ERIN HANEY V. BILJANA MONSKY, AS NEXT FRIEND OF MAX ZAGER, A MINOR CHILD
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CORRECTED : MAY 7, 2010
RENDERED: APRIL 22, 2010
TO BE PUBLISHED
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2008-SC-000337-DG
LUAT Ez.,
ERIN HANEY
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2007-CA-000487-MR
JEFFERSON CIRCUIT COURT NO. 06-CI-005614
BILJANA MONSKY (AS NEXT FRIEND OF MAX
ZAGER, A MINOR CHILD)
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
This is an appeal from an opinion of the Court of Appeals affirming
the decision of the Jefferson Circuit Court that denied Appellant, Erin
Harvey, summary judgment on the grounds that she is not entitled to
qualified official immunity from the negligence claims that Appellee,
Biljana Monsky, as next friend of Max Zager, asserts against her. For
reasons that Haney's duties were discretionary in nature so as to entitle
her to the defense of qualified official immunity as a matter of law, we
hold that the trial court -improperly denied her motion for summary
judgment . We, therefore, reverse the decisions of the Court of Appeals
I. Background
In early 2005, Erin Haney was twenty-one years old and
completing her junior year at Centre College when she learned of a
summer job opportunity serving as a full-time children's camp counselor
at the Louisville Zoo . The zoo's summer camp was a popular annual
program and was designed to be an enriching and educational
experience for children, teaching them the diversity of plants and
animals and also engaging them in a variety of complementary learning
activities .' Haney applied for a position and, once accepted, was to work
with small groups of six to eight year old children .
Just prior to the camp's opening in May of that year, Haney and
the summer camp counselors received on-site training in assorted topics.
As a group, the counselors learned, among other things, about the zoo,
its animals, and environments ; zoo safety, rules and regulations ; CPR
and first aid measures ; behavioral problems and developmental needs of
children ; and, several games, crafts, and activities . The training involved
lectures, hands-on activities, animal handling, and behind-the-scenes
tours .
One of the activities the counselors learned to conduct with the
children was commonly called "Night Hike ." The Night Hike activity was
intended to teach the children that vision is a sense that is taken for
I Upon payment, children were enrolled in a week-long program, lasting from
9:00am to 4 :00pm daily. The campers returned home in the evenings.
2
granted and that other animals heavily rely upon non-visual senses in
navigating their environments . In Night Hike, the children form a single
file line upon a short, clear, and level trail path. From there, all children
but the line leader wear a blindfold and place one or both hands upon
the shoulders of the child directly in front of them - so as to link the line
together. The line leader then slowly proceeds along the path as the
camp counselor walks behind and observes. As they walk, the counselor
reminds the children to feel the ground beneath them and to listen to the
sounds around them so they can better anticipate and navigate the path.
When the children reach the end of the path, they may exchange turns
being line leader and walk the path again .
The activity was a popular one . The counselors received 10 to 15
minutes of training on how to conduct Night Hike, should they later
choose to do so, including instructions to select a path free from debris
and one away from noise and distraction.2 The counselors participated
in a demonstration of the activity themselves to better understand it.
In late June of 2005, seven-year-old Max Zeger attended the
Louisville Zoo summer camp and was assigned to Haney's group,
The zoo taught the counselors several activities, though the counselors
were free to design their own activities in forming their own weekly
schedules . Every week, the counselors completed a program outline of what
activities they intended to do with the children and a zoo educator reviewed
the outline to ensure that the selected activities were age appropriate .
3
comprised of ten (10) seven and eight year olds.3 On Wednesday, Haney
decided to conduct the Night Hike activity with the children, including
Max. Prior to doing so, she took the children aside and explained to
them the purpose of activity and the importance of remaining quiet and
attentive while they were walking along the path. Haney then selected an
appropriate path and led the group along it four times without blindfolds
so that they would be familiar with its direction.
The activity then began and the children shared leader
responsibilities approximately six times successfully negotiating the trail .
