Turner v. NelsonAnnotate this Case
Justia Opinion Summary
Appellee Brooke Nelson brought suit against elementary public school teacher Dianne Turner after allegations that Nelson's five-year-old daughter had been sexually assaulted by another student. The complaint alleged, among other causes of action, that Turner failed to report to enforcement officials the alleged sexual assault. The circuit court entered summary judgment in favor of Turner, concluding that Turner was entitled to qualified official immunity because her action, i.e., determining whether the facts constituted abuse, was discretionary in nature. The court of appeals reversed and remanded with directions to reconsider the mandatory abuse reporting obligation of Kan. Rev. Stat. 620.030. On remand, the trial court again found qualified official immunity applicable. The court of appeals reversed, holding that the reporting requirement of the statute was mandatory and therefore ministerial, obviating any application for qualified official immunity. The Supreme Court reversed the decision of the court of appeals, holding that the trial court properly granted Turner's motion for summary judgment because Turner's actions were discretionary in nature rather than ministerial and, therefore, she was entitled to the defense of qualified official immunity under law.
RENDERED : JUNE 16, 2011
TO BE PUBLISHED
17uprrmt Courf of ~irnfurhv
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2008-CA-001588-MR
FAYETTE CIRCUIT COURT NO. 06-CI-00976
BROOKE NELSON, ETC ., ET AL.
OPINION OF THE COURT BY JUSTICE SCOTT
This is an appeal from an opinion of the Court of Appeals reversing the
summary judgment granted Appellant by the Fayette Circuit Court . The trial
court granted Appellant, Dianne Turner, summary judgment on grounds that
she was entitled to "qualified official immunity" from the claims that Appellee,
Brooke Nelson, individually, and as next friend of F.B ., asserted against her .
Because Turner's actions in this instance were discretionary in nature
rather than ministerial, she is entitled to the defense of "qualified official
immunity" as a matter of law, and for this and other reasons hereinafter set
out, we hold that the trial court properly granted her motion for summary
judgment . We, therefore, reverse the decision of the Court of Appeals and
reinstate the summary judgment originally granted by the trial court.'
In November 2005, five-year-olds F.B. and C .Y. were female kindergarten
students in Dianne Turner's class at Southern Elementary School, a Fayette
County public school . Turner had been teaching at Southern since 1990 and
had been a kindergarten teacher for ten years before that . She had an
exemplary record and had never been reprimanded or disciplined in any way.
On November 18, F.B . described an incident involving C .Y . to her
mother, Nelson, who then reported the matter to Turner . The incident had
allegedly occurred two days prior . Based upon Nelson's phone conversation
with Turner that F.B . had complained that C .Y. had been "up her butt" 2 -and
her own knowledge that F .B. often wore low cut jeans with her underwear
showing in the back-Turner interpreted the events described to have been a
playful "wedgie ."
Despite her belief that the incident was just a childish prank, Turner
separated F.B.'s and C .Y.'s seats in the classroom, forbid them from being
together in or out of the classroom during school, and discussed with C .Y. that
"touching other people on the bottom" is inappropriate . She also informed her
As we perceive the Kentucky School Boards Insurance Trust (KSBIT) to still be a
technical party to this litigation, this opinion collectively resolves issues against it
since any liability it had was contingent on Turner's liability. No issues remain
before us as to the Fayette County Public Schools or the Fayette County Board of
a Nelson disagrees with this description ; she claims she told Turner that F.B . said
C.Y. had "put her finger up my butt."
teaching assistant of the alleged incident and of her plan to keep the children
Three days later, F .B. told Turner after lunch that C .Y. had been "up
[her] butt" again in the classroom during reading class . When then questioned
by Turner, C .Y. admitted she had touched F. B., describing it as a "game we
play at home." Turner then put her assistant in charge of the classroom and
took C .Y . to find the principal, Ms. Collins, or a counselor . Neither were
available that afternoon . No other reports of inappropriate touching were ever
made to Turner.3
Later that evening, F.B . told her mother's sister, Bridget, that C.Y. had
touched her genitals . Rather than contact Turner again, on November 22,
Nelson spoke with Principal Collins . Collins indicated she was unaware of the
previous incidents and subsequently had both children report to her office for a
conference . During the conference, Collins learned that C .Y . had "accidentally
hit F.B. in between the legs but that there was not an intentional reaching over
and touching of F.B . on her vagina." Both girls described to Collins a game in
which one would pull the waistband on the other's underwear or pants and yell
"up your butt!" Moreover, both girls told her there was no anal violation,
stating "that did not happen ." Following the conference, Collins called Nelson
and told her that she had gathered some facts and would continue her
3 In her deposition, Turner testified that "[i]f I understand that a child is truly
sexually abusing another student, then I'm going to call Crimes Against Children ."
