RENDERED: JULY 12, 2024; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0223-MR
MICHAEL WILSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS FIREFIGHTER APPELLANT
APPEAL FROM HART CIRCUIT COURT v. HONORABLE CHARLES C. SIMMS, III, JUDGE ACTION NO. 20-CI-00083
WESLEY ENGLAND AND KENTUCKY ASSOCIATION OF COUNTIES, WORKERS’ COMPENSATION FUND APPELLEES
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: Michael Wilson appeals from the trial court’s
interlocutory order denying his motion for summary judgment. Wilson, a
volunteer firefighter who drove an ambulance so paramedics and/or emergency
medical technicians could attend to a critically ill patient en route to a hospital, contends he is entitled to immunity for injuries stemming from his driving the
ambulance. For the reasons stated herein, we reverse and remand for entry of an
order dismissing the complaint because Wilson is entitled to qualified official
immunity.
FACTS
On April 9, 2019, emergency personnel from the Horse Cave
Volunteer Fire Department and the Hart County Ambulance Service arrived at a
home in Horse Cave to attend to an infant who was not breathing. The Hart
County Ambulance Service had a contract with the Horse Cave Volunteer Fire
Department to provide “first response, extrication and/or rescue services[.]”
The emergency personnel who arrived at the scene included Horse
Cave volunteer firefighter Wilson. Wesley England, a paramedic or emergency
medical technician (EMT) with the Hart County Ambulance Service, also
responded to the emergency call, accompanied by his partner and a high school
student trainee.1
England determined the infant needed to be transported to the nearest
hospital for evacuation to a hospital in Louisville via helicopter. He needed his
1 The complaint states that England is a paramedic, but the appellee brief states England is an EMT. When asked whether she was in training to become an EMT or something like that at the time of the incident in question, the high school student trainee responded in the affirmative. It is unclear whether England’s professional partner was a paramedic, EMT, or an emergency medical responder (EMR).
-2- partner’s assistance with the infant and the trainee was not allowed to drive the
ambulance. So, Wilson drove the ambulance – whether he was agreeing to a
request, volunteering to drive, or complying with an order, instruction, or
suggestion to do so is not entirely clear from the record before us.2
Wilson did not tell England that he had almost no prior experience
driving an ambulance. Wilson had lived in Horse Cave for a few years at that
point and had a general idea where the hospital was. Wilson had received little to
no training in driving an ambulance, but he admitted that he had been told in
2 Wilson’s and England’s depositions were not included in the record on appeal, nor was the deposition of Horse Cave Fire Chief Donnie Parker. Wilson filed a notice of filing of his own and Parker’s depositions after the trial court entered its order denying Wilson’s summary judgment motion and after Wilson filed his notice of appeal. (Wilson’s notice of appeal was the first thing he filed after entry of the trial court’s order denying him summary judgment; he had not, for example, filed any motions seeking to alter, amend or reconsider the denial of summary judgment.)
Both parties filed designations of record and Wilson’s designation of record specifically requested that all depositions filed of record in the case be included in the record on appeal.
Perhaps the factual summaries in the briefs might suggest that England specifically asked Wilson to drive, and Wilson agreed to do so. Unfortunately, however, we are unable to review the parties’ depositions which were not included in the record.
The student trainee testified in her deposition that England did not specifically ask Wilson to drive but that Wilson did drive after England shouted for someone to drive without England knowing who Wilson was.
Nonetheless, despite any minor disputes about details concerning requests or instructions for Wilson or anyone else to drive or any lack of complete information in this regard, there is no dispute that Wilson drove the ambulance and his driving allowed England and his partner to both attend to the infant in route to the hospital. What matters is that Wilson’s authority to drive the ambulance derives from the contract between the Hart County Ambulance Service and the Horse Cave Volunteer Fire Department.
-3- training to take the fastest, shortest route when operating an emergency vehicle.
There appears to be no dispute that Wilson did not ask for directions to the hospital
and that England did not provide any directions to the hospital.
Wilson took a circuitous route around downtown Horse Cave rather
than taking a more direct and faster route to the local hospital – which was located
a couple of miles from the patient’s home. Wilson even got lost at one point.
Wilson later admitted that, in hindsight, a different route would have been more
direct. (England suggests in his brief that Wilson should have stuck to the main
roads instead of taking back roads and that Wilson admitted to learning in training
to take the fastest, most direct route – however, taking main roads rather than back
roads is not always the same thing as taking the fastest or most direct route.)