On the seventh or eighth trip, however, when the line leader began to
veer in a direction that would have led off of the path, Haney, watching
from behind, cautioned the group that they were getting too close to the
Atthat point, some of the children began to suddenly trip
path's edge.4
on one another and Max and two others fell down upon the path. When
Max got back to his feet, he was holding his arm in pain. As it turned
out, he had suffered a fractured shoulder .
Appellee, as next friend of Max, subsequently filed suit against
Haney and alleged that she was negligent in her supervision. At the
conclusion of discovery, Haney moved the trial court for summary
3 Max is a Florida resident and was visiting Appellee, his grandmother, that
summer when she enrolled him in one of the zoo's week-long camps.
Appellee is a resident of Louisville, Kentucky.
4 Because it was slightly elevated, the trail path's edge dropped off about a
foot to the ground below.
judgment and argued that, as a public employee, the complained of
actions or inactions were discretionary in nature which rendered her
immune from suit. The trial court, however, found the conduct at issue
to be ministerial in nature and overruled Haney's motion. Haney then
filed an interlocutory appeal, and the Court of Appeals affirmed the
decision of the trial court. This Court granted Haney's motion for
discretionary reviews
II. Standard of Review
"Summary judgment procedure authorized by CR 56.01 et seq. is
intended to expedite the disposition of cases and if the grounds provided
by the rule are established, it is the responsibility of the trial judge to
render an appropriate decision." Pile v. City ofBrandenburg, 215 S .W.3d
36, 39 (Ky. 2006) . Summary judgment is generally appropriate 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
5 At the outset, we must emphasize that we have not re-addressed here the
question of whether the Louisville City Zoo or its parent entity, the
Louisville /Jefferson County Metro Government, were entitled to sovereign
immunity - an analytical predicate to the foregoing discussion, see Comair,
Inc. v. Lexington-Fayette Urban County Airport Corp ., 295 S.W.3d 91, 99 (Ky.
2009) ("[A]n entity's immunity status depends to some extent on the
immunity status of the parent entity ."), Autry v. Western Kentucky University,
219 S.W .3d 713, 719 (Ky. 2007) (An. agent "derives its immunity status
through" the principal.), Yanero v. Davis, S .W.3d 510, 522 (Ky. 2001) ("[A]n
officer's or employee's actions are afforded the same immunity, if any, to
which the agency, itself, would be entitled .") - as it was not before this Court
for reasons that the trial court, on motion of the county attorney, dismissed
Zager's suit against the Louisville /Jefferson County Metro Government on
grounds of sovereign immunity . No party challenged that determination.
5
entitled to a judgment as a matter of law." CR 56.03 . This Court has
also held that summary judgment is proper "where the movant shows
that the adverse party could not prevail under any circumstances."
Steelvest, Inc., Scansteel Serv. Ctr., Inc., 807 S.W .2d 476, 480 (Ky. 1991) .
In either case, "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) . A "trial court must then view the record `in a light most
favorable to the party opposing the motion for summary judgment and all
doubts are to be resolved in his favor Rowan County v. Sloas, 201
."'
S .W.3d 469, 474 (Ky. 2006) (quoting Steelvest, 807 S.W.2d at 480) .
In the context of qualified official immunity, "[suummary judgments
play an especially important role", as the defense renders one immune
not just from liability, but also from suit itself. Sloas, 201 S.W.3d 474
(citing Mitchell v. Forsyth, 472 U .S . 511, 526 (1985)) . Here, the material
facts have been resolved, and thus our review is one of law, focusing on
whether the moving party, Haney, was entitled to the defense of qualified
official immunity and, consequently, judgment as a matter of law. See
Pile, 215 S .W.3d at 39-40 ; Sloas, 201 S .W.3d at 475 .
III . Qualified Official Immunity
As this Court thoroughly explained in Yanero v. Davis, when an
officer or employee of the state or county (or one of its agencies) is sued
in his or her individual capacity, that officer or employee enjoys qualified
official immunity, "which affords protection from damages liability for
good faith judgment calls made in a legally uncertain environment." 65
S.W.3d 510, 522 (Ky. 2001) (emphasis added) (citing 63C Am. Jur. 2d
Public Officers and Employees § 309 (1997)) . Application of the defense,
therefore, "rests not on the status or title of the officer or employee, but
on the [act or] function performed." Id. at 521 (citing Salyer v. Patrick,
874 F.2d 374 (6th Cir. 1989)) .
Indeed, the analysis depends upon classifying the particular acts
or functions in question in one of two ways: discretionary or ministerial .
