Three Forks Regional Jail v. the Estate of Ricky Combs by and Through Connie Hollan, Administratrix

RENDERED: SEPTEMBER 4, 2020; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2018-CA-001897-MR

THREE FORKS REGIONAL
JAIL; HARVEY PELFREY
INDIVIDUALLY AND IN HIS CAPACITY
AS JAIL ADMINISTRATOR OF
THREE FORKS REGIONAL JAIL; AND
THE FOLLOWING INDIVIDUALLY AND AS
AGENTS, EMPLOYEES AND/OR
REPRESENTATIVES OF THREE FORKS
REGIONAL JAIL: JULIE ADAMS, CONNIE
PERRY, JEROD GRIFFITH, JONI HAYES,
EMORY CRAWFORD, JOSHUA WARD,
AMANDA STAMPER, CHARLOTTE CONDY,
ANDREA COLLINS, JONATHAN HARRIS,
DAVID CAUDILL, AND RONALD DICKERSON CROSS-APPELLANTS

CROSS-APPEAL FROM LEE CIRCUIT COURT
v. HONORABLE MICHAEL DEAN, JUDGE
ACTION NO. 15-CI-00105

JIMMY VANOVER; ROBERT
FUGATE; AND THE ESTATE OF
RICKY COMBS, BY AND THROUGH
CONNIE HOLLAN,
ADMINISTRATRIX CROSS-APPELLEES
AND NO. 2019-CA-000306-MR

THE ESTATE OF RICKY COMBS,
BY AND THROUGH CONNIE
HOLLAN, ADMINISTRATRIX APPELLANT

APPEAL FROM LEE CIRCUIT COURT
v. HONORABLE MICHAEL DEAN, JUDGE
ACTION NO. 15-CI-00105

HARVEY PELFREY, INDIVIDUALLY
AND IN HIS CAPACITY AS THE JAIL
ADMINISTRATOR OF THREE
FORKS REGIONAL JAIL; THREE
FORKS REGIONAL JAIL; AND THE
FOLLOWING INDIVIDUALLY AND
IN THEIR OFFICIAL CAPACITIES
AS EMPLOYEES, AGENTS AND/OR
REPRESENTATIVES OF THREE
FORKS REGIONAL JAIL: JULIE
ADAMS, CONNIE PERRY, JEROD
GRIFFITH, JONI HAYES, EMORY
CRAWFORD, JOSHUA WARD,
AMANDA STAMPER, CHARLOTTE
CONDY, ANDREA COLLINS,
JONATHAN HARRIS, DAVID
CAUDILL, RONALD DICKERSON;
JIMMY VANOVER; AND
ROBERT FUGATE APPELLEES

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AND NO. 2019-CA-000507-MR

THREE FORKS REGIONAL
JAIL; HARVEY PELFREY
INDIVIDUALLY AND IN HIS
CAPACITY AS THE JAIL ADMINISTRATOR OF
THREE FORKS REGIONAL JAIL; JULIE ADAMS,
INDIVIDUALLY AND IN HER CAPACITY
AS AN AGENT, REPRESENTATIVE, AND NURSE
OF THREE FORKS REGIONAL JAIL; AND
THE FOLLOWING INDIVIDUALLY AND IN THEIR
CAPACITY AS AGENTS, REPRESENTATIVES, AND
EMPLOYEES OF THREE FORKS
REGIONAL JAIL: CONNIE
PERRY, JEROD GRIFFITH, JONI HAYES,
EMORY CRAWFORD, JOSHUA WARD,
AMANDA STAMPER, CHARLOTTE CONDY,
ANDREA COLLINS, JONATHAN HARRIS,
DAVID CAUDILL, AND RONALD DICKERSON CROSS-APPELLANTS

CROSS-APPEAL FROM LEE CIRCUIT COURT
v. HONORABLE MICHAEL DEAN, JUDGE
ACTION NO. 15-CI-00105

THE ESTATE OF RICKY
COMBS, BY AND THROUGH
CONNIE HOLLAN,
ADMINISTRATRIX; JIMMY
VANOVER; AND ROBERT
FUGATE CROSS-APPELLEES

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 OPINION
AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.

CLAYTON, CHIEF JUDGE: Ricky Combs, an inmate of the Three Forks

Regional Jail (hereinafter “the Jail”), suffered a ruptured spleen in an altercation

with another inmate and died several days later. His Estate brought suit against the

Jail, the Jail administrator, and several employees of the Jail, claiming they

negligently failed to prevent the fight and fatally delayed in obtaining medical

treatment for Combs. The Lee Circuit Court granted summary judgment to the Jail

on the grounds of sovereign immunity and to the other defendants in their official

capacities. It determined that the administrator and employees were not entitled to

individual immunity, however, because genuine issues of material fact existed

regarding whether they had violated their ministerial duties in controlling and

supervising the inmates and providing reasonable medical treatment to Combs.

The circuit court denied summary judgement on the individual capacity claims.

The Estate brings this interlocutory appeal from the circuit court’s opinion and

order, arguing that the Jail is not entitled to any form of immunity. The defendants

have cross-appealed, arguing they are entitled to qualified official immunity.

