RENDERED: FEBRUARY 16, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0024-DG
JEFFERSON COUNTY PUBLIC SCHOOLS APPELLANTS
A/K/A JEFFERSON COUNTY BOARD OF
EDUCATION; AND BRIAN LOUIS RAHO
ON REVIEW FROM COURT OF APPEALS
V. NO. 2020-CA-1134
JEFFERSON CIRCUIT COURT NO. 17-CI-001177
SHONTAI TUDOR, MOTHER AND NEXT APPELLEE
FRIEND OF J.T., A MINOR
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING
Shontai Tudor, mother and next friend of J.T., a minor, brought suit
alleging assault and battery against Jefferson County Public Schools a/k/a
Jefferson County Board of Education and Brian Louis Raho, the Assistant
Principal at Western High School. Western High School is operated by the
Jefferson County Board of Education. The Jefferson Circuit Court granted
summary judgment to the Jefferson County Board of Education and Raho on
immunity grounds. The Court of Appeals reversed. This Court then granted
discretionary review solely to address the issue of whether the Jefferson County
Board of Education is entitled to summary judgment on its immunity claim.
For the reasons stated below, we reverse the Court of Appeals on this issue and
reinstate the trial court’s dismissal of the case against the Jefferson County
Board of Education.
I. BACKGROUND
On February 2, 2017, J.T. and C.L., two students at Western High
School in Jefferson County, engaged in a verbal and physical altercation.
Western High School’s Assistant Principal, Brian Raho, along with other school
staff members and the school resource officer, intervened and separated the
fighting students. J.T. was placed in Raho’s nearby office, but sought to get
back into the hallway to continue the fight. J.T. was physically restrained on
the floor of Raho’s office by several staff members. During this restraint, Raho’s
foot made contact with J.T.; however, the nature of that contact is the main
factual dispute in this case. Raho alleges he merely placed his foot on J.T. to
keep J.T. from breaking free of the other staff members. Conversely, J.T.
alleges Raho repeatedly kicked him while he was already subdued.
Based on these events, J.T., through his mother and next friend, Shontai
Tudor, brought suit against Raho and Jefferson County Public Schools a/k/a
Jefferson County Board of Education (hereinafter, “BOE”) for assault and
battery. All parties sought summary judgment. The trial court granted the
motion for summary judgment made by the BOE and Raho, finding that the
BOE was entitled to sovereign immunity1 and that Raho was entitled to
1 As discussed below, the trial court incorrectly found that the BOE was entitled
to sovereign immunity. The BOE is actually protected by governmental immunity.
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qualified official immunity. In its opinion and order, the trial court noted that
Tudor failed to respond to the BOE’s argument that it was immune.
Tudor appealed the trial court’s dismissal to the Court of Appeals,
arguing that the trial court erred in granting immunity to the BOE and Raho.2
However, Tudor’s analysis in her brief to the Court of Appeals only addressed
the facts and law as they related to Raho’s qualified official immunity. The
Court of Appeals, likewise, focused its immunity analysis only on Raho’s
qualified official immunity and reversed the trial court on this issue. However,
in the concluding paragraph of its opinion, the Court of Appeals stated,
“Summary judgment in favor of Raho and [the BOE] must therefore be reversed
and the case remanded for additional proceedings.” This broad reversal
language served not only to reverse the trial court’s finding of qualified official
immunity for Raho, but also to reverse the finding of sovereign immunity for
the BOE.
The BOE and Raho then sought discretionary review from this Court. We
granted their motion “solely with respect to the issue of whether [the BOE] is
entitled to summary judgment on its immunity claim” and denied the motion
“with respect to all other issues.” Despite this clear direction, Tudor’s brief to
this Court failed to address whether the trial court erred in granting summary
judgment to the BOE on the basis of sovereign immunity. Instead, it only
2 Tudor also argued to the Court of Appeals that the trial court erred by denying
a motion to compel that she had filed in that court. This issue is not before us today.
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discussed whether Raho was entitled to qualified official immunity under the
relevant law. Nonetheless, the case stands ready for this Court’s decision.
II. ANALYSIS
“The standard of review on appeal of a summary judgment is whether the
circuit judge correctly found that there were no issues as to any material fact
and that the moving party was entitled to a judgment as a matter of law.”
Pearson ex rel. Trent v. Nat’l Feeding Sys., Inc., 90 S.W.3d 46, 49 (Ky. 2002).
Summary judgment is only proper when “it would be impossible for the
respondent to produce any evidence at the trial warranting a judgment in his
favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.
1991).
“The issue of whether a defendant is entitled to the defense of sovereign
or governmental immunity is a question of law.” Univ. of Louisville v. Rothstein,
532 S.W.3d 644, 647 (Ky. 2017) (citing Rowan Cnty. v. Sloas, 201 S.W.3d 469,
475 (Ky. 2006)). This Court reviews questions of law de novo. Id. (citing
Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644,
647 (Ky. 2007)).