In addition to taking a circuitous route, Wilson failed to exercise
caution while approaching stop signs according to some witnesses’ deposition
testimony. For example, off-duty firefighter Perry Martin (Martin), reported being
forced to react quickly to avoid a collision with the ambulance when it ran through
the stop sign at the intersection of Mary Thomas and Maple Avenues. Martin
noted Maple Avenue had the right of way. Martin testified the ambulance had its
lights and sirens on, and the ambulance became airborne when traveling down
Mary Thomas Avenue to cross Maple Avenue. (The trial court order denying
summary judgment says Wilson “disputes that route of travel” identified by Martin
-4- but admitted “an emergency vehicle should pause at a stop sign to request the right
of way.”)
While Wilson was driving the ambulance, England and his partner
were working on the infant in the back of the ambulance as the trainee observed.
England told Wilson to slow down multiple times before the ambulance arrived at
the intersection of Mary Thomas and Maple Avenues where the ambulance became
airborne. England was thrown into the ceiling of the ambulance and broke his
back and suffered a brain injury. The high school trainee was also injured.
Wilson continued the drive to the hospital, some five minutes away.
The infant survived.
England filed suit against Wilson and other defendants.3 The
defendants filed a Motion for Summary Judgment.4 The defendants (including fire
departments and their personnel) argued they were entitled to immunity pursuant to
KRS5 75.070. England opposed the summary judgment motion regarding Wilson,
but he did not oppose the motion regarding the other defendants.
3 The Kentucky Association of Counties intervened as a plaintiff as it paid workers’ compensation benefits to England and sought subrogation. 4 The defendants named in the complaint included the City of Horse Cave, the Horse Cave Fire Department, and the Horse Cave Volunteer Fire Department. The complaint also named as defendants Michael Wilson, individually and in his official capacity as a firefighter; Donnie Parker, individually and in his official capacity as the Horse Cave Fire Chief; and Randall Curry, individually and in his official capacity as Mayor of Horse Cave. 5 Kentucky Revised Statute.
-5- The trial court granted summary judgment in favor of all defendants
except Wilson in June 2022. It allowed England time to complete discovery before
it ruled on the motion for summary judgment regarding Wilson.
In February of 2023, the trial court entered an order denying summary
judgment for Wilson. The trial court noted that England alleged that Wilson
“negligently operated the ambulance and was negligent with his route planning and
execution.” The trial court stated KRS 75.070(1) confers “governmental immunity
to fire departments and qualified official immunity to firefighters engaged in
discretionary functions.” (Quoting Caneyville Volunteer Fire Dep’t v. Green’s
Motorcycle Salvage, Inc., 286 S.W.3d 790, 807 (Ky. 2009)).6 So, the trial court
concluded Wilson would not be entitled to summary judgment if Wilson’s
ambulance driving was a ministerial act rather than a discretionary act. See id. at
808.
Ultimately, the trial court concluded the act of driving an emergency
vehicle was a ministerial act, even if the driver was required to independently
assess the situation and make some decisions about how to proceed. The trial court
6 Although all members of our Supreme Court agreed with the result in Caneyville, the Court was deeply divided on the reasoning for this result. One justice concurred in result only without a separate opinion. Another justice concurred by separate opinion. There was also a concurring in result opinion written by the then-Chief Justice joined by two other justices, and a separate concurring in result opinion written by another justice. See 286 S.W.3d at 812. In short, neither the lead opinion by Justice Scott nor the separate opinions by any other justice garnered the support of a full majority of the Court. The trial court cited Justice Scott’s opinion of the Court.
-6- pointed to the lack of any Kentucky appellate decisions about driving ambulances
but relied upon two appellate decisions about driving police vehicles. See Jones v.
Lathram, 150 S.W.3d 50 (Ky. 2004); City of Brooksville v. Warner, 533 S.W.3d
688 (Ky. App. 2017).
Noting such Kentucky precedent indicating that operation of a police
cruiser was a ministerial act, the trial court stated: “it would be inconsistent to rule
otherwise with an ambulance being used for emergency purposes.” Further stated
by the trial court: “there is clearly evidence that Wilson was not operating the
ambulance in accordance with his duties and training” noting it made this
determination after considering: “(1) that both paramedics allegedly told Wilson to
slow down, and (2) that Martin contends that Wilson failed to stop at a stop sign at
the intersection of Mary Thomas Avenue and Maple Streets.”
