MlCHAEL A. YANERO AND V SHERI L. YANERO AS PARENTS AND NEXT FRIENDS OF RYAN YANERO, A MINOR V. ALLEN DAVIS; JEFFREY BECKER; ROBERT STEWART; JEFFERSON COUNTY BOARD OF EDUCATION; KENTUCKY HIGH SCHOOL ATHLETIC ASSOCIATION; AND RYAN COKER, A MINOR and KENTUCKY HIGH SCHOOL ATHLETIC ASSOCIATION V. MICHAEL A. YANERO AND SHERI L. YANERO AS PARENTS AND NEXT FRIENDS OF RYAN YANERO, A MINOR
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TO BE PUBLISHED
MlCHAEL A. YANERO AND
SHERI L. YANERO AS PARENTS AND
NEXT FRIENDS OF RYAN YANERO, A MINOR
V.
V
ON REVIEW FROM COURT OF APPEALS
98-CA-3083
JEFFERSON CIRCUIT COURT NO. 97-Cl-5972
ALLEN DAVIS; JEFFREY BECKER;
ROBERT STEWART; JEFFERSON COUNTY
BOARD OF EDUCATION; KENTUCKY HIGH
SCHOOL ATHLETIC ASSOCIATION; AND
RYAN COKER, A MINOR
2000-SC-0347-DG
AND
KENTUCKY HIGH SCHOOL
ATHLETIC ASSOCIATION
V.
APPELLEES
APPELLEE/CROSS-APPELLANT
ON CROSS-REVIEW FROM COURT OF APPEALS
98-CA-3083
JEFFERSON CIRCUIT COURT NO. 97-Cl-5972
MICHAEL A. YANERO AND
SHERI L. YANERO AS PARENTS AND
NEXT FRIENDS OF
RYAN YANERO, A MINOR
APPELLANTS/CROSS-APPELLEES
AND
ALLEN DAVIS; JEFFREY BECKER;
ROBERT STEWART; JEFFERSON COUNTY
BOARD OF EDUCATION; AND
RYAN COKER, A MINOR
APPELLEES
.
AND
2000-SC-0353-DG
ALLEN DAVIS; JEFFREY BECKER;
ROBERT STEWART; AND JEFFERSON
COUNTY BOARD OF EDUCATION
V.
APPELLEES/CROSS-APPELLANTS
ON CROSS-REVIEW FROM COURT OF APPEALS
98-CA-3083
JEFFERSON CIRCUIT COURT NO. 97-Cl-5972
MICHAEL A. YANERO AND
SHERI L. YANERO AS PARENTS
AND NEXT FRIENDS OF
RYAN YANERO, A MINOR
APPELLANTS/CROSS-APPELLEES
AND
KENTUCKY HIGH SCHOOL
ATHLETIC ASSOCIATION
APPELLEE/CROSS-APPELLANT
AND
APPELLEE
RYAN COKER, A MINOR
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
Waggener High School is a public (“common”) school in the Jefferson County,
Kentucky, School District. It is also one of 286 members of an unincorporated
association known as the Kentucky High School Athletic Association (“KHSAA”). In
addition to other interscholastic athletic teams, Waggener has both a varsity and a
junior varsity baseball team. On April 17, 1997, Ryan Yanero, age fifteen, a member of
the junior varsity team, was injured when struck in the head by a baseball thrown by
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Ryan Coker, also age fifteen and also a member of the junior varsity team. Both boys
claim the injury occurred while Coker was pitching batting practice inside the school
gymnasium prior to a scheduled game against another high school team. When struck,
Yanero was inside the batting cage attempting to hit pitches thrown by Coker. Yanero
was not wearing a batting helmet.
Yanero, by and through his parents, brought this action in the Jefferson Circuit
Court against the Jefferson County Board of Education; Robert Stewart, Waggener’s
athletic director; Allen’ Davis, an assistant coach assigned to coach the junior varsity
baseball team; Jeffrey Becker, another assistant coach assigned to “help” with the
junior varsity team; and the KHSAA. The Complaint alleged that the Board of
Education, Stewart, Davis and Becker negligently failed to require Yanero to wear a
batting helmet while engaged in batting practice and/or to administer or obtain
appropriate medical treatment as soon as practicable after his injury;2 that the Board of
Education and the KHSAA negligently failed to develop, implement and enforce rules
and regulations pertaining to the proper hiring and training of coaches and athletic
directors qualified to provide for the safety of students participating in batting practice
and/or in the proper medical procedures to be followed in case of a head injury; and
that the Board
and the KHSAA were vicariously liable for the negligence of Stewart,
Davis and/or Becker. The defendants filed third-party complaints against Coker
seeking indemnity and/or contribution for any sums that might be adjudged against
’ The original complaint filed in this action identified Davis as “Alan Davis.”
Davis’s Answer noted that his correct name is “Allen Davis.” Both versions have been
used interchangeably in the pleadings and briefs filed in this case.
2 Yanero’s expert medical witness has testified by deposition that the failure to
provide Yanero with immediate medical treatment did not cause or contribute to the
long-term effects of his injury.
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them. At the conclusion of an extensive discovery process, the Jefferson Circuit Court
granted summary judgments to all of the defendants on grounds of sovereign,
governmental, or official immunity, and those dismissals mooted the third-party claims
against Coker. The Court of Appeals affirmed. We granted discretionary review for the
purpose of clarifying the nature and extent of immunity from tort liability applicable to
governmental agencies, officers, and employees.
I. SOVEREIGN IMMUNITY.
As recently noted in Reyes v. Hardin Memorial Hospital, Ky., - S.W.3d (ZOOI), sovereign immunity is a concept that arose from the common law of England
and was embraced by our courts at an early stage in our nation’s history. Id. at -.
It
is an inherent attribute of a sovereign state that precludes the maintaining of any suit
against the state unless the state has given its consent or otherwise waived its
immunity. Restatement (Second) of the Law of Torts § 895B(l) (A.L.I. 1979); 72
Am.Jur.2d, States, Territories. and Dependencies, 5 99 (1974). This principle was
recognized as applicable to the Commonwealth of Kentucky as early as 1828. Divine v.
Harvie, 23 Ky. (7 T.B. Mon.) 439, 441 (1828). The absolute immunity from suit afforded
to the state also extends to public officials sued in their representative (official)
capacities, when the state is the real party against which relief in such cases is sought.
