Mucker v. Brown

462 S.W.3d 719, 2015 Ky. App. LEXIS 67, 2015 WL 2266501
CourtCourt of Appeals of Kentucky
DecidedMay 15, 2015
DocketNO. 2012-CA-001013-MR
StatusPublished

This text of 462 S.W.3d 719 (Mucker v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mucker v. Brown, 462 S.W.3d 719, 2015 Ky. App. LEXIS 67, 2015 WL 2266501 (Ky. Ct. App. 2015).

Opinion

OPINION

THOMPSON, JUDGE:

The matter is before us on remand from the Kentucky Supreme Court. Our Supreme Court vacated this Court’s opinion rendered on June 7, 2013, and directed that we consider the issue of qualified official immunity in light of its decisions in Marson v. Thomason, 438 S.W.3d 292 (Ky.2014). We have done so and conclude that qualified official immunity does not apply to the claims asserted against Marian Mucker, in her individual capacity as an employee of the Jefferson County Board of Education, and affirm an order of the Jefferson Circuit Court denying her motion for summary judgment.

As a plant operator at the Minors Lane Elementary School, Mucker was familiar with the plant operator’s manual. She testified that pursuant to the manual, a plant operator had a duty to keep the sidewalks clear of ice and snow. She further testified that she was to begin her work at 6:00 a.m. and had a duty to inspect and treat the sidewalks for ice and snow. If needed, she normally began treating the grounds for ice and snow in preparation for the arrival of children and parents at approximately 7:00 a.m. Mucker testified that she was aware that the gym door entrance was used to enter the school.

On February 1, 2010, Mucker arrived at the school. It had been below freezing the previous night and she observed ice on .the sidewalks outside the school. She first attended to other duties within the school before removing the ice and then began treating the sidewalks for ice in front of the building, an area away from the gym entrance.

Eulene Brown was an instructor at the school and a site director at the YMCA Child Enrichment Program operated on the school’s premises. The Program began at 7:00 a.m. On February 1, 2010, while entering the school, Brown slipped and fell on a walkway leading to the gym entrance that had not been cleared of ice.

[721]*721In addition to Mucker’s deposition, Brown submitted the affidavit of Wanda Arnold, a Jefferson County Public School instructor and YMCA Child Enrichment Program employee, in opposition to Muck-er’s motion for summary judgment. She stated that when she arrived at the school at approximately 6:30 a.m., Mucker was present but the sidewalks had not been cleared of ice. She further stated that at approximately 7:00 a.m., a student had slipped and fallen on ice accumulated on the sidewalk by the gym door. When she went to advise Mucker that the sidewalks needed to be cleared, Mucker was in the teacher’s lounge. During the ten- to fifteen-minute delay it took Mucker to clear the sidewalks, Brown slipped and fell.

The sole issue presented is whether the circuit court properly denied Mucker’s assertion that she is entitled to qualified official immunity. Although generally an order denying a summary judgment is interlocutory and not appealable, an order denying a substantial claim of immunity is immediately appealable even in the absence of a final judgment. Breathitt County Board of Education v. Prater, 292 S.W.3d 883, 887 (Ky.2009).

School boards and their employees are considered agencies of the state and enjoy governmental immunity. James v. Wilson, 95 S.W.3d 875, 904 (Ky.App.2002). “The immunity that an agency enjoys is extended to the official acts of its officers and employees. However, when such officers or employees are sued for negligent acts in their individual capacities, they have qualified official immunity.” Autry v. Western Kentucky University, 219 S.W.3d 713, 717 (Ky.2007). Mucker was sued in her individual capacity.

The doctrine of qualified official immunity is one that has been repeatedly problematic for litigants and the judiciary. Yanero v. Davis, 65 S.W.3d 510 (Ky.2001), is often quoted when attempting to explain the scope of that immunity. In that case, it was written that public officers and employees are shielded from liability for the negligent performance of discretionary acts in good faith and within the scope of their authority. Negligently performing or negligently failing to perform ministerial duties is not shielded by the doctrine of qualified official immunity and a state employee may be sued in court. Id. at 522. While the rule appears straightforward, the distinction between a discretionary act and a ministerial act is often blurred. In Yanero, the Court purported to clarify the difference by defining the terms discretionary and ministerial.

A discretionary act involves the exercise of discretion and judgment or personal deliberation. Id. A ministerial act is one that is “absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” Id. The Yanero Court elaborated: “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.” Id. The Court emphasized “[tjhat a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in nature.” Id. (quoting Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky.1959)).

Since Yanero, the doctrine of qualified official immunity and its discretionary versus ministerial duties analysis continues to perplex even the most learned jurists. As noted in Haney v. Monsky, 311 S.W.3d 235, 240 (Ky.2010), the distinction between a discretionary act and ministerial act is one not easily made because “few acts are purely discretionary or purely ministerial [.] ” In Marson, the Court again attempted [722]*722to explain the amorphous concept of qualified official immunity.

In Marson, the parents of child who was injured when he fell from bleachers in a school gym filed an action against two school principals and a teacher who was supervising the children that day. They alleged the bleachers were not fully extended, and that their legally blind son walked off the retracted portion of the bleachers.

The Court reaffirmed the principles espoused in Yanero, and noted that “át their core, discretionary acts are those involving quasi-judicial or policy-making decisions.” Marson, 438 S.W.3d at 297. The Court continued and attempted to simplify the distinction between discretionary acts and mandatory acts:

The distinction between discretionary acts and mandatory acts is essentially the difference between making higher-level decisions and giving orders to effectuate those decisions, and simply following orders. Or, as we have stated, “Promulgation of rules is a discretionary function; enforcement of those rules is a ministerial function.” Williams v. Kentucky Dept. of Educ., 113 S.W.3d 145, 150 (Ky.2003).

Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Yanero v. Davis
65 S.W.3d 510 (Kentucky Supreme Court, 2001)
Autry v. Western Kentucky University
219 S.W.3d 713 (Kentucky Supreme Court, 2007)
Upchurch v. Clinton County
330 S.W.2d 428 (Court of Appeals of Kentucky (pre-1976), 1959)
Williams v. Kentucky Department of Education
113 S.W.3d 145 (Kentucky Supreme Court, 2003)
Haney v. Monsky Ex Rel. Zager
311 S.W.3d 235 (Kentucky Supreme Court, 2010)
Bryant v. Pulaski County Detention Center
330 S.W.3d 461 (Kentucky Supreme Court, 2011)
James v. Wilson
95 S.W.3d 875 (Court of Appeals of Kentucky, 2002)
Breathitt County Board of Education v. Prater
292 S.W.3d 883 (Kentucky Supreme Court, 2009)
Faulkner v. Greenwald
358 S.W.3d 1 (Court of Appeals of Kentucky, 2011)
Marson v. Thomason
438 S.W.3d 292 (Kentucky Supreme Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
462 S.W.3d 719, 2015 Ky. App. LEXIS 67, 2015 WL 2266501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mucker-v-brown-kyctapp-2015.