Wilson appeals the denial of his summary judgment motion. We
reverse and remand for further proceedings, as the nature of the ambulance driving
at issue here was predominantly discretionary given the largely undisputed facts
here.7
7 Another panel of this Court recently affirmed the denial of summary judgment on qualified official immunity grounds for two emergency responders who allegedly did not comply with local written Standard Operating guidelines requiring use of physical maps and GPS in the ambulance for navigation, but instead used a cell phone application for navigation. This other panel of this Court affirmed the trial court’s ruling that the duty to obey known rules regarding navigation was a ministerial and not discretionary act. Brock v. Hinkel, No. 2022-CA-1330-MR, 2024 WL 994571, at *5-6 (Ky. App. Mar. 8, 2024) (unpublished) (motion for discretionary review now pending in the Supreme Court). However, the manner of driving the ambulance was
-7- STANDARD OF REVIEW
The standard of review concerning summary judgment is “whether the
trial court correctly found that there were no genuine issues as to any material fact
and that the moving party was entitled to judgment as a matter of law.” City of
Brooksville, 533 S.W.3d at 692 (quoting Lewis v. B & R Corp., 56 S.W.3d 432,
436 (Ky. App. 2001)). Further, “[b]ecause summary judgment involves only legal
questions and the existence of any disputed material issues of fact, an appellate
court need not defer to the trial court’s decision and will review the issue de novo.”
Id. (quoting Lewis, 56 S.W.3d at 436).
Determinations concerning the application of statutory grants of
immunity are reviewed de novo. Rowan Cnty. v. Sloas, 201 S.W.3d 469, 475 (Ky.
2006).
ANALYSIS
We May Properly Review Interlocutory Order Denying Summary Judgment on Immunity Grounds, but Must Limit our Review to Questions of Immunity
Typically, an appellate court may entertain only appeals from final
judgments or orders. See Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883,
not at issue. Furthermore, nothing in this record suggests Wilson failed to obey any written policy. Regardless, Brock v. Hinkel is not binding authority, and we do not cite the opinion as precedent. Rules of Appellate Procedure (RAP) 41(A).
-8- 886 (Ky. 2009) (“CR[8] 54.01 limits appealable judgment[s] to final order[s]
adjudicating all the rights of all the parties in an action or proceeding[.]”) (internal
quotation marks omitted). There are, however, certain instances wherein an appeal
may be taken in a matter where there is no final judgment. Id.
The propriety of a trial court’s denying a motion for summary
judgment on immunity grounds is one of those instances in which an appeal from
an interlocutory order is permitted. See Baker v. Fields, 543 S.W.3d 575, 577-78
(Ky. 2018). Because of the unique nature of these appeals, they are limited in
scope to the question of immunity. Id. at 578 (“[A]n appellate court reviewing an
interlocutory appeal of a trial court’s determination of a defendant’s immunity
from suit is limited to the specific issue of whether immunity was properly denied,
nothing more.”). In other words, we do not reach any other issues besides
immunity – for example, we need not address whether the evidence did or could
show that Wilson’s navigation or driving of the ambulance was negligent.
According to our Supreme Court, KRS 75.070(1) Extends Governmental Immunity to Fire Departments, but Only Qualified Official Immunity to Fire Department Personnel
As noted by the trial court, KRS 75.070(1) states fire departments are
entitled to governmental immunity as agents of the Commonwealth.
A municipal fire department, fire protection district fire department, and volunteer fire department and the
8 Kentucky Rules of Civil Procedure.
-9- personnel of each, answering any fire alarms, performing fire prevention services, or other duly authorized emergency services inside and outside of the corporate limits of its municipality, fire protection district, or area normally served by a volunteer fire department, shall be considered an agent of the Commonwealth of Kentucky, and acting solely and alone in a governmental capacity, and such municipality, fire protection district, or area normally served by a volunteer fire department, shall not be liable in damages for any omission or act of commission or negligence while answering an alarm, performing fire prevention services, or other duly authorized emergency services.
