CITY OF FLORENCE, KENTUCKY; BOBBY JO WINCE; JOHN DOLAN; and THOMAS DUSING V. WILLIAM CHIPMAN, ADMINISTRATOR FOR THE ESTATE OF CONNI BLACK
Annotate this Case
Download PDF
I
’
FEBRUARY 26 2001
RENDERED: FEBRUARY 22,2001
TO BE PUBLISHED
AMENDED:
1 ggg-SC-01 58-D
CITY OF FLORENCE, KENTUCKY;
BOBBY JO WINCE; JOHN DOLAN; and
THOMAS DUSING
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
96-CA-1287-MR
BOONE CIRCUIT COURT NO. 94-Cl-202
WILLIAM CHIPMAN, ADMINISTRATOR
FOR THE ESTATE OF CONNI BLACK
APPELLEES
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
REVERSING
This appeal is from an opinion of the Court of Appeals which reversed and
remanded a summary judgment in a wrongful death negligence claim against three
Florence police officers and their employer, the City of Florence.
The threshold issue is whether the circuit judge properly granted summary
judgment on the negligence claim against the officers. The questions presented are
whether the decision of the Court of Appeals abrogates the special relationship doctrine
based on the events of this case; whether the application of Fryman v. Harrison, Ky.,
896 S.W.2d 908 (1995) was proper; whether there was a special relationship between
the officers and Black creating a duty to protect her from harm; whether the actions of
the officers became ministerial once they allegedly took Black into custody; whether
there is an immunity defense; whether there was a superseding or intervening cause for
the death, and whether principles of official immunity under Kentucky law and qualified
immunity under federal civil rights law were properly considered.
Conni Black, her boyfriend, Steve Kritis, and Susan Stemler were patrons at a
Florence bar on February 19, 1994. The evidence indicates that Kritis assaulted Black
and she subsequently left with Stemler whom she had met that night while line dancing
at the bar. Kritis followed the Stemler car and chased it through residential streets in
the early morning hours. Ultimately the vehicles reached an intersection and were
confronted by police.
Wince, a Florence police officer, joined other police at the scene and was
assigned the task of handling Stemler who was tested for alcohol and arrested for DUI.
Another officer, Boone County Deputy Sheriff Reuthe, initially determined that Kritis
was not intoxicated although there was a smell of some substance at the scene.
Deposition testimony by Reuthe indicated that he was familiar with DUI testing and that
he had received commendations within his department in the previous four years for the
most DUI arrests, and had taught at numerous seminars on DUI detection and
investigation.
He testified that he had conducted a type of sobriety test on Kritis while
the subject remained in his pickup truck. The deputy said he observed Kritis for signs of
intoxication such as nervousness, slurred speech, poor hand and eye coordination,
failure with short term memory and inability to process information. He stated that Kritis
responded without hesitation or difftculty to his questions and that he then determined
upon observation that the demeanor, appearance and responsiveness of Kritis indicated
that he was not intoxicated so as to require additional sobriety testing. Ruethe stated
-2-
that he had no reasonable articulable suspicion to remove Kritis from the vehicle.
Reuthe also reported to Florence Police Lieutenant Dusing that Kristis told him that
Stemler was a lesbian and had kidnapped his girlfriend.
Barker, an eye witness who had followed the chase, told the officers that
Stemler was the wrong person to arrest and that Kritis was crazy. Barker would later
characterize the officers as arrogant because they apparently dismissed his account
and told him to leave the scene.
Black, who appeared to be drunk, remained seated in the Stemler automobile.
