwood argues that the fact that these individual employees were on
notice of potential safety concerns created a ministerial duty for them to install
crosswalks and pedestrian controls. Relying on City of Frankfort v. Byrns, 817
S.W.2d 462 (Ky. App. 1991), Portwood also asserts that once the decision to
design or construct something has been made, carrying out subsequent action to
complete the project is a ministerial duty for which a local government may incur
liability. However, we conclude that Portwood misconstrued Byrns.
In Byrns, the plaintiffs sued the City of Frankfort after a drainage
ditch flooded their property. Byrns, 817 S.W.2d at 463. The city then “elected to
enlarge the capacity of its existing drainage system”; however, “[n]otwithstanding
the subsequent changes to the system, more flooding” and damage occurred at the
plaintiffs’ property. Id. This Court ruled that once the city made the decision to
2 Again, this location was approximately 1200 feet from the location of Portwood’s accident.
-7- design and construct the system (a discretionary action), its subsequent actions in
designing and building the system were ministerial. Id. at 464.
However, here, there is no evidence that a decision was ever made to
install safety controls or crosswalks at the site of Portwood’s accident. Portwood
claims that LFUCG’s failure to install the Rosemont Garden crosswalk “on time,”
was ministerial and caused his accident. However, LFUCG’s decision to install
nearby crosswalks at Rosemont Garden was not made until a few weeks before the
accident. And the record reflects that less than 30 days elapsed from the decision
to make crosswalk improvements at Rosemont Garden and the completion of that
project. Although Portwood attempts to compare this to Byrns, we are not
persuaded. Most importantly, LFUCG never decided to install crosswalks at the
site of Portwood’s accident. Moreover, Byrns dealt with alleged negligent design
and construction of the sewage system improvements after the resources were
appropriated and the project was completed. Id. at 464. That is not the case here.
Likewise, this Court has held that decisions such as this – whether to place
or install safety measures on specific portions of roads – are discretionary acts
entitled to qualified immunity. Est. of Clark ex rel. Mitchell v. Daviess Cnty., 105
S.W.3d 841, 846 (Ky. App. 2003). In Clark, our Court distinguished between
actions taken to maintain or remove signs or guardrails and actions determining
whether to install them. Id. There,
-8- the members of the Daviess County Fiscal Court (in conjunction with the engineers, road foreman, and sign director) had undertaken a comprehensive scheme to evaluate and to maintain county roadways. There was considerable testimony regarding the methods by which roadways were inspected and how recommendations were made for action to be taken. Key decision-makers recounted that they contemplated and balanced public policy factors and weighed budgetary concerns.
Id. at 845.
Ultimately, a recommendation that a guardrail be installed “had been
submitted, considered, and specifically rejected.” Id. Thereafter, an individual
was allegedly injured due to the failure to install a guardrail. Id. The Court found
that the evidence supported that these were discretionary decisions that entitled the
decision makers to immunity. Id. See also Bolin v. Davis, 283 S.W.3d 752, 759
(Ky. App. 2008) (citation omitted) (holding a decision not to install a proper
warning sign or guardrail constituted an exercise of discretion and was therefore
not a ministerial act).
However, here – just as in Clark – there was evidence that the
officials made a discretionary decision not to install a crosswalk at the site of
Portwood’s accident based on various fiscal factors, other road plans, and
geographic considerations. See Clark, 105 S.W.3d at 845. As such, “[n]o
evidence supports the contention that the decision was a matter of routine
involving no policy-making decision or significant judgment.” See id.
-9- Similarly, in Greenway Enterprises, Inc. v. City of Frankfort, 148
S.W.3d 298, 301 (Ky. App. 2004), we rejected a theory that the city employees
could be held liable for alleged delay in approval of sewer hookups, to a
development area that did not have service. There, we held that there was no duty
owed to the developers until the city approved service, and then it would have a
duty to provide adequate service and maintenance. Id. at 302 (emphasis added).
Portwood also relies on LFUCG v. Smolcic, 142 S.W.3d 128 (Ky.
2004), which addressed maintenance of traffic control devices. While this case has
somewhat similar facts, the LFUCG employees in Smolcic were sued when
pedestrians were struck while crossing a roadway with installed crosswalks.