Wilson relies on KRS 75.070(1)’s language “and the personnel of
each” to argue immunity is conferred not just upon the entity of a fire department,
but also upon individual fire department personnel. However, the trial court relied
on Justice Scott’s opinion of the Court in Caneyille which held that fire
departments have “governmental immunity” but individual fire department
personnel have only “qualified official immunity” for discretionary acts. See 286
S.W.3d at 807 (opinion of the Court by Justice Scott).
Instead of Justice Scott’s opinion, Wilson urges us to adopt former
Chief Justice Minton’s analysis in his concurring in result only opinion in
Caneyville.9 Chief Justice Minton called for applying KRS 75.070’s plain
9 Based on our review of the record, Wilson argued in writing to the trial court both that he was entitled to the same immunity as the fire department under KRS 75.070 without a need to distinguish between ministerial and discretionary acts and that even if ministerial/discretionary act distinctions must be applied, that his actions were discretionary, and he was entitled to qualified official immunity. Having raised these alternative arguments to the trial court, he preserved both arguments for our review. See Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d
-10- language to extend immunity to all fire department personnel, rather than just
qualified official immunity. And he urged abandonment of difficult-to-apply
requirements to analyze whether acts were discretionary or ministerial. Id. at 813-
84 (Minton, C.J., concurring in result only).
Certainly, a majority of the Kentucky Supreme Court did not fully
join in the opinion of the Court written by Justice Scott, as five members of our
Supreme Court concurred in result only. See id. at 816 (in addition to two other
justices concurring with Chief Justice Minton’s analysis, Justice Abramson
authored a separate concurring in result opinion and Justice Noble concurred in
result only without writing a separate opinion).
Nonetheless, recent published precedent from our Supreme Court
applies the holding from Justice Scott’s Caneyville opinion rather than Chief
Justice Minton’s concurrence in result only. Our Supreme Court recently stated in
Upper Pond Creek Volunteer Fire Department, Inc. v. Kinser, 617 S.W.3d 328
(Ky. 2020): “We further recognized that KRS 75.070 ‘confers governmental
immunity to fire departments and qualified official immunity to firefighters
engaged in discretionary functions.’” Id. at 335 (quoting Caneyville, 286 S.W.3d
at 807 (opinion of the Court by Justice Scott)). And we must follow precedent
705, 734 (Ky. 2009) (issue not raised to the trial court was not preserved for review); MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 331 (Ky. 2014) (“[T]he critical point in preservation of an issue remains: was the question fairly brought to the attention of the trial court.”).
-11- from our Supreme Court, regardless of how we might independently resolve this
immunity determination if we were writing on a blank slate. As stated in SCR10
1.030(8)(a): “The Court of Appeals is bound by and shall follow applicable
precedents established in the opinions of the Supreme Court and its predecessor
court.”
Trial Court Erred in Concluding Wilson’s Ambulance Driving was a Ministerial Act and that Wilson Was Therefore Not Entitled to Qualified Official Immunity
To resolve whether Wilson was entitled to qualified official immunity,
a court must resolve whether the nature of Wilson’s ambulance driving was
predominantly discretionary or ministerial. See Meinhart v. Louisville Metro
Government, 627 S.W.3d 824, 832 (Ky. 2021) (quoting Haney v. Monsky, 311
S.W.3d 235, 240 (Ky. 2010)) (recognizing few acts are solely ministerial or
discretionary so courts must consider the “dominant” nature of the act). See also
Sholar v. Turner, 664 S.W.3d 719, 723 (Ky. App. 2023). Following binding
precedent and considering the evidence of record, we conclude that the trial court
erred in determining Wilson’s ambulance driving to be a ministerial act rather than
a predominantly discretionary act. So, we must reverse the trial court’s denial of
summary judgment in Wilson’s favor.
As the trial court noted, our Supreme Court distinguished ministerial
10 Rules of Supreme Court.
-12- acts from discretionary acts in Autry v. Western Kentucky University, 219 S.W.3d
713 (Ky. 2007). The Court explained that discretionary acts, for which qualified
official immunity exists if the acts were performed in good faith and within the
scope of one’s authority or employment, involve “personal deliberation, decisions
and judgment.” Id. at 717. On the other hand, the Court defined a ministerial act
as “absolute, certain, and imperative, involving mere execution of a specific act
based on fixed and designated facts.” Id. And it noted there is no immunity for
negligently performing ministerial acts. Id.
