William Robinson v. Donna Johnson

• Court: Court of Appeals of Kentucky
• Decided: September 5, 2025
• Docket: 2024-CA-0435
• Status: Unpublished

Opinion

RENDERED: SEPTEMBER 5, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0435-MR

WILLIAM ROBINSON APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 20-CI-004197

DONNA JOHNSON APPELLEE

AND

NO. 2024-CA-0478-MR

DONNA JOHNSON CROSS-APPELLANT

CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 20-CI-004197

WILLIAM ROBINSON AND VANESSA BURNS CROSS-APPELLEES OPINION AFFIRMING

** ** ** ** **

BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.

MCNEILL, JUDGE: This appeal concerns a premises liability action brought by

Donna Johnson against the former Director of Louisville Metro Public Works

(“Public Works”) Vanessa Burns (“Burns”) and Public Works employee William

Robinson (“Robinson”) for injuries she sustained when she tripped on a raised

section of sidewalk in downtown Louisville, Kentucky. The circuit court held

Burns was entitled to qualified official immunity and granted summary judgment

in her favor. It ruled Robinson was not entitled to qualified official immunity and

that genuine issues of material fact existed regarding his negligence. Robinson

appeals and Johnson cross-appeals. We affirm both appeals.

BACKGROUND

In 2019, Johnson tripped on a section of raised sidewalk in the 100

block of West Market Street in downtown Louisville. In her deposition, Johnson

testified she remembered leaving her hotel, making a right (onto South 1st Street),

and then making a right at the corner onto West Market Street. She recalled

coming across a “barrier with yellow tape on the sidewalk” which caused her to

walk into the street. Upon reentering the sidewalk, she proceeded about a “half a

block” before tripping on a “3 to 4-inch rise” in the sidewalk.

-2- Johnson filed suit in Jefferson Circuit Court against Burns and

Robinson, individually, alleging both were negligent in “the ownership,

occupancy, maintenance, operation, care, management, repair, service, inspection

and/or control of the premises located in the 100 block of West Market Street in

Louisville, Kentucky.” Burns and Robinson filed an answer to the complaint,

asserting the defense of qualified official immunity. Subsequently, they filed a

motion for summary judgment on the issues of both qualified official immunity

and negligence.

Both Burns and Robinson filed affidavits in support of their motion

for summary judgment. Burns stated that as Director of Public Works she “was the

highest ranking official in the department and was responsible for oversight of the

department[.]” Her job duties included “developing departmental budgets,

overseeing assistant directors, presenting to Metro Council, developing long-term

departmental goals and strategies, etc.” Her duties did not include the “design,

construction, inspection, maintenance, or repair of municipal sidewalks.” She

further testified that during her tenure as director, “the department implemented a

report-based system for addressing the maintenance and repair of sidewalks.”

Once a complaint was received, the department would send an employee to “visit

the site of the complaint” and rate the severity of the defect. The defect would then

be repaired based on the date of the complaint and the severity of the defect. This

-3- system allowed the department to “allocate the maximum amount of resources

available to the repair of defects.”

Robinson’s affidavit stated that at the time of Johnson’s fall, he

worked for Louisville Metro as a Public Works Inspector III. His job duties

included “inspecting complaints of sidewalk disrepair in accordance with

Department of Public Works and Assets policy and procedure.” According to that

procedure, when a sidewalk complaint was received, he or a coworker would

inspect the complaint to see if it qualified as a sidewalk trip hazard. If so, it would

receive a severity rating and be forwarded to the sidewalk repair engineer to be

added to the list of repairs. Robinson testified he did not proactively inspect

sidewalks for hazards. Further, he did not know about any sidewalk defects

reported at the location of Johnson’s fall before her lawsuit was filed.

Following a hearing, the circuit court entered an order granting

summary judgment to Burns but denying summary judgment to Robinson. It

found Burns was entitled to immunity because her acts as Director of Public Works

were discretionary. However, it determined that Robinson’s act of investigating

the report of the damaged sidewalk was ministerial. It further found that based

upon the proximity of Johnson’s fall to a previous complaint, an issue of fact

existed for the jury concerning Robinson’s negligence. This appeal and cross-

appeal followed.

