DEFENSES: Qualified Official Immunity, Ministerial vs. Discretionary, County Roads, Fiscal Court & Road Forman, & Design, repairs and maintenance. Estate of Megan Morris vs. Tony Smith (COA,Published 5/9/2014)

A detailed analysis was undertaken by the Court of Appeals addressing responsibilities and duties of the fiscal court and county road official for the operation and maintenance of county roads within the context of official immunity and individual liability with a focus on discretionary acts (immune) and ministerial acts (not so immune).

421.  Official Immunity.  Ministerial acts vs. discretionary acts.
Estate of Megan Morris vs. Tony Smith
Published, COA, 5/9/2014 from Graves County

ACREE, CHIEF JUDGE: The Estate of Megan Morris, by and through her personal representative, Diane Mobley (the Estate), and Diane Mobley, individually, appeal the August 15, 2012 order of the Graves Circuit Court granting summary judgment to each member of the Graves County Fiscal Court, including the county judge executive, individually, and Danny Travis, the road foreman, individually. The circuit court concluded the Appellees are each cloaked with, and protected by, official immunity. We agree and affirm.

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in June 2007, Megan was one of seven teenagers riding in a car. She was a passenger. It was dark and raining, and the driver failed to negotiate a sharp curve on Dooms Chapel Road. The car struck a tree; Megan died from her injuries. Her estate sued alleging Graves County, the Graves County Fiscal Court, and the Graves County officials listed above were negligent in not providing warning signs at the curve, thus causing Megan’s death,

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 “‘Official immunity’ is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions[.]” Yanero, 65 S.W.3d at 521. If a public officer “is acting in a discretionary manner, in good faith, and within the scope of his employment,” then he or she is entitled to the protections of qualified official immunity. Nelson Co. Bd. of Educ. v. Forte, 337 S.W.3d 617, 621 (Ky. 2011).

[W]hen an officer or employee of the state or county (or one of its agencies) is sued in his or her individual capacity, that officer or employee enjoys qualified official immunity, which affords protections from damages liability for good faith judgment calls made in a legally uncertain environment. Application of the defense, therefore, rests not on the status or the title of the officer or employee, but on the [act or] function performed.

Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (alteration in original) (citations omitted).

Because “qualified official immunity applies only where the act performed by the official or employee” is in its nature discretionary, we must first classify “the particular acts or functions in question” as either discretionary or ministerial. Id. Discretionary acts involve “the exercise of discretion and judgment, or personal deliberation, decision, and judgment.” Yanero, 65 S.W.3d at 522. These acts “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.” Haney, 311 S.W.3d at 240.

Conversely, “ministerial acts or functions – for which there are no immunity – are those that require ‘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.’” Id. (citing Yanero, 65 S.W.3d at 522). The official’s burden to ascertain those fixed and designated facts does not convert a ministerial act into a discretionary one. Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky. 1959). Classifying an act or function as discretionary or ministerial is an inherently fact-intensive inquiry necessitating a “probing analysis[.]” Haney, 311 S.W.3d at 240. It must not be made in haste for “few acts are ever purely discretionary or purely ministerial.” Id. Indeed, in carrying out his or her daily tasks, an official often engages in numerous acts, any of which may be classified as ministerial or discretionary depending on “the dominant nature of the act” or function in question. Id. (emphasis in original). With these standards as our guide, we turn to the specific case before us.

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Kentucky law is clear that a fiscal court’s acts regarding improvement of county roads are discretionary. Madison Fiscal Court v. Edester, 301 Ky. 1,  190 S.W.2d 695, 696 (1945) (“[I]t is within the discretion of the fiscal court to determine the road or roads which shall be improved and the time and method of such improvements.”); see KRS 67.080(2)(b)(“[F]iscal court shall . . . , [a]s needed, cause the construction, operation, and maintenance of all county . . . structures, grounds, roads and other property.” (emphasis added)).

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Judicial reasoning cannot turn a blind eye to the practicalities of a fiscal court’s decision-making. There is a cost attributable to the installation of signs and guardrails; discretion in the allocation of taxpayer/road-fund dollars is imperative. Kentucky has long recognized this:

The fiscal court of every county is, in effect, a legislative board, invested with the power by law of making appropriations in cases where the needs of the county require it; and while they may neglect their duties, or omit to improve the roads, or to make other appropriations necessary for that purpose, it is beyond the power of a judicial tribunal to interfere and determine what improvements should be made, and the extent of the expenditure necessary for that purpose. Madison Fiscal Court v. Edester, 301 Ky. 1, 190 S.W.2d at 696 (quoting Highbaught v. Hardin County, 99 Ky. 16, 34 S.W. 706, 707 (Ky. 1896)).

If we adopted the Estate’s argument, we would be fashioning a rule whereby every fiscal court or governing authority in Kentucky would have to conduct an engineering study and implement an engineering judgment as to every curve on every mile of every road in every county in the Commonwealth. And, if the engineering study or judgment found the placement of a warning sign warranted, the fiscal court would have no choice but to comply with that recommendation, regardless of policy considerations, fiscal concerns, and alternate safeguards. Such cannot possibly be the intent of the Department of Highways when it issued 603 KAR 5:050 directing the MUTCD be the guiding standard for the placement and maintenance of traffic control devices in Kentucky.

Again, a ministerial rule “must, at least, be sufficiently specific to restrict significant discretion in its enforcement. That cannot be said here.” Haney, 311 S.W.3d at 243. We are firmly convinced that the act of placing or not placing signs or a guardrail on county roads is a discretionary act on the part of the fiscal court, not a ministerial one.

Such discretion, of course, is not without limitation. One “qualification” of qualified immunity is that the discretionary act be one within the official’s authority. Forte, 337 S.W.3d at 621 (official must be acting “within the scope of his employment” to be entitled to official immunity). The Estate has never made an issue of the Fiscal Court’s authority; in fact, the Estate conceded it. The only other qualification is that the official will not be immune from prosecution if he fails to act in good faith, including his willful failure to act at all. “Once the officer or employee has shown prima 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 not performed in good faith.” Yanero, 65 S.W.3d at 523. The Estate has not met that burden.

The term “good faith” “is somewhat of a misnomer, as the proof is really of ‘bad faith.’ In fact, in most cases, ‘good faith’ is just a presumption that exists absent evidence of ‘bad faith.’” Sloas, 201 S.W.3d at 475. Bad faith encompasses both an objective and subjective component, and can be shown in one of two ways: (1) that the official “willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive, which requires a subjective analysis[,]” or (2) upon proof that a clearly-established right of the plaintiff was violated, which requires an objective analysis. Bryant v. Pulaski County Detention Center, 330 S.W.3d 461, 466 (Ky. 2011) (quoting Yanero, 65 S.W.3d at 523).

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