Shontai Tudor, Mother and Next Friend of J.T., a Minor v. Jefferson County Public Schools A/K/A Jefferson County Board of Education

RENDERED: DECEMBER 17, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

OPINION OF DECEMBER 10, 2021, WITHDRAWN

Commonwealth of Kentucky
Court of Appeals

NO. 2020-CA-1134-MR

SHONTAI TUDOR, MOTHER AND
NEXT FRIEND OF J.T., A MINOR APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 17-CI-001177

JEFFERSON COUNTY PUBLIC SCHOOLS
A/K/A JEFFERSON COUNTY BOARD OF
EDUCATION; AND BRIAN LOUIS RAHO1 APPELLEES

OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND
REMANDING

** ** ** ** **

1
Although the notice of appeal designates Brian Rahoe as an appellee, the circuit court noted in
its judgment that he had informed the court that the proper spelling of his name is “Raho.” Like
the circuit court, we will therefore use the latter spelling in this Opinion.
BEFORE: CALDWELL, MAZE, AND McNEILL, JUDGES.

MAZE, JUDGE: Shontai Tudor, as mother and next friend of J.T. (Mother),

appeals the Jefferson Circuit Court’s entry of summary judgment in favor of the

Jefferson County Board of Education (JCPS), and its employee, Brian Raho.

Because we are convinced there is a genuine issue of material fact concerning

Raho’s good faith in carrying out his discretionary duties, the summary dismissal

of Mother’s claims on grounds of qualified official immunity must be reversed.

We affirm the circuit court’s denial of Mother’s motion to compel production of a

prosecutorial file and remand the case for further proceedings.

FACTS

On February 2, 2017, J.T., a senior at Western High School, was

involved in a physical altercation with another student, C.L., between classes in a

hallway near the office of assistant principal Raho. Raho happened to be in the

hallway talking with a teacher when he noticed what he initially thought was mere

horseplay between the students. Raho’s initial impression that the two were

engaged in horseplay stemmed from his knowledge that J.T. and C.L. were best

friends. However, rather than acceding to verbal commands to disengage and head

to class, the fight intensified to the point where fists were drawn and Raho

determined it was necessary to intervene. In the course of trying to physically

separate the two, Raho got in between them and as result sustained several blows

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to his head, face, and body which ultimately required medical attention at Baptist

East Hospital for a concussion. After Raho radioed for assistance, other staff

intervened and were able to separate the students. J.T. was then placed in Raho’s

office with a member of Western’s security personnel while Raho continued

attempting to calm C.L. in the hallway.

It is undisputed that after having been placed in the assistant

principal’s office, J.T. was determined to continue the fight and stated in his

deposition that he wanted to get back out in the hallway to reengage with C.L.

Realizing that C.L. was just a few feet away in the hall, J.T. testified that he went

back out in the hall to continue the fight “because I was like – I mean, if I’m going

to get suspended, I’m going to get suspended for something I really did.”

Although J.T. stated that it was his intention “to have a real fight,” he was met by

Western’s head of security Mike Rusche and school security officer Eric Withers

who took him back into the office and were trying calm him down. However, J.T.

remained physically aggressive and, according to Rusche’s affidavit, as he and

Withers were attempting to get J.T. back into the office, a printer on a rolling cart

was toppled. Rusche also stated that they were attempting to get J.T. on the

ground “to prevent the very agitated and shouting student from flailing about with

his arms and legs.”

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 After hearing a crash, Raho followed school resource officer (SRO)

Deputy Sheriff Rhonda Rattler into his office where, according to Deputy Rattler’s

testimony, J.T. was struggling with the security officers in an attempt to get back

out in the hallway. Deputy Rattler also admitted that when she entered the office it

appeared as if the security guards needed help. Assistant principal Raho’s actions

upon entering the office form the basis for this litigation.

It is undisputed that Raho put his foot on J.T.’s buttocks as the child

struggled with the two security officers. While Raho describes his actions as a

pushing downward to assist the security officers in getting J.T. to lie flat on the

floor, Deputy Rattler characterized his actions as repeatedly kicking J.T. Shortly

after the assistant principal and two security officers had gotten J.T. under control,

officers from the Shively Police Department arrived to assist. In his deposition

testimony, Raho stated that he was acting principal at the time and was fearful the

situation at the school was spiraling out of control with disruptive behavior being

observed by other students. Because he himself was injured, he stated that he felt

he needed more support to secure the school and had requested assistance from the

Shively Police Department.

