RENDERED: DECEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0072-MR
GABRIELL GRAY APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 18-CI-00175
MARK WELLS; EDDIE WILKERSON;
WES BLAIR; JENNY BROWN; AND
MELISSA CURTSINGER APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
CETRULO, JUDGE: Gabriell Gray (Gabbie) appeals a judgment of the Hardin
Circuit Court summarily dismissing her negligence claims against the above-
captioned appellees based primarily upon qualified immunity. Upon review, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
In its dispositive order of December 15, 2020, the circuit court
accurately summarized the relevant history of this matter:
Just over four years ago, Gabbie was a student at John
Hardin High School (“JHHS”). Prior to the incident
which forms the basis of this suit, Gabbie had “issues”
with the Defendant Shayla Chedwick (“Shayla”). While
words had been exchanged, perhaps for years, there was
no prior incident of actual physical violence between
them reported to school officials.
On Monday morning, November 21, 2016, Gabbie and
Shayla were both in the cafeteria or commons area of
JHHS with a number and perhaps hundreds of other
students. The approximate time was after 8 a.m. but
before classes started for the day at 8:30 a.m. Students
regularly had the opportunity for breakfast during this
time.
Gabbie suggests the details of what happened on this
morning are undisputed, but this record suggests
otherwise. According to Gabbie’s statements, Shayla
began the incident by asking Gabbie: “Do you have a
problem?” This started from a distance. Then Shayla
came closer to Gabbie repeating the question. Gabbie
responded telling Shayla: “I just don’t like you.” As
things escalated, Gabbie tells Shayla to get out of her
face.
Gabbie says Shayla then pulled her hair. Shayla says
Gabbie pushed her before Shayla used any force. Shayla
has counterclaimed for assault and battery by Gabbie
suggesting this possible initial aggressor argument. In
any event, a fight starts between the girls. Another
student and friend of Gabbie’s got between the girls
disrupting the initial fight.
-2-
At this point, Shayla’s brother, the Defendant Jaevoni
Chedwick (“Voni”), interjected himself striking Gabbie.
The situation ended when a staff member, ROTC Colonel
Warren Griggs (“Griggs”), was passing by the area and
intervened to break up the fight. Griggs himself was
injured by Voni during the melee.
This matter was initiated in Hardin Circuit Court on February 2, 2018,
against Gabbie’s attackers, and also the above-captioned appellees who were
employed at JHHS in various roles at the time. Wells was the principal; Wilkerson
was the vice-principal; Blair was the director of the county school’s alternate
school programs; and Brown and Curtsinger were teachers. In her complaint,
Gabbie1 asserted that these individuals had breached tort-related duties owed to her
by failing to prevent the above-described incident, and that they were accordingly
negligent. As discussed in greater depth below, she believed these individuals
should have either (1) stopped the fight from happening that day, or (2) ensured
that she and Shayla were not in the same school.
In response, each of the appellees asserted qualified immunity;
alternatively, they asserted no duty owed to Gabbie had been breached because the
incident had been unforeseeable. After a period of discovery and motion practice,
they also moved for summary judgment on those bases. Upon consideration, the
1
This suit was initially filed on Gabbie’s behalf by Jessica Monique Gray, Gabbie’s mother and
next friend. Gabbie was later substituted as the plaintiff.
-3-
circuit court granted their motions. This appeal followed. To the extent necessary,
additional details will be discussed below over the course of our analysis.
STANDARD OF REVIEW
Summary judgment serves to terminate litigation
where “the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.”
Kentucky Rule of Civil Procedure (CR) 56.03. It is well
established that a party responding to a properly
supported summary judgment motion cannot merely rest
on the allegations in his pleadings. Continental Cas. Co.
v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916
(Ky. 1955). “[S]peculation and supposition are
insufficient to justify a submission of a case to the jury,
and . . . the question should be taken from the jury when
the evidence is so unsatisfactory as to require a resort to
surmise and speculation.” O’Bryan v. Cave, 202 S.W.3d
585, 588 (Ky. 2006) (quoting Chesapeake & Ohio Ry.
Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). “‘Belief’
is not evidence and does not create an issue of material
fact.” Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3
(Ky. 1990); see also Haugh v. City of Louisville, 242
S.W.3d 683, 686 (Ky. App. 2007) (“A party’s subjective
beliefs about the nature of the evidence is not the sort of
affirmative proof required to avoid summary
judgment.”). Furthermore, the party opposing summary
judgment “cannot rely on the hope that the trier of fact
will disbelieve the movant’s denial of a disputed fact, but
must present affirmative evidence in order to defeat a
properly supported motion for summary judgment.”