Alden v. Maine, 527 U.S. 706, 756, 119 S.Ct. 2240, 2267, 144 L.Ed.2d 636 (1999); 72
Am.Jur.2d, States. Territories and Dependencies, 5 104 (1974); e.g., Tate v. Salmon,
79 Ky. 540, 543 (1881) (claim demanding payment of funds held in the state treasury
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could not be maintained under the pretext of a suit against the state treasurer3); Divine
v. Harvie, supra, at 441 (state auditor and state treasurer could not be sued in
substitution for the state to obtain a garnishment against the state treasury).
Absolute immunity also extends to legislators in the performance of their
legislative functions, U.S. Const., Art. I, § 6, cl. 1 (“Speech or Debate” Clause), Tenney
v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), Wiaains v. Stuart, Ky.
App., 671 S.W.2d 262 (1984) but not otherwise, Hutchinson v. Proxmire, 443 U.S. 111,
125-33, 99 S.Ct. 2675, 2683-87, 61 L.Ed.2d 411 (1979); judges for all their judicial acts,
Stump v. Sparkman, 435 U.S. 349, 98 SCt. 1099, 55 L.Ed.2d 331 (1978), Bradlev v.
Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871), Vaughn v. Webb, Ky. App., 911
S.W.2d 273 (1995), but not otherwise, Forrester v. White, 484 U.S. 219, 108 SCt. 538,
98 L.Ed.2d 555 (1988); and prosecutors with respect to the initiation and pursuit of
prosecutions, lmbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976),
McCollom v. Garrett, Ky., 880 S.W.2d 530, 535 (1994). The rationale for absolute
immunity for the performance of legislative, judicial and prosecutorial functions is not to
protect those individuals from liability for their own unjustifiable conduct, but to protect
their offices against the deterrent effect of a threat of suit alleging improper motives
where there has been no more than a mistake or a disagreement on the part of the
complaining party with the decision made. Restatement (Second) Torts, supra, § 895D
cmt. c.
3 In retrospect, it may have been preferable to have paid the money to the
claimant, since Tate, the state treasurer, subsequently defalcated the state treasury
and absconded. See aenerallv, Commonwealth v. Tate, 89 Ky. 587, 13 S.W. 113
(1890) and Commonwealth v. Tate, 89 Ky. 608, 13 S.W. 117 (1890).
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A sitting President of the United States is afforded absolute immunity from
liability predicated upon his official acts, primarily because of the uniqueness of his
office and the constitutional tradition of separation of powers. Nixon v. Fitzaerald, 457
U.S. 731, 749, 102 SCt. 2690, 2701, 73 L.Ed.2d 349 (1982). However, ;3bsolute
immunity has not been extended to cabinet officials or presidential adviser>, who enjoy
only qualified official immunity as described in Part III of this opinion, infra. barlow v.
Fitzaerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Butz v. Economou,
438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). In Forrester v. White, supr.2, the
Court explained that, except with respect to immunities granted by express
constitutional or statutory provisions, immunity issues are resolved by examining “the
nature of the functions with which a particular official or class of officials has been
lawfully entrusted,” id. at 224, 108 S.Ct. at 542, and evaluating “the effect that exposure
to particular forms of liability would likely have on the appropriate exercise of those
functions.” Id. Absolute immunity of a government official from suit for monetary
damages is justified only when the danger of the official being deflected from the
effective performance of his/her public duty is great. 63C Am.Jur.2d, Public Officers
and Emolovees, § 308 (1997). “Officials who seek exemption from personal liability
have the burden of showing that such an exemption is justified by overriding
considerations of public policy.” Forrester v. White, supra, at 224, 108 S.Ct. at 542.
II. GOVERNMENTAL IMMUNITY.
“‘[Glovernmental immunity’ is the public policy, derived from the traditional
doctrine of sovereign immunity, that limits imposition of tort liability on a government
agency.” 57 Am.Jur.2d, Municipal. County, School and State Tort Liability, § IO (2001).
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The principle of governmental immunity from civil liability is partially grounded in the
separation of powers doctrine embodied in Sections 27 and 28 of the Constitution of
Kentucky. The premise is that courts should not be called upon to pass judgment on
policy decisions made by members of coordinate branches of government in the
context of tort actions, because such actions furnish an inadequate crucible for testing
the merits of social, political or economic policy. 63C Am.Jur.2d, Public Officers and
Employees, § 303 (1997). Put another way, “it is not a tort for government to govern.”
Dalehite v. United States, 346 U.S. 15, 57, 73 S.Ct. 956, 979, 97 L.Ed. 1427 (1953)
(Jackson, J., dissenting). Thus, a state agency is entitled to immunity from tort liability
to the extent that it is performing a governmental, as opposed to a proprietary,
function.4 72 Am.Jur.2d, States, Territories and Dependencies, 5 104 (1974).
A number of Kentucky appellate court decisions appear to have used the terms
“sovereign immunity” and “governmental immunity” interchangeably. &, Dunlao v.
University of Kentucky, Ky., 716 S.W.2d 219 (1986) (“The issue in this case is whether
the appellant’s claim was barred by proper application of the doctrine of ‘sovereign
immunity.“’ Id. at 219. “We conclude that the plain, unmistakable meaning of the
statute is a partial waiver of governmental immunity.” Id. at 222.); see also Kina v.
Sermonis, Ky., 481 S.W.2d 652, 655 (1972); Carter v. Pfannenschmidt, Ky., 467
S.W.2d 777, 778 (1972); Cullinan v. Jefferson County, Ky., 418 S.W.2d 407, 410
(1967). It has been asserted that the concept of governmental immunity was
4 The principle discussed here should not be confused with the
discretionary/ministerial function analysis that is applied in determining when a claimant
can recover damages in the Board of Claims against the Commonwealth or one of its
agencies for the negligent performance of a governmental function. KRS 44.073(2);
Collins v. Commonwealth, Nat. Resources and Env. Prot. Cabinet, Ky., 10 S.W.3d 122
(1999).
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developed in Kentucky as a common iaw concept appiicabie oniy to municipaiities and
was separate and distinct from the sovereign immunity afforded the Commonwealth.
Louisville and Jefferson Co. Metro. Sewer Dist. v. Simpson, Ky., 730 S.W.2d 939, 943
(1987) (Leibson, J., dissenting), cert. denied, 484 U.S. 964 (1987). Thus, when
municipal immunity was curtailed, if not effectively abolished, in Haney v. Citv of
Lexington, Ky., 386 S.W.2d 738 (1964) and (again) in Gas Service Co., Inc. v. Citv of
London, Ky., 687 S.W.2d 144 (1985) many assumed that the governmental/proprietary
distinction had been abolished with it.