Outside of her presence, Lieutenant Dusing directed Officer
Dolan to arrest her for
public intoxication unless she decided to leave with Kritis. A careful review of the record
indicates that no threat of arrest was ever communicated to Black by the police if she
refused to accompany Kritis. The officers escorted her from the Stemler automobile
when she told the police that she wanted to “go with the guy in the truck.” Although she
appeared to be intoxicated, Officer Dolan determined that she was competent enough
to make the decision to leave with Kritis. When Black was unable to unfasten’ her
seatbelt in the Stemler automobile because it had become jammed at the latch, Deputy
Alsip helped her unfasten it. Alsip testified that Black “stepped out of the car.” An
exhaustive study of the extensive record in this case indicates that Black, without
physical assistance from anyone, walked to Kritis’ truck and entered it while the Boone
County deputy held the door open for her. Even Barker admits in his deposition
testimony in three separate places that Black went willingly and unassisted to the Kritis
truck.
Kritis testified that as they drove away, Black started an argument with him, hit
him in the head with a drywall tool she found on the front seat and then grabbed the
-3-
steering wheel causing him to lose control of the truck and strike a guardrail. Black was
partially ejected from the truck and suffered a fatal injury. Erlanger police responded to
the accident scene, and they arrested Kritis who was later determined to be legally
intoxicated at the time of the accident with a blood alcohol level of .I1 5 as a result of a
blood test, Kritis testified that he was driving at 65 miles per hour when the accident
occurred.
Chipman, as Black’s Administrator, filed both a federal civil rights claim and a
state court negligence action against the city and various police officers involved in the
initial stop of the Stemler and Kritis vehicles. Summary judgment was granted by the
federal district court but was reversed by the Sixth Circuit Court of Appeals, Similarly, in
the state claim, the circuit judge granted summary judgment which was then reversed
by the Court of Appeals. The United States District Court placed the federal action in
abeyance because of the pending jurisdiction of this Court. We accepted discretionary
review.
I. Special Relationship
a. Summary Judgment Review
The 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 court to render an appropriate judgment.
The grounds for such a judgment are: 1) there is no genuine issue as to any material
fact, and 2) the moving party is entitled to a judgment as a matter of law. As originally
noted in Paintsville Hosoital Co. v. Rose, Ky., 683 S.W.2d 255 (1985) and later in
Steelvest. Inc. v. Scansteel Service Center. Inc., Ky., 807 S.W.2d 476 (1991) as well as
-4-
James Graham Brown Foundation, Inc. v. St. Paul Fire and Marine Insurance Co., Ky.,
814 S.W.2d 273 (1991), the summary judgment procedure is not a substitute for trial.
The circuit judge must examine the evidentiary matter, not to decide any issue of
fact, but to discover if a real or genuine issue exists. All doubts are to be resolved in
favor of the party opposing the motion. The movant should not succeed unless a right
to judgment is shown with such clarity that there is no room left for controversy, and it is
established that the adverse party cannot prevail under any circumstances. Steelvest,
supra, originally stated that the test would include the phrase “impossible” for the
nonmoving party to prevail at trial. Later, this Court clarified that the word “impossible”
is used in the practical sense, not the absolute sense. Perkins v. Hausladen, Ky., 828
S.W.2d 652 (1992). The party opposing a properly presented summary judgment
motion cannot defeat it without presenting at least some affirmative evidence showing
the existence of a genuine issue of material fact for trial. It bears repeating that this
Court stated in Hoke v. Cullinan, Ky., 914 S.W.2d 335 (1995) that:
contrary to the view of some, our decision in Steelvest . . . does not preclude
summary judgment. Provided litigants are given an opportunity to present
evidence which reveals the existence of disputed material facts and upon the trial
courts determination that there are no such disputed facts, summary judgment is
appropriate.
The approach to summary judgments in the state court is different from that in
the federal court, The Court of Appeals in its opinion said that its recitation of the
events relevant to these appeals draws heavily upon the Sixth Circuit opinion of Judge
Boggs in Stemler v. City of Florence, 126 F.3rd 856 (6th Cir. 1997). That appeal was
before the Sixth Circuit Court of Appeals pursuant to F.R.C.P. 12(b)(6). The description
of the situation in the federal court opinion was based on the allegations contained in
-5-
the original federal complaint. The focus of the Stemler federal appeal was in regard to
the sufficiency of the pleadings to state a cause of action for constitutional harm
because it was based on the federal civil rights action. There is a significant difference
between the standards used in determining a federal rule 12(b)(6) matter, and a
summary judgment in state court. See CSX Transo.. Inc. v. Marauar, 980 F.2d 359 (6th
Cir. 1992). We are not persuaded by citation to the record of the federal appellate court
in considering our review of the Kentucky Court of Appeals decision. The facts or
events recited in the Stemler case in federal court and so completely relied on by our
Court of Appeals are totally unsupported by the record in this case and contradictory to
the sworn testimony of all the witnesses in this case. The statements about custody are
not supported by our review and analysis of the deposition testimony in the record.
