DONNIE AUTRY, CO-ADMINISTRATOR OF THE ESTATE OF MELISSA KAYE AUTRY, ET AL. V. WESTERN KENTUCKY UNIVERSITY, ET AL.
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2005-SC-0451-DG
DONNIE AUTRY, CO-ADMINISTRATOR OF THE
ESTATE OF MELISSA KAYE AUTRY; AND
VIRGINA WHITE, CO-ADMINISTRATOR OF THE
ESTATE OF MELISSA KAYE AUTRY
V.
ON REVIEW FROM COURT OF APPEALS
2004-CA-0216
WARREN CIRCUIT COURT NO. 03-CI-01492
WESTERN KENTUCKY UNIVERSITY; WKU STUDENT
LIFE FOUNDATION, INC . ; SANDRA HESS, IN HER
INDIVIDUAL AND OFFICIAL CAPACITY; AUBREY
LIVINGSTON, IN HER INDIVIDUAL AND OFFICIAL
CAPACITY; LYNNE ALLISON TODD, IN HER
INDIVIDUAL CAPACITY; LYNNE ALLISON TODD, IN
HER OFFICIAL CAPACITY; AJA HENDRIX, 1N HIS
INDIVIDUAL CAPACITY; AJA HENDRIX, IN HIS
OFFICIAL CAPACITY; ALEX KUEHNE, IN HIS
INDIVIDUAL CAPACITY; AND ALEX KUEHNE, IN HIS
OFFICIAL CAPACITY
AND
APPELANTS
2005-SC-0480-DG
WKU STUDENT LIFE FOUNDATION, INC.
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
2004-CA-0216
WARREN CIRCUIT COURT NO. 03-CI-01492
DONNIE AUTRY, CO-ADMINISTRATOR OF THE
ESTATE OF MELISSA KAYE AUTRY; VIRGINIA WHITE,
CO-ADMINISTRATOR OF THE ESTATE OF MELISSA
KAYE AUTRY; WESTERN KENTUCKY UNIVERSITY ;
SANDRA HESS, IN HER OFFICIAL CAPACITY;
AUBREY LIVINGSTON, IN HER OFFICIAL CAPACITY;
LYNNE ALLISON TODD, IN HER OFFICIAL CAPACITY;
APPELLANT
ALEX KUEHNE, IN HIS OFFICIAL CAPACITY; AJA
HENDRIX, IN HER OFFICIAL CAPACITY; SANDRA
HESS, INDIVIDUALLY; AUBREY LIVINGSTON,
INDIVIDUALLY ; LYNNE ALLISON TODD,
INDIVIDUALLY ; ALEX KUEHNE, INDIVIDUALLY ; AND
AJA HENDRIX, INDIVIDUALLY
APPELLEES
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING IN PART AND REVERSING IN PART
This wrongful death action is before the Court on discretionary review of
the Court of Appeals decision as to whether the defendants were immune from
suit. The Court of Appeals held that Western Kentucky University and its
employees in their official capacity were immune from suit, but WKU Student Life
Foundation, Inc. was not. Finding no error in the Court of Appeals' holding as to
the University and its employees in their official capacity, we affirm that part of its
opinion . However, because the Student Life Foundation was also entitled to
immunity, the part of the Court of Appeals opinion holding otherwise is reversed .
1. Background
In the early morning hours of May 4, 2003, Western Kentucky University
student Melissa Kaye Autry (Katie) was assaulted, raped, and set on fire in her
dormitory room in Hugh Poland Hall . She died three days later from her injuries.
The dormitory was owned by WKU Student Life Foundation, Inc. (SLF). Western
Kentucky University (WKU) was in charge of hiring personnel, making policy, and
generally managing the operations of the dorm. Two men were charged with the
crimes. One eventually pleaded guilty, and the other was acquitted at trial.
There is no dispute that the men were not residents of Hugh Poland Hall .