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 Background

Combs was an inmate of the Jail in 2015 when he was involved in a

fight with one or two other inmates. According to Melvin Newton, Jr., an inmate

with whom Combs shared a cell, the altercation was “just a push and a shove” in

which Combs fell from a bed onto the floor. Combs did not experience any

physical symptoms immediately following the fight, nor was it reported to the

correctional officers. Over the course of the next few days, however, Combs

complained of feeling unwell, running a fever, sweating, stomach pain and

cramping, feeling that his kidneys were shutting down, and difficulty using the

bathroom. Newton claimed that in the three days preceding his death, Combs

made ten to fifteen requests for medical help to correctional officers Emory

Crawford and Jerod Griffith and to the kitchen supervisor, Charlotte Condy.

Newton recalled that approximately two days before his death, Combs told Officer

Crawford he needed to go to the doctor. His complaints were apparently ignored.

On Saturday, July 4, 2015, Combs’s symptoms worsened. Because it

was a holiday weekend, Harvey Pelfrey, the Jail administrator, was not present.

Nurse Julie Adams, a salaried employee of the Jail, was also not present. Nurse

Adams worked regular hours at the Jail from Monday to Friday and was available

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by telephone for consultation at all other times. Her assistant, Joni Hayes,1 who

did not have any type of nursing certification, was also not present at the Jail that

day. The Jail also had a contract for medical services with a physician, Dr. Derrick

Hamilton, who was not regularly present at the Jail but could be contacted at any

time.

Early that morning at pill call, Newton told Officers Crawford and

Griffith that Combs needed help because he was sick and curled up in the fetal

position. Officer Griffith said he was first made aware of Combs’s medical

complaints that morning, contradicting Newton’s claim that Combs had already

asked Griffith for help during the previous three days. Combs told Griffith he was

experiencing left-sided abdominal pain and cramping. Griffith said he informed

the acting captain, Connie Perry, of these complaints at around 6:45 a.m. Perry

was serving as the acting captain that day because the regular captain was on

vacation. According to Perry, no one informed her that she would be acting

captain that day or what she was required to do in that position. The other

correctional officers simply decided she should serve as acting captain because she

had been employed the longest at the Jail.

1
Hayes’s first name is spelled “Joanie” in her deposition and “Joni” in the notice of appeal and
elsewhere in the record. We have adopted the latter spelling for the sake of consistency.

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 According to Officer Griffith, Captain Perry told him she was already

aware of Combs’s complaints because he had made similar complaints to her and

Nurse Adams on the previous day during pill call. Newton claims Griffith and

Crawford told him that the nurse had been called, told them Combs was fine, and

that the officers were not going to do anything but keep him in the cell. Griffith,

on the other hand, testified he was not aware of anyone calling Nurse Adams that

morning. Nurse Adams testified that the Jail did not contact her about Combs’s

condition until about 6:00 p.m. that evening.

At around 9:00 a.m., Newton had to help Combs to the bathroom

because he was unable to go on his own and he fell off the commode. As Combs’s

condition continued to worsen, Newton and his fellow inmates yelled and banged

on the cell windows to get the attention of the Jail employees. According to

Pelfrey, the Jail administrator, and to the specific terms of the Jail’s own policies

and procedure, this was an acceptable method for the inmates to alert the

employees to a medical emergency.

At some time between 1:30 p.m. and 2:30 p.m., correctional officer

Jonathan Harris radioed to the booking area that an officer needed to respond to

Combs’s cell. Officers Griffith and Crawford and acting Captain Perry heard the

request but did not respond because they were busy dealing with someone in the

booking area. Officer Harris followed up with a phone call and told Griffith that

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the inmates were requesting an officer to check on Combs. Griffith responded by

telling Officer Harris, who was a new employee, to turn off the television and

microwave to the cell. Newton claimed that switching off the television was

retaliation for the inmates’ disturbance whereas Griffith testified it was turned off

for safety and security reasons.

When Officers Crawford and Griffith came to the cell they found

Combs “hunkered over” on his bed holding his left side, complaining of abdominal

pain. They took him to the medical cells in the booking area. According to

Newton, they had to drag Combs down the hallway because he was unable to walk

on his own. Griffith described Combs as being in such severe pain he had to be

assisted. According to Newton, he was subsequently punished for trying to get

help for Combs by being placed in solitary confinement for fifteen days.

Officers Griffith and Crawford stated that Combs’s vital signs (blood

pressure and oxygenation) were normal when he was brought to the medical area

of the Jail. Combs told them he had blood in his stool two days before and had not

had a bowel movement since. Griffith placed Combs in a cell for medical

observation and strip searched him for contraband. He observed a palm-sized

bruise on his right hip. Griffith again reported Combs’s complaints to Captain

Perry, who told him the nurse had instructed them to give Combs two Tylenol and

to keep him under observation for any change in his condition. Combs said he was

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feeling better after taking the Tylenol, asked to be returned to his cell and

apparently ate lunch. Griffith stated he continued to check on Combs whom he

described as seeming to “do okay” until a little after 5:55 p.m. when Griffith left

because he was needed in the booking area. When he returned he found Combs on

his hands and knees in front of the door, claiming he could not breathe and his

chest was hurting. According to Griffith, Combs appeared to be in a great deal of

pain and his vital signs were erratic.