The BOE and Raho argue that Tudor waived any argument that the BOE
is not entitled to immunity. We discuss waiver in little detail however, because
our precedent is clear that the BOE is shielded by governmental immunity.
A. Waiver
In their reply brief to this Court, the BOE and Raho argue that Tudor
waived any argument against the BOE’s entitlement to immunity because
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Tudor failed to address this issue at any level of the court system. “The
common definition of a legal waiver is that it is a voluntary and intentional
surrender or relinquishment of a known right, or an election to forego an
advantage which the party at his option might have demanded or insisted
upon.” Greathouse v. Shreve, 891 S.W.2d 387, 390 (Ky. 1995) (quoting Barker
v. Stearns Coal & Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (1942)).
“[W]aiver may be implied ‘by a party’s decisive, unequivocal conduct reasonably
inferring the intent to waive,’ as long as ‘statements and supporting
circumstances [are] equivalent to an express waiver.’” Moore v. Asente, 110
S.W.3d 336, 360 (Ky. 2003) (citing Greathouse v. Shreve, 891 S.W.2d 387, 391
(Ky. 1995)).
Despite the BOE’s repeated arguments that it is entitled to sovereign
immunity, Tudor has failed to respond to those arguments at every
opportunity. Even to this Court, after our explicit limitation of our review to the
issue of the BOE’s entitlement to immunity, Tudor still did not address it. At
worst, Tudor’s failure amounts to waiver. See Grange Mut. Ins. Co. v. Trude, 151
S.W.3d 803, 815 (Ky. 2004) (holding that failure to address discovery request
in appellate brief constituted a waiver of the issue). At best, it amounts to a
failure to preserve and adequately present the issue for our review. However,
we need not decide whether Tudor waived this issue or merely failed to
preserve it, as a review of our precedent regarding a board of education’s
entitlement to immunity leads to the same result.
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B. Immunity
We now turn to whether the BOE is shielded by immunity. To do so, we
first must clarify the difference between sovereign immunity and governmental
immunity. “[S]overeign immunity is limited to the Commonwealth itself, as well
as counties and governments formed according to statute.” Bryant v. Louisville
Metro Housing Auth., 568 S.W.3d 839, 845 (Ky. 2019). Governmental
immunity, on the other hand, is “an extension of sovereign immunity.” Id. “It 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, internal quotation marks, and alterations omitted). Because
the BOE is neither the Commonwealth nor a county or other government, it is
not entitled to sovereign immunity. Instead, the question is whether it is
entitled to governmental immunity, and decades of our precedent has provided
a clear answer to that question.
“At least since 1941 this Court has recognized that a County Board of
Education is an arm of state government, and as such enjoys . . . immunity
against liability and tort.” Clevinger v. Bd. of Educ. of Pike Cnty., 789 S.W.2d 5,
10 (Ky. 1990). This sentiment was echoed and clarified in Grayson County
Board of Education v. Casey, in which we explained,
A board of education is an agency of state government and is
cloaked with governmental immunity; thus, it can only be sued in
a judicial court for damages caused by its tortious performance of
a proprietary function, but not its tortious performance of a
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governmental function, unless the General Assembly has waived
its immunity by statute.
157 S.W.3d 201, 202–03 (Ky. 2005) (citing Schwindel v. Meade Cnty., 113
S.W.3d 159, 168 (Ky. 2003); Yanero v. Davis, 65 S.W.3d 510, 526–27 (Ky.
2001)). We further explained that “the board cannot be held vicariously liable
in a judicial court because of [an] employee’s negligence.” Id. at 203 (citing
Williams v. Ky. Dep’t of Educ., 113 S.W.3d 145, 155 (Ky. 2003); Yanero, 65
S.W.3d at 527).
In this case, there has not been and cannot be any argument that the
BOE was engaged in a proprietary function when Raho and the other staff
members interceded in the fight between J.T. and C.L. Further, no party argues
that the General Assembly has waived the BOE’s immunity by statute. Thus,
the BOE is protected by governmental immunity from the suit filed against it
by Tudor. Accordingly, the Court of Appeals erred in reversing the trial court’s
grant of summary judgment to the BOE. While the trial court cited to the
incorrect type of immunity, it correctly found that the BOE was immune from
the suit, and its grant of summary judgment to the BOE should have been
affirmed.
III. CONCLUSION
For the foregoing reasons, we reverse the Court of Appeals’ opinion to the
extent that it reversed the Jefferson Circuit Court’s grant of summary judgment
in favor of the Jefferson County Public School a/k/a Jefferson County Board of
Education. We hereby reinstate the Jefferson Circuit Court’s dismissal of
Tudor’s claims against the Jefferson County Board of Education. This Opinion,
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however, has no effect on the Court of Appeals’ reversal of summary judgment
granted in favor of Raho.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Christopher Tyson Gorman
Roosevelt Joseph Stennis, Jr.
Thomas Edwin Joseph Travis
Wyatt Tarrant & Combs LLP
COUNSEL FOR APPELLEE:
Aubrey Williams
Aubrey Williams & Associates
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