Morris Copley v. Spencer Branham, a Minor, by and Through His Next Friend, Avenelle Shaffer

• Court: Court of Appeals of Kentucky
• Decided: November 22, 2024
• Docket: 2023-CA-1488
• Status: Unpublished

Opinion

RENDERED: NOVEMBER 22, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1488-MR

MORRIS COPLEY; CHRIS NEACE; MARK FANNIN; MIKE SHORT; SETH LAUFFER; AND ZACH LUKINS APPELLANTS

APPEAL FROM JOHNSON CIRCUIT COURT v. HONORABLE JOHN K. HOLBROOK, JUDGE ACTION NO. 21-CI-00232

SPENCER BRANHAM, A MINOR, BY AND THROUGH HIS NEXT FRIEND, AVENELLE SHAFFER APPELLEE

OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

** ** ** ** **

BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.

COMBS, JUDGE: This case arises in the tort of negligence and explores the

parameters of the doctrine of qualified official immunity within the context of volunteer high school coaching activities. Zach Lukins, Mike Short, Mark Fannin,

Chris Neace, and Seth Lauffer appeal an interlocutory order of the Johnson Circuit

Court entered on December 6, 2023. In its order, the trial court concluded, in part,

that these defendants, volunteer interscholastic football coaches, were not entitled

to invoke the immunity from legal liability shielding government officials and

employees. Consequently, it denied their motion for summary judgment.

In an interlocutory order entered on November 3, 2023, the trial court

concluded that Morris Copley, the school district’s athletic director, was entitled to

absolute immunity with respect to the tort action brought against him in his official

capacity. Nevertheless, Copley joins the appeal contending that he is entitled to

qualified official immunity with respect to the action brought against him in his

individual capacity.

After our review, we affirm in part and remand in part the trial court’s

order concerning the volunteer coaches. We reverse and remand with respect to its

order concerning Copley in his individual capacity.

In September 2021, Spencer, a minor, by and though his next friend,

Avenelle Shaffer, filed a civil action against Lukins, Short, Fannin, Neace, Lauffer,

Copley, and others not pertinent to this appeal. In his complaint, Spencer alleged

that he suffered injuries on the football practice field while under the supervision

of the athletic director and his football coaches, each of whom was an “agent

-2- and/or employee of the Paintsville Independent School District.” Specifically,

Spencer alleged that each defendant breached the duty to exercise reasonable care

for his safety and well-being by failing to ensure that he was wearing a properly

fitted football helmet. The defendants answered and denied liability. They also

asserted that they were immune from suit. A period of discovery began.

In August 2023, Lukins, Short, Fannin, Neace, and Lauffer joined

with other defendants in a motion for partial summary judgment. They argued that

as volunteer coaches of the elementary and middle school football teams, they

were “affiliated” with the school district and that each of them was immune from

suit on the basis of absolute official immunity. In his response, Spencer argued that

summary judgment could not be granted by the court on this basis because

governmental immunity does not extend to “parents who may be present at

practice or individuals involved with the team in a volunteer capacity.” He

contended that the defendants “have put forth no evidence of what [sic]

individuals, if any, are employees” of the school district.

In an order entered November 3, 3023, the trial court denied the

motion for partial summary judgment, noting that “there is not enough evidence in

the record to have the required certainty as to the role these Defendants played as

employees and/or agents” of the school district. However, with respect to Copley,

the school district’s athletic director, the court determined that principles of

-3- absolute immunity applied. Copley was granted summary judgment with respect

to the negligence claims asserted against him, a government employee, in his

official capacity.

On November 9, 2023, Lukins, Short, Fannin, Neace, Lauffer, and

Copley filed a motion for partial summary judgment on the basis of qualified

official immunity. The coaches contended that their conduct involved the exercise

of discretion (i.e., establishing a proper fit for the child’s football helmet) and that

they were, thereby, shielded from liability. In the alternative, each coach argued

that he was entitled to immunity provided by relevant statutory provisions aimed at

protecting volunteers from damages based upon their negligent acts. Finally, the

coaches asked the court to revisit its denial of their motion for summary judgment

based on principles of absolute official immunity. They argued that even if their

conduct was negligent, it was undertaken by each of them pursuant to his duties as

an agent of the school board and was not actionable. Copley argued that the

allegations against him individually involved the exercise of his discretionary

duties as athletic director of the school district.