On behalf of Katie's estate, Donnie Autry and Virginia White, CoAdministrators of the estate, filed a wrongful death suit in Warren Circuit Court
2
against WKU and several of its employees (Sandra Hess, Aubrey Livingston,
Lynne Allison Todd, Alex Kuehne and Aja Hendrix) in their official and individual
capacities. They also sued Pikes, Inc., Pi Kappa Alpha Fraternity, and SLF.
Near the beginning of the case, all defendants filed motions to dismiss based on
various claims of immunity. The motions were supplemented with documents
and affidavits relating to the relationships between the defendants, and were
extensively supported by legal memoranda .
The Warren Circuit Court heard oral argument and subsequently
dismissed the claims against WKU, its employees in their official capacities, and
SLF. The employees in their individual capacities and the fraternity remained as
parties . The Court of Appeals affirmed the Warren Circuit Court's dismissal of
Western Kentucky University and its employees in their official capacity, but
reversed the dismissal of WKU Student Life Foundation, Inc. The administrators
of Katie's estate and SLF both sought and were granted discretionary review by
this Court.
11. Analysis
The issue before this Court is whether any of the defendants were entitled
to be dismissed from this action because they have immunity from suit in
negligence due to being an agency, officer, or employee of the state . Such
immunity derives from the doctrine of sovereign immunity, which holds that the
state, legislators, prosecutors, judges and others doing the essential work of the
state enjoy an absolute immunity from suit.
Governmental immunity extends to state agencies that perform
governmental functions (i .e., act as an arm of the central state government) and
3
are supported by money from the state treasury . Yanero v. Davis , 65 S .W.3d
510 (Ky. 2001). However, unless created to perform a governmental function, a
state agency is not entitled to governmental immunity. Kentucky Center for the
Arts Corp . v. Berns , 801 S .W.2d 327 (Ky. 1990) . An analysis of what an agency
actually does is required to determine its immunity status .
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 . 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.
Qualified official immunity applies to public officers or employees if their
actions are discretionary (i .e., involving personal deliberation, decisions and
judgment) and are made in good faith and within the scope of their authority or
employment . This is intended to protect governmental officers or employees
from liability for good faith judgment calls in a legally uncertain environment . An
act is not "discretionary" merely because some judgment is used in deciding on
the means or method used. However, even if an act is discretionary, there is no
immunity if it violates constitutional, statutory, or other clearly established rights,
or if it is done willfully or maliciously with intent to harm, or if it is commited with a
corrupt motive or in bad faith. The burden is on the plaintiff to show that the
public official or employee was not acting in good faith . Yanero, 65 S .W .3d at
522-23 .
If the negligent acts of public officers or employees are ministerial, there is
no immunity. An act is ministerial if the duty is absolute, certain, and imperative,
involving mere execution of a specific act based on fixed and designated facts. If
ministerial acts are proper, then the public officer or employee has official
immunity without qualification . Id. at 522 . Any act done by a public officer or
employee who knows or should have known that his actions, even though official
in nature, would violate constitutional rights or who maliciously intends to cause
injury, has no immunity. Harlow v. Fitzgerald , 457 U .S. 800, 102 S .Ct. 2727, 73
L .Ed.2d 396 (1982).
A. Western Kentucky University's Immunity
WKU is a state agency because it serves as a central arm of the state
performing the essential function of educating state citizens at the college level
and because it receives money from the state treasury in support of this function .
Withers v. University of Kentucky, 939 S .W.2d 340, 343 (Ky. 1997). Further, KRS
44.073(1) says that WKU is a state agency, as a state institution of higher
education . Pursuant to KRS 164.300, WKU must also render the supplemental
service of establishing and maintaining dormitories . It is therefore entitled to
governmental immunity unless the functions at issue can be deemed proprietary .
