RENDERED: SEPTEMBER 16, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0327-MR
RICK HOLMAN APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 17-CI-01664
ESTATE OF TYLER WILLIAMS,
BY AND THROUGH MEGAN WILLIAMS,
AS ADMINISTRATRIX; KARSON HOLLAR;
L-M ASPHALT PARTNERS, LTD D/B/A ATS
CONSTRUCTION; ADALEY WILLIAMS;
CARTER WILLIAMS; AND
MEGAN WILLIAMS, INDIVIDUALLY APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Rick Holman (“Appellant”) appeals from an
interlocutory order of the Fayette Circuit Court denying his motion for summary
judgment. Appellant argues that the circuit court erred in failing to properly apply
Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), to conclude that Appellant is entitled
to qualified official immunity. After careful review, we affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
L-M Asphalt Partners, Ltd., d/b/a ATS Construction (“ATS”),
contracted with the Kentucky Transportation Cabinet (“KYTC”) to perform road
work on the Todd’s Road Project in Lexington, Kentucky. KYTC employee
Robert Johnson was responsible for overseeing the project, supervising
construction, and ensuring the overall safety on the project including Occupational
Safety and Health Administration (“OSHA”) compliance. Appellant was the
KYTC on-site inspector for the project and Mr. Johnson’s designee. Appellant’s
responsibilities included completion of the project in compliance with state and
federal safety laws and regulations. Appellant had the authority to stop work on
the project if he observed unsafe conditions.
On the morning of May 4, 2016, Appellant was at the Todd’s Road
Project site when he saw ATS employee Tyler Williams climb out of a trench in
the ground that was approximately 13 feet deep. The trench had been excavated
for the purpose of laying a drainage pipe. Appellant determined that the trench
needed cave-in protection, and after Williams exited the trench, Appellant
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commented that “it looks like there needs to be a trench box in there to me.”1
Appellant did not prevent Williams from re-entering the trench. Williams entered
the trench, which collapsed on him resulting in his death.
Thereafter, Williams’ estate, Williams’ wife, Megan, their two
children, and Megan’s child from a prior relationship filed a negligence action
against Appellant and Johnson as a result of Williams’ death. The matter
proceeded in Fayette Circuit Court, whereupon Appellant and Johnson filed a joint
motion for summary judgment. In support of the motion, they claimed entitlement
to qualified official immunity, argued that there was no breach of a duty, and that
Megan’s child from the prior relationship, Karson Hollar, failed to state a claim
upon which relief could be granted.
On March 10, 2021, the Fayette Circuit Court entered an order
granting in part and denying in part the motion for summary judgment. The court
determined that pursuant to Yanero, supra, Johnson’s duty to immediately halt
work on a dangerous project was discretionary as he was a supervisor who was not
present at the project when the trench collapsed. As such, the circuit court
concluded that Johnson was shielded by qualified official immunity. The court
sustained the motion for summary judgment as to Karson Hollar’s claim of loss of
parental consortium, as Williams was not the child’s biological nor adoptive father.
1
A trench box is a steel structure designed to prevent the walls of a trench from caving in.
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In examining the motion as to Appellant, the circuit court found that
Appellant had the same duty as Johnson to stop work on the project if he observed
an imminent danger. This duty derived from various provisions of KYTC’s
Construction Guidance Manual, as well as KYTC’s Standard Specifications, which
required Appellant to suspend work immediately if he recognized an imminent
danger. The court determined that because Appellant was present at the site, and
observed a dangerous condition (a deep trench with no trench box), Appellant’s
duty to act was ministerial and did not require deliberation or analysis. Per
Yanero, and having found that Appellant’s duty was ministerial, the court
concluded that Appellant was not entitled to qualified official immunity. This
interlocutory appeal followed.
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if 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 Rules of Civil Procedure (CR) 56.03. “The record must be
viewed in a light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary
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judgment should be granted only if it appears impossible that the nonmoving party
will be able to produce evidence at trial warranting a judgment in his favor. Id.
“Even though a trial court may believe the party opposing the motion may not
succeed at trial, it should not render a summary judgment if there is any issue of
material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is 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).
ARGUMENTS AND ANALYSIS
Appellant argues that he is entitled to qualified official immunity as a
matter of law, and that the Fayette Circuit Court incorrectly determined that a
Construction Guidance Manual imposed on him a ministerial rather than
discretionary duty. He argues that the challenged conduct involved him exercising
personal judgment in a matter of seconds and was, therefore, discretionary in
nature. He asserts that while the manual sets out both discretionary and ministerial
duties, Construction Guidance Manual section CST-111-4 provides KYTC
officials with discretionary authority. Appellant asserts that deciding when to
inspect and when enough information is available is a discretionary matter, that
public policy favors a finding of qualified official immunity, that he was acting
within the scope of his authority and that there was no basis for finding bad faith
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per Yanero. He seeks an opinion reversing the order on appeal and a finding that
he is entitled to qualified official immunity.
