RENDERED: MAY 28, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0782-MR
SHERYL BAILEY, CO-ADMINISTRATRIX OF THE ESTATE OF KRISTEN EDWARDS, AND CARMON HARLOW, CO-ADMINISTRATRIX OF THE ESTATE OF KRISTEN EDWARDS APPELLANTS
APPEAL FROM BARREN CIRCUIT COURT v. HONORABLE JOHN T. ALEXANDER, JUDGE ACTION NO. 18-CI-00430
CITY OF GLASGOW; 911 GOVERNING BOARD; BARREN-METCALFE EMERGENCY COMMUNICATIONS CENTER; AND MANAGEMENT CONTROL BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Sheryl Bailey, Co-Administratrix of the Estate of
Kristen Edwards, and Carmon Harlow, Co-Administratrix of the Estate of Kristen Edwards (“Appellants”), appeal from an order of the Barren Circuit Court denying
their motion to alter, amend, or vacate a summary judgment in favor of City of
Glasgow, 911 Governing Board, Barren-Metcalfe Emergency Communications
Center, and Management Control Board (“Appellees”). Appellants argue that the
circuit court improperly applied McCuiston v. Butler, 509 S.W.3d 76 (Ky. App.
2017), in concluding that a 911 operator has no duty of care to a 911 caller absent a
special relationship between the parties. For the reasons stated below, we find no
error and affirm the summary judgment on appeal.
FACTS AND PROCEDURAL HISTORY
On the afternoon of July 14, 2016, an unknown person made a phone
call from a cellular phone to Appellees’ 911 operator. The call disconnected
before the 911 operator could determine who was calling, from where the call was
placed, or the nature of the call. The 911 operator then placed a call back to the
cell phone, which was not answered. The cell phone had no voice mail, and no
further action was taken by the 911 operator. The parties assume, though have not
demonstrated, that the call was made by Kristen Edwards (“Ms. Edwards”). On
that same day, Ms. Edwards was murdered by Clark Smith. Smith is currently
incarcerated for the murder.
On July 13 and 14, 2018, Appellants filed a complaint and amended
complaint in Barren Circuit Court alleging that Appellees were negligent in failing
-2- to investigate the 911 call. Specifically, Appellants alleged that Appellees
improperly failed to ping, trace, or locate the cell phone by GPS or other electronic
means, and that this failure contributed to the wrongful death of Ms. Edwards,
caused her pain and suffering, and caused pain and suffering to the family of Ms.
Edwards.
On August 1, 2018, Appellees filed a motion to dismiss the action
pursuant to Kentucky Rules of Civil Procedure (“CR”) 12.02. The following
month, the Barren Circuit Court entered an order denying the motion upon finding
that no discovery had been undertaken.
The matter continued in Barren Circuit Court, whereupon Appellees
filed a motion for summary judgment on February 17, 2020. In support of the
motion, Appellees argued that the 911 operator and his governmental employers
owed no legal duty to Ms. Edwards, and that such a duty could be shown only if
the 911 operator and Ms. Edwards had a “special relationship” giving rise to a
duty. Appellants responded by arguing that the motion was premature, and that the
911 operator breached both general and specific duties to Ms. Edwards by failing
to ping or otherwise locate the cell phone after the call was disconnected. They
also sought more time for discovery. Appellees responded in April 2020, by
contending that Appellants had ample time for discovery, the 911 call center
director Beverly Harbison had been deposed, the 911 call information had been
-3- turned over to Appellants’ counsel, and that Appellees had complied with
Appellants’ written discovery requests.
After considering the arguments, the Barren Circuit Court determined
that Appellants could not prove the elements of negligence necessary to sustain
their claim, i.e., duty, breach, causation, and damages, because the public duty
doctrine shields government officials from litigation based on breaches of alleged
duties to the general public. The court found that because 911 operators serve the
public, their actions are subject to the public duty doctrine. The court went on to
note that an exception to the doctrine is found where the government official had a
“special relationship” with a member of the general public which gave rise to a
heightened duty. Citing McCuiston, supra, the court found that an emergency
operator does not have a special relationship with a caller who dies after placing a
911 call. Upon concluding that Appellants could not prove the elements of
negligence if the matter proceeded to trial, the circuit court sustained Appellees’
motion for summary judgment. Appellants’ subsequent motion to alter, amend, or
vacate the summary judgment was denied, and this appeal followed.1
1 The notice of appeal indicates Appellants’ intent to appeal from the May 19, 2020 order denying their CR 59.05 motion to alter, amend or vacate the April 22, 2020 summary judgment in favor of Appellees. “Our case law is clear, however, that there is no appeal from the denial of a CR 59.05 motion. The denial does not alter the judgment. Accordingly, the appeal is from the underlying judgment, not the denial of the CR 59.05 motion. When a trial court denies a CR 59.05 motion, and a party erroneously designates that order in his or her notice of appeal, we utilize a substantial compliance analysis and consider ‘the appeal properly taken from the
-4- ARGUMENT AND ANALYSIS
Appellants argue that the Barren Circuit Court committed reversible
error in granting summary judgment in favor of Appellees. They contend that
McCuiston, supra, upon which the Barren Circuit Court relied, is distinguishable
from the facts before us as the McCuiston 911 operator took numerous steps to
locate the 911 caller whereas the 911 operator in the instant case did nothing.
