BRYANT (GLEN AVERY) VS. PULASKI COUNTY DETENTION CENTER , ET AL.
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RENDERED: DECEMBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002074-MR
GLEN AVERY BRYANT
v.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 07-CI-00346
PULASKI COUNTY DETENTION
CENTER; BRIAN BISHOP
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, TAYLOR, AND WINE, JUDGES.
WINE, JUDGE: Glen Bryant (“Bryant”) appeals the Pulaski Circuit Court’s
dismissal of his personal injury claim against the Pulaski County Detention Center
(“PCDC”) and its employee, Brian Bishop (“Bishop”). We agree with the trial
court that PCDC and Bishop are entitled to immunity. Therefore, we affirm.
Bryant was an inmate at PCDC at all times relevant to this action.
Bryant had been on inmate work release detail for approximately one month. On
work release, Bryant was usually supervised by Bishop. Bishop’s crew performed
groundskeeping work at graveyards, including removing debris and trash. On June
5, 2005, Bryant was assigned to a work detail outside PCDC under the supervision
of Bishop. Bryant claims Bishop began to engage in horseplay during the crew’s
lunch break. Specifically, Bryant testified that Bishop took a pop bottle, some gas,
and a wick and made a gas bomb which he lit on fire. Bryant further alleges that
Bishop later started dousing the fire with a cup of gas. Bryant testified that just as
he was walking past the fire, Bishop threw the cup on the fire. The flames flared
up and caught Bryant’s pants on fire. Bryant testified another inmate tried to
extinguish the fire before Bishop was able to intervene by putting the fire out with
ice and water from the crew’s water cooler. Bryant suffered burns and scarring.
On the other hand, Bishop testified that he started the fire that day for
the purpose of burning debris and trash that the crew collected from the graveyards
where they were working. Bishop stated that he and the inmates would sometimes
pour two-cycle oil and/or diesel fuel into pop bottles so that the fuel could be easily
poured into the chainsaws they used to clear the graveyards. When asked why he
thought the accident occurred, he opined that one of those types of bottles may
have been inadvertently thrown into the fire with other debris and trash in the back
of the pickup truck that day and then popped under the fire’s heat.
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On March 12, 2007, Bryant filed a complaint against PCDC and
Bishop, individually. Bryant sought damages from PCDC and Bishop in his
capacity as an employee of the detention center. PCDC filed a motion to dismiss
the complaint arguing it was entitled to sovereign immunity. After the parties
briefed and orally argued the issues, the trial court treated PCDC’s motion to
dismiss as a summary judgment motion pursuant to Kentucky Rules of Civil
Procedure (“CR”) 12.02. On August 10, 2007, the trial court granted summary
judgment to PCDC.
Thereafter, Bishop filed a motion to alter or amend the court’s August
10 order to dismiss the claims asserted against him individually. Bishop then filed
a motion for summary judgment asserting he was entitled to qualified official
immunity. Bryant also filed a motion to alter or amend the court’s August 10
order, requesting the court overrule its prior decision granting PCDC’s motion.
The trial court entered an order dated October 3, 2007, granting Bishop’s motion
for summary judgment, holding that Bishop’s motion to alter or amend was moot,
and denying Bryant’s motion to alter or amend the court’s August 10, 2007, order.
This appeal followed.
On appeal, Bryant first argues the trial court erred in granting PCDC’s
motion for summary judgment based on sovereign immunity. He further asserts
that it was an abuse of discretion when the trial court failed to allow him to amend
his complaint against PCDC, to include Pulaski County Detention Center, Inc. We
disagree with both of these assertions.
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Kentucky counties are cloaked with sovereign immunity. Monroe
County v. Rouse, 274 S.W.2d 477, 478 (Ky. 1954). This immunity flows from the
Commonwealth’s inherent immunity by virtue of a Kentucky county’s status as an
arm or political subdivision of the Commonwealth. Id. Here, PCDC is merely a
building owned and operated by Pulaski County, Kentucky. Smith v. Franklin
County, 227 F. Supp. 2d 667, 675 (E.D. Ky. 2002). The Pulaski County Detention
Center, Inc. is a fund-raising entity that does not appear to have had anything to do
with the hiring or supervising of employees who work at the PCDC. Therefore,
neither entity would be appropriate to sue under these facts. See Smith, supra.
Whether a party may amend his complaint is discretionary with the circuit court,
and we will not disturb its ruling unless it has abused its discretion. Lambert v.
Franklin Real Estate Co., 37 S.W.3d 770, 779 (Ky. App. 2000). “An abuse of
discretion occurs when a trial judge’s decision is arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Baptist Healthcare Systems, Inc. v.
Miller, 177 S.W.3d 676, 684 (Ky. 2005) (internal quotation omitted). We find no
abuse of discretion in the trial court’s decision to grant PCDC’s motion for
summary judgment based on sovereign immunity or its decision not to allow
Bryant to amend his complaint.
Bryant also argues the trial court erred in finding that his claims
against Bishop should be dismissed based on qualified official immunity. If a state
agency is deemed to have governmental immunity, its officers or employees have
official immunity when they are sued in their official or representative capacity.
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The immunity that an agency enjoys is extended to the official acts of its officers
and employees. However, when such officers or employees are sued for negligent
acts in their individual capacities, they have qualified official immunity. Autry v.