Qualified official immunity applies only where the act performed by the
official or employee is one that is discretionary in nature . Id.
Discretionary acts are, generally speaking, "those involving the exercise
of discretion and judgment, or personal deliberation, decision, and
judgment ." Id. at 522 (citing 63C Am . Jur. 2d § 322) . 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 . Discretion in the manner of the performance of an act
arises when the act may be performed in one or 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 . Upchurch
v. Clinton County, 330 S.W .2d 428, 430 (Ky. 1959) . On the other hand,
ministerial acts or functions - for which there are no immunity - are
those that require "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 (citing Franklin County v. Malone, 957 S.W .2d
195, 201 (Ky. 1997)) .
In spite of these often quoted guidelines, determining the nature of
a particular act or function demands a more probing analysis than may
be apparent at first glance . In reality, few acts are ever purely
discretionary or purely ministerial. Realizing this, our analysis looks for
the dominant nature of the act. For this reason, this Court has observed
that "an act is not necessarily taken out of the class styled `ministerial'
because the officer performing it is vested with a discretion respecting the
means or method to be employed." Upchurch, 330 S .W.2d at 430
(emphasis added) .6 Similarly, "that a necessity may exist for the
6 We do note, however, that this maxim is too often divorced from its facts so
as to raise more caution than is perhaps necessary. In Upchurch, a farm
owner brought suit against Clinton County and its fiscal court members after
losing several of his sheep to a number of dogs . 330 S.W.2d at 429 . In his
complaint, Upchurch asserted that, "pursuant to the terms of KRS
258 .195(1), each county was mandatorily required to employ a dog warden . .
8
ascertainment of those [fixed and designated] facts does not operate to
convert the [ministerial] act into one discretionary in its nature." Id.
(emphasis added) . Moreover, a proper analysis must always be carefully
discerning, so as to not equate the act at issue with that of a closely
related but differing act. Cf. Sloas, 201 S .W.3d at 478 ("[T]he the
portions of the investigative responsibilities as set out in the regulations
. . were particular in their directive, but we noted that others, which
required the exercise of judgment, were not . . . . The first part was
ministerial, but what followed was held to be discretionary.") (emphasis
in original) (citing Stratton v. Commonwealth, 182 S.W.3d 516, 521 (Ky.
2006)) . With these considerations in mind, we turn to the issue before
us.
. and to establish a dog pound" and that the defendants had "wilfully failed
and neglected, up to the present time, to consummate their official duties in
this respect ." Id. The trial court, however, found the duties to be
discretionary in nature and dismissed the complaint for failure to state a
claim on which relief could be granted . Id. at 430. On appeal, our
predecessor Court disagreed and concluded that "[t]he duty required to be
performed under [KRS 258.195] was not of a discretionary nature ; it was
ministerial in character . The law states that a dog warden shall be appointed
and a dog pound shall be established and maintained ." Id. Though the
statute did not "set forth the qualifications, the salary, the duties and the
term of office of the dog warden," the Court explained that
[thhese features are mere details or side issues which do not
change the ministerial. aspect of such an appointment . . . . KRS
258.195(1) made the naming of a dog warden and the setting up of
a dog pound ministerial when it placed upon the fiscal court
members the imperative duty to appoint such an officer and
provide for the care of impounded dogs. The necessity to do such
acts is still imposed and must be carried out, although some
discretion must be resorted to as regards the means to be employed
in the execution ofthe acts."
Id. (emphasis added) .
IV. Issue Presented
The issue that we confront on this appeal is a relatively narrow
one: whether Haney's supervision of the children in the Night Hike
activity was a discretionary or ministerial function .? Appellee broadly
argues that Haney negligently placed the children in a dangerous activity
and that she conducted the activity in a negligent manner.$ We review
these allegations and focus on the nature of the acts or functions
implicated .