At most, the distinctions seem to be contrived and without sensible basis.
That which was proprietary in some states was deemed governmental in
others.
Haney, supra, at 740; Gas Service, supra, at 146. In fact, the governmental/proprietary
analysis had been applied to state agencies as long ago as Gross v. Kentuckv Board of
Managers, 105 Ky. 840,49 S.W. 458 (1899).
It is true that this board has been called, in an opinion by this court, an
“agency of the state.” It was an agency of the state, but it was also vested
with corporate powers, and in its corporate capacity it may be sued for its
corporate acts, just as any other corporation. . . . The board was not
created to discharge any governmental function.
Id., 49 S.W. at 459. From the same era is found the following in an annotation at 83
L.Ed. 794, et seq.:
[where a state or the United States creates or organizes a corporation
and operates the same for a commercial purpose, it is ordinarily held
subject to suit the same as any private corporation organized for the same
purpose.
Id. at 801.
[Clorporations performing what are essentially public or governmental
functions are in effect part of the government [and] actions against such
corporations are in effect against the government, and . . . in the absence
of the sovereign’s consent to suit, they cannot be sued.
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Id. at 803.
In applying the rule that a governmental corporation is ordinarily immune
from suit while performing a public function, but is subject to suit if
performing a private function, some confusion has arisen in determining
when a corporation is in fact engaged in a private function. It would seem
reasonable to suppose that if the governmental corporation is engaged in
a business of a sort theretofore engaged in by private persons or
corporations for profit, such a governmental corporation would be deemed
to be engaged in a private function.
Id. at 804-05. (For immunity purposes, “governmental agencies” and “governmental
corporations” are generally treated as equivalents. Cf. Federal Housina Administration
v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940); Wallace v. Laurel Countv Bd.
of Ed., 287 Ky. 454, 153 S.W.2d 915, 916 (1941).)
While the governmental/proprietary distinction may have been abolished in the
context of municipal immunity, it has been employed by this Court in two subsequent
opinions to determine whether an agency created by the state was entitled to immunity.
We recognize the difficulty of classifying entities for the purposes of
constitutionally protected sovereign immunity. But certainly not every
business can be immunized simply because it is established by act of the
General Assembly, and this corporation performs substantially the same
functions as any private business engaged in the entertainment business.
Kentuckv Center for the Arts Corn v. Berns, Ky., 801 S.W.2d 327, 330-31 (1990). In its
analysis, Berns also determined that the Kentucky Center for the Arts Corporation was
neither an arm of the central state government nor supported by money from the state
treasury. Id. at 330-31. These factors are primarily relevant to determining whether an
entity is properly classified as a state agency. See Withers v. Universitv of Kentuckv,
Ky., 939 S.W.2d 340, 342-43 (1997). The ultimate holding in Berns was that the Center
for the Arts, though created by the state, was not entitled to immunity because it “was
not created to discharge any ‘governmental function,“’ 801 S.W.2d at 330, and was not
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“carrying out a function integral to state government.” Id. at 332. And we said in
Withers v. University of Kentucky, supra:
Appellants seek to avoid the blanket of immunity by reference to Gross v.
Kentucky Board of Manaaers, 105 Ky. 840,49 S.W. 458 (1899) a case
from the last century which holds that not every corporation created by the
state is entitled to sovereign immunity. Gross was relied upon in Kentucky
Center for the Arts v. Berns, Ky., 801 S.W.2d 327 (1991) in making a
distinction between a governmental function and a proprietary function
performed by an entity having governmental roots. . . . [Alppellants
contend that in a major aspect, the University of Kentucky Medical Center
is nothing more than a hospital which is in full competition with and
performs the same function as private hospitals. As such, they argue that
in this respect, the University should be stripped of its immunity.
The answer to this contention is simple. The operation of a
hospital is essential to the teaching and research function of the medical
school.
Id. at 343.
As noted by our predecessor Court in Haney. supra, application of the
governmental/proprietary test does not guarantee consistent results. See also
Restatement (Second) Torts, supra, § 89% cmt. e. However, that analysis has the
attribute of relative simplicity in application and affords a reasonable compromise
between allowing state agencies to perform their governmental functions without having
to answer for their decisions in the context of tort litigation, and allowing private
enterprises to pursue their legitimate business interests without unfair competition from
government agencies performing purely proprietary functions without the same costs
and risks inherent in commercial enterprise.
III.
OFFICIAL IMMUNITY.
In Board of Trustees of the University of Kentucky v. Hayse, Ky., 782 S.W.2d
609 (1990), cert. denied, 497 U.S. 1025 (1990), we said that the “‘official immunity
doctrine,’ which protects a government official in making decisions involving the
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exercise of discretion . . . protects decision making by a public official only E his acts are
not otherwise wrongful.” Id. at 615 (emphasis in original). Taken literally, this
statement says that a public officer or employee is never immune from tort liability for
negligence or other wrongful conduct in the performance of official duties. In Franklin
County v. Malone, Ky., 957 S.W.2d 195 (1997), we said with respect to an allegedly
negligent search of a person in the custody of an arresting officer that “[a]s long as the
police officer acts within the scope of the authority of office, the actions are those of the
government and the officer is entitled to the same immunity. . . .‘I Id. at 202. Taken
literally, this conclusion essentially confers governmental immunity on a public officer or
employee so that he/she could never be subject to tort liability for the negligent
performance of official duties. In retrospect, we find both of these conclusions to be
unwarranted departures from established legal principles.
“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.
Salver v. Patrick, 874 F.2d 374 (6th Cir. 1989). 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 as
discussed in Part I of this opinion, supra.
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, as discussed in Part II of this opinion, supra. 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
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made in a legally uncertain environment. 63C Am.Jur.2d, Public Officers and
Emolovees, § 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. 5 322; (2) in good faith; and (3) within the scope of the
employee’s authority. Id. § 209; Restatement (Second) Torts, supra, § 895D cmt. g.
An act is not necessarily “disc-etionary” just because the officer performing it has some
discretion with respect to the mtbans or method to be employed. Franklin Countv v.
Malone, supra, at 201 (quoting u>church v. Clinton County, Ky., 330 S.W.2d 428, 430
(1959)). 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).
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.
Franklin Countv v. Malone, supra, at 201. “That a necessity may exist for the
ascertainment of those facts does not operate :o convert the act into one discretionary
in nature.” S e e v. Clinton County, supra, at 430.m e n t
Upchurch a l s o
R e s t a t e
( S e c o n d )
Torts, supra, § 895D cmt. h; 63C Am.Jur.2d, Pub;ic Officers and Employees, 55 324,
325 (1997).
