JERAULD (DUSTIN) VS. KROGER (MARK), ET AL.
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RENDERED: AUGUST 5, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001429-MR
DUSTIN JERAULD, BY AND
THROUGH HIS GUARDIAN,
PATRICIA J. ROBINSON
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 09-CI-01206
MARK KROGER; PAMELA SAMS;
AND RAMONA PARKER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; CAPERTON AND CLAYTON, JUDGES.
CLAYTON, JUDGE: This is an appeal of a Kenton Circuit Court opinion granting
summary judgment to the Appellees, Mark Kroger, Pamela Sams and Ramona
Parker. The trial court held that they were entitled to qualified immunity in an
action alleging state claims of negligence and intentional infliction of emotional
distress. For the reasons that follow, we affirm the decision of the trial court.
FACTUAL AND PROCEDURAL HISTORY
On February 7, 2004, Appellant Dustin Jerauld was arrested for the
burglary of his brother, Steve Robinson’s, home. He was taken to the Kenton
County Detention Center (“KCDC”) by Sergeant Tony Wilson and Officer Chad
Girdler. While the officers discovered what appeared to be cocaine and heroin on
Jerauld, they stated that they did not believe he was under the influence of drugs at
the time of his arrest. Officer Girdler transported Jerauld to KCDC. Sgt. Wilson
had relayed information to Officer Girdler given to him by Jerauld’s father, Billy,
that he had said he might hurt himself.
Jerauld completed an intake form at the KCDC and answered in the
negative questions regarding his desire to hurt himself. Nonetheless, the intake
officer notified Wehrner Stilt, the supervisor, that he had prior suicide threats. Stilt
contacted Appellee Mark Kroger, a certified psychologist, who interviewed Jerauld
and found that he was a Level III suicide risk. There was also an indication that
Jerauld could suffer from heroin withdrawal, so it was recommended that he be put
in a cell without sheets or pillowcases and that he be checked every twenty
minutes.
On February 9, Jerauld made a threat of self-harm to his mother over
the phone; however, he told Appellee Pamela Sams, a member of KCDC’s medical
unit, that he wanted to be taken off suicide watch. Sams contacted Kroger with
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Jerauld’s request. After another meeting, Kroger recommended that he be released
to the general jail population. The following day, Jerauld was released by the
medical staff and moved to the general population.
On February 11, Jerauld informed jail personnel that he needed help
with heroin withdrawal. Sams questioned him and determined that he was not
experiencing heroin withdrawal symptoms but placed him on the list to see the jail
physician the next morning. Jerauld phoned his parents and his attorney and told
them he was having suicidal thoughts; however, they did not take the threats
seriously and stated that they believed he was trying to manipulate them into
putting up the bail money for his release.
At 9:25 on February11, Appellee Romona Parker took the medical
assistant to Jerauld’s cell and found him hanging by his bed sheet. While efforts
were made to revive him, he suffered a permanent brain injury and is in a
vegetative state, requiring constant medical care. His custodian originally brought
an action in the United States District Court for the Eastern District of Kentucky
alleging violations of the Eighth and Fourteenth Amendments to the U.S.
Constitution. She also asserted claims for negligence and intentional infliction of
emotional distress under Kentucky law.
On March 19, 2009, the Federal District Court granted summary
judgment on the federal claims, finding that the Appellees were entitled to
qualified immunity. It declined to exercise pendent jurisdiction over the state
claims, however, and dismissed them without prejudice.
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On April 17, 2009, Jerauld’s guardian filed state claims for negligence
and intentional infliction of emotional distress in the Kenton Circuit Court. On
July 6, 2010, the Kenton Circuit Court granted summary judgment to the
Appellees, finding that they were entitled to qualified official immunity for their
actions. This appeal followed.
STANDARD OF REVIEW
In reviewing the granting of summary judgment by the trial court, an
appellate court must determine whether the trial court correctly found “that there
[were] no genuine issue[s] as to any material fact and that the moving party [was]
entitled to a judgment as a matter of law.” Kentucky Rules of Civil Procedure
(CR) 56.03.