V. Analysis
At the outset, we believe that there can be no viable contention
that Haney's act in choosing to conduct the Night Hike activity was not a
discretionary function . The affidavit of Marcelle Gianelloni, curator of
the Louisville Zoo Education Department, establishes that Haney and
other camp counselors were allowed to choose whether to use the Night
Hike activity from a number of pre-approved activities . Gianelloni
explained that
7 While, to be sure, qualified official immunity applies only where there is
also a showing that the act or function was performed in good faith and
within the scope of the employee's authority, Yanero, 65 S .W.3d at 522, these
elements of the defense have remained undisputed in Harvey's favor. We
thus devote our analysis to only one the defense's three requirements and
the issue that the lower courts have primarily addressed here: that the act
or function be discretionary in nature .
8 Though Appellee asserts in her complaint that Haney was negligent "by
placing the children in a dangerous situation in which they were blindfolded
as they traversed uneven, unfamiliar terrain" and by failing to warn the
children of an "inherently dangerous" situation., both allegations sound in
breach of her duty of supervision in the Night Hike activity.
10
[e]very week, the counselors fill out a program outline of
what they are going to do . This is given to one of our
counselors, who review the weeklong program to make sure
everything is age appropriate . The counselors were allowed
to choose whether to use the `Night Hike/Practice Makes
Perfect' activity, where to conduct the activity . . . and how
often the activity could be used.
In Haney's affidavit, she, too, stated that she was "free to select the daily
activities", and (in her deposition), added that, "[w]e did not have to do
these activities. These were just activities that they were gonna help us
to make our schedules[ .]" That Haney was "encouraged" to use the
popular Night Hike activity and, in fact, never conducted an activity that
was not designed by the camp does not alter our conclusion that she
ultimately retained complete discretion as to whether to conduct the
activity at all.
Moving on, we address Appellee's primary argument . In asserting
that her suit implicates Haney's ministerial acts or functions as camp
counselor, Appellee contends that Haney's training was such that her
supervision over the children in conducting the Night Hike activity could
not be a discretionary function. In other words, Appellee argues that the
training Haney received from the camp in how to conduct the Night Hike
activity was sufficiently comprehensive, detailed, and definite so as to
constrain her "exercise of discretion and judgment" and thus transform
her act of supervising the activity into a ministerial duty that was
"absolute, certain, and imperative, involving merely execution of a
specific act arising from fixed and designated facts." Yanero, 65 S.W.3d
at 522. Yet, in holding up Appellee's specific allegations of negligent
supervision against the training Haney actually received, this Court
cannot agree.
Appellee first argues that Haney failed to "keep the children in the
middle of the path" on which the Night Hike activity was conducted and
that her failure to do so constituted a violation of a known rule or order.
Thus, similar to the baseball coach in Yanero,9 Appellee believes that
Haney's failure to enforce a known rule indicates that her duty was
inherently ministerial for which she has no immunity .
However, because the counselors necessarily retained significant
discretion in its enforcement, we believe that the instruction at issue
here is fundamentally different from that considered in Yanero. In
Yanero, the rule requiring that student athletes wear helmets during
batting practice represented an essentially objective and binary directive .
That is to say, the children were plainly wearing .their helmets during
batting practice or they were not. There is no substantial compliance
In Yanero, a minor engaged in batting practice without a helmet and was
later injured when struck in the head with an errant pitch. 65 S .W.3d at
517 . The child asserted a claim of negligent supervision against the
assistant junior varsity baseball coach and this Court held that the coach
was not entitled to the defense of qualified official immunity because the
performance of his supervisory duties "in this instance" were ministerial in
nature "in that it involved only the enforcement of a known rule requiring
that student athletes wear batting helmets during baseball batting practice ."
Id. at 529 .
9
12
with such an order and it cannot be a matter of degree : its enforcement
was "absolute, certain, and imperative, involving merely execution of a
specific act arising from fixed and designated facts ." Id. at 522 .