At around the same time, correctional officers Amanda Stamper and

Captain Josh Ward arrived for their 6:00 p.m. shift. Stamper described Combs as

shouting that his side hurt and he could not breathe. She observed a large bruise on

his left side. Officer Griffith described Combs as having a grayish appearance and

a cold clammy feeling. Captain Perry called Nurse Adams and reported that

Combs’s oxygen statistics were not registering and his blood pressure was

200/100. The nurse immediately told Perry to call 911.

Combs lost consciousness approximately two minutes before EMS

arrived. Captain Ward asked David Caudill, another corrections officer who had

just arrived for his shift, to relieve Officer Harris, who accompanied Combs.

Combs died in the ambulance a short time later before reaching the hospital.

According to Dr. John Hunsaker, III, a forensic pathologist and the

medical examiner who performed an autopsy on Combs, Combs suffered from a

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delayed rupture of the spleen. Dr. Hunsaker opined that some trauma caused the

spleen to rupture and bleed, clot, and resume bleeding until eventually it burst and

continuously bled. He described the typical symptoms of a delayed ruptured

spleen as pain in the upper left abdomen, shortness of breath, possible chest pain,

collapse, and eventual loss of consciousness. Dr. Hunsaker agreed that a layperson

would not typically recognize the symptoms of a delayed ruptured spleen. He

testified that it could be revealed by medical examinations such as X-rays, CT

scans, or an MRI. Dr. Hunsaker stated that a ruptured spleen can be successfully

treated by replacing any lost blood and then surgically removing the spleen. He

opined that Combs died of hypovolemic shock caused by his vital organs not

getting enough blood due to blood loss from the ruptured spleen.

Dr. Preston Miller, a general surgeon at Wake Forest University who

practices mainly in traumatic surgery, and was retained as an expert by the Estate,

also testified he would not expect a layperson to be able to recognize the signs and

symptoms of a ruptured spleen because this diagnosis requires evaluation by a

physician. Often, he explained, a person with a ruptured spleen will have normal

vital signs, such as blood pressure and oxygen saturation level, which would make

it difficult for a layperson to determine what was wrong. Dr. Miller reviewed

Combs’s case and opined that if he had been evaluated earlier by a medical

professional, even as late as 2:45 p.m. when he was taken to the observation cell,

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he could have been diagnosed, appropriately treated, and would likely have

survived.

At the time of Combs’s death, the Three Forks Regional Jail Policies

& Procedures Manual, revised in October 2013, stated: “You [the inmate] will

receive all necessary medical and mental health care as prescribed in KRS

[Kentucky Revised Statutes] 441.045. The jail staff will take every effort to ensure

that your rights are protected and that you are safe from harm.”

KRS 441.045(1) provides that “[t]he county governing body shall

prescribe rules for the government, security, safety, and cleanliness of the jail and

the comfort and treatment of prisoners, provided such rules are consistent with

state law. The county judge/executive may inspect the jail at any reasonable time.”

The statute thereafter sets forth the allocation of responsibility among the federal

government, the state, counties, cities and the inmates for expenses incurred in the

necessary medical, dental, and psychological treatment of inmates. “Necessary

care” is defined by the statute as “care of a nonelective nature that cannot be

postponed until after the period of confinement without hazard to the life or health

of the prisoner.” KRS 441.045(10).

Under a section entitled MEDICAL PROCEDURES, the Manual

provides:

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 Medical treatment is given under KRS 441.045, Section
10. For the purpose of this section, “Necessary Care”
means care of a non-elective nature that cannot be
postponed until after your release from jail without
hazard to life or health. . . . No inmate shall be refused
necessary health care that cannot wait until the end of his
or her incarceration. . . . In order to be seen by the
medical staff for any non-emergency issues you must fill
out a “Sick call request.” These forms may be turned in
anytime to the walk officer. Medical staff will perform
sick call as needed on a 24 hr basis.

For routine medical complaints, the Manual directs inmates to fill out a “Sick Call

Request” form. It explains that “[t]he walk officer will read your request to

determine if your complaint needs immediate attention.” Then, the on-duty nurse

“will evaluate your medical condition to determine if you need further evaluation

by the jail doctor.”

In the event of a medical emergency, the Manual directs inmates to

“push the call button in the cell” or “utilize the intercom system.” The Manual

further states: “You may also beat on the window and door to attract attention of

an officer. Frivolous or fraudulent emergencies may result in disciplinary actions.”

The Manual also states:

a. Inmates shall be informed verbally at the time of
admission the method of gaining access to medical care
or medical services in the jail. All Three Forks Regional
Detention Center inmates shall be entitled to health care.
Medical Care of the facility shall be delivered under the
direction of a licensed physician. No deputy Jailer shall

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 ever arbitrarily deny an inmate’s request for medical
services.

1. A deputy Jailer or the Jailer shall take inmates to
contracted doctors.

2. Emergency treatment is available at all times through
the Kentucky River Regional Medical Center emergency
room.

...

b. The Jail Jailers and all deputy Jailers shall be trained,
and be certified, by the appropriate agency in first aid and
all deputy Jailers shall be trained in CPR.