-4- STANDARD OF REVIEW

Summary judgment is proper where “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.” Kentucky Rule

of Civil Procedure (“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 Serv. Ctr., Inc., 807

S.W.2d 476, 480 (Ky. 1991). “[A] party opposing a properly supported summary

judgment motion cannot defeat that motion without presenting at least some

affirmative evidence demonstrating that there is a genuine issue of material fact

requiring trial.” Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992) (citation

omitted). “A motion for summary judgment presents only questions of law and a

determination of whether a disputed material issue of fact exists.” Patton v.

Bickford, 529 S.W.3d 717, 723 (Ky. 2016) (internal quotation marks and citation

omitted). “Our review is de novo, and we afford no deference to the trial court’s

decision.” Id.

-5- ANALYSIS

I. Robinson’s Appeal

Turning to Robinson’s appeal, he argues the circuit court erred in

denying his motion for summary judgment because (1) he is entitled to qualified

official immunity and (2) he was not negligent as a matter of law. We first address

Robinson’s claim to qualified official immunity because it is a threshold issue.

“Qualified official immunity, generally speaking, is ‘immunity from tort liability

afforded to public officers and employees for acts performed in the exercise of

their discretionary functions.’” Patton, 529 S.W.3d at 723 (citing Yanero v. Davis,

65 S.W.3d 510, 521 (Ky. 2001)). “Qualified immunity applies only to the

negligent performance of duties that are discretionary in nature.” Id. “A

government official is not afforded immunity from tort liability for the negligent

performance of a ministerial act.” Id. Thus, whether Robinson is entitled to

qualified official immunity depends on whether his challenged conduct is

discretionary or ministerial.

A ministerial act is “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.”

Yanero, 65 S.W.3d at 522. “That a necessity may exist for the ascertainment of

those facts does not operate to convert the act into one discretionary in nature.” Id.

-6- (citation omitted). “In reality, a ministerial act or function is one that the

government employee must do without regard to his or her own judgment or

opinion concerning the propriety of the act to be performed.” Marson v.

Thomason, 438 S.W.3d 292, 297 (Ky. 2014) (internal quotation marks and citation

omitted). “In other words, if the employee has no choice but to do the act, it is

ministerial.” Id.

“On the other hand, a discretionary act is usually described as one

calling for a ‘good faith judgment call[ ] made in a legally uncertain

environment.’” Marson, 438 S.W.3d at 297 (citing Yanero, 65 S.W.3d at 522). It

is an act “involving the exercise of discretion and judgment, or personal

deliberation, decision, and judgment.” Yanero, 65 S.W.3d at 522. “[A]t their core,

discretionary acts are those involving quasi-judicial or policy-making decisions.”

Marson, 438 S.W.3d at 297. But they also encompass “the kind of discretion

exercised at the operational level rather than exclusively at the policy-making or

planning level.” Id. (citation omitted). “The operational level, of course, is not

direct service or ‘ground’ level.” Id.

Here, Robinson, as a Public Works Inspector III, was tasked with

investigating reported sidewalk hazards. His duties were “ground level.” They

were also “absolute, certain, and imperative, involving merely execution of a

specific act arising from fixed and designated facts.” Yanero, 65 S.W.3d at 522.

-7- Once a report was received, Robinson was required to investigate it. Robinson

contends that determining whether a sidewalk should be repaired is a discretionary

act. However, just because an act involves some discretion does not necessarily

make it discretionary. See Patton, 529 S.W.3d at 724 (“Even a ministerial act

requires some discretion.”) (quoting 63C AM. JUR. 2D Public Officers and

Employees § 319 (2016)). Instead, we must look to the “dominant nature of the

act.” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010), as corrected (May 7,

2010). In this case, the dominant nature of the act is investigating reported hazards

and assigning them a severity rating. Robinson had no choice but to do these

things. Therefore, Robinson’s duties are ministerial, and he is not entitled to

qualified official immunity.

Robinson also contends he was not negligent as a matter of law

because he did not breach any duty owed to Johnson. The circuit court ruled that

genuine issues of material fact existed concerning whether Robinson was negligent

in his investigation. Robinson argues the circuit court’s ruling was based upon a

flawed understanding of the facts. Specifically, a mistaken belief that he had

investigated a complaint along the 100 block of West Market Street when, in fact,

he investigated a sidewalk defect on First Street.