Here, on the other hand, we are confronted with a single oral
instruction to "keep the children in the middle of the path" given during
a 10 to 15 minute training session on how to conduct the Night Hike
activity . 10 Though the aim of the instruction was, like Yanero, to ensure
the safety of the activity, we cannot say that its enforcement was
similarly ministerial because, here, it was a general and continuing
supervisory duty to keep the children on the middle of the path which
depended upon constantly changing circumstances - indeed, the
continuing moment-by-moment, worm-like movement of all the children
upon the path. Moreover, its enforcement was largely subjective and "left
to the will or judgment of the performer", as keeping the children in the
middle of the path could certainly "be performed in one of two or more
ways, either of which would be lawful[.]" Upchurch, 330 S.W.2d at 430.
The instruction did not in any way specify how to "keep" the children in
the middle of the path should they suddenly stray from it. This is not to
say that every rule or order must be exhaustively specific to make a
general supervisory duty a ministerial function, but it must, at least, be
to The only evidence that Appellee points to in claiming the existence of the
instruction is Harvey's admission that an oral instruction to that effect was
given during her training in the activity.
13
sufficiently specific to restrict significant discretion in its enforcement.
That cannot be said here .
For similar reasons, we cannot agree that the ministerial nature of
Haney's duties was evidenced by her failure to place the children into
smaller groups before conducting the Night Hike activity . Appellee places
great weight on a particular handout the counselors were given during
their training and argues that it created a defined rule which Haney had
no choice but to enforce . However, an examination of the one page
handout shows that its intended audience was children who desired to
conduct the Night Hike activity themselves . ." As such, its instructions
do not impose absolute duties upon the counselors. 12 Gianelloni's
affidavit confirms this, as she clearly stated that the counselors "were
allowed to choose . . . how many people to include in a single line ."
Because there is no evidence showing that the terms of the handout were
intended to be any more than suggestions and were simply distributed in
conjunction with the brief training on the activity, we do not believe that
the handout required Haney to break the children into smaller groups.
The handout was simply a copied page from a children's activity book,
Night Sciencefor Kids by Terry Krautwurst, titled "Practice Makes
Perfect/Night Hike." Harvey was not provided a copy of the book.
12 The language that Appellee relies upon here, in relevant part, reads:
"When you get back, choose a leader . Everyone else gets a blindfold. No fair
peeking under or over the bandana! (If there are lots of kids, separate into
groups of no more than four, a leader and three hikers each) ." Haney rightly
counters that "lots" was not a defined term, either in the handout or during
her training, and that a lack of instruction on that point indicates that it was
a determination left to the discretion of the counselors, based upon the
particular facts before them such as the age and ability of the participants .
11
14
We also find unpersuasive Appellee's arguments that Haney was
required to stop the children in the event that they strayed from the
middle of the path while conducting the Night Hike activity . Similar to
contentions we have already addressed, Appellee claims that Haney's
failure to comply with such a requirement indicates the ministerial
nature of her role in supervising the activity . Again, if the requirement
actually existed, we could perhaps agree. In her deposition, Haney
specifically negated Appellee's assertion:
Q.
Had you been taught by the -- during the training that
one of the safety measures that you might consider
taking if they [the children] got too close to one edge or
the other was to have them stop what they were doing?
It never -- Yes, I mean, it never came across that way.
It never -- I mean, we never went through that point.
Q.
During the training?
A.
No.
Though Appellee claims that Haney had an affirmative duty to
immediately stop the children in that scenario, Appellee identifies no
instruction on the issue in any form from Haney's training or otherwise.
In the absence of any instruction on the matter, we believe Haney's
response was one left to her discretion . Here, she chose to caution the
children that they were getting too close to the path's edge .
Unexpectedly, this apparently created a chain reaction of tripping behind
the leader.
In reviewing Appellee's specific allegations, we think it evident that
Haney's duties in supervising the Night Hike activity were discretionary
in nature. In general, supervising the physical activity of others is often
a passive function in that an individual is broadly charged with ensuring
the safety of the participants. Though Haney did receive some training
so that she might know how to conduct the Night Hike activity should
she later choose to do so, many of the activity's finer points were only
briefly addressed and some not at all. It would have, indeed, been
difficult for the training program here to foresee the many concerns and
potential dangers that could arise during the counselors' supervision of
the children in the numerous activities they could conduct. For that
matter, it seems that few systems are capable of comprehensively
training employees and officers and promulgating rules and regulations
so as to anticipate supervisory uncertainties and thereby require certain
actions in certain situations .