“Official immunity” is immunity from tort liability
afforded to public officers and employees for acts
performed in the exercise of their discretionary functions.
It rests not on the status or title of the officer or
employee, but on the function performed. Official
immunity can be absolute, as when an officer or
employee of the state is sued in his/her representative
capacity, in which event 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 . . . . 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. 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. Qualified official immunity is an
affirmative defense that must be specifically pled.
Yanero, 65 S.W.3d at 521-22 (citations omitted).
[D]iscretionary acts or functions are those that
necessarily require the exercise of reason in the
adaptation of means to an end, and discretion in
determining how or whether the act shall be done or the
course pursued. Discretion in the manner of the
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performance of an act arises when the act may be
performed in one or two or more ways, either of which
would be lawful, and where it is left to the will or
judgment of the performer to determine in which way it
shall be performed.
Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (citation omitted).
In contrast, qualified official immunity does not protect one who
negligently performs, or fails to perform, a ministerial duty. “A ministerial duty is
one that requires only obedience to the orders of others.” Patton v. Bickford, 529
S.W.3d 717, 724 (Ky. 2016), as modified on denial of reh’g (Aug. 24, 2017)
(internal quotation marks and citation omitted). “The act of governing cannot be a
tort, but failing to carry out the government’s commands properly when the acts [to
be performed] are known and certain can be.” Id. (internal quotation marks and
citation omitted). Stated differently, “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. (internal quotation marks and citation
omitted).
Categorizing actions as either the performance of a
discretionary duty or the performance of a ministerial
duty is vexing to litigants and courts alike. . . . A
somewhat rudimentary expression of the distinction
between discretionary and ministerial acts provides that
[p]romulgation of rules is a discretionary function;
enforcement of those rules is a ministerial function.
Id. (internal quotation marks and citation omitted).
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The primary question for our consideration is whether the Fayette
Circuit Court properly determined that Appellant’s duty was ministerial rather than
discretionary. The KYTC Construction Guidance Manual provides in relevant part
that Appellant had a duty to immediately suspend work when a recognized danger
is considered to be imminent. CTS-111-4, et al. “Imminent danger is any situation
or condition occurring on a construction project that, in the opinion of the SE
[Section Engineer], may result in serious injury or death to construction personnel
or the public.” CTS-111-4.
A panel of this Court has previously held that the duty to immediately
suspend work upon recognition of an imminent danger per KYTC’s Construction
Guidance Manual is a ministerial duty. In Meredith v. Decker, No. 2016-CA-
000721-MR, 2018 WL 4054940 (Ky. App. Aug. 24, 2018), the employee of a
subcontractor working on a KYTC project was killed when the form used to pour a
concrete retaining wall collapsed. The decedent’s estate sued several KYTC
engineers in their individual capacities for negligence resulting from their alleged
breach of duty per the Construction Guidance Manual to suspend work after
recognizing an immediate danger. In considering their claim of entitlement to
qualified official immunity, the Barren Circuit Court rejected their immunity
arguments upon determining that the KYTC engineers’ duty was ministerial. It
based this finding in part on the mandatory “shall” language of the Construction
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Guidance Manual creating the duty. Upon finding the duty to be ministerial rather
than discretionary, the circuit court concluded that Yanero did not allow for the
application of qualified official immunity under the facts before it.
Similarly, in the matter at bar, Appellant had a mandatory duty to
suspend work if he recognized an immediate danger. Appellant’s deposition
testimony establishes that he recognized the immediate danger when he stated just
before the accident that “it looks like there needs to be a trench box in there to
me.” It is uncontroverted that he observed the 13 foot deep trench with
unsupported walls. Because Appellant had a mandatory duty to suspend work
when the imminent danger was recognized, and as this duty did not implicate “the
exercise of discretion and judgment, or personal deliberation, decision, and
judgment,” Yanero, 65 S.W.4d at 552, we conclude that the duty was ministerial
rather than discretionary. The remaining elements of Yanero, i.e., whether the
public officer or employee acted in good faith and within the scope of his
authority, are moot. We are not persuaded by Appellant’s argument that public
policy considerations favor a finding that Appellant’s duty was discretionary rather
than ministerial.
This decision addresses only whether Appellant’s duty was ministerial
or discretionary, and the resultant application, if any, of qualified official
immunity. We do not address whether Appellant breached his duty, nor whether
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there was any proximate causation or damages. “[A]n 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.” Baker v. Fields, 543 S.W.3d 575, 578 (Ky. 2018).
CONCLUSION
Per Yanero, Appellant’s duty to suspend work upon recognizing an
imminent danger was ministerial rather than discretionary. As such, he is not
entitled to qualified official immunity. The Fayette Circuit Court properly denied
Appellant’s motion for summary judgment on this issue. Accordingly, we affirm
the order of the Fayette Circuit Court denying Appellant’s motion for summary
judgment.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
James G. Womack Jennifer A. Moore
Joshua L. Ellis Emily A. DeVuono
Sami C. Oudeh Louisville, Kentucky
Lexington, Kentucky
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