Though Kentucky courts have long distinguished between
discretionary acts and ministerial acts and frequently applied the distinction in
cases involving police vehicular pursuits,11 there is a paucity of Kentucky
published precedent applying these principles to cases of personal injury resulting
from ambulance driving. The trial court reviewed caselaw concerning
discretionary or ministerial acts, attempting to locate a holding concerning the
driving of an ambulance. The trial court did not locate any Kentucky cases on
point about ambulance driving. But it noted Kentucky appellate court precedent
holding that driving a police car is a ministerial act as “[d]riving is a matter of duty
and training[.]” City of Brooksville, 533 S.W.3d at 694.
11 See, e.g., Meinhart, 627 S.W.3d 824; Mattingly v. Mitchell, 425 S.W.3d 85 (Ky. App. 2013); Jones v. Lathram, 150 S.W.3d 50; City of Brooksville, 533 S.W.3d 688.
-13- Kentucky appellate precedent recognizes that a police officer’s
decision to begin, continue, or terminate a pursuit is a discretionary act unless the
decision to do so is clearly forbidden by controlling specific, imperative, and
absolute requirements in their standard operating procedures. Id. at 694-95 (“An
officer has discretion to decide whether to begin, continue, or end the emergency
pursuit, but not for the way he or she operates the police vehicle during the
emergency pursuit. Driving is a matter of duty and training, and it is not subject to
deliberation or judgment.”). See also Meinhart, 627 S.W.3d at 834 (standard
operating procedures governing Louisville Metro police officers created some
ministerial duties containing “explicit restrictions on initiation and termination of
pursuits which are simple and definite, leaving nothing to the discretion of the
officer” and other duties which were discretionary because although certain factors
should be considered, the officer had to exercise professional judgment how “to
weigh the law enforcement goals and the specific factors of a situation.” The
police officer’s decision to initiate and continue the pursuit was held to be
discretionary since there was nothing indicating the pursuit was absolutely
forbidden by specific standard operating procedures); Mattingly, 425 S.W.3d at 90
(police officer’s decision to initiate and continue pursuit was a ministerial act and
police officer had no qualified official immunity because the pursuit at issue
-14- indisputably violated specific, imperative and absolute directives about pursuits in
Louisville Metro standard operating procedures).
The trial court also discussed Jones v. Lathram, supra, in which a
citizen was killed in a collision with a Kentucky State Police Trooper responding
to an emergency call. 150 S.W.3d 50. The trial court in Lathram granted
summary judgment in favor of the trooper based on immunity and this Court
affirmed. Id. at 51-52. The Administratrix of the citizen’s estate sought
discretionary review, arguing driving is a ministerial function and thus no qualified
official immunity attaches. Id. at 52-53.
Prior to Lathram, our Supreme Court had discussed ministerial and
discretionary acts in Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), as follows:
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. Qualified official immunity applies 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. An act is not necessarily “discretionary” just because the officer performing it has some discretion with respect to the means or method to be employed.
...
Conversely, an officer or employee is afforded no immunity from tort liability for the negligent
-15- performance of a ministerial act, i.e., 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.
Id. at 522 (internal quotation marks and citations omitted).
After reviewing the distinction made between ministerial and
discretionary acts in Yanero, our Supreme Court in Jones v. Lathram determined
the trooper’s act of driving the car in response to an emergency was ministerial,
and thus reversed the grant of summary judgment in the trooper’s favor. 150
S.W.3d at 53-54. Our Supreme Court explained:
We recognize that Lathram independently assessed the situation and responded in a manner that he determined to be appropriate. However, the act of safely driving a police cruiser, even in an emergency, is not an act that typically requires any deliberation or the exercise of judgment. Rather, driving a police cruiser requires reactive decisions based on duty, training, and overall consideration of public safety.
Id. at 53.
Similarly, this Court considered the question of whether a police
officer’s driving in pursuit of a suspect is a ministerial or discretionary act in City
of Brooksville, 533 S.W.3d at 688. Applying the holding of the Supreme Court in
Jones v. Lathram, this Court held that the defendant’s driving a police car during
an emergency pursuit was predominantly ministerial in nature due to controlling
-16- written policies about driving and driving requiring more instantaneous, reactive
decisions rather than true deliberation:
An officer has discretion to decide whether to begin, continue, or end the emergency pursuit, but not for the way he or she operates the police vehicle during the emergency pursuit. Driving is a matter of duty and training, and it is not subject to deliberation or judgment.
