Rasche v. Berman

491 S.W.3d 182, 2016 Ky. App. LEXIS 82, 2016 WL 2981636
CourtCourt of Appeals of Kentucky
DecidedMay 20, 2016
DocketNO. 2012-CA-001766-MR
StatusPublished
Cited by1 cases

This text of 491 S.W.3d 182 (Rasche v. Berman) 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
Rasche v. Berman, 491 S.W.3d 182, 2016 Ky. App. LEXIS 82, 2016 WL 2981636 (Ky. Ct. App. 2016).

Opinion

OPINION

J. LAMBERT, JUDGE:

Kimberly Rasche appeals from the Jefferson Circuit Court’s entry of summary judgment in favor of the Appellees. The Appellees are various employees of the Jefferson County Board of Education and district employees who were sued in their individual capacities. The trial court held that the Appellees were entitled to qualified immunity and entered summary judgment in their favor. Upon initial review, this Court affirmed the summary judgment entered by the trial court. Rasche sought discretionary review from the Supreme Court of Kentucky, which granted discretionary review, vacated this Court’s decision, and remanded for further consideration in light of Marson v. Thomason, 438 S.W.3d 292 (Ky.2014). Upon consideration of Marson and supplemental briefing by the parties, we again affirm the summary judgment entered in favor of the various school employee defendants below.

On the morning of February 13, 2008, Rasche drove to Butler High School (Butler) to take her daughter to school and spend the day volunteering in the school office. Due to snowy and icy conditions, all schools in the Jefferson County Public School System were operating on a two-hour delay. Rasche arrived at Butler’s parking lot at approximately 9:15 a.m. and parked her ear in the closest available spot to the door in the front visitor parking lot. It was already light outside by that time, and it was not snowing or sleeting.' Rasche claims the parking lot at Butler was “visibly icy,” but nevertheless she proceeded to walk across the icy portion of the parking lot toward the main office door. As Rasche crossed the parking lot, she slipped on the ice and fell. Rasche claims she injured her wrist in this fall.

On February 13, 2008, the Jefferson County Board of Education (JCBE) was working to clear accumulating snow and ice from school parking lots within the district. Appellees Michael Mulheirn (Mulheim), Executive Director of Transportation and Facilities; Ray Patterson [185]*185(Patterson), JCBE’s Director of General Maintenance, Renovation & Grounds; Jim Fegenbush (Fegenbush), JCBE’s Manager of Grounds; Wayne Cosby (Cosby), former Foreman of Grounds; and Bill Kaufman (Kaufman), retired Foreman of Tractor Services, were responsible for coordinating and supervising JCBE’s snow removal efforts.

Sometime during the night of February 12, 2008, and into the morning of February 13, 2008, JCBE’s employees Robert Neval (Neval) and Aron Phelps (Phelps), neither of whom are parties to this action, salted the parking lot at Butler. According to their deposition testimony, Neval drove the truck while Phelps operated the controls in the truck that scattered the salt onto the parking lot. Neval testified that the salt truck was operating properly and that they salted the entire area of Butler’s two parking lots.

Rasche filed suit regarding her alleged injury on February 11, 2009, claiming that the Appellees negligently failed to cancel school on February 13, 2008, and negligently failed to maintain Butler’s parking lot in a reasonably safe condition on the day in question. The Appellees moved for summary judgment, asserting that Rasche’s negligence claims failed as a matter of law because they have qualified official immunity based on their discretionary duties, and that they did not owe Rasche a duty of care under the open and obvious doctrine. In her response, Rasche argued that the Appellees were not entitled to qualified official immunity because the maintenance of Butler’s parking lot and the decision whether to cancel ■ school on February 13, 2008, were ministerial duties. Rasche further argued that there was a question of fact as to whether the Appel-lees used reasonable care to clear Butler’s parking lot despite the admittedly open and obvious nature of the ice on which Rasche fell.

On September 9, 2012, the trial court entered summary judgment in favor of the Appellees. The court held that the Appel-lees were immune from Rasche’s claim that they negligently failed to cancel school, reasoning that the decision whether to close Jefferson County Public Schools is clearly an act involving the exercise of discretion and judgment. The court further noted that none of the named Appel-lees were responsible for performing the ministerial act of physically clearing the parking lots. Rather, the court found that the Appellees, as supervisors overseeing the district’s snow removal efforts, had to exercise discretion as to when and how to maintain and evaluate the constantly changing conditions of numerous school parking lots given limited time and resources. Accordingly, the trial court granted summary judgment in the Appel-lees’ favor on immunity grounds. Because the trial court determined that the Appel-lees were entitled to qualified immunity, it did not reach the issue of whether the ice on the parking lot was an open and obvious condition.

Initially in her appeal to this Court, Rasche argued that the Appellees’ acts, omissions, and decisions were ministerial in nature, and therefore the shield of qualified immunity would not apply to them. The Appellees countered that their actions were discretionary, and thus they are entitled to immunity.

Rasche argued in her original briefs to this Court that the acts performed by the Appellees are ministerial in nature because the Appellees did not have a choice to clear the subject parking lots, but were required to do so as part of their jobs. Rasche contended that there were specific policies and procedures to be followed in order for the parking lots to be cleared [186]*186properly, and that following such policies and procedures did not require any discretion. The Appellees argued that they do not follow specific policies and guidelines during snow removal operations. Rather, they contended that every snow event is different, and-their responses to snow and ice accumulation really depend upon the circumstances, -

The Appellees pointed out that only five of the named Appellees were even involved with JCBE’s snow removal operatibns in February 2008. Mulheirn, as Executive Director of Facilities and Transportation and, is responsible for overseeing snow and’ ice removal operations for the parking lots and driveways of each school within the District. Mulheirn testified that he was entitled to make policy decisions regarding snow and ice removal. Mulheirn testified that he does riot manage and co-ordiriate JCBE’s snow removal efforts alone. He delegates decision making authority to Appellees Patterson and Fegen-bush. When asked about Fegenbush’s and Patterson’s respective roles in overseeing snow removal operations, Mulheirn testified that he does not always know how they delegate work because both have the authority and responsibility to decide how to implement snow removal operations. Patterson and Fegenbush are not the only supervisors tasked with deciding how to implement' and oversee snow removal. They, along with Appellees Cosby and Kaufman, work together to decide how to best clear the school parking lots given the unique _ facts of each weather. event, JCBE’s limited resources, and the changing.and uncertain weather conditions.

The record reflects that during snow/ice removal operations, Cosby and Kaufman work alternating twelve hour shifts under the supervision of Patterson and/or Fegen-bush to manage snow and ice removal operations from a central location at JCBE’s Dawson Garage.

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Bluebook (online)
491 S.W.3d 182, 2016 Ky. App. LEXIS 82, 2016 WL 2981636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rasche-v-berman-kyctapp-2016.