At some point later that evening, F.B . told Nelson that C.Y . had pushed
her into a table, rubbed and pinched her nipples, and touched her anus and
vagina . Nelson then went to the school the next day and informed Collins and
law enforcement (who were already there on another matter) of the incident
and took F.B. to an emergency room for a medical examination . 4
Nelson brought suit against Turner in 2006, alleging, among other
causes of action not pertinent here, that she failed (1) to exercise ordinary care
to supervise the children in her classroom and, (2) to report to enforcement
officials the alleged sexual assault perpetrated by C .Y. as required by KRS
620 .030 .
On March 1, 2007, after discovery, the Fayette Circuit Court entered
summary judgment in favor of Turner, concluding that Turner was entitled to
"qualified official immunity" because her action-determining whether the facts
constituted abuse-was discretionary in nature . The Court of Appeals,
however, reversed and remanded the matter back to the trial court with
directions to reconsider the mandatory abuse reporting obligation of KRS
620.030 or to provide further analysis as to how the determination of abuse
The medical record noted "no obvious laceration" and that "there did appear to be
some small irritation of the vagina, with no definite tear, blood seen [and] no
discharge ." According to Appellant's expert, Dr. David Shraberg, this irritation and
a bruise were "possibly consistent with F .B.'s report of . . . sexual play and
roughhousing." However, he also noted a history of urinary tract infections which
"can cause vaginal irritation as well." As to any other complaints, he noted F.B .
"appears to have no medical complaints . Insofar as emotional complaints, she did
well not only at [the] Academy, but is doing well in the first grade . She does appear
to be a rather somewhat `chatty child."'
was a discretionary act in light of the statute's mandatory reporting
On remand, the trial court set out in detail its reasoning for finding
Turner's actions discretionary and again found "qualified official immunity"
applicable . On further review, the Court of Appeals reversed and held that
Turner was not entitled to "qualified official immunity" because the reporting
requirement of'KRS 620 .030 is mandatory and therefore ministerial, obviating
any application of "qualified official immunity ." This Court then granted
Turner's motion for discretionary review .
Summary judgment is proper when the evidence demonstrates "that
there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." CR 56.03 . Thus, to defeat a
properly supported motion, the respondent must "present at least some
affirmative evidence showing that there is a genuine issue of material fact for
trial." Id. a t 482 . In such considerations, however, "[t]he record must be
viewed in a light most favorable to the party opposing the motion and all
doubts are to be resolved in his favor ." Steelvest, Inc. v. Scansteel Service
Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) . With this structure in mind, we
review de novo the Court of Appeals' conclusion that Turner was not entitled to
judgment as a matter of law .
A. Duty to Report Pursuant to KRS 620.030
Turner argues that the mandatory reporting obligation of KRS 620 .030(1)
does not apply in this case . In support, she points to KRS 600.020(1), which
generally addresses abuse by persons in a custodial or supervisory capacity .
As a result, Turner contends that she did not violate KRS 620 .030(1) because
the complaint alleged commission of the act by a child, rather than by a person
in a "supervisory or custodial capacity" as required, and further, even under
Appellee's view of KRS 620 .030, there has to be knowledge of an abuse or
reasonable cause to believe it actually occurred before the reporting
requirements of KRS 620.030(1) could apply; which there was not. We agree,
but address the contentions separately .5
KRS 620 .030(1) mandates that "[a]ny person who knows or has
reasonable cause to believe that a child is dependent, neglected, or abused
shall immediately cause an oral or written report to be made . . . ." (Emphasis
Turner also contends that KRS 620 .030 does not provide for a private cause of
action . Because we have resolved this matter on other grounds, we do not address
this specific issue.
6 KRS 620.050(1) provides, in pertinent part:
Anyone acting upon reasonable cause in the making of a report or
acting under KRS 620 .030 . . . in good faith shall have immunity from
any liability, civil or criminal, that might otherwise be incurred or
imposed. . . . However, any person who knowingly makes a false report
and does so with malice shall be guilty of a Class A misdemeanor.