On December 4, 2023, Lukins, Short, Fannin, Neace, and Lauffer

filed a notice of interlocutory appeal to this Court. They sought to appeal the

circuit court’s initial order entered November 3, 2023, denying their motion for

-4- summary judgment on the basis of absolute official immunity. This appeal was

docketed and designated No. 2023-CA-1412-MR.

In its order entered on December 6, 2023, the trial court denied the

second motion for summary judgment. It determined that the coaches could not

rely upon qualified official immunity principles, reasoning that the lack of ensuring

that a child’s football helmet is properly fitted according to established safety

standards is primarily ministerial in nature. Moreover, it accepted their

representation that they were acting merely as volunteers. The court concluded

that the volunteers are not entitled to governmental immunity -- as a matter of law -

- because they are not district employees or officials. With respect to Copley, the

athletic director, the trial court concluded that he had a duty to ensure that

guidelines for the fitting of football helmets were followed and also that this was a

ministerial duty. Thus, the court held that Copley was not entitled to qualified

official immunity. The court did not address the volunteers’ assertion that specific

state and federal statutory provisions granted them immunity.

On December 13, 2023, this court directed Lukins, Short, Fannin,

Neace, and Lauffer to show cause why their appeal, No. 2023-CA-1412-MR,

should not be dismissed.

On December 18, 2023, Lukins, Short, Fannin, Neace, Lauffer, and

Copley filed a second notice of interlocutory appeal to this Court. They sought to

-5- appeal the circuit court’s order entered on December 6, 2023. The appeal was

docketed and designated No. 2023-CA-1488-MR.

The appellants filed their response to our show-cause order on January

2, 2024. Unpersuaded by their arguments, we dismissed the first appeal in an order

entered on February 20, 2024.

For purposes of this appeal, it is helpful to review why the first appeal

was dismissed. An order denying a motion for summary judgment is interlocutory.

Consequently, it is not generally subject to immediate appellate review. However,

where a substantial claim of absolute immunity serves as the basis of a trial court’s

order denying summary judgment, unique issues arise concerning the effect of

postponing appellate review. See Breathitt Cnty. Bd. of Educ. v. Prater, 292

S.W.3d 883 (Ky. 2009). Absolute immunity is meant to shield a defendant not

only from liability but from the costs and burdens of unwarranted litigation as well.

Id. Therefore, postponing appellate review of an order denying a claim to such

immunity until a court’s order is final could very well be both futile and costly.

For this reason, while it remains interlocutory, such an order becomes subject to

our immediate review.

However, a trial court’s order is not immediately appealable simply

because a claim of immunity is at issue. If the trial court’s decision leaves the

immunity question unresolved, its order is not immediately appealable. See Upper

-6- Pond Creek Volunteer Fire Department, Inc. v. Kinser, 617 S.W.3d 328 (Ky.

2020).

In this case, the Johnson Circuit Court indicated that there existed

genuine issues of material fact with respect to whether the defendants were school

officials or volunteers. Therefore, we reasoned that the court had not yet actually

denied their claim of immunity. Because the circuit court determined that the

nature of each coach’s relationship with the school district was relevant yet

remained unresolved, it did not finally decide the immunity question in its order of

November 3, 2023. Under those circumstances, we concluded that our immediate

review was unwarranted. Separately, we noted that the circuit court’s subsequent

order of December 6, 2023, “purports to resolve the [outstanding issue of fact]”

and concluded that “it would appear the issues which could have been litigated in

this appeal, if proper, are completely subsumed by the second-filed appeal.”

In this, the “second-filed appeal,” Lukins, Short, Fannin, Neace, and

Lauffer argue that the trial court erred by concluding that they are not entitled to

the protection provided by governmental and qualified official immunity. We

disagree.

We review a trial court’s summary judgment order to determine

whether the court correctly concluded that there are no genuine issues of material

fact and that the moving party is entitled to judgment as a matter of law. Lewis v.

-7- B & R Corp., 56 S.W.3d 432 (Ky. App. 2001). Because the trial court’s summary

judgment involves only legal questions, we do not defer to its decision. Id.

Instead, we review the trial court’s order de novo. Id. Determinations concerning

the application of statutory grants of immunity are also reviewed de novo. Rowan

Cnty. v. Sloas, 201 S.W.3d 469 (Ky. 2006).