Appellants also direct our attention to Jones v. Bennett, No. 2014-SC-000425-DG,
2016 WL 4487189 (Ky. Aug. 25, 2016), for the proposition that government
officials have a duty to investigate 911 calls. The substance of Appellants’ written
argument is that Appellees improperly failed to conduct a diligent search for the
cell phone, that this failure contributed to Ms. Edwards’ death, and that the Barren
Circuit Court erred in failing to so conclude.
In order to prevail on a negligence action alleging wrongful death, a
plaintiff must propound proof that the decedent was owed a duty of care by the
defendant, that the defendant breached the standard of care by which the duty is
measured, and that the breach resulted in death. Pathways, Inc. v Hammons, 113
S.W.3d 85, 88 (Ky. 2003) (citing Mullins v Comm. Life Ins. Co., 839 S.W.2d 245,
247 (Ky. 1992)). Whether a duty exists is a question of law. Jenkins v. Best, 250
final judgment that was the subject of the CR 59.05 motion.’” Ford v. Ford, 578 S.W.3d 356, 366 (Ky. App. 2019) (emphasis in original) (citation omitted).
-5- S.W.3d 680, 688 (Ky. App. 2007) (citing Pathways, 113 S.W.3d at 89). If no duty
is owed to the plaintiff, there can be no breach and thus no actionable negligence.
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MAY 28, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0782-MR
SHERYL BAILEY, CO-ADMINISTRATRIX OF THE ESTATE OF KRISTEN EDWARDS, AND CARMON HARLOW, CO-ADMINISTRATRIX OF THE ESTATE OF KRISTEN EDWARDS APPELLANTS
APPEAL FROM BARREN CIRCUIT COURT v. HONORABLE JOHN T. ALEXANDER, JUDGE ACTION NO. 18-CI-00430
CITY OF GLASGOW; 911 GOVERNING BOARD; BARREN-METCALFE EMERGENCY COMMUNICATIONS CENTER; AND MANAGEMENT CONTROL BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Sheryl Bailey, Co-Administratrix of the Estate of
Kristen Edwards, and Carmon Harlow, Co-Administratrix of the Estate of Kristen Edwards (“Appellants”), appeal from an order of the Barren Circuit Court denying
their motion to alter, amend, or vacate a summary judgment in favor of City of
Glasgow, 911 Governing Board, Barren-Metcalfe Emergency Communications
Center, and Management Control Board (“Appellees”). Appellants argue that the
circuit court improperly applied McCuiston v. Butler, 509 S.W.3d 76 (Ky. App.
2017), in concluding that a 911 operator has no duty of care to a 911 caller absent a
special relationship between the parties. For the reasons stated below, we find no
error and affirm the summary judgment on appeal.
FACTS AND PROCEDURAL HISTORY
On the afternoon of July 14, 2016, an unknown person made a phone
call from a cellular phone to Appellees’ 911 operator. The call disconnected
before the 911 operator could determine who was calling, from where the call was
placed, or the nature of the call. The 911 operator then placed a call back to the
cell phone, which was not answered. The cell phone had no voice mail, and no
further action was taken by the 911 operator. The parties assume, though have not
demonstrated, that the call was made by Kristen Edwards (“Ms. Edwards”). On
that same day, Ms. Edwards was murdered by Clark Smith. Smith is currently
incarcerated for the murder.
On July 13 and 14, 2018, Appellants filed a complaint and amended
complaint in Barren Circuit Court alleging that Appellees were negligent in failing
-2- to investigate the 911 call. Specifically, Appellants alleged that Appellees
improperly failed to ping, trace, or locate the cell phone by GPS or other electronic
means, and that this failure contributed to the wrongful death of Ms. Edwards,
caused her pain and suffering, and caused pain and suffering to the family of Ms.