In order to obtain funding necessary to refurbish its dormitories, which
support the function of educating state citizens, WKU created the WKU Student
Life Foundation, Inc . to hold title to the dormitory properties . The carefully
crafted Articles of Incorporation, as finally amended on July 23, 1999, state at
Section IV(1) and (2) that the corporation was created "to at all times operate in
connection, with, and for the exclusive benefit and support of, Western Kentucky
5
University Foundation, a Corporation ; . . . [and] to either perform functions of or
carry out the purposes of the Western Kentucky University Foundation, a
Corporation . . . ." The Articles go on to enumerate several specific purposes of
SLF, including maintaining non-profit status and owning "certain student
residential and other facilities at Western Kentucky University . . . ." By this
ownership, SLF could use Warren County's bonding authority to finance the
renovations of the dormitories . WKU subsequently transferred the properties to
SLF. In turn, SLF entered into a Management Agreement with WKU on
November 20, 2000, whereby WKU would operate the dormitories, collect rent
and hire and supervise staff.
Autry and White argue that this arrangement makes WKU an agent of
SLF, since WKU assumed the management and operating duties of properties
owned by SLF, and that this amounts to a proprietary function rather than a
governmental one. This argument fails. Regardless of the form of the agency
relationship between WKU and SLF, the substance of their relationship is that
SLF exists only to serve the University's needs, and the University, by actually
managing the dorms, is performing its required statutory duty. Providing the
dorms enables the University to "give instruction at the college level, in
residence . . ." KRS 164.300 . Only WKU can run an official residence hall for the
benefit of the students . Other providers of housing do so as a business, for
profit; WKU does so as part of its definitive function . Viewed in this light, WKU
clearly is entitled to governmental immunity.
Autry and White also complain that the trial court erred in dismissing WKU
before discovery was completed, arguing that further facts might be developed
6
that would shed light on the true relationship between WKU and SLF. However,
a careful review of the record indicates that the Articles of Incorporation of SLF
and the Management Agreement between SLF and WKU were in the record and
before the trial court. These documents define the relationship as a matter of
law. WKU does not dispute that it was in charge of managing the dorms and
making policy. SLF was formed as a non-profit organization with a specific and
limited purpose . Further discovery could not provide evidence that would change
the inherent nature of WKU as a state agency performing a required statutory
duty for a public purpose . The Court of Appeals did not err in affirming the trial
court's dismissal of WKU .
B. WKU Employees
State agency officials or employees, when sued in their official capacity,
have the same immunity as their employer. Since this Court has determined that
WKU, their employer, is entitled to governmental immunity, the employees sued
here in their official capacity are likewise entitled to governmental official
immunity. The Court of Appeals did not err in affirming the trial court's dismissal
of these employees sued in their official capacity .
C. Student Life Foundation's Immunity
Autry and White take the position that regardless of WKU's immunity
status, SLF is not a governmental agency and that it is clearly acting as a
business entity in owning the dormitories and contracting with WKU to operate
and manage them . They argue that to shield SLF gives it an unfair business
advantage over non-state agency businesses and thus it is performing a
proprietary function .
However, SLF acts as an alter ego of WKU for purposes of holding title to
the dormitory properties and obtaining funding to refurbish them. Every other
operational function related to the dormitories has been ceded back to WKU
through the Management Agreement . Article IV of the agreement defines the
duties of WKU and requires WKU to "provide continuous real property services"
and to "manage the premises as residence halls for students ." More specifically,
Section 4.9 provides that WKU is responsible for all personnel matters . Section
4.10 makes WKU responsible for all housing policies, including those related to
curfew, alcohol and drugs, and public access . These are rightfully WKU's duties .
In reality SLF serves the University, and acts only on its behalf. SLF has no truly
independent existence from WKU . To claim that WKU becomes an agent of SLF
because of this arrangement is to elevate form over substance. SLF has no
respondeat superior relationship with WKU, so as to make SLF vicariously liable
for WKU's acts, because delegating dorm management to WKU is tantamount to
WKU delegating to itself . The actual alignment is that WKU is a governmental
agency fulfilling the public purpose of higher education by providing residence
halls to its students which it manages and controls . It uses SLF as an agent to
own property for WKU's purposes . This is all that SLF does. Thus while SLF is
an incorporated entity, it exists only to serve WKU, and derives it immunity status
through WKU.
As an agent or alter ego of WKU, SLF, in its official capacity, is entitled to
official immunity because this Court has found that WKU is entitled to
governmental immunity.