After he calmed down, J.T. declined medical attention, telling school

personnel “I’m okay, I’ll be all right.” In his deposition testimony, J.T. stated, “I

mean, I was hurting. I mean, it was a tussle, you know. I used all my energy and

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stuff. I’m being thrown to the ground and stuff.” Regarding the alleged kicking,

J.T. stated, “[b]ut my right leg was a little tender, you know, I had been kicked by

a grown man.”

After the volatile situation was under control, Deputy Rattler swore in

a warrant that the crime of assault in the fourth degree had occurred in her presence

naming Raho as the assailant and J.T. as the victim. The assault allegation resulted

from what Deputy Rattler perceived as kicking during the attempt to subdue J.T.

Although Raho was removed from Western after the filing of the complaint, he

returned to the school after the criminal action was dismissed. Further, an

investigation of the incident conducted by Western Principal Michael Newman

determined that Raho’s actions did not constitute a violation of JCPS policy and he

was not disciplined for his actions during the incident. Principal Newman did,

however, prepare an August 14, 2017 coaching report in which he counseled Raho

that use of a foot in such situations should be undertaken only as a last resort:

Last year, you were involved in a restraint incident where
you received a laceration and concussion. In this event,
you acted in self-defense and out of the need to maintain
order in the building. Both Mr. Rusche and Mr. Withers
confirmed this. This event was also witnessed by the
SRO assigned to Western at the time. I recognize that
this event created a volatile situation and it made using
SCM [Safe Crisis Management] difficult; note that using
one’s foot on a child’s behind to keep him down, and
others safe, should always be done as a last resort.

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Although J.T. was not allowed to return to school, Mother reached an agreement

with Principal Newman which allowed J.T. to complete his senior year at home

and graduate.

Thereafter, Mother filed this action on J.T.’s behalf alleging that

Raho’s intentional conduct in kicking J.T. had caused him to suffer “great and

irreparable physical, mental and emotional stress, strain, and humiliation, thereby

entitling him to compensatory damages[,]” as well as punitive damages. The

complaint also alleged that because Raho was acting in the course of his

employment with JCPS at the time of the incident, JCPS is also liable for Raho’s

actions, as well as any damages accessed against him.

After the taking of depositions, both sides moved for summary

judgment. Although the circuit court initially denied both motions, upon

consideration of JCPS and Raho’s motion to alter, amend, or vacate, it ultimately

concluded that Raho was entitled to qualified immunity for his discretionary

actions and that Mother had failed to prove that Raho had acted in bad faith. This

appeal followed.

STANDARD OF REVIEW

As an initial matter, we acknowledge our Supreme Court’s reiteration

of the well-settled rules regarding entry of summary judgment:

We must first begin by reviewing the standards to
be used when handling summary judgment. Summary

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 judgment is to be “cautiously applied and should not be
used as a substitute for trial.” Granting a motion for
summary judgment is an extraordinary remedy and
should only be used “to terminate litigation when, as a
matter of law, it appears that it would be impossible for
the respondent to produce evidence at the trial warranting
a judgment in his favor and against the movant.” The
trial court must review the evidence, not to resolve any
issue of fact, but to discover whether a real fact issue
exists. This review requires the facts be viewed in the
light most favorable to the party opposing summary
judgment.

Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013)

(footnotes omitted). The Supreme Court also emphasized that the term

“impossible” is to be used in a practical, not an absolute sense. Id. In this case, the

facts must be viewed in a light most favorable to Mother. Finally, appellate review

of a motion for summary judgment only involves questions of law and “a

determination of whether a disputed material issue of fact exists.” Id. Therefore,

our review is de novo with no need to defer to the circuit court’s decision. Id.

With these principles in mind, we turn to an examination of the circuit

court judgment.

ANALYSIS

Mother raises two arguments to support her contention that the entry

of summary judgment must be reversed: 1) that the circuit court erred in

concluding that Raho’s actions were protected by qualified immunity; and 2) that it

erred in refusing to compel the assistant county attorney in Raho’s criminal case to

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comply with Mother’s subpoena demanding production of her prosecutorial file

and to submit to an oral deposition. We commence with a discussion of the nature

of qualified immunity.

I. QUALIFIED IMMUNITY

Generally, qualified official immunity is “immunity from tort liability

afforded to public officers and employees for acts performed in the exercise of

their discretionary functions.” Patton v. Bickford, 529 S.W.3d 717, 723 (Ky. 2016)

(quoting Yanero v. Davis, 65 S.W.3d 510, 521 (Ky. 2001)). “Qualified immunity

applies only to the negligent performance of duties that are discretionary in

nature.” Id. at 723-24. In contrast, qualified immunity is not provided for the

negligent performance of a ministerial act. Id. at 724.

