GLEN AVERY BRYANT V. PULASKI COUNTY DETENTIONAnnotate this Case
RENDERED : JANUARY 20, 2011
TO BE PUBLISHED
'Suprrmt Courf of ~Rrufurhv
GLEN AVERY BRYANT
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2007-CA-002074-MR
PULASKI CIRCUIT COURT NO . 07-CI-00346
PULASKI COUNTY DETENTION
CENTER; AND BRIAN BISHOP
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING IN PART, REVERSING IN PART,
VACATING IN PART AND REMANDING
Appellant, Glen Avery Bryant, was an inmate at the Pulaski County
Detention Center on June 5, 2006, when he was burned on his legs while out
on work detail. Taking the facts in the light most favorable to Appellant, the
burns were caused by the Appellee, Brian Bishop, a Pulaski County Deputy
Jailer, who threw some oil or other fuel on a fire, causing it to flare up and
burn Appellant. The questions in this case are whether the Appellant should
have been allowed to amend his complaint to include the Pulaski County
Detention Center Corporation as a party, and whether that corporation is
entitled to sovereign immunity, and whether the deputy jailer is entitled to
governmental immunity . This Court concludes that amendment of the
complaint should have been allowed, but that the corporation was immune
from suit, and that Bishop was not entitled to qualified official immunity .
At the time of the injury, Appellant and another inmate were out on work
detail cleaning out cemeteries . They were supervised by Brian Bishop . At
lunch time, the three men pulled off onto a side road, which had a small
camping site, to eat lunch. Bishop had the two inmates clean up brush and
papers at the camping site, which he planned to burn while they were eating.
At this point, the testimony diverges .
Bishop claims that he was cleaning debris from their work earlier at the
cemeteries out of the bed of his truck, which also held the chainsaws, weedeaters and jugs of two-cycle oil, two of which were small . He testified in his
deposition that he threw several handfuls of trash on the fire . The third
handful of debris had a bottle mixed in that made a popping noise when it hit
the fire . Apparently, the bottle contained oil or gas of some type. Bishop claims
that he then saw that Appellant was on fire and helped to put out the fire .
Appellant tells a strikingly different story, which was allegedly backed up
by the other inmate, whose deposition is not in the record . After the three men
ate, Bishop "took a pop bottle and made him a gas bomb, as he said, put some
gas in it, put a wick and lit it, and it just melted down there and burnt." To
build up the fire, Bishop then "got this cup out and started dousing the fire
with gas and stuff." At some point, according to Appellant, "[Bishop] throwed a
cup and it hit the fire and it hit my pants and caught me on fire ."
The fire was difficult to put out, and Appellant's legs were seriously
burned. The burns were complicated by the fact that Appellant is a diabetic .
Though the burns healed, they left permanent scarring.
Appellant brought suit
in Pulaski Circuit Court against the Pulaski
County Detention Center and Brian Bishop; individually. The trial court
granted summary judgment based on sovereign immunity to the Detention
Center, and to Brian Bishop based on qualified official immunity . Appellant
had also asked for leave to amend his complaint to name Pulaski County
Detention Center Corporation' as a party, which the trial court denied. The
summary judgment was affirmed by the Court of Appeals, and this Court
granted discretionary review.
A. Pulaski County Detention Center Corporation
Appellant makes the procedural argument that he should have been
allowed to amend his complaint to include the Pulaski County Detention
Center Corporation as a party . He also alleges that the corporation is not
entitled to sovereign immunity .
The "Pulaski County Detention Center" moved the court to dismiss the
complaint against it because it was "not a suable entity" because it was only a
building owned and operated by Pulaski County, Kentucky . The Detention
Center cited a federal district court case interpreting Kentucky law, Smith v.
Franklin County, 227 F.Supp.2d 667 (E .D . Ky . 2002), in which the federal court
1 Appellant's motion incorrectly identified the entity in question as the Pulaski County
Detention Center, Inc.
dismissed all claims against the Regional Jail because it was not an entity
capable of being sued . The Pulaski County Detention Center pointed out that it
was no more capable of being sued than was the local courthouse . Being
owned by the county, the Detention Center further argued that it was entitled
to sovereign immunity . After a hearing, the trial court entered summary
judgment in favor of the Detention Center based on sovereign immunity .
Appellee Bishop then filed motions to alter or amend and for summary
judgment, and the trial court conducted another hearing.