In this proceeding, the summary judgment was based on a fully developed
record, including extensive deposition testimony of all the witnesses who were involved
in the events described in the Kentucky action.
The Kentucky Court of Appeals
misconstrued the events as recited in the federal Court of Appeals decision. This is of
critical importance in determining whether a special relationship existed between Black
and the three police officers. As noted by the circuit judge, there are numerous disputes
with respect to ancillary facts but there exists no genuine issue with respect to the facts
material to the legal principles supporting the summary judgment which was granted.
The facts relied upon by this Court are those found in the deposition testimony in this
record and used by the circuit judge in his determination of summary judgment.
There is no evidence in the deposition testimony that Black was lifted or placed in
the Kritis truck. She was not in custody or otherwise restrained as a result of the
conduct of the police officers.
-6-
We are persuaded by the analysis found in City of Sunnvvale v. Rasan, 250
CaLRptr. 214 (Cal.Ct.App.1988), which held that police officers who had stopped an
automobile for an alcohol related traffic matter were not liable in tort when they allowed
the occupants to proceed. The California court stated that there is no duty to control the
conduct of another or to warn those endangered by such conduct in the absence of a
special relationship. Mere presence in a stopped vehicle does not establish any
protective duty toward a passenger to be imposed on the officer. Similarly, in Jackson
v. Clements, 194 Cal. Rptr. 553 (Cal.Ct.App. 1983) the fact that the officers undertook
to investigate and observed the intoxicated condition of some, did not create a special
relationship which imposes on the officers a duty to control the citizen’s subsequent
behavior. See Hermandez v. City of San Jose, 17 Cal.Rptr.2d 589 (Cal.Ct.App. 1993).
See also Jones v. Marvland National Capital Park and Plannina Com’n, 571 A.2d 859
(Md.Ct.Spec.App. 1990) in which the Maryland court held that there was no special
relationship so as to create a duty on the part of an officer to protect third parties arising
out of either an investigatory traffic stop, or its resulting brief detention.
The mere fact that the police told Black to remain in the Stemler automobile while
the police were taking control of the investigation scene does not rise to the level of
custody or “being otherwise restrained.” A brief detention at a traffic stop does not
create the relationship of custody. See Ragan. supra.
Although there may be a vigorous argument regarding the description of the
events, it does not alter the testimony found in the depositions. The circuit judge
correctly considered that testimony and on review, we find that he was correct in
determining that there was no genuine issue as to any material fact and that the movant
was entitled to a judgment as a matter of law. CR 56.03. It is unfortunate that the
-7-
I
.
description of the events in the federal complaint is at variance with the sworn
deposition testimony in the record. The unquestioning and uncritical adoption by the
Kentucky Court of Appeals of the description of such events in the complaint was
unfortunate and in error.
Our review of the lengthy record in this case causes us to conclude that the
Court of Appeals was in error when it determined that Black was in custody and that the
officers had a duty to protect her from third-party harm. The facts as considered by the
circuit judge in granting summary judgment are that Black remained in the Stemler
automobile during the traffic investigation stop and that she asked to leave the scene
with Kritis. She also walked on her own to the Kritis truck despite being intoxicated.
She was not physically placed in the vehicle by any of the police officers and she was
not given a threat by any of the officers either to leave with Kritis or face arrest. The
consequence is that Black was never in custody or otherwise restrained so as to give
rise to a special relationship between the police officers and Black. There is no
evidence in the record from which it can be concluded that Black was in custody by the
police or any state actor at the time the pickup truck struck the guardrail.
