RENDERED: JULY 22, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
VALESA DECK (IN HER CAPACITY AS
A TEACHER AT EMMALENA SCHOOL)
APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE KIM C. CHILDERS, JUDGE
ACTION NO. 07-CI-00038
TINA NOBLE, Guardian of
Makayla J. Noble, a Minor
REVERSING AND REMANDING
** ** ** ** **
BEFORE: DIXON, STUMBO AND VANMETER, JUDGES.
DIXON, JUDGE: Valesa Deck appeals from an interlocutory order of the Knott
Circuit Court denying her motion for summary judgment based on qualified
official immunity. Because we conclude Deck is entitled to judgment as a matter
of law, we reverse and remand.
Deck is employed as a public school teacher at Emmalena School in
Emmalena, Kentucky. On the afternoon of August 30, 2006, Deck took her thirdgrade students to the school’s playground as a reward for doing well on their
science assignments. One of Deck’s students, Makayla Noble, played “Follow the
Leader” with some of her classmates near the basketball court. Makayla stepped in
a “dip” in the ground at the edge of the basketball court and fell down. Makayla
advised Deck that she fell down and complained of arm pain. Makayla
subsequently sought medical treatment and learned her arm was broken.
In February 2007, Tina Noble, Makayla’s mother, filed a complaint in
Knott Circuit Court alleging negligence by the Knott County Board of Education.
Noble later filed an amended complaint to add several school administrators as
defendants. In August 2009, Noble was granted leave to file a third amended
complaint alleging a claim of negligent supervision against Deck; thereafter, the
court granted summary judgment to the Board of Education and administrators on
the basis of official immunity. In July 2010, the court denied Deck’s motion for
summary judgment on the basis of official immunity, and this appeal followed.
Though interlocutory, an order denying summary judgment to a party
asserting an immunity defense is appealable. Breathitt Co. Bd. of Educ. v. Prater,
292 S.W.3d 883, 887 (Ky. 2009). It is well settled that “the proper function of
summary judgment is to terminate litigation when, as a matter of law, it appears
that it would be impossible for the [non-moving party] to produce evidence at the
trial warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Service
Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). “[A] party opposing a properly
supported summary judgment motion cannot defeat it without presenting at least
some affirmative evidence showing that there is a genuine issue of material fact for
trial.” Id. at 482. Here, it appears no material facts are in dispute. We must
determine whether Deck, as the moving party, was entitled to the defense of
qualified official immunity and judgment as a matter of law. See Haney v.
Monsky, 311 S.W.3d 235, 240 (Ky. 2010).
In Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), the Kentucky
Supreme Court addressed the defenses of official immunity and qualified official
immunity. The Court explained, in relevant part, as follows:
‘Official immunity’ is immunity from tort liability
afforded to public officers and employees for acts
performed in the exercise of their discretionary functions.
It rests not on the status or title of the officer or
employee, but on the function performed.
But when sued in their individual capacities, public
officers and employees enjoy only qualified official
immunity, which affords protection from damages
liability for good faith judgment calls made in a legally
uncertain environment. Qualified official immunity
applies to the negligent performance by a public officer
or employee 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
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.
Id. at 521-522 (internal citations omitted).
In the case at bar, Deck points out that Noble’s third amended complaint
failed to delineate between official capacity claims or individual capacity claims.
We agree with Deck that, as to an official capacity claim, she is entitled to official
immunity as a result of the governmental immunity afforded her employer, the
Knott County Board of Education, in the circuit court’s summary judgment order
of September 8, 2009. Id. at 522. A review of the record indicates the allegations
of negligence pled in Noble’s complaint are directed solely to the actions of Deck;
consequently, we construe the complaint as asserting an individual capacity claim
against Deck. McCollum v. Garrett, 880 S.W.2d 530, 533 (Ky. 1994).
Deck asserts she is entitled to qualified official immunity because taking her
students outside for reward time constituted a discretionary function that she
carried out in good faith and in the scope of her authority as a teacher. Noble, on
the other hand, asserts Deck acted outside the scope of her authority by allowing
the children to make an unscheduled visit to the playground; consequently, she
contends it is immaterial whether a discretionary or ministerial function was
involved. See Bryant v. Pulaski County Det. Ctr., 330 S.W.3d 461, 466 (Ky.
Pursuant to KRS 161.180(1), “Each teacher and administrator in the public
schools shall in accordance with the rules, regulations, and bylaws of the board of
education made and adopted pursuant to KRS 160.290 for the conduct of pupils,
hold pupils to a strict account for their conduct on school premises, on the way to
and from school, and on school sponsored trips and activities.”
In the case at bar, there is no indication that a rule existed that prohibited
Deck from taking her students to the playground. Noble points to the deposition of
Principal Sharon Johnson, who testified that Deck should have advised the
principal’s office that she was taking the children outside. A review of Johnson’s
testimony indicates that when teachers gave students reward time, the children
were generally allowed to choose what activity they wanted to do, such as
basketball or playing on the playground. Furthermore, in Deck’s deposition, she
testified that it was common for teachers to offer students “reward time” to
motivate them to do well on assignments. Deck also testified she was not aware of
any policy or rule prohibiting teachers from taking students to the playground for
In examining the scope of Deck’s authority, we are mindful that “it is only
necessary that the action bear some reasonable relation to and connection with the
duties and responsibilities of the official.” Rowan County v. Sloas, 201 S.W.3d
469, 488 (Ky. 2006) (internal quotation marks and brackets omitted). Based on the
facts presented here, we are not persuaded that taking the children to the
playground for reward time, though unscheduled, was so “manifestly or palpably
beyond” Deck’s authority as a public school teacher that it precludes a defense of
qualified official immunity. Id.
Finally, we agree with Deck’s argument that her actions were discretionary
rather than ministerial, entitling her to qualified official immunity. In Yanero,
supra, the Court held that the enforcement of a known safety rule is a ministerial
duty imposed on school employees, while promulgation of school safety rules is a
discretionary function. Yanero, 65 S.W.3d at 529. “It may also be added that
discretionary acts or functions are those that necessarily require the exercise of
reason in the adaptation of means to an end, and discretion in determining how or
whether the act shall be done or the course pursued.” Haney, 311 S.W.3d at 240.
Here, there is no indication a specific rule existed regarding reward time;
consequently, we conclude Deck acted within her discretion as a teacher when she
decided to take her students to the playground for reward time at the end of the
After carefully reviewing the record, we conclude Deck is entitled to
judgment as a matter of law based on official immunity and qualified official
immunity; consequently, the trial court erred by denying her motion for summary
judgment. We reverse the order of the circuit court and remand for proceedings
consistent with this opinion.
For the reasons stated herein, the judgment of the Knott Circuit Court is
reversed and remanded.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Jonathan C. Shaw
Jeffrey R. Morgan