By way of contrast, we have held that a claim of negligent
supervision may go to a ministerial act or function in the public school
setting. In Yanero, batting practice was a specific and recurring activity
where helmets were provided for their required use in maintaining the
student athletes' safe participation . The coaches appeared widely aware
of that rule and, in fact, informed Yanero of its requirement. 65 S.W .3d
at 528 ("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 .") . Also, in Williams, this Court rejected
the notion that the failure of teachers and school administrators to
supervise their students in the face of known and recognized
misbehavior was a discretionary act. 113 S .W . 3d at 150 . There, we
noted that KRS 161 .180(1) required them to "hold pupils to strict
account for their conduct on school premises, on the way to and from
school, and on school sponsored trips and activities ." Id.
(quoting
KRS
161 .180(1)) . 13
But outside of that setting, we have found that supervising the
conduct of others is a duty often left to a large degree - and necessarily
so -- to the independent discretion and judgment of the individual
supervisor. In Sloas, we held that a deputy jailer's act of supervising
inmates engaged in a voluntary work program was "as discretionary a
task as one could envision", observing that
[o]ne man, . . . [was] in charge of this crew. He has to watch
them, and try as best he can to anticipate what they might
do, correct them as necessary, determine their capabilities,
sometimes by asking them forthright whether they can or
In addition, student misconduct was further defined through a Code of
Conduct adopted by the local Board of Education (pursuant to KRS 1.60 .290)
and "charged the teachers with the responsibility to `enforce rules and
regulations of the Board of Education."' Williams, 113 S.W.3d at 150-51 .
13
can't do the job, assign the duties and see that the work is
performed .
201 S .W .3d at 480 (emphasis in original) . 14 We view as similar Haney's
role as camp counselor and her duty to supervise the safety of the
children's physical activities. When it came to ensuring the safe
participation of the children in the Night Hike activity, Haney's training
was largely silent on the matter and, to the extent that she was offered
relevant instruction, it was broadly defined and not mandatory . Where
her training and instruction were silent, her duties, like the deputy jailer
in Sloas, were those generally imposed to exercise reasonable care under
the circumstances. Taken alone, we do not believe those duties to be
ministerial in nature and, indeed, should not be, lest we transform all
general duties into ministerial acts and functions, thus eviscerating the
doctrine of qualified official immunity. In this respect, it is worth
remembering that a motivating policy of qualified official immunity is
that officials who happen to be charged with duties that call for the
exercise of their judgment and discretion should not be held personally
liable to an individual for damages because such a result would "deter
independent action and impair the effective performance of their duties."
67 C.J .S . Officers § 255 (2009) . Indeed, we do not think it appropriate
for the threat of liability to be imposed upon Haney where, in many
14 In Sloas, a Rowan County Jail inmate was injured
after being hit by a
falling tree during a voluntary roadside clearing project. 201 S .W.3d at 47273. Sloas brought suit against the deputy jailer overseeing the work project,
alleging negligent supervision.
18
instances, she was essentially asked to supervise the safety of the
children to the best of her ability in an event that occurred in an
unpredictable manner .
This is not to say, however, that an employee or official must
necessarily contravene a particular statute or regulation for his or her
act or function to be deemed ministerial. While, indeed, a statute or
regulation may create or impose a duty upon an employee or official, the
question ultimately depends upon the nature of the duty. Cf. Upchurch,
330 S .W.2d at 430 ("KRS 258 .195(1) provides in part that the fiscal court
of each county in this state shall on or before July 1, 1954, employ a dog
warden, and shall on or before July 1, 1955, establish and conduct a dog
pound .") (emphasis in original) . Because it is the nature of the duty that
controls the analysis, we have also recognized that a common law duty -if specific and affirmative in its command -- could render an act or
function essentially ministerial in the absence of any statute or regulation
on point. See Sexton, 256 S .W .3d at 33 ("In some situations, an act may
be ministerial even if that act is not specifically covered by applicable
statutes, or administrative regulations. For example. . . . if a state entity
has actual notice of the existence of a dead or dangerous tree on property
owned by that state entity, inspecting or removing the tree may be a
ministerial act.") . In either case, therefore, what tends to demonstrate
the ministerial nature of an act or function is whether the alleged action
or inaction is an identifiable deviation from an "absolute, certain, and
imperative" obligation - whatever its source - such that it requires "only
obedience" or "merely execution of a specific act from fixed and
designated facts ." Yanero, 65 S .W .3d at 522.