We surmise that KRS 620.050(l)'s reference to "the making of a report or acting
under KRS 620.030" at a minimum contemplates and protects one in an initial
investigation of the matter.
In Commonwealth v. Allen, 980 S .W.2d 278, 279 (Ky. 1998), this Court
deemed the language of KRS 620.030(1) to be "clear and unambiguous ." Id. at
281 . However, Allen involved a teacher's report under KRS 620 .030(1) that
another teacher had engaged in sexual contact with two sixth-grade students .
Here, we are called upon to interpret the mandatory reporting obligations of
KRS 620 .030(1) where the alleged perpetrator was a five-year-old classmate .
In so doing, we must be mindful of the commands of KRS 446 .080(4),
All words and phrases shall be construed according to the common
and approved usage of language, but technical words and phrases,
and such others as may have acquired a peculiar and appropriate
meaning in the law, shall be construed according to such meaning.
In this regard, KRS 620 .030(1) specifically refers to "a child [that] is dependent,
neglected, or abused ." It falls under KRS Chapter 620, which is entitled
"Dependency, Neglect, and Abuse ." And, KRS 600.020, which contains the
definitions for KRS Chapters 600 to 645, defines an "[a]bused or neglected
child" in subsection (1), in pertinent part, as :
(1) "Abused or neglected child" means a child whose health or
welfare is harmed or threatened with harm when his parent,
guardian, or other person exercising custodial control or
supervision of the child:
(a) Inflicts or allows to be inflicted upon the child
physical or emotional injury as defined in this section
by other than accidental means;
(b) Creates or allows to be . created a risk of physical or
emotional injury as defined in this section to the child
by other than accidental means;
(e) Commits or allows to be committed an act of sexual
abuse, sexual exploitation, or prostitution upon the
(fl Creates or allows to be created a risk that an act of
sexual abuse, sexual exploitation, or prostitution will
be committed upon the child;
KRS 600 .020(1) . KRS 600.020(19) defines a "[d)ependent child ."
For reasons that KRS 620 .030(1) premises its application on "a child
[who] is dependent, neglected, or abused," we cannot escape the determination,
given the definitive and particular wording used, that these are technical words
which "have acquired a peculiar and appropriate meaning in the law." KRS
446.080(4) . Moreover, given the textual symmetry, we can find nothing in the
context of KRS 620 .030 which countermands the application of KRS
600 .020(1) .
Thus, under the plain language of KRS 600.020(1), the definition of an
abused child is limited to a scenario in which his or her "parent, guardian, or
other person exercising custodial control or supervision" inflicted or committed
abuse, allowed abuse to be inflicted or committed, or created or allowed to be
created a risk of abuse . As a result, the mandatory reporting requirement of
KRS 620 .030(1) does not apply when a child inappropriately touches another
child unless a parent, guardian, or other person exercising custodial control or
supervision allows such inappropriate touching to be committed or creates or
allows such a risk of abuse.
Here, the allegations concern improper touching by a five-year-old girl of
another five-year-old girl, not a parent, guardian, or other person exercising
custodial control or supervision, as was the case in Allen.
In this case, Turner knew that C.Y . touched F.B . based upon her
conversation with the children and Nelson . As a result, she separated their
classroom seating and forbid them from being together during school hours .
She even advised her classroom assistant of this . Thus one, in this
circumstance, could not conclude that she allowed the touching or created or
allowed the risk to be created. This is not to say that a report could not have
been made in this instance, see KRS 620 .030(1) and KRS 620 .040(3), only that
it was not mandated by KRS 620.030(1) for the reasons enunciated .
Thus, the mandatory reporting obligation of KRS 620.030(1) did not
apply to Turner in this case, as the facts alleged did not constitute a
mandatorily reportable "abuse" as envisioned by the legislature . Thus, there
was no "genuine issue of material fact for trial ." Steelvest, 807 S.W.2d at 482 .
Although we agree with Turner that the statute did not apply, we pause
to refute Nelson's expansive reading of KRS 620.030.
1 . KRS 620.030(1)
KRS 620 .030(1) continues beyond its initial mandate, imposing an
additional requirement on the Cabinet for Health and Family Services :
If the cabinet receives a report of abuse or neglect allegedly
committed by a person other than a parent, guardian, or person
exercising custodial control or supervision, the cabinet shall refer
the matter to the Commonwealth's attorney or the county attorney
and the local law enforcement agency or the Department of
Kentucky State Police .