Governmental immunity, a policy linked to principles of sovereign

immunity, protects government entities from civil liability. Yanero v. Davis, 65

S.W.3d 510 (Ky. 2001). It is rooted in deference to the doctrine of separation of

powers; i.e., courts should not impose civil liability on government entities

engaged in official functions where it would likely disrupt the business of

governing. See KY. CONST. §§ 27, 28; Caneyville Volunteer Fire Dep’t v. Green’s

Motorcycle Salvage, Inc., 286 S.W.3d 790 (Ky. 2009).

Moreover, the governmental immunity that an agency enjoys extends

to the official acts of its officers and employees. Yanero, 65 S.W.3d 510. Where a

public officer or employee is sued for negligent acts in his individual capacity, he

may be entitled to the protection afforded by qualified official immunity. Id.

However, qualified official immunity protects public officers and employees from

personal liability for the negligent performance of duties only where the

responsibilities at issue are discretionary in nature and not merely ministerial.

-8- Ashby v. City of Louisville, 841 S.W.2d 184, 188 (Ky. App. 1992) (citing

Thompson v. Huecker, 559 S.W.2d 488 (Ky. App. 1977)).

At various points in their pleadings, memoranda, and motions, Lukins,

Short, Fannin, Neace, and Lauffer have indicated that they were volunteers (self-

described as “a bunch of dads coaching football”) for the elementary and middle

school football teams at the time Spencer was injured. Consequently, in its second

order, the Johnson Circuit Court determined that there was no genuine issue of

material fact concerning the status of each defendant as a volunteer. Spencer did

not appeal the decision.

In their brief to this Court, Lukins, Short, Fannin, Neace, and Lauffer

reiterate that they were acting as volunteers when Spencer was injured.

Nevertheless, they contend that the trial court erred by concluding that they are not

entitled to the same immunity enjoyed by public officials and employees under our

common law. They urge that when our courts consider whether an individual or

entity is entitled to immunity, we should “favor substance over form.” In support

of this premise, they rely upon the decision of the Supreme Court of Kentucky in

Autry v. Western Kentucky University, 219 S.W.3d 713 (Ky. 2007).

In Autry, SLF, Inc., owned a dormitory at Western Kentucky

University (WKU). With respect to its relationship with the university, the Court

explained as follows:

-9- WKU is a governmental agency fulfilling the public purpose of higher education by providing residence halls to its students which it manages and controls. It uses SLF as an agent to own property for WKU’s purposes. This is all that SLF does.

219 S.W.3d at 719. Because the corporation existed exclusively to serve as title

owner of the property that the university needed, SLF was held to be the school’s

alter ego. Consequently, it shared in the university’s immunity.

Lukins, Short, Fannin, Neace, and Lauffer submit that they served “at

the request of the varsity high school football coaches or with the approval of the

principals of the elementary and middle schools.” It is true that the high school

coaches relied on volunteer coaches for the elementary and middle school teams,

and school officials approved their participation. However, we are not persuaded

that Lukins, Short, Fannin, Neace, and Lauffer acted as agents or alter egos of the

school district. In light of our review of the evidence presented, we cannot

conclude that principles of governmental immunity can be expanded to protect a

“bunch of dads coaching football” who are not otherwise public employees,

officials, or agents of the district.

Lukins, Short, Fannin, Neace, and Lauffer also rely on the decision of

the Supreme Court of Kentucky in Caneyville Volunteer Fire Department v.

Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790. In Caneyville, the Court

concluded that volunteer fire departments are agents of the Commonwealth. The

-10- conclusion was based, in part, upon the essential governmental function that fire

departments provide to local communities.

[I]n providing for the safety and well-being of its citizens -- and because there is likely no more epitomizing symbol of government function -- reason dictates [that volunteer fire departments] must be considered [agents] of the sovereign.

286 S.W.3d at 805. Consequently, they are “cloaked in immunity from suit in

tort.” Id.

The Court explained that where an entity is entitled to government

immunity, the General Assembly may draft legislation recognizing that immunity.

Id. The General Assembly embraced public policy promoting the immunity of the

fire department’s personnel -- volunteer firefighters -- by enacting the specific

provisions of KRS1 75.070. The statute confers governmental immunity

specifically upon volunteer fire departments and qualified official immunity to

volunteer firefighters engaged in discretionary functions. Caneyville, 286 S.W.3d

at 807.