Under the section entitled Emergency Medical/Dental/Psychiatric Care, the

Manual provides that “Emergency medical/dental/psychiatric care shall be

available at all times to all inmates[,]” and lists the following occurrences as

constituting an emergency:

1. Severe bleeding

2. Unconsciousness or seizures

3. Serious breathing difficulties

4. Serious head injury

5. Serious burn

6. Serious pain

7. Serious suicide attempt

8. Sudden onset of bizarre behavior

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 9. Health or life threatening situation

10. Severe alcohol or drug withdrawal

When a deputy jailer is confronted with an emergency, the Manual

states the deputy jailer “shall immediately administer first aid and notify the shift

commander. The shift commander shall make the decision whether to transport the

inmate to the emergency room or doctor’s office or call the contracted physician

for instructions.”

The Manual provides that “Jail personnel shall have current training in

standard first aid equivalent to that provided by the American Red Cross,

American Heart Association, or an equivalent nationally recognized organization.

New jail personnel shall receive training within their first year of employment.”

Further, “Jail personnel shall be certified to perform CPR (Cardiopulmonary

Resuscitation), equivalent to that provided by the American Red Cross, American

Heart Association, or an equivalent nationally recognized organization. New jail

personnel shall receive certification within their first year of employment.”

In addition to these provisions relating to medical care of inmates, the

Manual contains a list of duties and job requirements for employees relating to

supervision of inmates. Employees are required to check the cells regularly to

monitor the condition of the inmates and their activities and to supervise the

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inmates during recreation, visitation, library, and all scheduled daily or weekly

functions.

In his deposition, Harvey Pelfrey, the Jail administrator, described

himself as the main supervisor of the Jail, answerable to the Board which meets

monthly. Directly beneath him is his Chief of Security, Keith Combs. Under

Combs are the captains, then four sergeants per captain and then the correctional

officers. He testified that the correctional officers receive all their training from

the Kentucky Department of Corrections. When questioned about the Manual, he

explained that he did not write it and personally did not have anything to do with it

except hiring a former Deputy Commissioner to update it. He testified that he has

familiarized himself with the Manual but did not personally know if new inmates

are informed about access to medical care. He was asked: “If a correctional

officer receives some medical complaints and doesn’t know what exactly the

problem is with the inmate, is that a situation where the nurse should be contacted

to assess the inmate?” He replied: “They should call the nurse if they are not

sure.” He also testified that any Jail employee can contact the nurse directly if the

nurse is not present, adding, “Usually the captain will unless they are involved

helping an inmate but any of them can.”

When he was questioned about why Connie Perry was the acting

officer on the day Combs died, he replied that he did not know if it was a policy of

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the Jail that the senior officer would take charge if there wasn’t a captain on duty

but explained it was “something we did in-house.” He further testified that

captains don’t receive any additional training but are chosen based on his

experience of them. He testified that he had no idea if he had told Perry anything

beyond she should call him or Keith Combs if she had problems.

Cam Lindsey, a former federal prison warden and jail administration

expert with a long history of working in corrections, evaluated the case as an

expert for the Estate. He opined that the Jail administrator and staff breached their

duties to Combs as they are defined by the policies and procedures of the Jail, by

statute, by professional correctional standards, and by the Kentucky Constitution.

In Lindsey’s opinion, the Jail staff’s failure to follow the Jail policies resulted in

Combs’s death. Specifically, he stated that Jail staff had no discretion when it

came to addressing medical complaints, which should be immediately referred to a

medical professional. Further, in Lindsey’s view, Pelfrey failed to clearly

delineate a chain of command at the Jail which resulted in Connie Perry being

appointed as captain by the correctional officers themselves, even though she had

no training or experience as a captain. He opined that the Jail staff present on the

day of Combs’s death was not qualified to determine what type of medical

treatment he needed and should have immediately contacted a medical professional

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rather than delaying treatment and turning off the TV to Combs’s cell as

punishment for the inmates banging on the windows to get their attention.

By contrast, according to Donald Leach, a corrections expert retained

by the defendants, the care and custody of Combs met acceptable correctional

practice as expected by a reasonable corrections administrator. He opined that

Combs was provided with the appropriate level of medical care based upon the

information he provided custody staff, and that when the staff became aware

Combs was experiencing a serious medical need, they took appropriate action. In

his view, the Jail and its staff complied with the Kentucky Department of

Corrections Jail Standards for training, for providing a policy and procedure

manual, and with the requirement for the provision of medical care, including

conducting sick calls five days per week and emergency services when the need

was identified.

The complaint filed by Combs’s Estate alleged that Combs was

physically beaten as a result of the defendants’ failure to properly supervise and

control the Jail inmates. The complaint further alleged that his requests for

medical attention following the beating were either ignored or inadequately

addressed and that the beating caused him pain and suffering and ultimately

resulted in his death. The complaint included claims of negligence, gross

negligence, recklessness, and wanton conduct; violation of the Jail’s own policies

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and procedures; violation of Sections 1, 2, 10, 11, 12, and 17 of the Kentucky

Constitution; violation of the Kentucky Civil Rights Act and other provisions of

the Kentucky Revised Statutes, including Chapter 441; violations of the United

States Constitution; and violations of the Kentucky Administrative Regulations

(KAR).