In light of the Cabinet's additional requirement, Nelson contends that it defies
all logic that the legislature intended that the definition of "abused child"
contained in KRS 600.020(1) would trump the directive of KRS 620 .030(1) that
all reasonable beliefs of abuse by anyone be reported. See Hall v. Hospitality
Resources, Inc ., 276 S .W.3d 775, 785 (Ky. 2008) (stating that "[w]e have often
said that statutes will not be given [such a] reading where to do so would lead
to an absurd or unreasonable conclusion.") (internal citations omitted) . As a
result, he posits that the Cabinet's additional reporting obligation conflicts with
our interpretation .
Yet, our statutory interpretation neither contravenes the plain meaning
of KRS 620 .030(1) nor leads to an absurd or unreasonable conclusion . By its
own words ("dependent, neglected, or abused"), the statute and its applicable
definitions limit its reporting requirement to circumstances wherein a "parent,
guardian, or other person exercising custodial control or supervision" inflicts or
commits abuse, allows abuse to be inflicted or committed, or creates or allows
a risk of abuse to be created. By adopting Nelson's interpretation and applying
the Cabinet's reporting obligations in this case, we would be adding language
to the statute.
Moreover, we assume that the legislature acted intentionally in creating
an additional mandatory duty for the Cabinet upon receipt of such a report but
omitting it with respect to persons other than those in supervisory or custodial
positions. See Palmer v. Commonwealth, 3 S .W.3d 763, 764-765 (Ky. App .
1999) (stating that "where the legislation includes particular language in one
section of a statute, but omits it in another section of the same Act, it is
generally presumed that the legislature acted intentionally and purposefully in
the disparate inclusion or exclusion") (citations omitted) . Finally, while Nelson
may find a clear reading of the statute unpalatable because she believes it does
not adequately protect abused children,? a policy disagreement cannot be cast
as an absurd or unreasonable result as a means to ignore the plain meaning of
a statute .
2. KRS 620.030(2)
KRS 620.030(2) places additional duties upon teachers, and reads in
Any person, including . . . a . . . teacher . . . who knows or has
reasonable cause to believe that a child is dependent, neglected, or
abused, regardless ofwhether the person believed to have caused
the dependency, neglect, or abuse is a parent, guardian, person
exercising custodial control or supervision, or another person, or who
has attended such child as a part of his or her professional duties
We believe the statute adequately protects abused children while affording
discretion to teachers such as Turner . For instance, a teacher confronted with
inappropriate touching by one child upon another must contemplate a variety of
concerns including, but not limited to, the developmental age of each child. And by
reporting such an incident to law enforcement officials, without some investigation
and analysis, a teacher risks automatically destabilizing the children involved and
the classroom as a whole; alternative solutions, if appropriate, after an initial
investigation, such as separating the children and explaining why certain touching
is inappropriate, will often be preferable to immediate draconian sanctions with all
their attendant consequences if the situation was, in fact, misinterpreted . If the
belief of any violation remains, the teacher may-and should-report it . Such a
scenario is explicitly recognized by KRS 620.030(1) to the effect "[ilf the cabinet
receives a report of abuse or neglect allegedly committed by a person other than a
parent, guardian, or person exercising custodial control or supervision, the cabinet
shall refer the matter to the Commonwealth's attorney or the county attorney . . . ."
shall, if requested, in addition to the report required in subsection
(1) of this section, file with the local law enforcement agency or the
Department of Kentucky State Police or the Commonwealth's or
county attorney, the cabinet or its designated representative within
forty-eight (48) hours of the original report a written report . . .
(Emphasis added) .
Nelson argues that the breadth of KRS 620 .030 is demonstrated by
subsection (2), which states that mandatory reporting is triggered for teachers
"regardless of whether" the abuse was committed by a parent or guardian.
According to Nelson, a clear reading of the statute shows that the legislature
was trying to provide the broadest, most comprehensive protection available for
children . However, Nelson ignores that this reporting requirement applies only
"if requested ." No such request was made to Turner by anyone . Moreover, the
wording "in addition to the report required in subsection (1) of this section"
cannot be read to expand the obligatory expanse of KRS 620 .030(1) ; it merely
recognizes the secondary report, if requested, is in addition to any report
required by subsection (1) .