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d
476, 481 (Ky. 1991) (citations and internal quotation
marks omitted).
-4-
On appeal, we must consider the evidence of
record in the light most favorable to the non-movant and
must further consider whether the circuit court correctly
determined that there were no genuine issues of 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). “Because summary judgment involves
only legal questions and the existence of any disputed
material issues of fact, an appellate court need not defer
to the trial court’s decision and will review the issue de
novo.” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.
App. 2001) (footnote omitted).
McAlpin v. American General Life Ins. Co., 601 S.W.3d 188, 193-94 (Ky. App.
2020).
ANALYSIS
As discussed, Gabbie sued the appellees for negligence, a theory that
generally requires a plaintiff to show “that (1) the defendant owed the plaintiff a
duty of care, (2) the defendant breached the standard by which his or her duty is
measured, and (3) consequent injury.” Pathways, Inc. v. Hammons, 113 S.W.3d
85, 88 (Ky. 2003). Consistent with her negligence theory, KRS2 161.180(1)3
illustrates that school personnel owe actionable duties to students:
Each teacher and administrator in the public schools shall
in accordance with the rules, regulations, and bylaws of
2
Kentucky Revised Statute.
3
Apart from KRS 161.180, Gabbie references eight other statutes (with dubious applicability),
along with several numbered school board polices, in support of her overarching argument that
school employees owe a duty to students to provide a safe learning environment. Because
Gabbie adds little explanation regarding the applicability of what she has referenced, we will
only state that, taken collectively, it does not conflict with our analysis.
-5-
the board of education made and adopted pursuant to
KRS 160.290 for the conduct of pupils, hold pupils to a
strict account for their conduct on school premises, on
the way to and from school, and on school sponsored
trips and activities.
With that said, a dispositive issue presented in this appeal is what kind
of duty each of these appellees owed her relative to her negligence claims. To
explain, qualified immunity provides a safe harbor for “public officers and
employees” such as the appellees herein when “sued in their individual
capacities . . . for good faith judgment calls made in a legally uncertain
environment.” Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). In other words:
Qualified official immunity applies to the negligent
performance by a public officer or employee of (1)
discretionary acts or functions, i.e., those involving the
exercise of discretion and judgment, or personal
deliberation, decision, and judgment, . . . ; (2) in good
faith; and (3) within the scope of the employee’s
authority. . . . An act is not necessarily “discretionary”
just because the officer performing it has some discretion
with respect to the means or method to be employed. . . .
Conversely, an officer or employee is afforded no
immunity from tort liability for the negligent
performance of a ministerial act, i.e., one that requires
only obedience to the orders of others, or when the
officer’s duty is absolute, certain, and imperative,
involving merely execution of a specific act arising from
fixed and designated facts. . . . “That a necessity may
exist for the ascertainment of those facts does not operate
to convert the act into one discretionary in nature.”
Id. (citations omitted).
-6-
Accordingly, a court that considers a qualified immunity defense must
determine whether the defendant’s alleged acts were ministerial acts, subject to
negligence analysis, or discretionary tasks, subject only to bad faith examination.
Id. at 523. “The distinction between discretionary acts and mandatory acts is
essentially the difference between making higher-level decisions and giving orders
to effectuate those decisions, and simply following orders.” Marson v. Thomason,
438 S.W.3d 292, 297 (Ky. 2014). In the context of student supervision, Kentucky
draws a line between school administrators and teachers. “Because [the] task is so
situation specific, and because it requires judgment rather than a fixed, routine
performance, looking out for children’s safety is a discretionary function for a
principal[.]” Id. at 299; but see id. (recognizing that “specific instructions could
make such duties required and thus ministerial.”). On the other hand, “a teacher’s
duty to supervise students is ministerial, as it requires enforcement of known
rules.” Id. at 301. Although in the course of a ministerial or discretionary task
“unexpected events [may] occur[,]” it is the nature of the official’s acts or
omissions, rather than third party conduct, that “determines whether they are
discretionary or ministerial.” Id. at 302.
Relevant to our qualified immunity analysis, Gabbie does not contend
that any of the alleged actions or inactions at issue in this matter fell outside the
scope of any appellee’s authority. Therefore, considering what is set forth above,
-7-
we will first review whether the circuit court correctly determined each individual
appellee’s at-issue conduct was discretionary, as opposed to ministerial. We will
then review whether affirmative evidence supports that any appellee performed
discretionary duties in bad faith or, as a triable issue, carried out ministerial
responsibilities negligently. Lastly, we will address Gabbie’s additional argument
that she was entitled to more time for discovery, and that the circuit court’s
judgment was therefore premature.