The named defendants, in addition to the Jail itself, were Harvey

Pelfrey; the Jail administrator; Julie Adams, the nurse; Joni Hayes, the nurse’s

assistant; Charlotte Condy, the kitchen supervisor; and the following correctional

officers: Connie Perry, Joshua Ward, Amanda Stamper, David Caudill, Jerod

Griffith, Emory Crawford, Andrea Collins, and Jonathan Harris. The complaint

also named as defendants Dr. Ronald Dickerson, the coroner, and Jimmy Vanover

and Robert Fugate, the inmates allegedly involved in the fight with Combs. The

individual defendants were named officially and also in their individual capacities

as employees, agents, and/or representatives of the Jail.

Following extensive discovery, the defendants filed a motion for

summary judgment in which they argued that the Jail and its employees in their

official capacity were entitled to sovereign immunity, that the Jail employees were

entitled to qualified official immunity for the claims against them in their

individual capacities, and that the Estate had failed to prove the Jail was negligent.

The Estate responded that the defendants were not entitled to any form of

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immunity and that a genuine issue of material fact existed regarding the negligence

of the Jail and its employees.

The trial court entered an opinion and order in which it granted the

defendants’ motion for summary judgment insofar as the claims against the Jail

and the claims against the Jail employees in their official capacities were barred by

sovereign immunity. It found that genuine issues of material fact existed as to

whether Jail officials and employees violated Jail policies and procedures and

applicable laws and regulations in their control and supervision of the inmates, and

in providing medical treatment to Combs. It characterized these duties as

ministerial and consequently denied summary judgment on the grounds of

qualified immunity as to all the claims against the defendants in their individual

capacities.

Standard and Scope of Review

In reviewing a grant of summary judgment, our inquiry focuses on

“whether the trial court correctly found that there were no genuine issues as to any

material fact and that the moving party was entitled to judgment as a matter of

law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing Kentucky

Rules of Civil Procedure (CR) 56.03). Generally, the “denial of a motion for

summary judgment is . . . not appealable because of its interlocutory nature[.]”

Transportation Cabinet, Bureau of Highways, Com. of Ky. v. Leneave, 751 S.W.2d

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36, 37 (Ky. App. 1988). An important exception is “an order denying a substantial

claim of absolute immunity [which] is immediately appealable even in the absence

of a final judgment.” Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883,

887 (Ky. 2009). This is because the cloak of immunity entitles its possessor to be

free “from the burdens of defending the action, not merely just an immunity from

liability.” Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006) (citations

omitted). Whether a defendant is entitled to “immunity is a question of law . . . ,

which we review de novo.” Id. at 475 (citations omitted).

The extent of our review in this type of appeal is strictly

circumscribed. It is limited “to the issue of immunity, and no substantive issues.”

Baker v. Fields, 543 S.W.3d 575, 578 (Ky. 2018). The reason for this is that

“[o]therwise, interlocutory appeals would be used as vehicles for bypassing the

structured appellate process.” Id. The Kentucky Supreme Court has specifically

held “that an appellate court reviewing an interlocutory appeal of a trial court’s

determination of a defendant’s immunity from suit is limited to the specific issue

of whether immunity was properly denied, nothing more.” Id. Thus, we are not

permitted to address the parties’ arguments regarding the underlying merits of the

case because it would exceed our appellate jurisdiction, which is strictly limited to

determining the availability of the defenses of sovereign, governmental and/or

qualified immunity. Maggard v. Kinney, 576 S.W.3d 559, 566 (Ky. 2019).

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 Analysis: The Availability of Immunity Defenses

a) The Jail

With these principles in mind, we turn to the Estate’s first allegation

that the trial court erred in holding that the Jail and, by extension, its employees in

their official capacities were entitled to the absolute defense of sovereign

immunity. The Estate contends that the Jail is an agency that is entitled to

immunity only insofar as it is performing a governmental, as opposed to a

proprietary, function. Housing inmates and providing medical treatment, the

Estate contends, are the types of undertakings that private businesses engage in for

profit and consequently the Jail is not shielded by immunity in this case.

It is undisputed that “[s]overeign immunity affords the state absolute

immunity from suit[.]” Transit Authority of River City v. Bibelhauser, 432 S.W.3d

171, 173 (Ky. App. 2013). Similarly, “[c]ounties, which predate the existence of

the state and are considered direct political subdivisions of it, enjoy the same

immunity as the state itself.” Comair, Inc. v. Lexington-Fayette Urban County

Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009) (citing Lexington-Fayette Urban

County Government v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004)).

Below the level of the state and the counties, immunity extends to

governmental and quasi-governmental agencies and departments, but only if it can

be shown the entity in question was (1) established by an immune entity and (2)

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performs a “function integral to state government.” Id. at 99-100. Governmental

immunity “does not extend, however, to agency acts which serve merely

proprietary ends, i.e., non-integral undertakings of a sort private persons or

businesses might engage in for profit.” Prater, 292 S.W.3d at 887.

The establishment of jails in Kentucky is governed by Chapter 441 of

the Kentucky Revised Statutes. KRS 441.025(1) mandates that “[t]he fiscal court

of each county shall provide for the incarceration of prisoners arrested in the

county or sentenced or held by order of the courts in the county.” The statute

permits the fiscal court to provide and maintain a jail facility that complies with the

health and safety standards defined in KRS 441.055 or it may contract “with

another county or a city for the incarceration and care of its prisoners[.]” KRS

441.025(2)(a)-(c).