Even if true, the issue of Robinson’s negligence is outside the scope

of our appellate review. “Ordinarily, the denial of a motion for summary judgment

-8- is considered interlocutory and not appealable.” Recbar, LLC v. Drake, 579

S.W.3d 198, 199 (Ky. App. 2019) (citation omitted). “In the absence of an

exception to the general rule, this Court lacks jurisdiction over an interlocutory

appeal.” Id. (citation omitted). While an order denying a claim of immunity is one

such exception, “an 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.” Baker v. Fields,

543 S.W.3d 575, 578 (Ky. 2018). However, Robinson is not without recourse.

“[H]e still has the right to establish the merits of his motion upon the trial of the

cause.” Bell v. Harmon, 284 S.W.2d 812, 814 (Ky. 1955).

II. Johnson’s Cross-Appeal

Johnson argues on cross-appeal that the circuit court erred in granting

summary judgment to Burns on the issue of qualified official immunity. First, she

appears to argue that since a contract existed between the Louisville Metro

Government and the Commonwealth of Kentucky governing the maintenance of

the sidewalk in question, the defense of qualified official immunity does not apply.

She cites no authority for this proposition, and we reject it. She also contends that

Burns’ duties were ministerial based on the contract. She points to language that

states that “Metro Government shall provide maintenance and repair of sidewalks

-9- within the State right-of-way” and claims the “terms of the . . . contract give

[Burns] no room for discretion.”

However, the contract contains no mandates specific to Burns.1 The

distinction between ministerial and discretionary “rests not on the status or title of

the officer or employee, but on the function performed.” Marson, 438 S.W.3d at

296 (quoting Yanero, 65 S.W.3d at 521). Most “immunity issues are resolved by

examining the nature of the functions with which a particular official or class of

officials has been lawfully entrusted.” Yanero, 65 S.W.3d at 518 (citation

omitted). According to Burns’ affidavit, she was the “highest ranking official” in

Public Works and was responsible for “developing departmental budges,

overseeing assistant directs . . . [and] developing long-term departmental goals and

strategies[.]” Her duties did not include the “design, construction, inspection,

maintenance, or repair of municipal sidewalks.” She was also responsible for

implementing the current “report-based system for addressing the maintenance and

repair of sidewalks.”

None of these duties involve “only obedience to the orders of others”

or “merely execution of a specific act arising from fixed and designated facts.”

Yanero, 65 S.W.3d at 522. Instead, they involve “quasi-judicial or policy-making

1 While the contract states that Public Works “shall” maintain and repair certain state sidewalks, it proceeds to provide that such maintenance will occur per Public Works policy, the very policy Burns implemented in her discretion as Director of Public Works, as discussed below.

-10- decisions[,]” Marson, 438 S.W.3d at 297, such as developing budgets and

departmental goals. Burns was not tasked with personally investigating or

repairing sidewalks but instead, put into place a report-based system to “allocate

the maximum amount of resources available to the repair of defects[,]” and act

“involving the exercise of discretion and judgment, or personal deliberation,

decision, and judgment.” Yanero, 65 S.W.3d at 522. In sum, Burns’ duties

regarding sidewalk maintenance were discretionary and she is entitled to qualified

official immunity. We would note that very recently, in a substantially similar

case, another panel of this Court held Burns’ “acts and functions pertaining to

sidewalk repair were discretionary.” Burns v. Aistrop, 694 S.W.3d 390, 394 (Ky.

App. 2024), review denied (Aug. 14, 2024). The circuit court properly granted

summary judgment in favor of Burns.

CONCLUSION

Accordingly, we affirm the Jefferson Circuit Court’s denial of

summary judgment on the issue of qualified official immunity as to Johnson and its

grant of summary judgment on that issue as to Burns.

ALL CONCUR.

-11- BRIEFS FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS- APPELLEES: APPELLANT:

Michael J. O’Connell William D. Nefzger Jefferson County Attorney Louisville, Kentucky

Kathryn Meador Gregory Scott Gowen Louisville, Kentucky

-12-