In Patton, the Supreme Court of Kentucky explained that a ministerial

duty is one that “requires only obedience to the orders of others.” Id. (quoting

Yanero, 65 S.W.3d at 522). In other words, 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. “The point is that a

government official performing a ministerial duty does so without particular

concern for his own judgment” or, stated another way, “the act is ministerial ‘if the

employee has no choice but to do the act.’” Id. (quoting Marson v. Thomason, 438

S.W.3d 292, 297 (Ky. 2014)).

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 In contrast, discretionary acts are “good faith judgment calls made in a

legally uncertain environment” and involve “personal deliberation, decision, and

judgment[.]” Yanero, 65 S.W.3d at 522. Particularly pertinent to the issues in this

appeal is Yanero’s explanation of the proper application of the doctrine of qualified

immunity:

But when 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. 63C Am.Jur.2d, Public Officers
and Employees, § 309 (1997). 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, id. § 322; (2) in good faith; and (3) within the
scope of the employee’s authority. Id. § 309;
Restatement (Second) Torts, supra, § 895D cmt. g. 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.

Id. Citing this explanation of the doctrine of qualified official immunity, the

circuit court concluded that Raho’s actions in attempting to subdue J.T. were

“clearly discretionary” as stated in the findings in its prior order denying summary

judgment:

Here, it is undisputed that some rules and protocols
regarding student supervision and to protect J.T. from
harm existed. However, Defendants possessed
considerable leeway in how they conducted their physical
interactions with J.T. However, [Mother] has established

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 no simple rule, guideline or procedure that Defendants
should blindly follow to de-escalate a dangerous and
volatile situation. Returning chaos to order is by its very
nature a series of actions that require discretion and an
ability to make quick decisions in real time. Moreover,
[Mother] has not established a black and white rule that
educators at the School were required to minister when a
child engages in hand-to-hand combat with another child.
Instead, J.T. forced Defendants to react by creating an
action plan out of whole cloth. They also had to
determine whether J.T.’s behavior constituted a danger to
himself or others, a decision which is also by its very
nature discretionary and not ministerial, as it involves the
delicate balance between physical protections of selves
(here, Defendants) and another (J.T.) in a rapidly
evolving circumstance. Defendants used their judgment
to employ words and tones to calm J.T., then to separate
him from others, and only thereafter to intervene
physically. These acts were the result of the personal
deliberation, decision, and judgment that are the
hallmarks of a discretionary series of actions.

We find absolutely no error in the circuit court’s analysis and concur in its

assessment that Raho’s actions were “clearly discretionary.”

However, as the circuit court correctly noted, once it had determined

that Raho’s actions were discretionary, the burden shifted to Mother to prove Raho

had acted in bad faith. The Supreme Court in Rowan County v. Sloas explained

that:

no immunity is afforded for the negligent performance or
omissions of a ministerial act, or if the officer or
employee willfully or maliciously intended to harm
the plaintiff or acted with a corrupt motive, i.e., again
the “bad faith” element. [Yanero, 65 S.W.3d] at 523.
And “[o]nce the officer or employee has shown prima

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 facie that the act was performed within the scope of
his/her discretionary authority, the burden shifts to the
plaintiff to establish by direct or circumstantial evidence
that the discretionary act [was in bad faith].” Id.

201 S.W.3d 469, 475-76 (Ky. 2006) (emphasis added).

Regarding bad faith, the circuit court entered the following findings:

Absent a showing of bad faith, [Raho] is immune from
this lawsuit. In this case, it has been established that he
was acting within his discretion in working to de-escalate
a volatile situation. He placed his foot on J.T.’s backside
to control an explosive situation in the school. All
credible evidence demonstrates that he was attempting to
calm an out of control situation and was not acting to
disregard J.T.’s protected rights. J.T. had no protected
right to continue to fight physically another classmate
and cause risk of harm to himself and others. Raho was
not violating any of his rights by working to disengage
the violent situation. Further, all criminal charges against
him were summarily dismissed. Moreover, despite
[Mother]’s argument, there is no evidence of racial
injustice, and this argument is based upon mere
supposition by counsel for [Mother], but not grounded in
any evidence. Finally, Raho had every right to be
involved in the situation in his own office (Room 204)
and as assistant principal observing the situation unfold,
it is only appropriate that he was involved in the de-
escalation. As such, and because there is no evidence of
bad faith demonstrated by an otherwise qualified immune
school assistant principal, the Court will grant summary
judgment in favor of Raho.