Prior to Franklin Countv v. Malone, supra, no b’entucky case had ever held that a
public employee was afforded absolute immunity forth<-? negligent performance of a
ministerial act simply because that act was a governmen+al
function performed within
the scope of the authority of the employee’s office. Historically, public officers and
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employees have always been liable in tort for the negligent performance or
nonperformance of the ministerial duties of their offices.
“[IIt is equally well settled that where the law imposes upon a public officer
the performance of ministerial duties in which a private individual has a
special and direct interest, the officer will be liable to such individual for
any injury which he may proximately sustain in consequence of the failure
or neglect of the officer either to perform the duty at all, or to perform it
properly.
“In such a case the officer is liable as well for nonfeasance as for
misfeasance or malfeasance.”
Cottonaim v. Stewart, 283 Ky. 615, 142 S.W.2d 171, 177 (1940) (quoting Mechen on
Public Officers). See also Carr v. Wriaht, Ky., 423 S.W.2d 521, 522 (1968) (school
teacher subject to tort liability for negligence or deliberate wrongdoing even though
acting within the scope of his authority); Shearer v. Hall, Ky., 399 S.W.2d 701 (1965)
(fiscal court members subject to tort liability for failure to perform ministerial, as
opposed to discretionary, functions); Upchurch v. Clinton Countv, supra (failure to
execute a ministerial act subjects a public official to damages for injury); Whitt v. Reed,
Ky., 239 S.W.2d 489 (1951) (school superintendent, principal, maintenance supervisor,
and janitor subject to tort liability for the nonperformance of ministerial duties).
Even
since Malone, we 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. Kea-Ham Contractina, Inc. v.
Flovd County Dev. Auth., Ky., 37 S.W.3d 703 (2000).
The “good faith” qualification to official immunity for discretionary acts was
recognized by our Court of Appeals in both Thompson v. Huecker, Ky. App., 559
S.W.2d 488, 496 (1977) and Ashby v. City of Louisville, Ky. App., 841 S.W.2d 184, 189
(1992). In Harlow v. Fitzgerald, supra, the United States Supreme Court defined the
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“good faith” component of qualified official immunity as having both an objective and
subjective aspect.
The objective element involves a presumptive knowledge of and respect
for “basic, unquestioned constitutional rights.” Wood v. Strickland, 420
U.S. 308, 322, 95 S.Ct. 922, 1001, 43 L.Ed.2d 214 (1975). The subjective
component refers to “permissible intentions.” Ibid. Characteristically, the
Court has defined these elements by identifying the circumstances in
which qualified immunity would not be available. Referring both to the
objective and subjective elements, we have held that qualified immunity
would be defeated if an official “knew or reasonablv should have known
that the action he took within his sphere of official responsibility would
violate the constitutional rights of the [plaintiff], or if he took the action with
the malicious intention to cause a deprivation of constitutional rights or
other injury. . . .” Ibid. (emphasis added).
Id. at 815, 102 S.Ct. at 2736-37 (emphasis in original).
Thus, in the context of qualified official immunity, “bad faith” can be predicated
on a violation of a constitutional, statutory, or other clearly established right which a
person in the public employee’s position presumptively would have known was afforded
to a person in the plaintiffs position, i.e., objective unreasonableness; or if the officer or
employee willfully or maliciously intended to harm the plaintiff or acted with a corrupt
motive. 63C Am.Jur.2d, Public Officers and Emplovees, § 333 (1997). Once the officer
or employee has shown prima facie that the act was performed within the scope of
his/her discretionary authority, the burden shifts to the plaintiff to establish by direct or
circumstantial evidence that the discretionary act was not performed in good faith.
Weaener v. Citv of Covinaton, 933 F.2d 390, 392 (6th Cir. 1991) as modified bv, Cox v.
Kentucky Dept. of Transp., 53 F.3d 146 (6th Cir. 1995).
To the extent that Board of Trustees of the Universitv of Kentuckv v. Havse,
supra, holds that a public officer or employee is never immune from tort liability for
negligent or otherwise wrongful conduct in the performance of his/her official duties,
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I
’
and to the extent that Franklin Countv v. Malone, supra, holds that a public officer or
employee is always immune from tort liability for negligent or otherwise wrongful
conduct in the performance of his/her official duties, they are overruled.
IV. BOARD OF CLAIMS ACT.
As noted in Reyes v. Hardin Memorial Hospital, supra, the words “sovereign
immunity” are not found in the Constitution of Kentucky. Rather, sovereign immunity is
a common law concept recognized as an inherent attribute of the state.
Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695, 696 (1951). Thus, contrary to
assertions sometimes found in our case law, Sections 230 and 231 of our Constitution
are not the source of sovereign immunity in Kentucky, but are provisions that permit the
General Assembly to waive the Commonwealth’s inherent immunity either by direct
appropriation of money from the state treasury (Section 230) and/or by specifying
where and in what manner the Commonwealth may be sued (Section 231). Reyes,
supra, at -. Thus, the Board of Claims Act enacted by the 1946 General Assembly
5
and substantially amended to its present-day form by the 1950 General Assembly’
represents not a creation of immunity, but rather a limited waiver of immunity to the
extent that immunity exists. It also designates where and when a claim can be asserted
against the Commonwealth or against an otherwise immune agency, officer, or
employee.
It is the intention of the General Assembly to provide the means to enable
a person negligently injured by the Commonwealth, any of its cabinets,
departments, bureaus or agencies, or any of its officers, agents or
5 1946 Ky. Acts, ch. 189, §§ 1,3, par. 1.
’ 1950 Ky. Acts, ch. 50, § 1.
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employees while acting within the scope of their employment by the
Commonwealth or any of its cabinets, departments, bureaus or agencies
to be able to assert their just claims as herein provided. The
Commonwealth thereby waives the sovereign immunity defense onlv in
the limited situations as herein set forth. . . . The Board of Claims shall
have exclusive jurisdiction to hear claims for damages except as
otherwise specifically set forth by statute, against the Commonwealth, its
cabinets, departments, bureaus, agencies or any of its officers, agents or
employees while acting within the scope of their employment by the
Commonwealth, its cabinets, departments, bureaus or agencies.
KRS 44.072 (emphasis added).
Since this statute is prima facie only a waiver of sovereign immunity, the last
sentence thereof, which vests exclusive jurisdiction in the Board of Claims can apply
only to the Commonwealth and those agencies, officers, or employees who are cloaked
with sovereign, governmental, or official immunity. As a waiver of immunity, it has no
application to those governmental agencies, officers or employees who are not cloaked
with immunity.