[A] trial court must view the evidence in the light most
favorable to the nonmoving party, and summary
judgment should be granted only [when] it appears
impossible that the nonmoving party will be able to
produce evidence at trial warranting a judgment in his
favor. [While] [t]he moving party bears the initial
burden of [proving] that no genuine issue of material fact
exists . . . the burden shifts to the party opposing
summary judgment to present “at least some affirmative
evidence showing that there is a genuine issue of material
fact for trial.”
Community Trust Bancorp, Inc. v. Mussetter, 242 S.W.3d 690, 692 (Ky. App.
2007) (internal citations omitted).
Since summary judgment deals only with legal questions because
there are no genuine issues of material fact, we need not defer to the trial court’s
decision and must review the issue de novo. Lewis v. B & R Corp., 56 S.W.3d
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432, 436 (Ky. App. 2001). With this standard in mind, we will review the issues
before us.
DISCUSSION
All parties agree that the sole issue before our Court is whether each
of the Appellees is entitled to qualified official immunity. Immunity from suit is
not only available “to the state [but] also extends to public officials sued in their
representative (official) capacities.” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky.
2001). Qualified official immunity is an affirmative defense that must be
specifically pled. Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d
572 (1980).
Official immunity can be absolute, as when an officer or
employee of the state is sued in his/her representative
capacity, in which event his/her actions are included
under the umbrella of sovereign immunity. . . .
Similarly, when an officer or employee of a
governmental agency is sued in his/her representative
capacity, the officer’s or employee’s actions are afforded
the same immunity, if any, to which the agency, itself,
would be entitled. . . . . 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. 63C
Am.Jur.2d, Public Officers and Employees, § 309 (1997).
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, id. § 322; (2) in
good faith; and (3) within the scope of the employee's
authority. Id. § 309; Restatement (Second) Torts, supra,
§ 895D cmt. g.
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Yanero, 65 S.W.3d at 521-522.
In Rowan County v. Sloas, 201 S.W.3d 469 (Ky. 2006), the Kentucky
Supreme Court held that the supervision of prisoners is a discretionary act and
entitles those in that position to qualified immunity. In order to prove that a jail
employee is liable for negligence in a suicide attempt, the employee must either
know or have reason to know that the prisoner is at risk of harm and fail to take
reasonable care to prevent the prisoner from harm. Sudderth v. White, 621 S.W.2d
33 (Ky. App. 1981).
Parker was a deputy jailer at KCDC. While her duties did not always
include the medical isolation cells, she had worked in them in the past. Jerauld
informed Parker that he needed help when she did a routine head count on her shift
on February 11. Parker contends that Jerauld told her he was having heroin
withdrawal. Parker stated that Jerauld did not tell her he was suicidal and that she
assured him she would obtain medical help for him. She also noticed him talking
on the phone a couple of times after this encounter and before his suicide attempt.
She stated that he appeared to be doing well.
Pamela Sams is a member of KCDC’s Medical Unit. On February 9,
Jerauld requested that Sams remove him from medical watch and place him in the
general population. Sams stated that he appeared to not have any symptoms of
heroin withdrawal at the time and that he denied having any desire to hurt himself.
Sams then contacted Kroger for further analysis of the situation.
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Appellant contends that neither Sams nor Parker are entitled to
qualified immunity because their acts in dealing with Jerauld were ministerial in
nature. “[W]e have continued to recognize the distinction between discretionary
and ministerial acts and have held that the wrongful performance of a ministerial
act can subject the officer or employee to liability for damages.” Yanero, 65
S.W.3d at 523 (citing Kea–Ham Contracting, Inc. v. Floyd County Dev. Auth., 37
S.W.3d 703 (Ky. 2000)). “An act is not necessarily “discretionary” just because
the officer performing it has some discretion with respect to the means or method
to be employed.” Yanero, 65 S.W.3d at 522, (citing Franklin County, Ky. v.