City of Brooksville, 533 S.W.3d at 694-95.
The trial court here held Wilson’s driving of the ambulance was
ministerial, interpreting Kentucky precedent about police officers’ driving in
emergency pursuits as requiring this holding. Further, the court noted some
testimony indicating that Wilson did not operate the ambulance “in accordance
with his duties and training” – pointing to testimony about England and his partner
telling Wilson to slow down and to Martin’s testimony that Wilson failed to stop at
a stop sign.
The trial court correctly noted that individual government employees
are not entitled to qualified official immunity when performing ministerial acts.
But it erred in determining that Wilson’s driving the ambulance was ministerial
under the facts here.
Ministerial acts require no discretion and require “only obedience to
the orders of others, or when the [individual’s] duty is absolute, certain, and
-17- imperative, involving merely execution of a specific act arising from fixed and
designated facts.” Yanero, 65 S.W.3d at 522.
While perhaps Wilson did not comply with the instructions of
England and his partner to slow down, no one has pointed to any evidence that
volunteer firefighter Wilson was required to follow any instructions or directives of
the ambulance service personnel. Nor has anyone pointed to any official policy or
controlling law requiring Wilson, given his limited prior experience driving
ambulances, to refuse or decline England’s apparent request or instruction to him
to drive the ambulance, to allow England and his partner to attend to the patient on
the way to the hospital.
While Wilson possibly did not comply with some emergency vehicle
training instructions12 based on any failure to pause at a stop sign, his actions in
driving the ambulance under the largely undisputed facts here were predominantly
discretionary. After all, no one has pointed to any written policy or controlling law
requiring him to use a certain method of navigation when driving the ambulance.
And given the lack of any instructions or directions provided to him for driving the
12 England claims Wilson admitted in his deposition to being trained to pause at intersections or stop signs while driving an emergency vehicle. Again, neither Wilson’s nor England’s depositions are in the record on appeal. In any event, regardless of any admission of training to generally pause at intersections or stop signs while driving an emergency vehicle, no one has pointed to any specific written policy or procedure requiring always stopping or pausing at all intersections or stop signs while driving an ambulance to transport a critically ill patient to a medical facility.
-18- ambulance to the hospital, he had to decide for himself how best to transport the
patient as quickly as possible while also attempting to operate the ambulance in a
manner avoiding injury to others.
As Wilson points out in his appellate briefs, ambulances transporting
patients to medical facilities are exempt from speed limits or other traffic laws
subject to certain conditions pursuant to statute – namely, KRS 189.940.13 But
emergency vehicle drivers must also: “operate the vehicle with due regard for the
safety of all persons using the street or highway.” KRS 189.940(1). Certainly,
KRS 189.940 appears to impose some specific requirements such as usage of
warning lights or sirens to accompany actions such as not stopping at stop signs or
red lights. But KRS 189.940 mainly imposes duties which are predominantly
discretionary in manner – requiring the exercise of discretion rather than
mandating or forbidding a particular action under certain circumstances.
For example, KRS 189.940 does not require an ambulance
transporting a critically ill patient to a medical facility to stop or pause at every red
light or stop sign. Instead, KRS 189.940(2) states an ambulance driver
approaching a red light or stop sign who has given warning of the emergency such
as using warning lights or sirens when transporting a patient to a medical facility:
13 Other statutory provisions regarding emergency vehicles including ambulances are contained in KRS 189.910 through KRS 189.950.
-19- “shall slow down as necessary for safety to traffic, but may proceed past such red
or stop light or stop sign with due regard for the safety of persons using the street
or highway.” (Emphasis added.) In other words, the driver must exercise
discretion to determine if it is necessary to slow down at stop signs or red lights for
traffic safety purposes.
Furthermore, the emergency ambulance driving at issue here is
distinguishable from the act of driving a police vehicle – even police driving in a
pursuit which the officer typically has discretion to begin, continue, or terminate.
A police pursuit involves following another vehicle. Thus, while the pursuit is
ongoing, the police officer does not decide which turns to take or at what speed –
instead he/she would simply be tracking another vehicle. However, like the
instance at hand, an ambulance taking an ill or injured patient to a hospital must
obviously chart its own course, not following another vehicle, and the ambulance
driver must make his/her own decisions about route, speed, and any stops or
pauses.