Likewise, KRS 44.073(2) provides:
The Board of Claims shall have primary and exclusive jurisdiction over all
negligence claims for the negligent performance of ministerial acts
against . . . agents, or employees . . . while acting within the scope of
their employment by the Commonwealth. . . .
To the extent that this statute purports to waive immunity for the performance of
ministerial acts, it is a nullity; for public agents and employees are not vested with
immunity for the negligent performance of their ministerial functions.
The purpose of this statute [Board of Claims Act] was not to grant a
cloak of immunity behind which all employees of the State could hide from
their individual responsibility for their negligent acts, but to waive immunity
by reason of sovereignty, and to facilitate simple processing of claims
against the State.
Slusher v. Miracle, Ky., 382 S.W.2d 867, 869 (1964).
Finally, KRS 44.073(8) provides:
-16-
No action for negligence may be brought in any court or forum other than
the Board of Claims against the Commonwealth, any of its cabinets,
departments, bureaus, or agencies or any of its officers, agents, or
employees while acting within the scope of their employment by the
Commonwealth or any of its cabinets, departments, bureaus, or agencies.
To the extent that this statute attempts to transfer jurisdiction over non-immune
agencies, officers and employees from the circuit court to the Board of Claims, it is
unconstitutional. Section 112(5) of the Constitution of Kentucky provides that “[t]he
Circuit Court shall have original jurisdiction of all justiciable causes not vested in some
other court.” This provision vests the General Assembly with the authority to determine
which court shall have original jurisdiction over a justiciable cause. For example, the
enactment of KRS 24A.01 O(1)7 transferred original jurisdiction over certain actions from
the circuit court to the district court. The Board of Claims, however, is not a court.
Reves v. Hardin Memorial Hospital, supra, at -. Thus, Section 112(5) does not
authorize a transfer of original jurisdiction over a tort claim against a non-immune
agency, officer or employee from the circuit court to the Board of Claims.
Finally, to the extent that the 1986 amendments to the Board of Claims Act could
be construed as attempts to limit the liability of non-immune persons or entities to the
liability limits set forth in KRS 44.070(5), those provisions would violate Section 54 of
the Constitution:
The General Assembly shall have no power to limit the amount to be
recovered for injuries resulting in death, or for injuries to person or
property.
It is a well established principle of constitutional law and statutory construction
that if a statute is reasonably susceptible to two constructions, one of which renders it
7 1976 Ky. Acts (Ex. Sess.), ch. 28, § 1.
-17-
unconstitutional, “the court must adopt the construction which sustains the
constitutionality of the statute.” Davidson v. American Freiahtways. inc., Ky., 25
S.W.3d 94, 96 (2000) (quoting American Truckina Ass’n v. Commonwealth. Transp.
Cabinet, Ky., 676 S.W.2d 785, 789-90 (1984)). Thus, we construe the 1986
amendments to the Board of Claims Act as applying only to otherwise immune persons
or entities and not to governmental agencies, officers and employees who are not
immune from tort liability.
V. BOARD OF EDUCATION.
The Jefferson County Board of Education asserts that it is a political subdivision
of the central state government and is, therefore, entitled to the sovereign (absolute)
immunity of the state. We and our predecessor Court have often addressed this issue
and have usually held that local boards of education are immune from tort liability for
their actions. b, Ammerman v. Bd. of Ed. of Nicholas County, Ky., 30 S.W.3d 793,
797 (2000); Clevinaer v. Bd. of Ed. of Pike County, Ky., 789 S.W.2d 5 (1990); Smiley v.
Hart Countv Bd. of Ed., Ky., 518 S.W.2d 785 (1975); Coplev v. Bd. of Ed. of Hopkins
County, Ky., 466 S.W.2d 952 (1971); Carr v. Wriaht, supra; Cullinan v. Jefferson
County. supra; Wood v. Bd. of Ed. of Danville, Ky., 412 S.W.2d 877 (1967); Wallace v.
Laurel Countv Bd. of Ed., 287 Ky. 454, 153 S.W.2d 915 (1941). However, on only three
of those occasions have we or our predecessor Court undertaken an analysis of the
nature of the immunity enjoyed by a local board of education.
In Wallace v. Laurel Countv Board of Education, supra, our predecessor Court
concluded that a local board of education is a state agency entitled to governmental
immunity.
-18-
There is but one question presented on this appeal: Is a County
Board of Education liable in tort? To answer this question, it is necessary
to determine whether or not the Board in operating its bus was exercising
a governmental function, or a corporate or proprietary function. If the
Board was exercising the former, it is not liable; while if engaged in the
latter, it is liable.
There can be no doubt from these decisions but that the County Board of
Education is an arm of the state and that in operating common schools it
is engaged in a governmental function.
id., 153 S.W.2d at 916. Obviously, there would have been no need to engage in a
governmental/proprietary analysis if the Board were entitled to absolute sovereign
immunity.
In Cullinan v. Jefferson Countv, supra, our predecessor Court, after first correctly
noting that “[Ilocal school boards fulfill a governmental function of state government by
providing public education within a particular geographical area,“.& at 408, concluded,
however, that “a school board is a political subdivision and arm of the state
government,” id., and “[a]s an integral part of the state the Jefferson County Board of
Education likewise is entitled to protection under the state’s sovereign immunity.” Id.
Our most recent analysis of this issue was in Clevinaer v. Board of Education of
Pike Countv, supra:
There has never been any question about the status of a local school
board as an agency of state government, but, if there were, such is now
beyond the realm of argument because of our decision in Rose v. The
Council for Better Education. Inc., Ky., 790 S.W.2d 186 (Rendered, as
Modified, September 28, 1989). Rose recognizes public schools are a
responsibility of the state, and local school boards exist simply as
agencies of state government.
Id.at IO-II.
In addition to holding for the first time that local boards of education were
cloaked with sovereign immunity, Cullinan, supra, also held that counties were political
-19-
subdivisions of the state and, thus, entitled to sovereign immunity. With respect to
counties, however, that was not a new proposition. See Edwards v. Looan County, 244
Ky. 296, 50 S.W.2d 83, 85 (1932); Forsythe v. Pendleton Countv, 205 Ky. 770, 266
S.W. 639 (1924); Breathitt County v. Haains, 183 Ky. 294, 207 S.W. 713 (1919); Marion
County v. Rives & McChord, 133 Ky. 477, 118 S.W. 309, 311 (1909); Hite v. Whitlev
County, 91 Ky. 168, 15 S.W. 57 (1891); Downing v. Mason County, 87 Ky. 208, 8 S.W.