Kritis testified
by deposition that within minutes of leaving the police stop,” Black woke up and went
haywire.” He states that she began hitting him which led to his hitting her in return and
losing control of the truck. The truck swerved to the right and collided with a guardrail.
The impact threw Black partially out of the passenger side window and her head and an
arm were completely severed from her body. Erlanger police charged Kritis with
manslaughter and he eventually pled guilty to reckless homicide.
In order for a claim to be actionable in negligence, there must be the existence of
a duty and unless a special relationship was present, there is no duty owing from any of
-8-
the police officers to Black to protect her from crime or accident. In order for the special
relationship to exist, two conditions are required: 1) the victim must have been in state
custody or otherwise restrained by the state at the time the injury producing act
occurred, and 2) the violence or other offensive conduct must have been committed by
a state actor. Cf. Fryman v. Harrison, supra; Ashby v. City of Louisville, Ky.App., 841
S.W.2d 184 (1992). Neither of these factors can be found from the undisputed material
facts in this case. There is no evidence from which it can be ascertained that Black was
in state custody or otherwise restrained by the police at the time the pickup truck struck
the guardrail with the fatal result. In addition, there is no evidence to support a claim
that the conduct which caused the pickup truck to leave the roadway and strike the
guardrail was the result of the actions of the police officers.
I I. Court of Appeals Legal Determination
The Court of Appeals erred in its determination that there was a special
relationship between the police officers and Black which created a duty to protect her
from harm. The circuit court correctly determined that there was no evidence of custody
or other restraint at the time of the accident which was perpetrated by a state actor.
Black was unable to establish the elements of a special relationship pursuant to
Fryman, and thus her claims that the officers breached a duty to protect her fails as a
matter of law.
It is a question of law whether Black was in custody so as to establish a special
relationship. The record indicates that the police officers did not exercise sufficient
control over Black to establish that she was in custody. The fact that she was a
passenger in a motor vehicle stopped in a police investigation did not establish custody.
The evidence indicates that the officers did not make any threat of arrest to Black or in
-9-
any way attempt to coerce her decision as to how she would leave the scene of the
traffic investigation. Black repeatedly requested that she be allowed to leave the scene
with Kritis, her boyfriend. She walked unassisted to the Kritis truck and thanked an
officer for his courtesy in holding the door for her. The officers did not make any
representations concerning whether or not she should leave with Kritis, nor did they
indicate that they would protect or assist her in her decision in any way. The officers did
not voluntarily assume any duty to protect Black.
We agree with the officers that imposing a duty in this case in the absence of a
special relationship as required by Fryman would be tantamount to establishing a
universal duty of care on the police to prevent any third party harm to each and every
citizen with whom they have contact regardless of how slight the interaction or brief the
duration. As argued by the officers, the result would be exactly what the Court of
Appeals suggested which would be to avoid potential liability, officers will simply drive
past situations they encounter instead of stopping or investigating. Such a result is not
in the public interest and is not required by the law.
We are persuaded by the analysis provided by Ezell v. Cockrell, 902 S.W.2d 394
(Tenn. 1995) which indicates that persons who serve the public must be allowed to
carry out their function without fear of having to answer for harm caused to an individual
by events which are outside the control of the public official. Public officials are not an
insurer of the safety of every member of the public, nor are they personally accountable
in monetary damages only because the individual is a public official charged with a
general duty of protecting the public.
The imposition of a universal duty of care severely reduces the ability of those
public officials to engage in any discretionary decision-making on the spot. There is a
-lO-
danger of substituting the legal concept of “foreseeability” for “custody” as the threshold
in establishing a special relationship. Cf. Holson v. State, 637 A.2d 871 (Md. Ct. Spec.