1. The Teacher Appellees
As indicated, Brown and Curtsinger were teachers at JHHS.
Regarding why Gabbie believes they are liable to her for negligence, she states on
page 4 of her brief that in her view both Brown and Curtsinger “[s]hould have
intervened or called the S.R.O. [student resource officer] when [Shayla] attacked
[her].” Accordingly, Gabbie asserts, Brown and Curtsinger breached duties owed
to her pursuant to KRS 161.180 and Hardin County School District policies.
Apart from making these general assertions, however, Gabbie does
not specify where these teachers were required to supervise during the incident;
nor does she detail the extent of her interaction – if any – with these teachers in
relation to the incident. And, her failure to do so is detrimental to her case.
As discussed, “a teacher’s duty to supervise students is ministerial, as
it requires enforcement of known rules.” Marson, 438 S.W.3d at 301. However,
-8-
Kentucky recognizes an exception to this general rule, as illustrated in Ritchie v.
Turner:
Like the general duty in Marson to provide a safe school
environment, the duty in KRS 161.180(1) . . . to provide
student supervision “is a discretionary function for
[school officials] exercised most often by establishing
and implementing [supervision] policies and
procedures,” which is qualitatively different from
actually supervising the students, a ministerial duty for
those who are assigned such supervision. Marson, 438
S.W.3d at 299, 302. Doe has not alleged that any of the
school officials were assigned as supervisors of the
meeting area she left to go to Mitchell’s classroom or
that the school officials passed her in the halls on those
occasions. Simply put, they were not actually involved
in active supervision of the students at the times relevant
to Doe’s complaint. Consequently, the school officials
only had a general supervisory duty over Doe. We agree
with the Court of Appeals that Marson resolves the
question in favor of the school officials as to whether
they are entitled to qualified immunity as to Doe’s
supervision, or the lack thereof, when she left the
morning meeting area and met Mitchell in his classroom.
559 S.W.3d 822, 832 (Ky. 2018) (emphasis added).
To be clear, the “school official” defendants referenced in the quote
set forth above – who were granted qualified immunity on the strength of its
reasoning – included, as here, a teacher who was sued by a student for an alleged
negligent failure to supervise. See id. at 829 n.12. And, with respect to that
teacher and the other school official defendants, the Kentucky Supreme Court
indicated that only a general “discretionary . . . supervisory duty” applied to them,
-9-
id. at 832, absent any evidence demonstrating either that those individuals were
assigned to supervise the area in which the incident occurred or should have
recognized that a known rule had been violated in their presence and required
enforcement.
Here, in support of their motions for summary judgment, Brown and
Curtsinger provided a copy of the JHHS duty roster from the 2017-2018 staff
handbook. It indicates that when this incident occurred, Curtsinger was assigned
to supervise “AM FRONT”; Brown was assigned to supervise “FRONT
ENTRANCE”; and that neither was assigned to supervise the “COMMONS
AREA” where the incident occurred. Below, Gabbie never rebutted this evidence.
Consistently with Ritchie, this was a point the circuit court found dispositive. In its
order of summary judgment, the circuit court explained:
The first problem for this part of the claim is that
none of the school employees were assigned to the area
where the fight occurred that morning, and they cannot
be omnipresent. Had one of these employees been so
assigned, there could have been ministerial duties to
perform. This is illustrated by Marson v. Thomason, 438
S.W.3d 292 (Ky. 2014).
....
Regardless, most of these Defendants were not even at
the scene and had no duty to be there that morning. If
they had been there, they still would have engaged in
discretionary actions, not ministerial ones.
-10-
In her brief, Gabbie cites nothing that contradicts Brown’s and
Curtsinger’s evidence; she does not detail the extent of her interaction – if any –
with these teachers in relation to the incident; nor, for that matter, does she even
address this aspect of the circuit court’s order. And, it is not the obligation of this
Court to do so for her. As an appellate court, we will not search the record to flesh
out an argument for a party. We confine our review “to errors pointed out in the
briefs.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). Consequently,
Gabbie has not demonstrated the circuit court erred in determining Brown’s and
Curtsinger’s duties were at most discretionary for purposes of a qualified immunity
analysis.
As to the remaining element of qualified immunity, the onus was upon
Gabbie to prove bad faith. See Yanero, 65 S.W.3d at 523. Specifically,
Curtinger’s and Brown’s qualified immunity could only have been defeated if
evidence demonstrated they knew or reasonably should have known that their
actions, performed within the sphere of their official responsibility, would violate
Gabbie’s constitutional rights or were motivated by a malicious intent to cause a
deprivation of such rights or other injury. See James v. Wilson, 95 S.W.3d 875,
909 (Ky. App. 2002) (citation omitted).