264 (1888). To the extent that extending sovereign immunity to counties can be
justified, but see Cullinan, supra, at 411-12 (Palmore, J., dissenting), it is because they
are local governments authorized and recognized as such by the Constitution. Ky.
Const. 5s 63, 144. Hence, their characterization as “political subdivisions of the state”
has a constitutional foundation.
Conversely, the Constitution does not provide for the creation of local boards of
education. It vests the responsibility for providing “an efficient system of common
schools” solely in the hands of the legislature. Ky. Const. § 183. “The General
Assembly must not only establish the system, but it must monitor it on a continuing
basis so that it will always be maintained in a constitutional manner. The state must
carefully supervise it, so that there is no waste, no duplication, no mismanagement, at
any level.” Rose v. Council for Better Educ.. Inc., Ky., 790 S.W.2d 186, 211 (1989).
Thus, as correctly observed in Clevinaer v. Board of Education of Pike County, supra,
public schools are the responsibility of the state, and the General Assembly has
established the Kentucky Board of Education, KRS 156.070, and the local school
boards, KRS 160.160, as agencies through which it implements its constitutional
mandate, much as the Executive Branch of government delegates many of its
responsibilities to its cabinets. A local board of education is not a “government,” but an
agency of state government. As such, it is entitled to governmental immunity, but not
sovereign immunity. To the extent that Cullinan v. Jefferson Countv, supra, holds
otherwise, it is overruled. Thus, as discussed in Part II of this opinion, supra, whether
the Jefferson County Board of Education is subject to tort liability in this case partially
depends upon whether it was performing a governmental function or a proprietary
function in authorizing the organization and maintenance of extracurricular baseball
teams at Waggener High School.
Yanero asserts that sponsoring a baseball team is not “a function integral to
state government.“ Kentucky Center for the Arts Corp. v. Berns, W
supra, at 332.
disagree.
e
The organization of school athletic teams in public
schools is a governmental function so that in the absence of
statute, school districts, school boards, or other agencies in
charge of public schools are immune from liability for injuries
sustained by players in practice or games . . . .
57 Am.Jur.2d, Municipal, County. School, and State Tort Liability, § 491 (2001).
In creating the Kentucky Board of Education, the General Assembly recognized
that its functions would include the management of interscholastic athletics, and it
authorized the Board to designate an agent for the purpose of performing this function.
KRS 156.070(2). While we have no cases directly on point, we note that the injury for
which tort liability was sought in Cullinan v. Jefferson County, supra, was sustained
when the plaintiff stepped in a hole while playing tennis on school property. Other
jurisdictions agree that interscholastic athletics are an integral part of secondary
education and, thus, a governmental function. Smith v. Consol.
School Dist. No. 2, 408
S.W.2d 50 (MO. 1966); Thompson v. Bd. of Ed., 79 A.2d 100 (N.J. Super. Ct. 1951);
Martini v. ClvDhant Borouah School Dist., 83 Pa. D & C 206 (Pa. C. P. 1952); Garza v.
Edinbura Consol. lndeo. School Dist., 576 S.W.2d 916 (Tex. Ct. App. 1979); see also
-21-
Indiana High School Athletic Ass’n v. Carlberg, 694 N.E.2d 222, 229 (Ind. 1997)
(“athletics are an integral part of this constitutionally-mandated process of education”).
We conclude that in authorizing interscholastic athletics at its schools, the
Jefferson County Board of Education was performing a governmental function; thus, it
was entitled to the protection of governmental immunity and cannot be sued in tort for
any negligence in the performance of that function. For the same reason, it cannot be
held liable for any alleged failure to establish rules for the wearing of batting helmets
during batting practice, for the treatment of head injuries sustained during participation
in interscholastic athletics, or for training of coaches and athletic directors. Nor can it
be held vicariously liable for any alleged negligence of its employees. Franklin County
v. Malone, supra, at 199-200; Moores v. Fayette County, Ky., 418 S.W.2d 412, 414
(1967). (Under the Kentucky Education Reform Act, the local board of education is no
longer directly involved in hiring school personnel. The school principal, after
consultation with the school council, hires school personnel from a list of applicants
submitted by the superintendent. KRS 160.345(2)(h).)8
VI. ATHLETIC DIRECTOR.
Appellee Robert Stewart was the athletic director at Waggener High School at
the time of Yanero’s injury. Stewart’s primary duties as athletic director were to
schedule athletic events and to maintain and schedule athletic facilities. He also
supervised the head coaches who, in turn, supervised their assistant coaches. Stewart
was not present in the gymnasium on the occasion of Yanero’s injury. Yanero does not
8 KRS 65.2003(3) has no application here since a board of education is not a
“local government” as defined in KRS 65.200(3).
-22-
claim that Stewart is vicariously liable for the negligent acts of the coaches. Public
officers are responsible only for their own misfeasance and negligence and are not
responsible for the negligence of those employed by them if they have employed
persons of suitable skill. Franklin Countv v. Malone, supra, at 199-200; Moores v.
Fayette County, supra, at 414.
Stewart did not hire the coaches, but he was a member of the school council that
recommended that they be hired. Evaluating the credentials of a prospective employee
is an inherently subjective process which, of course, is the essence of a discretionary
function. However, there is also a ministerial aspect to the hiring process in that the
person or persons to whom the hiring of subordinates is entrusted must at least attempt
to hire someone who is not incompetent. Thus, there is authority for the proposition
that a public officer can be subject to personal liability in tort for hiring an employee
known to that officer to be incompetent to perform the task for which he/she was hired.
Whitt v. Reed, supra, 239 S.W.2d at 491. Yanero asserts that Jeffrey Becker, who was
hired as an assistant coach and assigned to “help” Allen Davis coach the junior varsity
baseball team, had only a bachelor’s degree in horticulture and had been previously
employed primarily as a stock clerk at a supermarket. However, he had also coached
seventh and eighth grade baseball at St. Pius X Elementary School in Louisville for six
years prior to his employment at Waggener. Reasonable jurors could not believe that,
by participating in the hiring of a person with six years of coaching experience, Stewart
participated in hiring an employee known to him to be incompetent to perform the duties
of an assistant baseball coach.
Yanero also asserts that Stewart was negligent in failing to promulgate a written
rule with specified penalties with respect to the wearing of helmets by student athletes
-23-
during baseball batting practice. Yanero had been playing organized baseball for
eleven years prior to his injury. He admits that every coach along the way, including
Davis and Becker, had told him that he was required to wear a batting helmet during
batting practice and that he simply chose to disregard this rule.