Western Kentucky University, 219 S.W.3d 713, 717 (Ky. 2007).
The controlling case on qualified immunity is Yanero v. Davis, 65
S.W.3d 510 (Ky. 2001). Yanero dealt with a school board, an athletics director,
coaches and others being sued by a teenager who suffered a head injury when he
was hit by a pitch during batting drills at baseball practice. Overruling some
previous Kentucky decisions, Yanero set forth a test for determining whether a
public actor’s actions are discretionary or ministerial and therefore whether
qualified immunity attaches. Yanero describes discretionary acts which require
qualified official immunity and ministerial acts for which there is no immunity as
follows:
[W]hen sued in their individual capacities, public officers
and employees enjoy only qualified official immunity,
which affords protection from damages liability for good
faith judgment calls made in a legally uncertain
environment. 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; (2) in good faith;
and (3) within the scope of the employee's authority. An
act is not necessarily “discretionary” just because the
officer [or employee] performing it has some discretion
with respect to the means or method to be employed. . . .
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
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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. “That a necessity may exist
for the ascertainment of those facts does not operate to
convert the act into one discretionary in nature.”
Id. at 522 (internal citations omitted).
In Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006), the
Kentucky Supreme Court recognized that the supervision of state prisoners is a
discretionary act or function. In Sloas, as in this case, a deputy jailer was
supervising six inmates on work detail who were using chainsaws to clear brush
from roadsides in Rowan County. Id. at 473. Inmate Sloas’s leg was broken when
a falling tree, that had been cut by another inmate, struck him. Id. Sloas brought
suit against Rowan County, its jailer and the supervising deputy jailer, alleging
negligent supervision and training of the staff and prisoners without
implementation of adequate safety procedures. Id. The Supreme Court held that
the managing of six state prisoners “is as discretionary a task as one could
envision.” Id. at 480. In Sloas, the Court ultimately upheld the trial court’s
granting of summary judgment to the jailer and deputy jailer in their individual
capacities on the grounds of qualified official immunity.
Since Bishop was performing a discretionary function, he is entitled to
qualified official immunity if it is shown that he was acting within the scope of his
duties and in good faith. Bishop’s duties involved supervising inmates on work
detail. Bryant alleges that Bishop, while engaged in those duties, acted
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inappropriately by engaging in horseplay, constructing a bomb which he threw in
the fire, and then intentionally dousing the fire with gasoline. Thus, Bryant
contends that Bishop’s actions were not in good faith. However, Bryant concedes
that Bishop did not intend to hurt him and the injury was an accident. Specifically,
Bryant testified in his deposition, “It was just an accident, it was an accident.”
According to Yanero, supra, this Court must determine if Bishop “willfully or
maliciously intended to harm the plaintiff or acted with a corrupt motive.” Yanero,
65 S.W.3d at 523. While Bryant attempts to equate bad faith with horseplay, he
fails to cite any Kentucky case or case law from any foreign jurisdiction to support
his position. Even Bryant admits that Bishop was not trying to hurt him and that
any injury Bryant sustained was just an accident. Therefore, we cannot conclude
that the element of bad faith is met.
On a motion for summary judgment, the record must be viewed in the
light most favorable to the party opposing the motion. Steelvest, Inc. v. Scansteel
Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Viewing the facts of this
case, Bishop’s actions were discretionary and Bryant fails to show that Bishop was
acting outside the scope of his duties or that he acted in bad faith.
Accordingly, the court’s order granting summary judgment to both the
Pulaski County Detention Center and Bishop is affirmed.
TAYLOR, JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS AND FILES SEPARATE
OPINION.
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CAPERTON, JUDGE, CONCURRING: I concur with the wellreasoned opinion of the majority and write separately only to further illuminate the
issue before our Court.
In Sloas, our Supreme Court found that the supervision of prisoners is a
discretionary function. While true, that does not preclude a ministerial duty from
arising during the exercise of that discretion. See KRS 71.040 (stating that “[the
jailer] shall treat them humanely.”) More to the point, merely because the
supervision of a work detail outside the jail is a discretionary function, this in and
of itself does not allow the discretion to abrogate ministerial duties.
In Sloas, our Supreme Court cited to Lamb v. Clark, 138 S.W.2d 350,
352 (1940) and stated “[t]he law imposes the duty on a jailer to exercise reasonable
and ordinary care and diligence to prevent unlawful injury to a prisoner placed in
his custody, but he cannot be charged with negligence in failing to prevent what he
could not reasonably anticipate.”
The issues of whether the acts of Bishop in dosing the fire with a
mixture of oil and gas violated a ministerial duty or whether Bishop was acting
within the scope of his discretionary authority are not before our Court. The sole
issue presented to us was whether Bishop was acting in bad faith. In considering
the good faith or bad faith of Bishop’s actions, the parties agreed that the injury to
Bryant was an accident. Onerous is the burden to show that an accident is
tantamount to bad faith.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Austin Price
Whitley City, Kentucky
Bryan H. Beauman
Justin M. Schaefer
Lexington, Kentucky
Robert E. Norfleet
Somerset, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
ORAL ARGUMENT FOR
APPELLEES:
Justin M. Schaefer
Austin Price
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