Edwards.
On August 1, 2018, Appellees filed a motion to dismiss the action
pursuant to Kentucky Rules of Civil Procedure (“CR”) 12.02. The following
month, the Barren Circuit Court entered an order denying the motion upon finding
that no discovery had been undertaken.
The matter continued in Barren Circuit Court, whereupon Appellees
filed a motion for summary judgment on February 17, 2020. In support of the
motion, Appellees argued that the 911 operator and his governmental employers
owed no legal duty to Ms. Edwards, and that such a duty could be shown only if
the 911 operator and Ms. Edwards had a “special relationship” giving rise to a
duty. Appellants responded by arguing that the motion was premature, and that the
911 operator breached both general and specific duties to Ms. Edwards by failing
to ping or otherwise locate the cell phone after the call was disconnected. They
also sought more time for discovery. Appellees responded in April 2020, by
contending that Appellants had ample time for discovery, the 911 call center
director Beverly Harbison had been deposed, the 911 call information had been
-3- turned over to Appellants’ counsel, and that Appellees had complied with
Appellants’ written discovery requests.
After considering the arguments, the Barren Circuit Court determined
that Appellants could not prove the elements of negligence necessary to sustain
their claim, i.e., duty, breach, causation, and damages, because the public duty
doctrine shields government officials from litigation based on breaches of alleged
duties to the general public. The court found that because 911 operators serve the
public, their actions are subject to the public duty doctrine. The court went on to
note that an exception to the doctrine is found where the government official had a
“special relationship” with a member of the general public which gave rise to a
heightened duty. Citing McCuiston, supra, the court found that an emergency
operator does not have a special relationship with a caller who dies after placing a
911 call. Upon concluding that Appellants could not prove the elements of
negligence if the matter proceeded to trial, the circuit court sustained Appellees’
motion for summary judgment. Appellants’ subsequent motion to alter, amend, or
vacate the summary judgment was denied, and this appeal followed.1
1 The notice of appeal indicates Appellants’ intent to appeal from the May 19, 2020 order denying their CR 59.05 motion to alter, amend or vacate the April 22, 2020 summary judgment in favor of Appellees. “Our case law is clear, however, that there is no appeal from the denial of a CR 59.05 motion. The denial does not alter the judgment. Accordingly, the appeal is from the underlying judgment, not the denial of the CR 59.05 motion. When a trial court denies a CR 59.05 motion, and a party erroneously designates that order in his or her notice of appeal, we utilize a substantial compliance analysis and consider ‘the appeal properly taken from the
-4- ARGUMENT AND ANALYSIS
Appellants argue that the Barren Circuit Court committed reversible
error in granting summary judgment in favor of Appellees. They contend that
McCuiston, supra, upon which the Barren Circuit Court relied, is distinguishable
from the facts before us as the McCuiston 911 operator took numerous steps to
locate the 911 caller whereas the 911 operator in the instant case did nothing.
Appellants also direct our attention to Jones v. Bennett, No. 2014-SC-000425-DG,
2016 WL 4487189 (Ky. Aug. 25, 2016), for the proposition that government
officials have a duty to investigate 911 calls. The substance of Appellants’ written
argument is that Appellees improperly failed to conduct a diligent search for the
cell phone, that this failure contributed to Ms. Edwards’ death, and that the Barren
Circuit Court erred in failing to so conclude.
In order to prevail on a negligence action alleging wrongful death, a
plaintiff must propound proof that the decedent was owed a duty of care by the
defendant, that the defendant breached the standard of care by which the duty is
measured, and that the breach resulted in death. Pathways, Inc. v Hammons, 113
S.W.3d 85, 88 (Ky. 2003) (citing Mullins v Comm. Life Ins. Co., 839 S.W.2d 245,
247 (Ky. 1992)). Whether a duty exists is a question of law. Jenkins v. Best, 250
final judgment that was the subject of the CR 59.05 motion.’” Ford v. Ford, 578 S.W.3d 356, 366 (Ky. App. 2019) (emphasis in original) (citation omitted).
-5- S.W.3d 680, 688 (Ky. App. 2007) (citing Pathways, 113 S.W.3d at 89). If no duty
is owed to the plaintiff, there can be no breach and thus no actionable negligence.
Id.