Q.
What was your understanding, if you can recall, of why you were to
wear a batting helmet?
A.
Because it was dangerous. . . . If you got hit like in the head it
would hurt and you would like get injured.
Remarkably, Yanero posits that if the rule had been in writing with designated
penalties he might have been more inclined to obey it. We reject this gratuitous
speculation and conclude that since Yanero was aware of the rule, though unwritten,
the failure to reduce the rule to writing did not cause his injury. We agree with Judge
Mac Swinford’s observation that “tort liability will not be imposed for the failure to
promulgate rules deemed necessary by a private litigant.” Miller. Adm’r v. United
States, 378 F.Supp. 1147, 1149 (E.D. Ky. 1974) affd, 522 F. 2d 386 (6th Cir. 1975).
Furthermore, rule-making is an inherently discretionary function. Franklin County v.
Malone, supra, at 200. Thus, Stewart would be entitled to qualified (“good faith”) official
immunity with respect to the performance of that function; and there is no basis for
concluding that his failure to promulgate a written rule requiring student athletes to wear
batting helmets during baseball batting practice violated any constitutional, statutory, or
other clearly established right applicable to Yanero, or amounted to a willful or malicious
intent to harm Yanero, or was the product of a corrupt motive, as discussed in Part III of
this opinion, supra.
-24-
VII. COACHES.
Yanero’s cause of action against Davis and Becker is essentially one for
negligent supervision. Teachers assigned to supervise juveniles during schoolsponsored curricular or extracurricular activities have a duty to exercise that degree of
care that ordinarily prudent teachers or coaches engaged in the supervision of students
of like age as the plaintiff would exercise under similar circumstances. Cf. John S.
Palmore and Ronald W. Eades, 2 Kentucky Instructions to Juries, 5 14.04 (4th ed.
Anderson 1989). See Wesley v. Paae, Ky., 514 S.W.2d 697 (1974). The premise for
this duty is that a child is compelled to attend school. “The result is that the protective
custody of teachers is mandatorily substituted for that of the parent.” McLeod v. Grant
County School Dist. No. 128,255 P.2d 360,362 (Wash. 1953). The performance of
that duty in this instance was a ministerial, rather than a discretionary, function in that it
involved only the enforcement of a known rule requiring that student athletes wear
batting helmets during baseball batting practice. The promulgation of such a rule is a
discretionary function; the enforcement of it is a ministerial function. Yanero and other
members of Waggener’s junior varsity baseball team testified in discovery depositions
that team members were regularly permitted to engage in batting practice without
wearing helmets. Davis and Becker have denied these assertions and have further
claimed that official batting practice had not yet begun when Yanero was struck by
Coker’s pitch.
Yanero’s cause of action is not barred by his own negligence or that of Coker
(who claims the errancy of his pitch was caused when he accidentally caught his toe in
the pitching rubber as he threw the ball). “The very adventuresome nature of teenagers
leads to experimentation and should place a teacher on notice that he can look forward
-25-
not only to the expected but also to the unexpected.” Wesley v. Paae, supra, at 699.
Cf. Scott v. independent School Dist., 256 N.W.2d 485 (Minn. 1977) (liability predicated
upon failure to enforce requirement that students wear safety goggles during industrial
arts class). The issues with respect to the negligence of the coaches vis-a-vis that of
Yanero and/or Coker is best left to a jury properly instructed in accordance with KRS
411.182.
VIII. KENTUCKY HIGH SCHOOL ATHLETIC ASSOCIATION.
The KHSAA is an unincorporated association with a membership of 286 public,
private and parochial schools. It was originally formed in 1917 by principals of several
high schools for the purpose of developing and regulating high school athletics within
the Commonwealth of Kentucky. It operates under the direction of its own board of
control whose membership is primarily elected by its member institutions. (As noted,
infra, four members are appointed by the Kentucky Board of Education.) The chief
operating officer of the KHSAA is a commissioner appointed by the board of control.
The KHSAA is funded primarily by profits derived from state high school football
playoffs and the state high school basketball tournament. It also receives dues paid by
its member institutions, but draws no money directly from the state treasury. See
Horner v. Kentuckv Hiah School Athletic Ass’n, 43 F.3d 265, 268-70 (6th Cir. 1994),
1978 OAG 239, and the deposition testimony of Louis Stout, present commissioner of
the KHSAA. The KHSAA promulgates rules governing some, but not all, interscholastic
athletic contests, rules relating to the eligibility of student athletes, and the duties and
qualifications of coaches and game officials, etc. 702 KAR 7:065 § 3(4); Horner, supra,
at 269-70.
-26-
KRS 156.070(q)
vests in the Kentucky Board of Education “the management and
control of the common schools and all programs operated in these schools, including
interscholastic athletics . . . .‘I KRS 156.070(2)
authorizes the Kentucky Board of
Education “to designate an organization or agency to manage interscholastic athletics
in the common schools.” By 702 KAR 7:065 § 1, the Board has designated the KHSAA
as its “agent to manage interscholastic athletics at the high school level in the common
schools, including a private school desiring to associate with KHSAA and to compete
with a common school.” As one condition for this designation, the Board requires the
KHSAA to accept four at-large members appointed by the Kentucky Board of Education
to its board of control. 702 KAR 7:065 5 2(l).
At the time of Yanero’s injury, the KHSAA had adopted the baseball rules set
forth in the 1997 Hiqh School Baseball Rules and 1997 Hiah School Baseball Case
Book, both published by the National Federation of State High School Associations, of
which the KHSAA is a member. The baseball rules require each batter, on-deck batter,
runner, retired runner, and player/student in a coach’s box, as well as any non-adult
bat/ball shagger to wear a standardized batting helmet at all times. A first violation of
this rule requires a warning; a subsequent violation requires ejection from the game.
These, however, are game rules that apply to interscholastic varsity competitions, not
practice rules. The KHSAA does not promulgate rules for practices or for junior varsity
competitions.
The KHSAA claims it is entitled to either sovereign immunity or governmental
immunity. However, it is clearly not a political subdivision of the state, Wissel v. Ohio
Hiah School Athletic Ass’n, 605 N.E.2d 458, 462 (Ohio Ct. App. 1992) cause
dismissed, 595 N.E.2d 943 (Ohio 1992); and the fact that many of its member schools
-27-
are private or parochial institutions, not enjoying governmental immunity, precludes its
being characterized as a state agency. Couahiin v. Iowa Hiah School Athletic Ass’n,
150 N.W.2d 660, 662-63 (Iowa 1967). However, it is an agent of the Kentucky Board of
Education and, in that capacity, functions the same as if the Board had designated an
individual, e.g., KHSAA Commissioner Stout, to manage interscholastic athletics. As
such, the KHSAA is entitled to the qualified official immunity available to officers and
employees of the state.