B. Qualified Official Immunity from Tort Liability
Turner also argues that she is entitled to "qualified official immunity"
from suit. Specifically, she contends that her actions and alleged inactions in
this case resulted from discretionary decisions.$ As a result, she cannot be
We recognize that qualified official immunity only applies where there is a showing
that the discretionary act or function was performed in good faith and within the
scope of the employee's authority . Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001) .
However, it is undisputed that 'burner acted within the scope her employment as a
teacher. Furthermore, Nelson failed to set forth facts showing that Turner acted in
bad faith. Id. at 523 ("Once the officer or employee has shown prima facie that the
act was performed within the scope of his/her discretionary authority, the burden
held liable for the tort of negligent supervision or for that matter, any statutory
action for failure to file a report pursuant to KRS 620 .030(1), had she violated
it. 9 Again, we agree .
"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.' Haney v. Monsky, 311 S.W .3d 235,
240 (Ky. 2010) (quoting Yanero v. Davis, 65 S.W.3d 510, 522 (Ky . 2001)
(emphasis added)) . And, qualified official immunity applies to statutory actions
under KRS 446.070. Clevinger v. Board ofEduc. ofPike County, 789 S.W .2d 5
(Ky . 1990) ("n this Commonwealth a School Board is protected by state
sovereign immunity from a suit for money damages for an injury wrongfully
inflicted, whether the cause of action is common law or statutory . . . .") .
"[T]he analysis depends upon classifying the particular acts or functions
in question in one of two ways : discretionary or ministerial ." Haney, 311
S .W.3d at 240 . "Qualified official immunity applies only where the act
performed by the official or employee is one that is discretionary in nature .
Discretionary acts are, generally speaking, `those involving the exercise of
shifts to the plaintiff to establish by direct or circumstantial evidence that the
discretionary act was not performed in good faith .") . As a result, our analysis
focuses on whether her actions were discretionary.
Appellee raises questions regarding Appellant's preservation of this issue relating to
Appellee's claim of negligence . However, Appellant did raise the issues in her
motion for discretionary review. Thus, it was preserved.
discretion and judgment, or personal deliberation, decision, and judgment .'
Id. (internal citations omitted) (quoting Yanero, 65 S .W .2d at 522) . "It may also
be added that discretionary acts or functions are those that necessarily require
the exercise of reason in the adaptation of means to an end, and discretion in
determining how or whether the act shall be done or the course pursued ."
Haney, 311 S .W.3d at 240. "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
Id. (citing Yanero, 65 S .W.3d at 522) . "Similarly, `that a necessity may
exist for the ascertainment of those [fixed and designated] facts does not
operate to convert the [ministerial] act into one discretionary in its nature."'
Haney, 311 S .W.3d at 240-41 (brackets in original) (quoting Upchurch v. Clinton
County, 330 S .W .2d 428, 430 (Ky. 1959)) .
In Stratton v. Commonwealth, 182 S .W.3d 516 (Ky. 2006), we analyzed an
investigation and the resulting conclusions of employees of the Cabinet for
Families and Children in an instance where a young child was placed back into
the home and subsequently re-injured and died as a result of caretaker abuse .
The investigation and ultimately erroneous conclusions were analyzed in light
of a regulation which required that "[c]ollateral contacts shall be interviewed if
the validity or severity of the report cannot be determined from the interviews"
of the victim, parents or caretakers, appropriate household and family
members, and alleged perpetrators . Id. at 520 (emphasis added) . The
argument made was that they would have discovered the true identity of the
perpetrator had they interviewed "collateral contacts ."
During the course of the investigation, "information was obtained tending
to place blame on the maternal grandmother . No information was ever
conveyed identifying Mr. Davis [the mother's live-in boyfriend, and also a
caretaker] as the abuser." Id. at 520-21 . And, in responding to a subsequent
call to an abuse hotline, Cabinet employees determined from the information
gleaned from the following visit that the child's injuries were accidentally
inflicted by a neighbor's son. These conclusions as to the perpetrator were
ultimately proven wrong by the child's death.
In recognizing the application of qualified official immunity in that case,
we noted "[suuch investigations do have certain mandated statutory
requirements as to who shall be interviewed, etc ., but they also involve
discretionary decisions by the case workers, just as in police investigations . . . .
All such discretionary functions are protected by the doctrine of [qualified]
governmental immunity . . . . " Id. at 521 .