Smolcic, 142 S.W.3d at 130-31. The trial court dismissed the claims against them,
concluding that the allegations against the employees concerned discretionary acts
and, thus, they were entitled to qualified official immunity. Id. This Court
“reversed the trial court based on its conclusion that the acts of the individual
employees clearly fall within the definition of ministerial function as set out by the
Supreme Court in Yanero v. Davis.” Id. at 136 (internal quotation marks omitted).
And the Supreme Court agreed that “[g]enerally, the maintenance of traffic-control
devices is a ministerial function.” Id. (citing Clark, 105 S.W.3d at 846 and
Shearer v. Hall, 399 S.W.2d 701, 704 (Ky. 1965), as modified on denial of
rehearing (Mar. 25, 1966)).
-10- In Smolcic, the traffic controls had already been installed and the
claim was for failure to maintain them. Id. Thus, the Court held “that the trial
court erred as a matter of law in concluding that the allegations against the
individual employees consisted entirely of discretionary acts.” Id. Further, the
Court remanded the matter because the record did not sufficiently establish
“which, if any, of the individual employees had the duty to maintain the traffic-
control devices.” Id.
Importantly, here, Portwood’s claim does not include an allegation of
a failure to maintain. Rather, Portwood asserts that certain employees should have
required installation of pedestrian crosswalks earlier. However, it was not
established that any of these individuals had any duty to do so. As such, we do not
find Smolcic to be persuasive here.
Additionally, as Meinhart directed, “examining the pertinent rule,
policy, or regulation governing the challenged conduct is all that is necessary to
make the characterization.” Meinhart, 627 S.W.3d at 830. Here, however, we find
no statute, administrative regulation, rule, or ordinance that required installation of
crosswalks. Portwood argued below that such a duty was created by Kentucky’s
adoption of the Manual on Uniform Traffic Control Devices for Streets and
-11- Highways (“MUTCD”).3 Secondarily, Portwood asserted that a duty is created
under the American Association of State Highway and Transportation Officials
(“AASHTO”)4 standards and guidelines to provide safe pedestrian crosswalks in
the area where the collision occurred. However, while these guidelines describe
the application of traffic control devices once they are installed, they do not create
a legal duty requiring installation at any particular location. MUTCD Section
1A.09. Instead, our precedent leaves that decision to the discretion of the proper
authority. See Meinhart, 627 S.W.3d 824. Portwood’s position would mean that
whenever future infrastructure plans are discussed – and until they are completed
and actually installed – public servants could be held liable for any injuries
resulting during that interim period. This position is not warranted by our case
law. Indeed, as such projects generally take a number of years to design, fund and
3 Kentucky has adopted the MUTCD, which requires the Department of Highways to promulgate and adopt a manual of standards for control of traffic devices and the MUTCD, by regulation, is the standard for all traffic control devices installed on any roads throughout the Commonwealth. The MUTCD provides that traffic control devices, advertisements, announcements, and other signs or messages within the highway right-of-way shall be placed only as authorized by a public authority or the official having jurisdiction, for the purpose of regulating, warning, or guiding traffic. MUTCD, Section 1A.08. Although not binding, as an unpublished opinion, this Court has held that the MUTCD does not create “a duty requiring installation of a traffic control device at any particular location.” Est. of Morris v. Smith, No. 2012-CA-001503-MR, 2014 WL 1998726, *4 (Ky. App. May 16, 2014). We find such holding persuasive here.
4 AASHTO is a non-profit, non-partisan association representing highway and transportation departments throughout the country and promoting the development, operation, and maintenance of an integrated national transportation system.
-12- then complete, such a position could have catastrophic effects on local
governments and public servants across the Commonwealth.
Our review of the caselaw convinces us that a distinction exists
between when a duty has already been created and when public officials are
determining whether to make a certain decision. These cases reinforce that
immunity may be lost when a duty is already created and then the public official
fails to perform their duty to maintain or otherwise acts negligently in removing
signs or guardrails. However, here, there was no such duty upon the Appellees to
install a crosswalk.
We find no error in the trial court’s decision that these individual
employees were acting in a discretionary manner when determining whether, and
when, to place crosswalks on Clays Mill Road. We cannot turn a blind eye to the
realities of such discretionary decision, which still requires engineering studies,
funding analysis and procurement, and execution. The fact that the decision was
made to install a crosswalk 1,200 feet from the location of the accident before
Portwood was injured does not transform the decision from discretionary to
ministerial nor require that it be effectuated overnight. As such, LFUCG and its
employees had made only discretionary decisions.