However, SLF was sued directly, on the assumption that it is not a
governmental entity at all . This amounts to suing SLF in its individual capacity . In
that capacity, SLF is entitled to qualified official immunity, depending upon
whether its delegation of management of its dormitory properties to WKU, which
included delegation of the security functions at issue, was a discretionary or a
ministerial function . See Yanero , 65 S.W.3d at 530 (holding that agent of the
school board enjoyed qualified official immunity) . Under the Articles of
Incorporation, at Section IV(3), SLF had the duty "to . . . manage . . . real and
personal property, including but not limited to, certain student and other
residential facilities . . . ." If the delegation of those functions was a discretionary
act, then SLF, as an agent of WKU, is entitled to immunity, even if SLF was
negligent in its delegation . SLF's action in delegating those duties was not
controlled by any prescribed rules, nor was it the product of an absolute, certain,
and imperative duty. Rather, the delegation was the product of a good faith
judgment call that the action would best serve the general functions for which
SLF was formed, and was therefore discretionary in nature. As such, SLF was
entitled to qualified official immunity . This issue was adequately presented in the
record, and the trial court decided it properly by dismissing SLF as a party.
The decision of the Court of Appeals is therefore affirmed in part and
reversed in part, and the trial court's dismissal of SLF is reinstated consistent
with this opinion .
All concur . Minton, J., not sitting .
COUNSEL FOR APPELLANTS AND CROSS-APPELLEES, DONNIE AUTRY,
CO-ADMINISTRATOR OF THE ESTATE OF MELISSA KAYE AUTRY AND
VIRGINIA WHITE, CO-ADMINISTRATOR OF THE ESTATE OF MELISSA
KAYE AUTRY:
Benjamin D. Crocker
Crocker Law Offices PLLC
558 East Tenth Street
PO Box 187
Bowling Green, Kentucky 42102-0187
COUNSEL FOR APPELLEES, WESTERN KENTUCKY UNIVERSITY,
SANDRA HESS, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, AUBREY
LIVINGSTON, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, LYNNE
ALLISON TODD, IN HER OFFICIAL CAPACITY,AJA HENDRIX, IN HIS
OFFICIAL CAPACITY, AND ALEX KUEHNE, IN HIS OFFICIAL CAPACITY:
Gregory N. Stivers
Kerrick, Stivers, Coyle & Van Zant, PLC
1025 State Street
PO Box 9547
Bowling Green, Kentucky 42102-9547
Scott Donald Laufenberg
Kerrick, Stivers, Coyle & Van Zant, PLC
1025 State Street
PO Box 9547
Bowling Green, Kentucky 42102-9547
COUNSEL FOR APPELLEES AND CROSS-APPELLANTS, WKU STUDENT
LIFE FOUNDATION, INC. :
Charles E. English, Jr.
English, Lucas, Priest & Owsley
1101 College Street
PO Box 770
Bowling Green, Kentucky 42102-0770
COUNSEL FOR APPELLEES, SANDRA HESS, INDIVIDUALLY, AUBREY
LIVINGSTON, INDIVIDUALLY, LYNNE ALLISON TODD, IN HER INDIVIDUAL
CAPACITY, AJA HENDRIX, IN HIS INDIVIDUAL CAPACITY, AND ALEX
KUEHNE, IN HIS INDIVIDUAL CAPACITY:
Joe B. Campbell
Campbell Law Office
1011 Lehman Avenue
Suite 105
Bowling Green, Kentucky 42103-6515
COUNSEL FOR APPELLEE, ALEX KUEHNE, IN HIS INDIVIDUAL CAPACITY:
Redford H . Coleman
Coleman, Lochmiller & Bond
PO Box 1177
Elizabethtown, Kentucky 42702-1177
COUNSEL FOR CROSS-APPELLEES, DONNIE AUTRY, COADMINISTRATOR OF THE ESTATE OF MELISSA KAYE AUTRY AND
VIRGINIA WHITE, CO-ADMINISTRATOR OF THE ESTATE OF MELISSA
KAYE AUTRY:
Joseph Kirwan
Coffman & Kirwan
PO Box 1359
917 College Street
Bowling Green, Kentucky 42102
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