In Haney, a camp counselor asserted qualified official immunity as a
defense to a negligent supervision claim . 311 S .W.3d at 239 . The counselor
had received a "single oral instruction to keep the children in the middle of the
path . . . during a 10 to 15 minute training session" on how to conduct a hiking
activity . Id. at 242 (internal quotations omitted) . Although given to ensure the
safety of the activity, we refused to deem enforcement to be ministerial because
the instruction to keep the children in the middle of the path created "a general
and continuing supervisory duty . . . which depended upon constantly
changing circumstances--indeed, the continuing moment-by-moment, wormlike movement of all the children upon the path." Id. at 243 . Moreover, the
instruction did not say "how to `keep' the children in the middle of the path
should they suddenly stray from it." Id. During this nature walk, as required,
the children were blindfolded . Once they strayed-as they often did-"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." Id. at 244. We found her actions in deciding how and what to do
to be discretionary .
Here, aside from KRS 620.030(1), Turner had a duty "to take all
reasonable steps to prevent foreseeable harm to [her] students." Williams v.
Kentucky Department ofEducation, 113 S .W.3d 145, 148 (Ky. 2003) (citations
omitted) . 10 And, in furtherance of the, call from Nelson and F.B.'s subsequent
comment to her, Turner separated F.B . and C.Y . in the classroom, directed that
they not be together during school, and explained to C .Y. that such touching
was inappropriate, although she believed from all she knew and had discovered
that that the incidents were the childish pranks of giving one another "wedgies"
"The basic premise for this duty is that a child is compelled to attend school so that
the protective custody of teachers is mandatorily substituted for that of the parent."
Williams, 113 S .W.3d at 148 (citations omitted) (footnote omitted) (internal
quotations omitted) .
and yelling "up your butt!" For further assurance, she also informed her
teaching assistant of the incident and of her plan to keep the children apart .
And, after F.B . told her that C .Y . had been "up [her] butt" again, she took C.Y.
aside, discussed what had occurred, and tried to find the principal or a
counselor that day, which she did not. She was not advised of any later
incident by F .B . or her mother .
Relying upon our rationale in Stratton and Haney, we consider Turner's
actions in supervising the children to have been discretionary. While there
may be legitimate disagreement as to the approach taken by Turner, the
consequences of liability under such circumstances would injuriously "deter
independent action and impair the effective performance of [teaching] duties ."
Id. at 245.
It is imperative that teachers maintain the discretion to teach, supervise,
and appropriately discipline children in the classroom. To do this, they must
have appropriate leeway to do so, to investigate complaints by parents, or
others, as to the conduct of their students, to form conclusions (based on facts
not always known) as to what actually happened, and ultimately to determine
an appropriate course of action, which may, at times, involve reporting the
conduct of a child to the appropriate authorities . In fact, protection of the
discretionary powers of our public officials and employees, exercised in good
faith, is the very foundation of our doctrine of "qualified official immunity ."
Although we consider Turner's conduct in this case to be discretionary,
we recognize the apparent incongruity with our precedent regarding a
supervisory duty in the public school setting, as "we have held that a claim of
negligent supervision may go to a ministerial act or function in the public
school setting ." Id. at 244 . However, Yanero v. Davis, 65 S.W .3d 510 (Ky.
2001) and Williams, 113 S .W.3d 145-the cases relied upon in enunciating the
public school distinction-have quite different facts from those before us . Id.
In Yanero, this Court deemed "enforcement of a known rule requiring
that student athletes wear batting helmets during baseball batting practice" to
be ministerial . 65 S .W.3d at 522 . Unlike the teacher's decision-making in this
case, a helmet requirement constitutes "an essentially objective and binary
directive ." Haney, 311 S.W .3d at 242 (discussing Yanero, 65 S .W.3d 510) . As
a result, "[thhere is no substantial compliance 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. (citation omitted) (internal quotation omitted) . You do it or you
don'tand unlike here, there is no factual determination required for its
Admittedly, we have also "rejected the notion that the failure of teachers .
. . to supervise their students in the face of known and recognized misbehavior
was a discretionary act." Id. at 244 (discussing Williams, 113 S .W.3d at 150) .
This decision stemmed from the requirement in KRS 161 .180(1) that teachers
must "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.
The dispute in this case, though, concerns the means of supervision rather
than a failure to supervise students who were drinking and driving to and from
a school-sponsored function as occurred in Williams .