As with respect to Stewart, the athletic director, Yanero asserts negligence on
the part of the KHSAA in failing to promulgate a rule requiring student athletes to wear
batting helmets during baseball batting practice. The answer is the same: rule-making
is a discretionary function in the performance of which a public officer is entitled to
official immunity; and there is no evidence to support a finding that, in failing to
promulgate such a rule, the KHSAA acted in bad faith, i.e., violated a constitutional,
statutory, or other clearly established right, or acted with a willful or malicious intent to
cause harm, or with a corrupt motive. Yanero also claims the KHSAA negligently failed
to develop, implement and enforce rules and regulations pertaining to the proper hiring
and training of coaches. However, KHSAA Bylaw 27 specifically describes the
qualifications required of level 1 faculty coaches, such as Davis, and level 2 non-faculty
coaches, such as Becker, as well as continuing education and training requirements for
all coaches.
Finally, Yanero claims the KHSAA is vicariously liable for the alleged negligence
of Davis and Becker. Even if a public officer could be held vicariously liable for the torts
of a subordinate, which he/she generally cannot, Franklin County v. Malone, supra, at
-28-
I
*
199-200, Moores v. Favette Countv, supra, at 414, the fact remains that Davis and
Becker were employees of the Jefferson County Board of Education, not the KHSAA.
Accordingly, the summary judgments entered in favor of the Jefferson County
Board of Education, Stewart, and the KHSAA are affirmed, and the summary judgments
entered in favor of Davis and Becker are reversed; and this case is remanded to the
Jefferson Circuit Court for further proceedings in accordance with this opinion.
Lambert, C.J.; Graves, Johnstone, Keller and Stumbo, JJ., concur.
Wintersheimer, J., concurs in result only without separate opinion.
COUNSEL FOR APPELLANTS/CROSS-APPELLEES MICHAEL A. YANERO AND
SHERI L. YANERO AS PARENTS AND NEXT FRIENDS OF RYAN YANERO, A
MINOR (1999-SC-0871
-DG, 2000-SC-0347-DG AND 2000-SC-0353-DG):
A. Thomas Johnson
Suite 206
304 West Liberty Street
Louisville, KY 40202
COUNSEL FOR APPELLEES/CROSS-APPELLANTS ALLEN DAVIS, JEFFREY
BECKER, ROBERT STEWART, JEFFERSON COUNTY BOARD OF EDUCATION
(1999-SC-0871
-DG, 2000-SC-0347-DG AND 2000-SC-0353-DG):
Steven L. Snyder
Daniel G. Brown
David A. Calhoun
Wyatt, Tarrant & Combs
2600 Citizens Plaza
Louisville, KY 40202-2898
-29-
COUNSEL FOR APPELLEEICROSS-APPELLANT KENTUCKY HIGH SCHOOL
ATHLETIC ASSOCIATION (1999-SC-0871 -DG, 2000-SC-0347-DG AND
2000-SC-0353-DG):
Danny C. Reeves
Roger G. Wright
Greenebaum, Doll & McDonald
333 W. Vine Street
P.O. Box 1808
Lexington, KY 40588-l 808
COUNSEL FOR APPELLEE RYAN COKER, A MINOR
(1999-SC-0871 -DG, 2000-SC-0347-DG AND 2000-SC-0353-DG):
William K. Oldham
Blackburn, Hundley & Domene, LLP
200 Starks Bldg.
455 South Fourth Avenue
Louisville, KY 40202
COUNSEL FOR AMICUS CURIAE KENTUCKY ACADEMY OF TRIAL ATTORNEYS
(1999-SC-0871 -DG):
Mike Breen
Mike Breen Attorneys at Law, P.S.C.
1700 Destiny Lane
Bowling Green, KY 42104
-3o-
1999-SC-0871
-DG
MICHAEL A. YANERO AND
SHERI L. YANERO AS PARENTS AND
NEXT FRIENDS OF RYAN YANERO, A MINOR
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
98-CA-3083
JEFFERSON CIRCUIT COURT NO. 97-Cl-5972
ALLEN DAVIS; JEFFREY BECKER;
ROBERT STEWART; JEFFERSON COUNTY
BOARD OF EDUCATION; KENTUCKY HIGH
SCHOOL ATHLETIC ASSOCIATION; AND
RYAN COKER, A MINOR
AND
2000-SC-0347-DG
KENTUCKY HIGH SCHOOL
ATHLETIC ASSOCIATION
V.
APPELLEES
APPELLEE/CROSS-APPELLANT
ON CROSS-REVIEW FROM COURT OF APPEALS
98-CA-3083
JEFFERSON CIRCUIT COURT NO. 97-Cl-5972
MICHAEL A. YANERO AND
SHERI L. YANERO AS PARENTS AND
NEXT FRIENDS OF
RYAN YANERO, A MINOR
APPELLANTS/CROSS-APPELLEES
AND
ALLEN DAVIS; JEFFREY BECKER;
ROBERT STEWART; JEFFERSON COUNTY
BOARD OF EDUCATION; AND
RYAN COKER, A MINOR
APPELLEES
AND
2000-SC-0353-DG
ALLEN DAVIS; JEFFREY BECKER;
ROBERT STEWART; AND JEFFERSON
COUNTY BOARD OF EDUCATION
APPELLEES/CROSS-APPELLANTS
ON CROSS-REVIEW FROM COURT OF APPEALS
98-CA-3083
JEFFERSON CIRCUIT COURT NO. 97-Cl-5972
V.
MICHAEL A. YANERO AND
SHERI L. YANERO AS PARENTS
AND NEXT FRIENDS OF
RYAN YANERO, A MINOR
APPELLANTS/CROSS-APPELLEES
AND
KENTUCKY HIGH SCHOOL
ATHLETIC ASSOCIATION
APPELLEEICROSS-APPELLANT
AND
APPELLEE
RYAN COKER, A MINOR
ORDER DENYING PETITION FOR REHEARING
The petition for rehearing filed by appellees/cross-appellants, Jefferson County
Board of Education, Robert Stewart, Allen Davis, and Jeffrey Becker, is hereby denied.
All concur.
Entered: February 21, 2002.
-2-
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