However, finding that the acts were discretionary does not end the
inquiry. Yanero also requires that the discretionary acts be “in good faith; and
-13- . . . within the scope of the employee’s authority.” Yanero, 65 S.W.3d at 522
(citation omitted). Once the employee has shown “that the act was performed
within the scope of his/her discretionary authority, the burden shifts to the plaintiff
to establish by direct or circumstantial evidence that the discretionary act [or
omission] was not performed in good faith.” Id. at 523.
On appeal, Portwood alleges that there was an absence of good faith
because the employees ultimately decided to implement pedestrian controls and
install a crosswalk 1,200 feet away from the site of his accident, just prior to the
collision. If a public officer or employee willfully or maliciously intended to harm
the plaintiff or acted with a corrupt motive, he acts in “bad faith,” and is not
entitled to qualified official immunity. Sloas, 201 S.W.3d at 481. However,
Portwood produced no evidence that LFUCG or its employees intended to harm
him or acted with a corrupt motive.
In Sloas, a deputy jailer was sued over his supervision of prisoners on
a roadside clearing project when an inmate was injured. Id. at 473. The Supreme
Court held that the jailer’s “primary decision, which was purely discretionary, was
[whether] to use the work program at all.” Id. at 484. Additionally, the Court
found there was “simply no ‘bad faith’ shown by [the jailer’s] involvement and
actions, as ‘[t]he power to exercise an honest discretion necessarily includes a
power to make an honest mistake of judgment.’” Id. (citation omitted).
-14- Similarly, here there was no evidence that any of the LFUCG
employees had any subjective intent to harm Portwood. Likewise, despite a great
deal of discovery, there was no evidence that any employee violated a clearly
established obligation to install a crosswalk. Nevertheless, Portwood argues a
study indicated additional crosswalks in the area would be beneficial. However,
the fact that a prior study made such a recommendation does not constitute
evidence of bad faith by LFUCG or the individual officers or employees. As
recognized by many courts, fear of being sued, particularly for not yet performing
a discretionary act, would “dampen the ardor of all but the most resolute, or the
most irresponsible [public officials], in the unflinching discharge of their duties.”
Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d
790, 810 (Ky. 2009) (citing Crawford-El v. Britton, 523 U.S. 574, 591 n.12, 118 S.
Ct. 1584, 140 L. Ed. 2d 759 (1998)). Therefore, LFUCG did not act in bad faith.5
Finally, Portwood argues that the trial court erred by further
determining as a matter of law that the subsequent installation of a crosswalk at the
Rosemont Garden intersection of Clays Mill Road was not a proximate cause of
the pedestrian/auto accident that injured Portwood. Portwood’s evidence consisted
of an affidavit that he would have walked approximately 1,200 feet away from
5 As noted, Portwood does not raise an argument regarding whether the alleged action (or inaction) was within the scope of LFUCG employees’ employment. As such, our analysis ends here.
-15- where he was injured if the Rosemont Garden crosswalk had been installed prior to
his accident. Portwood argues that proximate cause is an issue best left for the
jury; therefore, summary judgment was inappropriate. Appellees respond,
however, that proximate cause is an issue of law to be decided by the court, citing
Patton, 529 S.W.3d at 731.
In Patton, the Supreme Court explained that “[p]roximate causation
captures the notion that, although conduct in breach of an established duty may be
an actual but-for cause of the plaintiff[’]s damages, it is nevertheless too attenuated
from the damages in time, place, or foreseeability to reasonably impose liability
upon the defendant.” Patton, 529 S.W.3d at 731. Here, the trial court clearly held
as a matter of law that there was no breach of an established ministerial duty, and
that the acts complained of were, in fact, discretionary, therefore, entitling the
employees to qualified immunity. The trial court further noted that it would not be
appropriate to hold these individuals liable for an accident that occurred at a
different intersection nearly a quarter of a mile away. However, this was an
alternative basis for summary judgment, “even if it were determined that any of the
defendants owed a ministerial duty or acted in bad faith[,]” which the trial court
did not find. Thus, finding no error in those rulings, and no breach of a duty, we
need not address whether Portwood’s damages were too attenuated from the
-16- alleged failure to construct a crosswalk until after these events occurred. See id. at
731.
For the foregoing reasons, we affirm the judgment of the Fayette
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Sandra M. Varellas Evan P. Thompson D. Todd Varellas Carlos Ross Lexington, Kentucky Lexington, Kentucky
-17-