-11-
Here, Gabbie has failed to carry her burden. After accurately
summarizing the substance of Gabbie’s deposition testimony, the circuit court
explained in its order:
Gabbie offers nothing to show any evidence of bad faith.
Although some of the school employees knew of the
friction between Gabbie and Shayla, no one knew of
prior physical violence. Gabbie had problems with at
least two other girls before the events in question. None
of those turned violent.
In short, Gabbie has failed to demonstrate the circuit court erred in
dismissing her claims against Curtsinger and Brown on qualified immunity
grounds. Thus, it is unnecessary to address Gabbie’s claims of negligence against
these appellees any further.
2. The School Administrator Appellees
Next, we address Gabbie’s qualified immunity claims relative to
Wells, Wilkerson, and Blair, each of whom were school administrators at all
relevant times. Regarding why Gabbie believes they are liable to her for
negligence, she explains on page 4 of her brief:
a. Mark Wells; He failed to take any action to have
[Gabbie] transferred from John Hardin despite several
requests by her parents to do so. He did not
sufficiently supervise or discipline [Shayla] or [Voni]
so that their assault of [Gabbie] would not have
happened.
b. Eddie Wilkerson; He failed to take any action to have
[Gabbie] transferred from John Hardin despite several
-12-
requests by her parents to do so. He did not
sufficiently supervise or discipline [Shayla] and
[Voni] so that their assault of [Gabbie] would not
have happened.
c. Wes Blair; He failed to take any action to have
[Gabbie] transferred from John Hardin despite several
requests by her parents to do so.
As with Curtsinger and Brown, Gabbie asserts these appellees also
breached duties owed to her pursuant to KRS 161.180 and Hardin County School
District policies. Unlike her claims against those two teachers, she does not argue
that Wells, Wilkerson, and Blair should have been actively supervising the
commons area, or that they should have intervened during the incident. Rather,
she faults these individuals for failing to prevent the incident from happening – by
either transferring Gabbie or properly disciplining Shayla and Voni. In support of
her claims, Gabbie explains that approximately one month before the incident, her
parents asked Wells, Wilkerson, and Blair to transfer her to a different school; and,
that the requested transfer was not granted until the day after the incident.
However, we agree with the circuit court’s assessment that the record
shows these appellees had no duty more specific than their general responsibility to
“provide a safe school environment,” which, as to Kentucky school administrators,
“is a discretionary function.” Marson, 438 S.W.3d at 299. To begin, Gabbie cites
nothing of record indicating any of the appellees herein, prior to this incident, were
aware or should have been aware of anything capable of triggering an “absolute,
-13-
certain, and imperative [duty]” to keep her separated from Shayla and Voni.
Yanero, 65 S.W.3d at 522. Indeed, as Gabbie and Shayla each testified in their
respective depositions, their interactions never became physical until this incident
occurred. Likewise, as the circuit court correctly observed in its order,
Gabbie’s parents did ask for a transfer of their children[4]
to Central Hardin High School about a month before this
fight at JHHS. Although it was later suggested this
transfer request was due to safety concerns, the reason
actually stated in writing was “the children can not [sic]
focus on school work due to other children harassing
them.”[5]
Gabbie apparently assumes this transfer decision rested
with the Defendants she has sued. The uncontradicted
evidence is this record indicates this would require a
decision (and a discretionary one at that) by Central
Hardin staff or others. The transferee school has a say in
the decision. Gabbie and her parents knew this. This
was not the first transfer request for Gabbie. She had
most recently been transferred to JHHS.
As to whether any of these school administrator appellees acted in bad
faith, Gabbie argues “[i]t is a self-proven fact that there WAS a threat to her safety
because of what did happen to [her],” and:
Insofar as bad faith, how much more bad faith is required
when it is a proven fact that the school officials ignored
the parents’ requests and actual written transfer request
4
The October 25, 2016 transfer request was for both Gabbie and her sister, who was one grade
below her.
5
Likewise, Gabbie’s mother, Jessica Gray, testified Shayla was not among the “other children
harassing” Gabbie and her sister described in the transfer request, and that her concern was with
a different student.
-14-
for over three weeks when prompt action on their part to
accomplish the transfer would have prevented this assault
on Gabriell.