Moreover, even had we agreed with Appellee's position that KRS 620 .030
mandated reports covering children touching or abusing each other and was
thus actionable under KRS 446 .070, 11 qualified official immunity would still be
applicable as the trial court aptly noted. KRS 620 .030(1) only directs reporting
by a "person who knows or has reasonable cause to believe that a child is . . .
abused ." Thus, where there is no actual knowledge of the event, there must be
an objective determination that a reasonable belief existed. Rowan County v.
Sloas, 201 S.W .3d 469, 482 (Ky. 2006) ("We make this . . . inquiry in light of
the information that the defendant official possessed at the time of the incident
in question . . . and cognizant of the fact that public officials generally are not
hermetic, ivory-tower scribes versed in the vagaries of . . . law .') (quoting Kegler
v. City ofLivonia, 173 F.3d 429 (6th Cir. 1999)); see also Jefferson County
Fiscal Court v. Peerce, 132 S.W.3d 824, 834 (Ky . 2004) . Thus, as the learned
trial judge noted in her second summary judgment following remand:
In conducting such an analysis, it is necessary to first review
KRS 620 .030 . . . . Subsection 1 of this statute states, "[a]ny
KRS 446 .070 provides that "[a] person injured by the violation of any statute may
recover from the offender such damages as he sustained by reason of the violation,
although a penalty or forfeiture is imposed for such violation ." A first offense
violation of 620 .030(1) is a Class B misdemeanor .
person who knows or has reasonable cause to believe that a child
is . . . abused shall immediately cause an oral or written report to
be made to . . ." (the appropriate authorities then listed) .
It is clear from this language that the mandatory reporting
requirement applies only when a person "knows" or has
"reasonable cause to believe" that a child has been abused . The
statute clearly does not require the reporting of every allegation of
sexual abuse or the reporting of a mere suspicion . The legislature
could have required reporting on a mere allegation or statement,
but the standard is clearly higher . As stated by the Kentucky
Supreme Court in Beckham v. Board of Education ofJefferson
County, 873 S .W. [2d] 575, 577 (Ky. 1994).
As with any case involving statutory interpretation,
our duty is to ascertain and give effect to the intent of
the General Assembly . We are not at liberty to add or
subtract from the legislative enactment nor discover
mean[ing] not reasonably ascertainable from the
language used .
There is no claim in this case that Turner witnessed F.B .
being abused or had any personal knowledge that F .B . was
abused . Her only information about the event alleged came from
what she was told by two five-year[-]old children. There appear to
be no other witnesses to the alleged events . These circumstances
required Turner to make a judgment about what may have
happened and respond appropriately . It is noted that the principal
also interviewed these two children and concluded the incidents
were accidents and did not report the matter to any other
Since Turner did not have actual or personal knowledge of
the events alleged, the only other basis upon which she was
required to make a report would be the development of a
"reasonable cause to believe" that one of the children had been
abused . Making such a determination clearly involves the exercise
of discretion. It is similar to a judicial decision that there is or is
not probable cause to support an asserted proposition . The very
purpose of the doctrine of qualified official immunity is to protect
government officials exercising discretion from second-guessing of
their good faith decisions made in difficult situations such as this .
The essence of reaching a determination as to whether reasonable
cause exists would require discretion . This requires that Turner
make reasonable inquiry into the facts, weighing the credibility of
each child and then using her judgment and experience of a
teacher of kindergarten level students, to reach a decision as to
whether there was reasonable cause to believe that sexual abuse
had occurred .
As the trial court recognized, this typifies a "legally uncertain
environment." Yanero, 65 S.W.3d at 522 (`[Qualified official immunity . . .
affords protection from damages liability for good faith judgment calls made in
a legally uncertain environment.") .
Because Turner's actions were discretionary in this case and because
she was entitled to qualified official immunity, she could not be held liable for
the tort of negligent supervision or the statutory action under KRS 446.070 .
For the foregoing reasons, the decision of the Court of Appeals is hereby
reversed and the summary judgment of the trial court is reinstated .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Mark S . Fenzel
Dana Lucas Collins
Kevin Lee Chlarson
Suite 2500 Brown & Williamson Tower
401 South Fourth Street
Louisville, KY 40202-3410
COUNSEL FOR APPELLEES :
J . Dale Golden
Michael T. Davis
Golden 8v Walters PLLC
771 Corporate Drive, Suite 905
Lexington, KY 40503