Additionally, while a police officer in pursuit is presumed to be
doing so in an effort to thwart further crime, the end result of that pursuit may or
may not result in the desired effect. Whereas the ultimate outcome for a critical
patient in an ambulance can be directly related to the efforts of the ambulance
-20- driver’s decisions regarding speed, route, slowing or stopping for traffic control
devices, reaction to other drivers on the road, etc.
In sum, a volunteer firefighter driving an ambulance to a hospital in
an emergency is distinguishable from a police officer’s driving in pursuit and so
precedent holding police driving to be a ministerial act is not applicable here.
Given the predominantly discretionary nature of Wilson’s ambulance driving under
the facts of this case, we conclude the trial court erred in determining Wilson’s
ambulance driving was a ministerial act rather than a predominantly discretionary
act.14
As Wilson’s driving the ambulance was a predominantly discretionary
act, Wilson must be afforded qualified official immunity so long as he acted in
good faith and in the scope of his authority. See Sholar, 664 S.W.3d at 725 (“For
the Officers to be entitled to qualified official immunity, they must also meet the
remaining two prongs of Yanero. Summary judgment is proper only if there is no
evidence the Officers’ actions were not made in bad faith and were within the
scope of their authority.”). See also Caneyville, 286 S.W.3d at 810 (opinion by
Justice Scott referring to Yanero’s requirement that the individual defendant was
14 Though we disagree with the trial court’s ultimate ruling, we recognize the difficulty of ruling on the novel issues here in the absence of prior controlling Kentucky precedent on immunity for ambulance driving. We appreciate the trial court’s efforts to carefully consider the evidence before it and to apply prior precedent to the facts before it.
-21- acting in good faith to be afforded qualified official immunity for discretionary
actions, but noting the complainant has the burden to allege and present evidence
of bad faith).
England argues in his brief that even if Wilson’s actions were
discretionary, Wilson is not entitled to qualified official immunity because his
actions were in bad faith and/or outside his scope of authority. Naturally, the trial
court did not consider whether Wilson’s actions were in bad faith or outside the
scope of authority since it considered Wilson’s actions to be ministerial rather than
discretionary and there is no immunity for negligent performance of ministerial
acts. See, e.g., Yanero, 65 S.W.3d at 522.
England contends that Wilson’s actions in driving the ambulance were
outside the scope of his authority. Specifically, in his brief, he asserts Wilson’s
“actions in failing to listen to the EMTs [sic] orders to slow down prior to the
incident could be construed as operating beyond his authority as he violated a
clear, binding, and mandatory instruction from a supervisor (to slow down) . . . .”
But again, no one has pointed to any evidence (such as written policies or contract
provisions) that Wilson, as a volunteer firefighter, was required to obey commands
or instructions of paramedics, EMTs, or other ambulance service personnel.
Instead, the contract between the ambulance service and the volunteer
fire department simply calls for fire department personnel to assist with first
-22- response, extrication, or rescue operations. And it appears undisputed that
volunteer Wilson arrived at the ill infant’s home as one of the first responders.
Therefore, it appears that Wilson established a prima facie case that he was acting
in the scope of his authority in arriving at the scene and in trying to assist the
ambulance service personnel. See Yanero, 65 S.W.3d at 523 (“Once the officer or
employee has shown prima facie 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 was not performed in
good faith.”). See also Sholar, 664 S.W.3d at 725 (“It is also clear the Officers
were acting within the scope of their authority. They were uniformed officers, on
duty, in marked patrol cruisers, responding to a report of a motor vehicle
accident.”).
We cannot agree that Wilson’s actions were outside the scope of his
authority for the reasons stated in England’s appellee brief. England has not
pointed to any evidence which demonstrates that Wilson’s navigation and driving
of the ambulance was outside the scope of his authority or employment – such as
terms of employment forbidding Wilson from driving an ambulance without a
particular training program or provisions in the contract between the fire
department and the ambulance expressly forbidding firefighters from driving
ambulances unless they also had certain certifications such as being an EMT or
-23- EMR. Nor has anyone argued that the contracted-for first response, extrication,
and rescue duties of volunteer firefighters under the contract with the ambulance
service expressly exclude such firefighters from driving an ambulance during
efforts to provide life-saving intervention to critically ill patients.