Taken objectively, Gabbie’s argument is illogical. She is arguing the
school administrator appellees knew or should have known, prior to when this
incident occurred, that there was an imminent risk to her safety at JHHS because
this incident occurred. It is unnecessary to delve any further into this point beyond
noting that hindsight is not the proper metric for assessing bad faith. See Wilson,
95 S.W.3d at 910 (explaining, with respect to a school official’s discretion for
purposes of qualified immunity, that “their judgment may arguably be
questionable, particularly with the benefit of hindsight, but applying such an
unrealistic standard is not only unjust, it’s unauthorized.”). Apart from this
argument, Gabbie cites no evidence supportive of bad faith. Therefore, we discern
no error with this aspect of the circuit court’s judgment, and it is unnecessary to
address Gabbie’s claims of negligence against these appellees any further.
3. Adequate Time for Discovery
Gabbie’s final argument concerns her allotted time for discovery. The
extent of her contention is as follows:
After some discovery had taken place, the Motion
for Summary Judgment was filed by the
Appellees/Defendants who were the employees/agents of
the school and school board on September 22, 2020.
Summary judgment was premature for these
Appellees/Defendants because the Appellant/Plaintiff
-15-
had not had an opportunity to take the depositions of
these Appellees/Defendants, Mark Wells, Eddie
Wilkerson, West [sic] Blair, Jenny Brown, and Melissa
Curtsinger, (hereinafter referenced as HCBOE
employees) and thus to complete discovery.
We disagree. To be sure, “for summary judgment to be properly
granted, the party opposing the motion must have been given adequate opportunity
to discover the relevant facts. Only if that opportunity was given do we reach the
issue of whether there were any material issues of fact precluding summary
judgment.” Suter v. Mazyck, 226 S.W.3d 837, 842 (Ky. App. 2007). However,
“opportunity” is the operative word in this context: “There is no requirement that
discovery be completed, only that the non-moving party have ‘had an opportunity
to do so.’” Carberry v. Golden Hawk Transp. Co., 402 S.W.3d 556, 564 (Ky. App.
2013) (citation omitted). To that end,
[w]hether a summary judgment was prematurely granted
must be determined within the context of the individual
case. In the absence of a pretrial discovery order, there
are no time limitations within which a party is required to
commence or complete discovery. As a practical matter,
complex factual cases necessarily require more discovery
than those where the facts are straightforward and readily
accessible to all parties.
Suter, 226 S.W.3d at 842. Moreover, to demonstrate that more discovery is
needed, the party opposing summary judgment must proffer “specific examples of
what discovery could have been undertaken that would have affected the outcome
-16-
had it been conducted.” Benton v. Boyd & Boyd, PLLC, 387 S.W.3d 341, 344 (Ky.
App. 2012).
Here, in rejecting Gabbie’s contention below, the circuit court
explained:
A prior Motion for Summary Judgment first raised the
question of immunity in 2018. The prior Motion was
limited to the status of the Defendant school employees
in their official capacities. As previously ruled, a suit
against individuals in an official capacity is essentially
the same as a suit against their state agency employer.
As a result, these same Defendants were immune from
suit in their official capacities.
The Court entered that Order on July 16, 2018, now over
two years and four months ago. The Order includes a
reference to the bigger issue of qualified official
immunity for these Defendants sued in their individual
capacities. Immunity is not just immunity from an
eventual adverse judgment but to the ordeal of being a
party to a suit at all. Questions of immunity should be
addressed promptly at the outset of a suit and are subject
to interlocutory appeal.
The fact Gabbie has not taken depositions or otherwise
created a record of her contentions about immunity does
not mean she has not had the opportunity to do so. In
[Hartford Ins. Group v. Citizen’s Fidelity Bank & Trust
Co., 579 S.W.2d 628 (Ky. App. 1979)], the court found
six months sufficient in the circumstances. Gabbie has
had the required opportunity for discovery.
In any event, Gabbie’s own testimony and other
evidentiary materials are sufficient to evaluate the
qualified official immunity questions.
-17-
As the circuit court indicated, qualified immunity is an issue that
should be resolved promptly; and for general summary judgment purposes, six
months has been deemed an adequate period. Here, Gabbie was given over two
years. Moreover, Gabbie does not provide “specific examples of what discovery
could have been undertaken that would have affected the outcome had it been
conducted.” Benton, 387 S.W.3d at 344. At most, her argument merely expresses
her hope or belief that, if given more time, “something will ‘turn up’” – which is
wholly inadequate for summary judgment purposes. See Benningfield v. Pettit
Env’t., Inc., 183 S.W.3d 567, 573 (Ky. App. 2005) (quoting Neal v. Welker, 426
S.W.2d 476, 479-80 (Ky. 1968)). Accordingly, we find no error in this respect,
either.
CONCLUSION
Consistent with our analysis set forth above, we AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Dwight Preston Samuel E.T. Jones
Elizabethtown, Kentucky Charles H. Cassis
Prospect, Kentucky
-18-