MELINDA L. WILSON, EXECUTRIX OF THE ESTATE OF DONNA J. JOHNSON v. JEFFERSON COUNTY EMERGENCY MEDICAL SERVICE; LYLE E. YEAGER; KRISTIAN L. MORRISON; AND MARK LITTLE
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RENDERED:
December 13, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002130-MR
MELINDA L. WILSON, EXECUTRIX OF THE
ESTATE OF DONNA J. JOHNSON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. McDONALD-BURKMAN, JUDGE
ACTION NO. 00-CI-007750
JEFFERSON COUNTY EMERGENCY MEDICAL SERVICE;
LYLE E. YEAGER; KRISTIAN L. MORRISON; AND
MARK LITTLE
APPELLEES
OPINION AND ORDER
1.) OPINION AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
2.) ORDER GRANTING IN PART AND
DENYING IN PART A MOTION TO EXCEED
PAGE LIMITATION OF REPLY BRIEF
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; SCHRODER, AND TACKETT, JUDGES.
SCHRODER, JUDGE:
Summary judgment was granted to a county
Emergency Medical Service (EMS) and its employees, and a fireman
for the alleged negligence of the EMS and fire department
personnel on the basis of governmental and official immunity.
We
affirm summary judgment as to the EMS but reverse on a matter of
law and remand as to the three employees (in their individual
capacities) for a trial.
On December 4, 1999, Donna Johnson, the appellant, was
found slumped over in a car in a parking lot in Jefferson County.
Someone called 911 and both the Jefferson County EMS and the
Highview Fire Department (Fire Department) responded.
Appellees,
Kristian L. Morrison and Lyle E. Yeager, worked for the EMS.
Appellee, Mark Little, worked for the Fire Department.
The EMS
arrived first, so Morrison and Yeager took charge with Little
assisting.
The EMS transported the appellant to the hospital
with Little assisting.
The appellees were sued for negligence in
their official capacities and the three personnel were also sued
in their individual capacities.
Motions for summary judgment were filed, contending any
negligence action would be barred by governmental immunity,
official immunity, and by KRS 411.148, the “Good Samaritan Act.”
The trial court granted summary judgment on the grounds that
sovereign immunity and governmental immunity shielded all
appellees.
The trial court did not address application of the
“Good Samaritan Act.”
While this appeal was pending, our Supreme Court
decided Yanero v. Davis, Ky., 65 S.W.3d 510 (2001) and
Commonwealth Board of Claims v. Harris, Ky., 59 S.W.3d 896
(2001), both of which are now final and change some of the rules
of law regarding governmental and official immunity.
The appellee, Jefferson County EMS, was found by the
trial court to have been created under KRS 108.100, by the
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Jefferson County Fiscal Court.
As such it is classified as a
“local government” per KRS 65.200(3).
The Court also found the
Highview Fire Department operates under KRS 75.040 (created under
KRS 75.010 to KRS 75.031), which allows a fire district to
“operate a fire department and emergency ambulance
service. . . .”
KRS 75.040(1).
Again under KRS 65.200(3), the
Highview Fire Department would be a “local government.”
The trial court also found that the provision of
emergency medical services has traditionally been a governmental
function, not a proprietary function, and that the three
employees that were providing the medical care were performing a
ministerial function under Gould v. O’Bannon, Ky., 770 S.W.2d
220, 222 (1989).
The court granted summary judgment to the
county and the Jefferson County Emergency Medical Service, based
on sovereign immunity.
The trial court also granted the three
employees official immunity based on Franklin County v. Malone,
Ky., 957 S.W.2d 195 (1997), which held that as long as the
official acts were within the scope of authority of office, the
actions are those of the government and the official was entitled
to official immunity.
On appeal, the appellant did not name the
county nor contest the finding that the claim was barred by
sovereign immunity.
As mentioned earlier, subsequent decisions
of our Supreme Court changed some of the holdings in Malone after
the trial court’s rulings.
In Yanero v. Davis, Ky., 65 S.W.3d 510 (2001), and
Commonwealth Board of Claims v. Harris, Ky., 59 S.W.3d 896
(2001), our Supreme Court overruled in part Franklin County v.
-3-
Malone, Ky., 957 S.W.2d 195 (1997).
Yanero, at 520, 521, applies
“governmental immunity” to a governmental corporation performing
a public or governmental function, but not when performing a
proprietary function.
Thus, based on the finding of the trial
court in the case sub judice, the trial court was correct in
dismissing the claim against the EMS, and we affirm that part of
the judgment.
The two EMS employees and the one Fire Department
employee were found to have official immunity under Malone.
Yanero and Harris overruled that part of Malone and held that
when sued in their individual capacities, public officials only
enjoy qualified official immunity.
“Qualified official immunity
applies to the negligent performance by a public officer or
employee of (1) discretionary acts or functions. . . .”
at 522.
Yanero
“Conversely, an officer or employee is afforded no
immunity from tort liability for the negligent performance of a
ministerial act, . . .”
Id.
Consequently, we affirm that part
of the trial court’s findings that the three employees were
performing ministerial acts, but we must reverse the trial
court’s holding that would grant official immunity for the
performance of “negligent ministerial acts.”
Also before this panel is appellant’s motion to exceed
the page limit of the reply brief.
Having reviewed the matter,
we note that beginning on page 11 of the reply brief, the
appellant begins his discussion of the “Good Samaritan Act.”
411.148.
KRS
In as much as the trial court made no findings on this
issue, we grant a one-half page extension and deny the extension
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to the extent it includes a discussion of the “Good Samaritan
Act.”
See Commonwealth, Transportation Cabinet Department of
Highways v. Taub, Ky., 766 S.W.2d 49, 51 (1988).
Accordingly, we affirm summary judgment in favor of the
Jefferson County Emergency Medical Service, and we reverse the
summary judgment in favor of the two EMS employees and the one
Fire Department employee, and remand for a trial consistent with
this opinion.
ALL CONCUR.
ENTERED:
December 13, 2002
/s/ Wil Schroder
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES, JEFFERSON
COUNTY, KENTUCKY, JEFFERSON
COUNTY EMERGENCY MEDICAL
SERVICES, LYLE E. YEAGER, AND
KRISTIAN L. MORRISON,
INDIVIDUALLY AND AS EMPLOYEES
OF JEFFERSON COUNTY EMERGENCY
MEDICAL SERVICE:
David S. Strite
Mark E. Hammond
Louisville, Kentucky
Kenneth F. Osborne
Louisville, Kentucky
Dave Whalin
David P. Bowles
Louisville, Kentucky
BRIEF FOR APPELLEE, MARK
LITTLE:
Gregory A. Belzley
Laura M. Haara
Louisville, Kentucky
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