England argues in his appellee brief that Wilson acted in bad faith
because, in his view, Wilson’s numerous violations of training instructions (such as
not taking the fastest or most direct route or not pausing at intersections) and his
apparent unwillingness to comply with instructions to slow down show “a reckless
disregard for the safety of his passengers and authority in general . . . .” England
does not cite to the record to show where he raised this argument to the trial court,
and in any event, “reckless disregard” is the not the standard for showing bad faith
in this context.
Certainly, it was England’s burden to allege and prove bad faith. See
Yanero, 65 S.W.3d at 523. And to do so, he would have to demonstrate that
Wilson acted with a willful or malicious intent to harm others, a corrupt motive, or
at least constructive knowledge that his actions violated the constitutional statutory
or other clearly established rights of other people:
The Court in Yanero states “in the context of qualified official immunity, ‘bad faith’ can be predicated on a violation of a constitutional, statutory, or other clearly established right which a person in the public employee’s position presumptively would have known was afforded to a person in the plaintiff’s position, i.e., objective
-24- unreasonableness; or if the officer or employee willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive.” 65 S.W.3d at 523.
It is [plaintiff] Turner’s burden to show that the Officers were acting in bad faith. Sloas, 201 S.W.3d at 475. This contention must first have been made to the circuit court and further preserved for this appeal.
Sholar, 664 S.W.3d at 725.
While Wilson’s choice of route and driving may seem far from ideal
in hindsight (even to Wilson), England has pointed to no evidence that Wilson
knew or should have known he was violating anyone’s constitutional, statutory, or
other clearly established rights. Nor has he pointed to any evidence that Wilson
“willfully or maliciously intended to harm the plaintiff or acted with a corrupt
motive.” Despite any flaws in Wilson’s driving or route choice, no one has
pointed to any evidence of any malicious intent or corrupt motive on the part of
this volunteer firefighter trying to help in an extremely time-sensitive, life –
threatening emergency by driving an ambulance to allow medical personnel to
attend to the critically ill child in route and attempting to arrive at the hospital as
quickly as possible. The fact that his route choice and driving quality do not seem
ideal in hindsight does not change the discretionary nature of his actions nor a lack
of bad faith as defined in this context. See Meinhart, 627 S.W.3d at 835 (“[I]t is
not in the public’s interest to allow a jury of laymen with the benefit of 20/20
hindsight to second-guess the exercise of a police officer’s discretionary
-25- professional duty. Such discretion is no discretion at all.”). See also Sholar, 664
S.W.3d at 724 (“The decision about exercise of discretion requires consideration of
what the Officers knew at the time, not what hindsight would show.”).
Furthermore, though we decline to discuss at length non-binding
precedent from our sister state courts which do not address the Kentucky precedent
and statutes we consider here, the Georgia Court of Appeals aptly summed up
good policy reasons for recognizing ambulance driving in an emergency as a
discretionary act and extending immunity to drivers acting in good faith and within
the scope of their authority:
[T]he process of driving the ambulance in responding to the emergency situation was discretionary and not ministerial. Driving during an emergency response is not a “relatively simple, specific duty.” The mechanical application of certain traffic rules is suspended. Personal judgment is involved in determining how best to proceed. For instance, [the ambulance driver] deposed that in choosing the route, “[y]ou want to avoid crowds and traffic where you can, but you don’t want to go so far out of your way that you prolong your arrival time.” Because the emergency response was a discretionary task, [the ambulance driver’s] alleged negligence during the response does not expose him to personal liability.
Smith v. Bulloch Cnty. Bd. of Comm’rs, 261 Ga. App. 667, 669, 583 S.E.2d 475,
477 (2003) (footnote omitted). Further arguments in the parties’ briefs which are
not discussed herein have been determined to lack merit or relevancy to our
resolving this appeal.
-26- CONCLUSION
The trial court erred in concluding that Wilson’s ambulance driving
was a ministerial rather than a predominantly discretionary act. And based on the
record before us, Wilson made a prima facie case that he acted within the scope of
his authority and England did not present evidence that Wilson acted in bad faith
as defined in this context by Kentucky precedent. Therefore, Wilson is entitled to
qualified official immunity. We thus reverse the trial court’s denial of Wilson’s
motion for summary judgment and remand for entry of summary judgment in his
favor and dismissal of the complaint against him.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE WESLEY ENGLAND: Matthew P. Cook Bowling Green, Kentucky Timothy L. Stevenson Bowling Green, Kentucky
-27-