Finally, we cannot accept, as Appellee suggests, that the reasoning
in Jones v. Lathram, 150 S . W.3d 50 (Ky. 2004) should similarly apply
here. 15 Driving a motor vehicle is clearly one of the most intensely
regulated, trained, tested, and supervised activities that an individual
may perform. See generally KRS Title XVI (motor vehicles) . Aside from
the basic instructions to Night Hike and its brief demonstration to the
counselors, there can be no legitimate argument that even vaguely
similar regulatory, training, testing, or supervisory systems were in place
here so as to limit or define Haney's decision-making in supervising the
children's activity .
As should now be clear, the question of whether a particular act or
function is discretionary or ministerial in nature is and, indeed, should
be, inherently fact-sensitive . Both the trial court and the Court of
Appeals simply concluded that Haney's supervisory duties in conducting
is In Jones, this Court held that a police officer's response "to an emergency
call for assistance from a fellow officer" was a ministerial act. Id. at 53 .
Jones held that "the act of safely driving a police cruiser, even in an
emergency, is not an act that typically requires any deliberation or the
exercise ofjudgment", as "driving a police cruiser requires reactive decisions
based on duty, training, and overall consideration of public safety." Id. This
Court has since reaffirmed the holding in Jones. See File, 215 S .W.3d at 40;
see also Com., Transp . Cabinet, Dept. ofHighways v. Sexton, 256 S.W.3d 29,
33 (Ky. 2008) .
20
the Night Hike activity were made ministerial by virtue of her being
trained . Yet, without more, this should not halt further analysis and, to
be sure, if it did, potentially all public employees and officials could be
subject to suit. Rather, a court must continue on and examine the
training imparted as it related to the acts or functions alleged as tortious
or directly causing the event, all in an effort toward determining whether
the training actually left the employee or official with significant
discretion regarding the act or function at issue .
VI. Conclusion
For the foregoing reasons, the decisions of the Court of Appeals
and the Jefferson Circuit Court are hereby reversed and this matter is
remanded to the trial court for further proceedings consistent with this
opinion.
All sitting. Abramson, Cunningham, Noble, and Venters, JJ .,
concur. Minton, C.J ., concurs in the result reached by the majority
consistent with his separate concurring opinion in Caneyville Volunteer
Fire Dept. v. Green's Motorcycle Salvage, 286 S.W.3d 790 (Ky. 2009), and
Schroder, J ., joins .
COUNSEL FOR APPELLANT:
Hon. Stephen Perry Durham
Assistant Jefferson County Attorney
531 Court Pl., Ste . 900
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Hon. Robert L. Heleringer
7982 New Lagrange Road, Suite One
Louisville, KY 40222
Auprente (gaurt of fiettfurkv
2008-SC-000337-DG
ERIN HANEY
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO. 2007-CA-000487
JEFFERSON CIRCUIT COURT NO. 06-C1-005614
BILJANA MONSKY, AS NEXT FRIEND
OF MAX ZAGER, A MINOR CHILD
APPELLEE
ORDER
The motion of appellee's counsel to correct the spelling of the name of the
appellee, in the above-styled action, is granted and appellee's last name shall be
corrected as MONSKY rather than MONSKEY .
The Opinion of the Court rendered April 22, 2010, is corrected on its face by
substitution of the attached page 1 in lieu of page 1 of the original opinion . Said
correction does not affect the holding of the original Opinion of the Court.
ENTERED : May
, 2010.
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