Lukins, Short, Fannin, Neace, and Lauffer rely on this analysis to

convince us that they, too, are entitled to share in the school district’s

governmental immunity even though they were not government officials or

employees. However, we are not persuaded that our Supreme Court’s discussion

1 Kentucky Revised Statutes.

-11- of a statutory provision that extended immunity specifically to volunteer

firefighters supports this argument. The Caneyville Court concluded that a

volunteer fire department is an agent of the Commonwealth and that the General

Assembly was, therefore, empowered to extend governmental immunity to fire

department personnel engaged in discretionary functions. The role of recreational

volunteer football coaches is in no fashion analogous to the statutorily recognized

role of volunteer firemen officially entrusted with protecting public safety.

We affirm the reasoning of the trial court up to this point. However,

as Lukins, Short, Fannin, Neace, and Lauffer observe, the provisions of

Kentucky’s Volunteer Protection Act, KRS 411.200, and the federal Volunteer

Protection Act of 1997, 42 U.S.C.2 § 14501 et seq., are indeed relevant to this

discussion. These statutes define the immunity provided to volunteers (and others)

of nonprofit organizations and government entities where the volunteer acted in

good faith; within the scope of his responsibilities; and without engaging in willful

or wanton misconduct.

In its order of December 6, 2023, denying the motion for summary

judgment, the Johnson Circuit Court carefully outlined the parties’ arguments with

respect to the applicability of the state and federal acts aimed at protecting

volunteers from liability, and it summarized each party’s evidence. However, the

2 United States Code.

-12- circuit court did not grant nor did it deny a claim of immunity on the basis of

these statutes. In fact, its order did not conclusively determine any disputed

question or resolve any legal right derived from the federal or state provisions.

As discussed above, a trial court’s order is not immediately appealable

simply because a claim of immunity is at issue. If the trial court’s decision leaves

the immunity question unresolved, its order is not immediately appealable. See

Kinser, 617 S.W.3d 328. Where the circuit court did not fully address the

immunity question and render a final ruling with respect to the applicability of the

state and/or federal immunity statutes, we lack jurisdiction to consider the coaches’

arguments relative to that issue on appeal. Therefore, we remand this issue with

direction that the trial court resolve the immunity issue as to Lykins, Short, Fannin,

Neace, and Lauffer with respect to the state and federal volunteer statutes.

Finally, we consider the argument of Copley, the school district’s

athletic director, that the circuit court erred by concluding that he is not entitled to

qualified official immunity with respect to the action brought against him in his

individual capacity. Whether Copley is protected from personal liability depends

upon whether the responsibilities at issue in the tort action are discretionary or

ministerial in nature.

Copley indicated that the head varsity coach and his assistants

recruited and recommended the elementary and middle school coaches. He

-13- indicated that he could be involved in approving these selections. In his role as

athletic director, Copley was responsible for training the varsity staff on equipment

fitting. He encouraged the varsity staff to train the elementary and middle school

coaches. Copley did not fit Spencer with a football helmet, nor was he present on

the football practice field when Spencer was injured. There is no evidence to

suggest that he failed to train the varsity staff correctly or had any reason to know

that Spencer’s helmet had not been properly fitted.

Public employees are responsible only for their own negligence and

are not responsible for the negligence of those employed by them as long as they

have chosen persons of suitable skill. Yanero, 65 S.W.3d 510. There is no

evidence to suggest that Copley approved coaches who were known to him to be

incompetent to supervise or train elementary and middle school children. Instead,

he exercised his discretion in approving the candidates. Consequently, we

conclude that Copley was entitled to rely on the defense of qualified official

immunity with respect to the action brought against him in his individual capacity.

The trial court erred by denying Copley’s motion for summary judgment on this

issue.

The interlocutory order of the Johnson Circuit Court is affirmed in

part and reversed in part and remanded.

-14- We now summarize our holdings as follows. As to Lykins, Fannin,

Short, Neace, and Lauffer, we affirm in part the order denying their motion for

summary judgment and remand in part for resolution of immunity based on state

and federal volunteer/immunity statutes. As to Copley, we affirm with respect to

the order granting him absolute immunity for the action brought against him in his

official capacity. We reverse the order denying him qualified immunity from

liability in his individual capacity and remand for an order consistent with this

conclusion.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:

Jonathan C. Shaw Joseph C. Klausing Paintsville, Kentucky Shem D. Beard Louisville, Kentucky Barbara A. Kriz Christopher S. Turner Lexington, Kentucky

-15-