App., 1994). In that case it was held that an officer did not owe a duty to protect an
inebriated passenger following the arrest of the driver of a vehicle for alcohol related
driving. The inebriated passenger was left at the scene of the traffic stop and
apparently walked into the path of a vehicle and was struck. The Court held that “being
intoxicated . . . does not create a special relationship.”
The Kentucky Court of Appeals incorrectly analyzed the situation when it stated
that a degree of discretion became ministerial once Black was in custody. Our
examination of the record indicates that the circuit judge was correct in determining that
Black was never in custody. The observation by the Court of Appeals that “had the
officers simply driven past the scene and refused to stop, there would not have been a
restraint on Black’s freedom” is difficult to reconcile with any concept of public reliance
on police and other public officials to assist or at least investigate during a time of
difficulty. The reliance by the Court of Appeals on foreseeability only to create a duty
essentially deprives all public officials, including police, of the ability to make an honest
mistake of judgment. We must reject the attempt by the Kentucky Court of Appeals to
establish a universal duty of care for all public officials.
The better standard is the one enunciated in Fryman that before addressing
foreseeability a court must first determine that there is a duty owed by public officials.
Foreseeability does not create a duty. Rather, duty can only be created by showing the
existence of a special relationship between the individual and the public official.
-ll-
As noted earlier, Fryman and Ashbv. supra, require that the victim be in custody
and that the violence or other offensive conduct be perpetrated by a state actor.
Foreseeability of harm arises only after the establishment of the existence of a duty.
III. Superseding or Intervening Cause
Even if custody were established in this case, the fighting between Kritis and
Black while driving on l-75 which resulted in the car crashing into the guardrail with fatal
consequences for Black was outside the control of the police officers who made the
earlier stop. In Fryman, this Court reinforced the concept that a superseding cause will,
as a matter of law, destroy the connection between the indirect harm to an individual
and the alleged omissions of a public official. “The question of whether an undisputed
act or circumstance is a superseding cause is a legal issue for the court to resolve and
not a factual matter for the jury.” Fryman,cat 911. f r o m t h e r e c o r d t h a t t h e r e
It is
lear
existed a superseding intervening cause which was wholly outside the control of the
police officers.
In light of our determination that custody was not established in this case we
need not decide whether the officers were entitled to official immunity.
The decision of the Court of Appeals is reversed, and the summary judgment of
the Boone Circuit Court is reinstated.
Lambert, C.J., Cooper, Graves, Johnstone, Keller and Wintersheimer, JJ.,
concur. Stumbo, J., dissents from the grant of summary judgment.
-12-
COUNSEL FOR APPELLANTS:
Hugh Skees
7699 Tanners Lane Suite 100
Florence, KY 41042
Dave Whalin
Landrum & Shouse
400 West Market Street, Suite 1900
Louisville, KY 40202
R. Thad Keal
Landrum & Shouse
220 West Main Street, Suite 1900
Louisville, KY 40202
Jeffrey C. Mando
Adams, Stepner, Woltermann & Dusing
40 West Pike Street
P.O. Box 861
Covington, KY 411012-0861
COUNSEL FOR APPELLEES:
Eric C. Deters
Eric C. Deters & Associates
300 Buttermilk Pike, Suite 334
Ft. Mitchell, KY 41017
Richard G. Meyer
Deters, Benzinger & LaVelle, PSC
2701 Turkeyfoot Road
Covington, KY 41017
-13-
I
.
1999-SC-0158-DG
CITY OF FLORENCE, KENTUCKY;
BOBBY JO WINCE; JOHN DOLAN;
and THOMAS DUSING
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
96-CA-1287-MR
BOONE CIRCUIT COURT NO. 94-CI-202
WILLIAM CHIPMAN,
ADMINISTRATOR
FOR THE ESTATE OF CONNI BLACK
ORDER
APPELLEES
AMENDING
On the Court's own motion, the above-styled "To Be
Published"
opinion, rendered by this Court on February 22, 2001,
is hereby amended on page 13, attached hereto, to correct the
spelling of the name of counsel, R. Thad Keal.
ENTERED:
February 26, 2001.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.