Malone, 957 S.W.2d 195, 201 (Ky. 1997)) (quoting Upchurch v. Clinton County,
330 S.W.2d 428, 430 (Ky. 1959)).
Appellant argues that Parker and Sams were obligated to take specific
acts in dealing with him since he was at risk for suicide. Thus, Appellant contends
their acts were ministerial. It is important to note, however, that both contend they
did not believe him to be at risk for suicide. “[I]n the final analysis, the decision as
to whether a public official’s acts are discretionary or ministerial must be
determined by the facts of each particular case. . . .” Caneyville Volunteer Fire
Dept. v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 809 (Ky. 2009).
In this case, Sams and Parker made decisions regarding Jerauld’s
suicide risk based on observations they made.
Discretionary or judicial duties are such as necessarily
require the exercise of reason in the adaptation of means
to an end, and discretion in determining how or whether
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the act shall be done or the course pursued. Discretion in
the manner of the performance of an act arises when the
act may be performed in one of two or more ways, either
of which would be lawful, and where it is left to the will
or judgment of the performer to determine in which way
it shall be performed.
Collins v. Commonwealth of Ky. Natural Resources and Environmental
Proctection Cabinet, 10 S.W.3d 122, 125 (Ky. 199), quoting Franklin County, Ky.
v. Malone, 957 S.W.2d 195, 201 (Ky. 1997), reversed on other grounds by Yanero,
65 S.W.3d at 522. We find acts taken by Parker and Sams to be discretionary in
nature and, therefore, both are entitled to qualified official immunity.
Kroger was not a full-time employee of the KCDC but was hired on a
contractual basis to perform duties as a psychologist. “ʻOfficial 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.” Yanero, 65
S.W.3d at 521, (citing Salyer v. Patrick, 874 F.2d 374 (6th Cir. 1989)). Thus,
Kroger could also use the defense of qualified official immunity. Like the other
two appellees, however, Kroger’s actions must be deemed to be discretionary
rather than ministerial in order to afford him the defense of qualified immunity.
In deciding Kroger was entitled to qualified immunity, the trial judge
found:
No task is more inherently discretionary than evaluating
actions and behaviors of prisoners and deciding whether
they are sufficiently alarming to warrant additional
review by psychologists or other officials. Such
decisions inherently require conscious evaluation of
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alternatives, personal reflection and significant judgment.
In certain circumstances, “their judgment may arguably
be questionable, particularly with the benefit of
hindsight, but applying such an unrealistic standard is not
only unjust but unauthorized.” James v. Wilson, 95
S.W.3d 875, 910 (Ky. App. 2002).
Summary Judgment entered July 6, 2010, at page 7.
Appellant, however, argues that Kroger was a licensed professional
and, as such, was responsible for his own negligence. She asserts that Kentucky
caselaw unequivocally holds that compliance with applicable standards of care is a
ministerial duty with respect to medical professionals. As set forth in Yanero,
supra, however, qualified official immunity deals with the functions performed
rather than the title or credentials of the one performing those functions. In
Caneyville Volunteer Fire Department, 286 S.W.3d at 809 n. 9, the Kentucky
Supreme Court opined that the exercise of professional expertise and judgment is
more likely to fall within discretionary acts rather than ministerial duties. We
agree.
Kroger interviewed Jerauld one on one. He evaluated him using his
own discretion along with tests and forms which he interpreted. After this
evaluation, he determined that he was not a suicide risk. Clearly, his actions were
of a discretionary nature. We believe the acts undertaken by Kroger were
discretionary in nature and entitled him to qualified official immunity. Thus, we
affirm the decision of the trial court.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE, MARK
KROGER:
Glenn A. Cohen
Paul J. Hershberg
Cynthia L. Effinger
Louisville, Kentucky
Bradley A. Case
Jeremy S. Rogers
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
ORAL ARGUMENT FOR
APPELLEE, MARK KROGER:
Paul J. Hershberg
Louisville, Kentucky
Jeremy S. Rogers
Louisville, Kentucky
BRIEF FOR APPELLEES, PAMELA
SAMS AND RAMONA PARKER:
Mary Ann Stewart
Jennifer H. Langen
Covington, Kentucky
ORAL ARGUMENT FOR
APPELLEES, PAMELA SAMS AND
RAMONA PARKER:
Mary Ann Stewart
Covington, Kentucky
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