Elsewhere in Chapter 441, provision is made for two or more counties

by ordinances to establish a regional jail authority. KRS 441.800(1). Such an

authority “shall constitute a public body corporate and politic, exercising public

and essential governmental functions, and having all the powers necessary or

convenient to carry out and effectuate the purposes and provisions of this

section[.]” KRS 441.800(2) (emphasis added). KRS 441.810(1) provides that

“[t]he regional jail authority shall be composed of members appointed by the

county judges/executive of the respective counties within the authority and the

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jailer of the county where the regional jail is located. The county judge/executive

of the most populous county shall appoint three (3) members to the authority, and

the remainder of the county judges/executive shall each appoint two (2) members.”

According to the motion for summary judgment, Three Forks

Regional Jail was established under KRS 441.810 as a regional jail for Lee,

Breathitt, Wolfe, and Owsley Counties. The Articles of Incorporation state that the

Jail is an entity under the authority of a Board whose members are appointed by

the Judges Executive of Lee, Wolfe, and Owsley Counties. The board of the Jail is

composed of six members, two from each of those counties. A permanent position

on the board is held by the elected jailer of Lee County, due to the Jail’s

geographic location in Lee County.

The question of whether the Jail is entitled to sovereign immunity

appears to be resolved definitively by Bryant v. Pulaski County Detention Center,

330 S.W.3d 461, 465 (Ky. 2011), as modified (Feb. 25, 2011). In that case, an

inmate of the Pulaski County Detention Center who was injured on work detail

sued the Detention Center but failed to name the Detention Center Corporation as a

party. The Kentucky Supreme Court ruled that although the trial court erred in

refusing to allow him to amend his complaint to add the Corporation, the error was

harmless because the Corporation was shielded by sovereign immunity. The

Supreme Court stated that the Pulaski County Detention Center Corporation was

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“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.” Id. at 465. It concluded that the Corporation was

entitled to summary judgment as a matter of law on the basis of sovereign

immunity because it was an alter ego of the county. Id.

The Jail in this case holds a position analogous to that of the Pulaski

County Detention Center Corporation, as its only identity is to serve as a tool of

county governments which established it. The Estate argues, however, that the

Bryant Court actually intended to use the term “governmental” rather than

“sovereign” immunity in reference to the Detention Center Corporation, and that

the Jail is not entitled to sovereign immunity nor to governmental immunity

because it was engaged in a proprietary function. As evidence for this, the Estate

points to the Bryant Court’s reliance on Autry v. Western Kentucky University, 219

S.W.3d 713 (Ky. 2007). In Autry, Western Kentucky University and the

University’s Student Life Foundation, which was created to build and operate the

university’s student dormitories, were found to be entitled to governmental

immunity. In its analysis, the Bryant Court equated the relationship between the

Pulaski County Detention Center and the Detention Corporation to that existing

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between the University and the Student Life Foundation, describing the position of

the Detention Center Corporation as “on all fours” with the Student Life

Foundation described in Autry. Bryant, 330 S.W.3d at 465.

The Kentucky Supreme Court has acknowledged that the terms

governmental and sovereign immunity are often used interchangeably, because

governmental immunity is itself an extension of sovereign immunity. Bryant v.

Louisville Metro Housing Authority, 568 S.W.3d 839, 845 (Ky. 2019).

Governmental immunity “is based in the concept that ‘sovereign immunity should

“extend . . . to departments, boards or agencies that are such integral parts of state

government as to come within regular patterns of administration organization and

structure.”’” Id. at 845-46 (citations omitted).

Under this reasoning, the Jail is entitled to immunity because it is an

integral part of state government. First, the Jail was established pursuant to statute

by a group of undeniably immune entities: the named counties. Although the

Estate argues that there is a distinction between a county detention center and a

regional detention center and that sovereign immunity cannot extend to regional

detention centers, it provides no support for this contention. There appears to be

no substantive difference for purposes of the immunity analysis between a

detention center established by one county or a Jail established by multiple

counties. See Regional Jail Authority v. Tackett, 770 S.W.2d 225, 229 (Ky. 1989).

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 The Bryant Court’s characterization of the Pulaski County Detention

Center Corporation as “a tool of county government, which furthers the state

purpose of incarcerating lawbreakers” applies equally to the Jail in this case.

Bryant, 330 S.W.3d at 465. “[T]here can be no doubt that the operation of a

county jail is a government function. No one suggests that a jail, a state prison, or

federal penal institution can be operated by the private sector without

governmental consent, contract, and regulation.” City of Louisville Bd. of Zoning

Adjustment v. Gailor, 920 S.W.2d 887, 889 (Ky. App. 1996).

The Estate argues that housing and providing medical care for inmates

is the sort of proprietary undertaking in which private businesses engage; it refers

specifically to the numerous jails in Kentucky which hire private, for-profit

corporations to provide medical services to inmates. The Jail itself is required to

pay for the medical treatment of inmates outside the facility and contracts with a

doctor to perform medical treatment. The Estate contends that “[w]hen the Jail’s

non-medical staff took it upon themselves to attempt to perform medical

evaluations and services for Combs, rather than have medical professionals

perform these evaluations, they were engaging in a proprietary function and

consequently neither the Jail nor its employees in their official capacity are entitled

to governmental immunity.” Appellant’s Brief, p. 24. But the fundamental claim

against the Jail concerns the failure to procure professional medical assistance for

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Combs in a timely manner in accordance with the Jail’s own policies and

procedures and the related claim that the administrator failed to train Jail personnel

to follow the policies and procedures in obtaining such assistance promptly. When

the staff allegedly failed to procure medical assistance, their inaction did not alter

the fundamentally governmental nature of the Jail.