Unlike the circuit court, we are convinced that a genuine issue of

material fact exists as to Raho’s good faith in the performance of his discretionary

actions, precluding summary judgment. In our opinion, the disputed testimony as

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to whether Raho was merely pushing down on J.T.’s backside (as he contends) or

whether Raho repeatedly kicked J.T. (as Mother contends and as Deputy Rattler

alleged in her criminal complaint and deposition testimony) presents a clear

question of fact which can only be resolved by a jury. In the context of a decision

about bad faith, the circuit court additionally focused on a “clearly established

right” and opined that the juvenile had no “protected right” to “continue to fight.”

It is accurate pursuant to Sloas, 201 S.W.3d at 476, that there must be a causally

related “violation of a constitutional, statutory, or other clearly established right” of

the complainant. However, we believe that the “protected right” that is at issue

here is not the right of the juvenile to continue to fight. Rather, in this instance, it

is the juvenile’s right to be free from an assault or other crime that may have been

committed against him by school authorities. Given the allegations in this case,

therein lies a dispute about bad faith.

We reiterate that trial courts must consider the evidence in a light

most favorable to the party opposing the motion for summary judgment. Sheldon,

supra, at 905. And therefore, as previously noted, the facts in this case must be

viewed in a light most favorable to Mother, resolving all reasonable doubts in her

favor. Despite the significant evidence to the contrary outlined in the circuit court

judgment, Deputy Rattler’s deposition testimony, as well as her averments in the

criminal complaint, is sufficient to avoid summary disposition. On this state of the

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record, we cannot conclude that it would be impossible for Mother to prevail at

trial.

We are therefore convinced that the circuit court erred in its

determination that no disputed material fact existed and that Raho and JCPS were

entitled to judgment as a matter of law. The summary judgment in their favor is

thus reversed and the case remanded for further proceedings.

II. DENIAL OF MOTION TO COMPEL

Mother also argues that the circuit court erred in refusing to compel

the production of the prosecutorial file of the assistant county attorney assigned to

Raho’s criminal case and to compel the assistant county attorney to submit to oral

deposition. Citing O’Connell v. Cowan, 332 S.W.3d 34 (Ky. 2010), the circuit

court held that the information sought is privileged under the work product

doctrine and that no in camera review was warranted. We agree.

In O’Connell, the Kentucky Supreme Court emphasized that trial

courts have the “ultimate discretion in discoverability[.]” Id. at 44 (citing Morrow

v. Brown, Todd & Heyburn, 957 S.W.2d 722, 727 (Ky. 1997)). Further, O’Connell

made clear that “when discovery is sought of opinion work product of a prosecutor

relative to a prior criminal prosecution, there is a heightened standard of

compelling need that must be met by the party seeking the discovery.” Id. at 43.

In this regard, the trial court is in the best position to judge the “compelling need”

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for the work product sought. We view the “abuse of discretion” standard

applicable to admission of expert testimony under Daubert2 as analogous and

applicable to our review of the circuit court’s decision on Mother’s motion to

compel:

The decisions of trial courts as to the admissibility of
expert witness testimony under Daubert are generally
entitled to deference on appeal because trial courts are in
the best position to evaluate first hand the proposed
evidence. As such, when an appellate court subsequently
reviews the trial court’s Daubert ruling, it must apply the
“abuse of discretion standard.” And as we have noted in
the past, “[t]he test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.”

Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004) (footnote omitted).

In light of the circuit court’s findings as to the substantial nature of

evidence concerning the actions in question, we find nothing arbitrary,

unreasonable, unfair, or unsupported by sound legal principles in its conclusion

that Mother failed to demonstrate a compelling need for the prosecutor’s “mental

impressions, conclusions, opinions, or legal theories” regarding the dismissal of the

case against assistant principal Raho. O’Connell v. Cowan, 332 S.W.3d at 42. In

fact, Mother’s contentions regarding the circuit court’s refusal to order production

of the prosecutorial file are little more than attempts to couch her arguments

2
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993).

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regarding the nature of Raho’s conduct in different terms. Further, given the

dismissal at such an early stage of the proceedings, the prosecutorial file likely

contained little other than Deputy Rattler’s criminal complaint and the prosecutor’s

mental impressions. In any event, Mother has failed to demonstrate that the circuit

court abused its “ultimate discretion” in refusing to compel production or order the

prosecutor’s deposition.

CONCLUSION

In sum, the existence of genuine issues of material fact preclude entry

of summary judgment in this case. Summary judgment in favor of Raho and JCPS

must therefore be reversed and the case remanded for additional proceedings. The

circuit court’s denial of Mother’s motion to compel production of the prosecutorial

file and order the prosecutor to submit is oral deposition is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Aubrey Williams C. Tyson Gorman
Louisville, Kentucky R. Joseph Stennis, Jr.
Louisville, Kentucky

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