In McCuiston, Mrs. McCuiston placed a 911 call to an emergency
operator. McCuiston’s speech was slurred and she stated that she was dehydrated.
McCuiston did not report a medical emergency nor request emergency services.
Nevertheless, the 911 operator dispatched a law enforcement officer to
McCuiston’s residence to investigate her condition. McCuiston said she would be
unable to open the door, and that the responding officer should announce his
presence and then enter the residence. The 911 operator did not relay this
information to the police. When the responding officer arrived, he did not enter
the residence, was unable to make contact with McCuiston, and left the residence.
About three days later, McCuiston was found dead at the residence. A cell phone
was found near her body, which showed that she had placed a call to the 911
operator.
McCuiston’s estate filed a wrongful death claim against the 911
operator and the municipality. Finding no breach of duty, the trial court granted
summary judgment in favor of the defendants. A panel of this Court affirmed the
summary judgment upon concluding that neither defendant owed a duty of care to
McCuiston under the public policy doctrine. The panel determined that McCuiston
-6- was a member of the general public, and the 911 operator performed his regular
duties, took the call, and sent help in what was believed to be a non-emergency
situation. The panel concluded that the operator’s actions fell under the public
duty doctrine, which does not make 911 operators or other public officials
guarantors of public safety with a universal duty of care to protect the public from
accident or harm.
The public duty doctrine originated at common-law and shields a public employee from suits for injuries that are caused by the public employee’s breach of a duty owed to the public at large. The doctrine can be traced to the United States Supreme Court’s decision in South v. Maryland . . . which held that a sheriff is not liable for failing to protect a kidnap victim because the sheriff’s duty to keep the peace was a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.
....
[P]ersons who serve the public must be allowed to carry out their function without fear of having to answer for harm caused to an individual by events which are outside the control of the public official. Public officials are not an insurer of the safety of every member of the public, nor are they personally accountable in monetary damages only because the individual is a public official charged with a general duty of protecting the public.
-7- The rationale behind the public duty doctrine is that to impose a universal duty of care on public officials would severely reduce their ability to engage in discretionary decision-making on the spot. Because 911 operators serve the public, their actions are also encompassed under the public duty doctrine. (Emphasis added).
McCuiston, 509 S.W.3d at 79-80 (internal quotation marks and citations omitted).
The question for our consideration is whether the Barren Circuit Court
properly relied on McCuiston to conclude that Appellees’ 911 operator did not
have a universal duty of care to protect Ms. Edwards from harm. Having closely
examined the record and the law, we must answer this question in the affirmative.
In both McCuiston and the matter before us, the 911 operators performed their
regular duties by receiving 911 calls and acting upon those calls based on the
information available to them at the time. In McCuiston, the 911 operator had
much more information available to him. He spoke directly with McCuiston,
noted that her speech was slurred and she was unable to answer the door, and
dispatched law enforcement to check on her. In contrast, Appellees’ 911 operator
had no opportunity to speak with the caller and made a reasonable attempt to
contact the caller after the original call was terminated. Appellants argue that more
was required from Appellees’ 911 operator, and that but for Appellees’ negligence,
Ms. Edwards might be alive today. Nothing in the record supports these claims,
however, and it is unclear that Ms. Edwards even made the call in question.
-8- Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56.03. “The record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved in his
favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). Summary judgment should be granted only if it appears impossible that the
nonmoving party will be able to produce evidence at trial warranting a judgment in
his favor. Id. “Even though a trial court may believe the party opposing the
motion may not succeed at trial, it should not render a summary judgment if there
is any issue of material fact.” Id. Finally, “[t]he standard of review on appeal of a
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.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.
1996).
CONCLUSION
When viewing the record in a light most favorable to Appellants and
resolving all doubt in their favor, we conclude that the Barren Circuit Court
properly determined that there were no genuine issues as to any material fact and
-9- that Appellees are entitled to a judgment as a matter of law. Pursuant to
McCuiston, since 911 operators serve the public, their actions are encompassed by
the public duty doctrine. Appellees are not insurers of public safety, and are not
subject to a universal duty of care. Appellees did not enter into a special
relationship with the 911 caller giving rise to an enhanced duty, as the 911 operator
did not speak to the caller nor even know his or her identity. The Barren Circuit
Court properly so found. Accordingly, we affirm the summary judgment of the
Barren Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
Timothy J. Gillenwater Matthew P. Cook Glasgow, Kentucky Bowling Green, Kentucky
-10-