In response, the Appellant noted that in fact the Pulaski County
Detention Center was owned by a corporation, known as the Pulaski County
Detention Center Corporation, and moved the trial court to allow amendment
to name the corporation instead . In an order dated October 2, 2007, the trial
court granted Bishop's motion for summary judgment, and denied the
Appellant's motion to amend to add Pulaski County Detention Center
During the proceedings, counsel for the Detention Center produced the
Articles of Incorporation of Pulaski County Detention Center Corporation to
demonstrate that there was no suable entity when only the Detention Center
was named, other than the county, which was entitled to sovereign immunity .
However, since the Appellant saw this as establishing that the Detention
Center was owned by an entity other than the county, namely a private
corporation, he believed that the evidence had identified the proper suable
entity and asked the court to allow amendment to conform to the evidence.
The trial court found that the Detention Center had not been sued in its
capacity as a corporation, and denied leave to amend . This was error.
It is well-established that amendment to conform to the evidence is
proper when there can be no real surprise or detriment to the opposing party,
which is obviously the case here, since it was the Detention Center who
produced the Articles of Incorporation. See CR 15 .01 ("Otherwise a party may
amend his pleading only by leave of court or by written consent of the adverse
party; and leave shall be freely given when justice so requires.") ; Ashland Oil &
Refining Co. v. Phillips, 404 S.W.2d 449, 450-51 (Ky. 1966) ("There was no
showing that appellee's position had been worsened by the delay in offering the
amendments to the complaint; there was certainly a color of excuse for the
delay in light of appellee's long delay in responding to the interrogatories. No
suggestion of `bad faith' on the part of appellant appears. We conclude that
there was no sufficient reason for the trial court to refuse the tendered
amendments."); Kentucky Home Mut. Life Ins. Co. v. Hardin, 277 Ky. 565, 126
S.W .2d 427, 431 (1938) ("The law favors the right of litigants to have their
rights disposed of on the merits rather than technicalities" with regard to
"amendments or other reasonable changes in pleadings to the end that justice
may prevail."); see also Hoke v. Cullinan, 914 S .W .2d 335, 339 (Ky. 1995)
(noting "the freedom with which pleadings may be amended") .
However, though it was error to deny the amendment, here it is
harmless, because while the Pulaski County Detention Center Corporation is
indeed suable, it is entitled to sovereign immunity as an alter ego of the county.
Its position is on all fours with the Student Life Foundation described in Autry
v. Western Kentucky University, 219 S .W.3d 713, 717 (Ky. 2007) . Like the
Student Life Foundation in Autry, the Pulaski County Detention Center
Corporation is technically a separate corporation from the governmental entity
in question . Nevertheless, while both entities have a corporate structure, both
exist only to fulfill a purpose of the state. In Autry, the Student Life
Foundation bonded, built and held title to the dormitories situated on the
campus of Western Kentucky University only to further the university's duty to
provide housing for students . The Pulaski County Detention Center
Corporation exists for an almost identical purpose: it bonded, built and holds
title to the Detention Center property only to provide incarceration space for
inmates who have been charged with or convicted of breaking the law and are
serving a penalty in the county jail. Its only identity is to serve as a tool of
county government, which furthers the state purpose of incarcerating
lawbreakers . Thus, even if the trial court had properly allowed the
amendment, the inevitable result would have been the same : summary
judgment for the Pulaski County Detention Center Corporation on the basis of
sovereign immunity . Thus, there was no error in the trial court's finding that
even in its corporate capacity, the Detention Center was entitled to summary
judgment as a matter of law, which also renders harmless the failure to allow
amendment of the complaint. That portion of the Court of Appeals' opinion
must be affirmed.
B. Brian Bishop
Appellant also complains that the trial court erred in granting summary
judgment in favor of Brian Bishop. The trial court determined that Bishop was
entitled to summary judgment because he was acting in his official capacity
and therefore entitled to qualified official immunity at the time of the incident:
acting within the scope of his employment, performing a discretionary duty,
and not acting in bad faith. See Yanero v. Davis, 65 S.W. 3d 510 (Ky. 2001)
(laying out these three "elements") .
Appellant conceded the existence of the first two elements, so scope of
employment and nature of the action were not argued to the trial court. This is
unfortunate, because the obvious question arises, when construing the facts
most favorably to the non-moving party on a motion for summary judgment,
whether it was indeed within the scope of Bishop's employment to throw gas on
a fire in order to scare or startle another person. The obvious reasonable
answer is that it is not. But this Court is constrained to look only at the issue
presented to the trial court, that is, the preserved claim of error. No argument
has been made that there is palpable error in regard to either of the first two
issues. Indeed, it is unclear that palpable error review is available, since
Appellant's concession is more akin to an active waiver than a failure to
preserve an error for review ..