Operating a jail is a quintessentially governmental function which

encompasses providing security and medical care to the inmates. Although a jail

may contract with private individuals or entities to provide medical care to

inmates, it is not automatically converted into a proprietary enterprise when it does

so. The provision of these services is integral to the function of the Jail and does

not transform it from a governmental entity into a proprietary one.

b) The Individual Defendants in their Official Capacities

Because the Jail is entitled to sovereign or governmental immunity, its

officers and employees are entitled to official immunity in their representative

capacities. “[W]hen an officer or employee of the state is sued in his/her

representative capacity, . . . his/her actions are included under the umbrella of

sovereign immunity[.] Similarly, when an officer or employee of a governmental

agency is sued in his/her representative capacity, the officer’s or employee’s

actions are afforded the same immunity, if any, to which the agency, itself, would

be entitled[.] Yanero v. Davis, 65 S.W.3d 510, 521-22 (Ky. 2001). “If a state

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agency is deemed to have governmental immunity, its officers or employees have

official immunity when they are sued in their official or representative capacity.”

Autry, 219 S.W.3d at 717. Simply because these officers or employees may have

performed their duties in a negligent manner, as alleged in the complaint, does not

divest them of official immunity in their representative capacity.

c) The Defendants in their Individual Capacities

Finally, the Jail defendants argue that the trial court erred in ruling

that qualified official immunity was not available to Pelfrey and the Jail employees

in their individual capacities. The complaint alleged negligence against the

defendants not only for their alleged failure to provide timely medical care for

Combs but also for their alleged failure to prevent the altercation with other

inmates which led to Combs’s injury.

“[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.” Yanero, 65 S.W.3d at 522 (citation omitted). “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

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faith; and (3) within the scope of the employee’s authority.” Id. (citations

omitted).

Conversely, “[a] government official is not afforded immunity from

tort liability for the negligent performance of a ministerial act.” Patton v. Bickford,

529 S.W.3d 717, 724 (Ky. 2016), reh’g denied (Aug. 24, 2017). A ministerial duty

is defined as one that “requires only obedience to the orders of others.” Id.

(citations omitted). A duty is ministerial “when the officer’s duty is absolute,

certain, and imperative, involving merely execution of a specific act arising from

fixed and designated facts.” Id. A ministerial duty does not, however, always

involve “the simple rote application of a set of rules.” Id. It may require

“ascertainment of . . . facts,” and an officer may be permitted “some discretion

with respect to the means or method to be employed[.]” Id. (citations omitted).

i)The Jail Administrator

The trial court ruled that although a Jail official’s decision regarding

the contents of the Jail’s emergency medical services policy was a discretionary

function, his duty to train his employees to follow the policy was ministerial. We

agree with the trial court’s analysis, which is fully consonant with our case law.

Pelfrey’s adoption and dissemination of the Jail’s Policies & Procedures Manual

was a discretionary function. Our state’s highest court has repeatedly stated that

“[p]romulgation of rules is a discretionary function; enforcement of those rules is a

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ministerial function.” Williams v. Kentucky Dep’t of Educ., 113 S.W.3d 145, 150

(Ky. 2003) (citing Yanero, 65 S.W.3d at 529); Marson v. Thomason, 438 S.W.3d

292, 297 (Ky. 2014).

But Pelfrey’s duty to supervise and train his employees to follow the

rules is ministerial. In Finn v. Warren County, Kentucky, 768 F.3d 441 (6th Cir.

2014), an opinion relied upon by the trial court, the court held that although a

supervisor’s decision “on the content of policies and training is a discretionary

function, the training of employees to adhere to their duties once that content is

decided is a ministerial function.” Id. at 449 (citations omitted).

The Jail defendants argue that Pelfrey cannot be held vicariously

liable for the allegedly negligent acts of his employees or for negligent hiring. But

Kentucky law does recognize that an employer can be held liable for the negligent

supervision, training, or insufficient training of its employees. McDonald’s Corp.

v. Ogborn, 309 S.W.3d 274, 291 (Ky. App. 2009). Thus, although Pelfrey may

invoke the defense of qualified official immunity as to the contents of the Jail

Manual, it does not serve to protect him from claims that he was negligent in

training his employees to be familiar with the contents of the Manual relating to

inmate safety and medical care.

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 ii) The Jail Employees

As to the Jail employees, the trial court held that their actions or

inactions in carrying out the Jail’s policies and procedures for the supervision of

inmates and the provision of medical treatment were ministerial. Its decision is

supported by the Kentucky Supreme Court’s consistent holding that the general

supervision of students by teachers is ministerial in nature “as it requires

enforcement of known rules.” Patton, 529 S.W.3d at 727.

Supervision of students is not ministerial when the official is given

“little or no direction or guidance on how the supervision was to be performed.”

Id. (citing Haney v. Monsky, 311 S.W.3d 235 (Ky. 2010); Sloas, 201 S.W.3d 469).

