FLYNN (RYAN) VS. BLAVATT (BRYAN), ET AL.
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RENDERED: OCTOBER 22, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001789-MR
RYAN FLYNN
v.
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND, JUDGE
ACTION NO. 07-CI-02280
BRYAN BLAVATT, MICHAEL BLEVINS,
TODD SHUPE, MARY SARGENT, JASON
SHEARER, TODD BERGER, AND
CHUCK WILSON
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND COMBS, JUDGES; LAMBERT,1 SENIOR
JUDGE.
COMBS, JUDGE: Ryan Flynn appeals an order of the Boone Circuit Court
granting summary judgment to the appellees. After our review, we affirm.
On October 14, 2004, Flynn was a student at Connor High School in
Hebron, Kentucky. Near the end of physical education (P.E.) class, Matt Bass,
another student, hit Flynn in the face and broke his jaw in half. As a result,
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Flynn’s jaw was wired shut for several weeks, and he will need orthodontic
treatment to re-align his teeth.
In October 2007, Flynn filed a lawsuit naming Bass,2 Bryan Blavatt,
Michael Blevins, Todd Shupe, Mary Sargent, Jason Shearer, Tom Berger, and
Chuck Wilson (Defendants) as defendants. At the time of the incident, Blavatt was
the Boone County School District Superintendent; Blevins was the principal of
Conner High School; Shupe, Sargent, and Shearer were assistant principals; and
Berger and Wilson were P.E. teachers. The complaint alleged that the two teachers
were liable under the theory of negligent supervision and that the other defendants
were vicariously liable.
After discovery had been conducted, the trial court granted the
Defendants’ motion for summary judgment in August 2009, finding that they were
protected by the doctrine of immunity. Flynn filed this appeal.
Summary judgment is a device utilized by the courts to expedite
litigation. Ross v. Powell, 206 S.W.3d 327, 330 (Ky. 2006). It is a “delicate
matter” because it “takes the case away from the trier of fact before the evidence is
actually heard.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476,
482 (Ky. 1991). In Kentucky, the movant must prove that no genuine issue of
material fact exists and “should not succeed unless his right to judgment is shown
with such clarity that there is no room left for controversy.” Id.
2
Matt Bass, the student who struck the blow, is not a party to this appeal; he is subject to a
default judgment.
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In contemplating entry of summary judgment, the trial court must
view the evidence in favor of the non-moving party. City of Florence v. Chipman,
38 S.W.3d 387, 390 (Ky. 2001). In order to prevent the summary judgment, the
non-moving party must present “at least some affirmative evidence showing the
existence of a genuine issue of material fact.” Id. On appeal, the standard of
review that we employ 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). Because summary judgments do not involve fact-finding, our review is de
novo. Pinkston v. Audubon Area Community Services, Inc., 210 S.W.2d 188, 189
(Ky. App. 2006).
The trial court found that the defendants were entitled to “absolute
immunity” and qualified official immunity. However, on appeal, Flynn only
argues that the trial court erred when it found that Berger and Wilson, the two
teachers, were entitled to qualified official immunity. We disagree.
We first note that Flynn’s complaint did not specify whether he was
suing the defendants in their individual or official capacities. However, all of the
allegations in the complaint refer to actions and responsibilities relating to their
jobs. Recently, when confronted with a similar situation, our Court held that when
a complaint fails to specify that a defendant is being sued in his official capacity,
he shall be deemed as amenable to suit only in his individual capacity. Bolin v.
Davis, 283 S.W.3d 752, 756-57 (Ky. App. 2008).
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The doctrine of immunity is “a bedrock component” of our law.
Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d
790, 799 (Ky. 2009). Sovereign immunity confers upon the “state, legislators,
prosecutors, judges, and others doing the essential work of the state” an immunity
from fear of suit. Autry v. Western Kentucky Univ., 219 S.W.3d 713, 717 (Ky.
2007).
School boards and their employees are not entitled to sovereign
immunity. However, as agencies of the state, they are cloaked with governmental
immunity. James v. Wilson, 95 S.W.3d 875, 903 (Ky. App. 2002). This immunity
extends to agencies’ employees and officers when they are sued in their official
capacities. Autry, supra. Where, as in this case, agency employees are sued in
their individual capacities, they are subject to qualified official immunity. Bolin,
supra.
Qualified official immunity prevents public officers or employees
from being liable for:
the negligent performance . . . of (1) discretionary acts or
functions, i.e., those involving the exercise of discretion
and judgment or personal deliberation, decision, and
judgment; (2) in good faith; and (3) within the scope of
the employee’s authority. . . . Conversely, an officer or
employee is afforded no immunity from tort liability for
the negligent performance of a ministerial act, i.e., 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 v. Davis, 65 S.W.3d 510, 522 (Ky. 2001).
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Flynn does not contend that the teachers in this situation acted in bad
faith or outside the scope of their employment. Rather, his only claim is that the
duty to supervise is ministerial, thus removing from them the protection of
qualified official immunity.
The question of whether “acts by school staff relating to safety and
discipline within schools” are discretionary or ministerial have been answered by
Kentucky’s state and federal courts. S.S. v. Eastern Kentucky University, 431
F.Supp.2d 718, 734 (E.D. Ky. 2006). Our courts have consistently and
emphatically held that enactment of the rules and enforcement of them are
discretionary in nature. James v. Wilson, 95 S.W.3d at 906. Therefore, the
defendants are entitled to the protection of qualified official immunity and cannot
be held liable for the assault on Flynn by another student.
Furthermore, it is undisputed that Bass attacked Flynn at the end of
P.E. class when students were changing from gym clothes to street clothes. As the
students finished changing, they returned to the gym until it was time to go to their
next class. The teachers (one taught the class that was ending, and the other was
waiting for the next class to begin) were in the office. The office is in a hallway
where the locker rooms and gym doors both are located. The office is centrally
placed with respect to the gym and locker rooms. Logically, the teachers could not
be in all the locations at the same time. The record shows that the office has a
window through which the teachers could view the hallway. Although Flynn
argues that the teachers gave conflicting testimony in their depositions concerning
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the view, he has failed to include those depositions in the record. Consequently,
we are bound to “assume that the record supports the decision of the trial court.”
Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
Because the acts of the two teachers were discretionary, they enjoy
qualified official immunity. Therefore, Flynn’s claims against the administrators
for vicarious liability are rendered moot. Accordingly, we affirm the summary
judgment order of the Boone Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Ronald L. McDermott
Covington, Kentucky
Mary Ann Stewart
Covington, Kentucky
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