Similarly, if Bishop were not acting within the scope of his employment,
then the nature of his action-ministerial or discretionary-is immaterial . But
again, Appellant has admitted that the action was discretionary. This
admission is important, because a court must determine whether the party
was acting in good faith only where the action was discretionary. See Yanero,
65 S.W.3d at 522 .
Indeed, the arguments of counsel center around the question of whether
Bishop's right to qualified official immunity can pass the "qualification" on the
immunity, that is, whether the official performed the act in good faith . When
sued in their individual capacity, as is the case here, public officers have only
qualified official immunity, in that they are protected from liability only if they
have made a good faith judgment call in a legally uncertain environment. Id.
The "good faith" qualification has both an objective and a subjective
component. Id. at 523 (citing Nixon v. Fitzgerald, 457 U.S. 731 (1982)) .
Objectively, a court must ask whether the behavior demonstrates "a
presumptive knowledge of and respect for basic, unquestioned constitutional
rights." Id. (quoting Nixon, 457 U .S. at 81.5) . Subjectively, the court's inquiry is
whether the official has behaved with "permissible intentions." Id. (quoting
Nixon, 457 U.S . at 815. However, as Justice Cooper pointed out, most case law
addresses these elements by stating when the qualified immunity is not
available, or when the public official is acting in badfaith. Thus, bad faith "can
be predicated on a violation of a constitutional, statutory, or other clearly
established right which a person in the public employee's position
presumptively would have known was afforded a person in the plaintiff's
position, i.e., objective unreasonableness ." Id. Acting in the face of such
knowledge makes the action objectively unreasonable . Or, bad faith can be
predicated on whether the public employee "willfully or maliciously intended to
harm the plaintiff or acted with a corrupt motive," id., which requires a
Given the Appellant's admission that the actions of Bishop were
performed within the scope of his duties, and that they were discretionary in
nature, the burden shifts to the Appellant to show that the actions of Bishop
were not performed in good faith . Id. Since the court was considering
summary judgment, the facts as alleged by the Appellant are to be taken as
true. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991) ("The record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved
in his favor.") . Those facts clearly establish that Bishop was not acting in good
faith, either objectively or subjectively . Every person enjoys the established
right to be free from assaults, which is supported by the criminalization of
certain assaults or the liability that comes from civil assault. Bishop would
certainly be presumed to know-that is know or reasonably should have
known--that throwing gas on an open fire when the Appellant was standing
nearby could reasonably cause Appellant harm, thus making Bishop's action
objectively unreasonable, or in bad faith. Likewise, these actions demonstrate
a bad or "corrupt" motive, even in light of the Appellant's characterization of
the action as being a joke or the obvious conclusion that it was done to startle
him. The dangerousness of the action, whether Bishop actually intended to
harm Appellant or not, demonstrates the willfulness of the actthrowing the
gas on the fire even though any reasonable person would have realized the
danger to Appellantand demonstrates bad motive, or bad faith.
At the heart of either good or bad faith is the element of belief or
knowledge . Black's Law Dictionary defines good faith as used in the context of
this case as "[a] state of mind consisting in (1) honesty in belief or purpose, (2)
faithfulness to one's duty or obligation . . . ." Black's Law Dictionary 713 (8th
ed . 2004) . Here, taking the facts as alleged by the Appellant to be true, Bishop
could not have honestly or reasonably believed that he was faithfully
performing his duty or obligation to Appellant when he threw gas on an open
fire while Appellant was standing near it . Consequently, for purposes of
summary judgment, it was error for the trial court to conclude that Bishop was
entitled to qualified official immunity, and that judgment must be vacated.
This case must thus be remanded to the trial court to set aside the summary
judgment to Bishop, and proceed to trial on Appellant's claims against Bishop
individually. The Court is aware that the facts are at issue in the trial of this
matter, but that does not alter its conclusions in regard to whether Bishop was
entitled to summary judgment at this point in the controversy.
For the foregoing reasons, the decision of the Court of Appeals is affirmed
in part and reversed in part. The decision is affirmed as to the Pulaski County
Detention Center Corporation, but reversed as to Brian Bishop. The Pulaski
Circuit Court's summary judgment to Bishop on the basis of qualified official
immunity is vacated, and this case is remanded to Pulaski Circuit Court to
All sitting. All concur.
COUNSEL FOR APPELLANT:
E. Austin Price
Law Office of Austin Price
PO Box 1340
Whitely City, Kentucky 42653
Robert Eugene Norfleet
Robert E. Norfleet Law Office
207 W. Mt. Vernon Street, Suite 111
Somerset, Kentucky 42501
COUNSEL FOR APPELLEES:
Bryan Howard Beauman
Justin Matthew Schaefer
Sturgill, Turner, Barker 8v Moloney, PLLC
333 West Vine Street, Suite 1400
Lexington, Kentucky 40507