In Sloas, a case relied upon by the Jail defendants, a deputy jailer was tasked with

supervising a group of six inmates on work detail cutting down trees and brush by

the roadside. He was provided with no guidance or clear directives beyond

clearing the brush from the side of the road. The Court described his task as “he

has to watch them, and try as best he can to anticipate what they might do, correct

them as necessary, determine their capabilities, sometimes by asking them

forthright whether they can or can’t do the job, assign the duties and see that the

work is performed.” Sloas, 201 S.W.3d at 480. The deputy jailer was not

provided with any clear directives or orders as to how to accomplish this complex

and highly-discretionary task. By contrast, the Jail Policies & Procedures Manual

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contained clear directives relating to the supervision and medical treatment of

inmates. This is not a situation in which an officer was expected to perform a

governmental act that was “not prescribed” or was left “without clear directive.”

Patton, 529 S.W.3d at 727.

Thus, in cases in which employees are properly trained regarding their

supervisory duties, they are acting in a ministerial capacity. On the other hand,

when the guidance is not clear, as in Sloas, employees may invoke qualified

immunity. In this case, a question of fact remains as to whether the Jail employees

were adequately trained by Pelfrey.

The Jail defendants argue that the altercation between Combs and his

fellow inmates was not reasonably foreseeable and consequently the duty element

of the negligence claim against the correctional officers could not be met. But this

argument is directed to the sufficiency of the evidence supporting the claim of

negligence, not to the availability of qualified official immunity. A similar

question was addressed by the Kentucky Supreme Court in the context of a teacher

supervising students:

There is certainly the temptation to say that a person such
as a teacher acts in a discretionary manner, so that he
may have immunity from suit, when the ministerial act
he is required to do—here supervision of bus duty—can
have unexpected events occur. One might reason that it
is impossible for a teacher to fully perform the ministerial
duty of supervision of students because there are so many

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 things involved in that process that are beyond what the
teacher can control. For example, if a teacher is working
with a student on one side of the room, and on the other
side of the room a student stabs his desk mate with
a pencil, it could rightfully be argued that no teacher
could prevent all harm from coming to the children in his
care. But that does not mean his supervision duty was
discretionary, such that he would have immunity from
suit.

Instead, the ministerial duty of supervision must be
viewed through the lens of negligence. It is possible that
some acts that happen when a teacher is supervising are
outside the scope of what his supervision requires, and he
will be entitled to a summary judgment as a matter of
law. Or, as with the pencil stabbing, the question may be
whether the teacher was negligent in his supervision, and
then the reasonableness of the teacher’s actions will be
taken into account. Certainly, there are defenses to the
claim that a teacher (or any official) has breached his
ministerial duty. But that does not mean such a claim is
barred by immunity. The nature of the acts performed by
the teacher, or any governmental employee, determines
whether they are discretionary or ministerial.

Immunity is reserved for those governmental acts that are
not prescribed, but are done, such as policy-making or
operational decision making, without clear directive.

Marson, 438 S.W.3d at 301-02.

The Jail employees may well be found not to have acted negligently in

supervising the inmates or in procuring medical assistance for Combs, but that

does not mean the negligence claims against them are barred by immunity.

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 Finally, we turn to a brief consideration of the status of Dr. Dickerson,

Nurse Adams, and her assistant, Joni Hayes. Dr. Dickerson is the coroner who

performed the autopsy on Combs. He is not an employee of the Jail and did not

have any contact with Combs before his death. The Estate makes no specific

claims against him in his role as coroner. Whether any form of immunity is

available to Dr. Dickerson was never directly addressed by the trial court.

Although Dr. Dickerson is a named party to this appeal, his status for purposes of

immunity will not be reviewed here because it was never addressed by the trial

court.

Adams and her assistant Hayes were both employees of the Jail.

There is some evidence in the record, in the deposition testimony of Officer

Griffith, that Nurse Adams was made aware of Combs’s complaints before July 4,

2015, although she testified that she was not informed of his condition until 6:00

p.m. that day, when she directed the correctional officers to immediately call 911.

It is a central contention of the Estate’s case that Combs was not evaluated by a

medical professional at the Jail until after 6:00 p.m. on the date of his death. The

Jail defendants argue no evidence was presented that either Adams or Hayes

deviated from the appropriate standard of care. Because Nurse Adams and her

assistant were both employees of the Jail, and no specific arguments have been

made that they should be treated differently for immunity purposes than the other

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employees, the trial court’s holding regarding the availability of immunity to the

Jail employees is applicable to them. Thus, they also are entitled to immunity in

their official capacities but not in their individual capacities.

For the foregoing reasons, we affirm the Lee Circuit Court’s order and

opinion holding that (1) the Jail is protected by sovereign or governmental

immunity; (2) the Jail employees in their official capacities are cloaked in the Jail’s

absolute immunity; and (3) the Jail officials and employees are not entitled to

qualified official immunity.

ALL CONCUR.

BRIEFS AND ORAL ARGUMENT BRIEFS AND ORAL ARGUMENT
FOR APPELLANT/ FOR APPELLEES/CROSS-
CROSS-APPELLEE ESTATE OF APPELLANTS:
RICKY COMBS:
Jason E. Williams
L. Dustin Riddle London, Kentucky
Salyersville, Kentucky

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