Defenses: Qualified Official Immunity

Qualified official immunity was addressed in Gibson v. Hicks, COA, Pub., 7/27/2012:

Qualified official immunity is not a mere defense but provides immunity from a claim. In Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006), the Court explained the scope of protection afforded government officials:

[A]n official sued in his or her individual capacity enjoys only qualified official immunity, which affords protection for good faith judgment calls made in a legally uncertain environment. Thus, officials are not liable for bad guesses in gray areas, and most government officials are not expected to engage in the kind of legal scholarship normally associated with law professors and academicians. Thus, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. [Internal quotations and citations omitted].

Whether Gibson is entitled to qualified official immunity is a question of law subject to de novo review. Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010).

In Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), the Court pronounced that qualified official immunity requires a classification of the particular acts or functions in question as either discretionary or ministerial. However, as noted by the circuit court, the distinction between discretionary and ministerial acts is often blurred and subject to a divergence of judicial opinion.3 To clarify the law and offer further guidance, in Haney, the Court explained the distinction:

Qualified official immunity applies only where the act performed by the official or employee is one that is discretionary in nature. Discretionary acts are, generally speaking, those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment. It may also be added that discretionary 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 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. On the other hand, 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.

3 In his concurring opinion in Caneyville Volunteer Fire Dep’t. v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 813 (Ky. 2009), Chief Justice Minton referred to immunity as a “judge- made swamp” that should be drained.

Haney, 311 S.W.3d at 240 (internal quotations and citations omitted).

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In Stratton v. Commonwealth, 182 S.W.3d 516 (Ky. 2006), Cabinet employees placed a young child back into a home where the child died as a result of caretaker abuse. The administrator of the child’s estate filed an action against the Cabinet in the Board of Claims alleging that if the Cabinet employees had followed regulations requiring them to interview certain witnesses, the tragedy would have been prevented. The Court held that the Cabinet’s determination regarding what action, if any, should be taken to resolve each claim was discretionary “just as in police investigations.” Id. at 521.

More recently, in Turner v. Nelson, 342 S.W.3d 866 (Ky. 2011), the Court held that a teacher was entitled to qualified official immunity when it was alleged that she failed to report sexual abuse of a kindergarten student by a five-year-old classmate. Noting that KRS 620.030 requires that abuse be reported to appropriate authorities if a person knows or has reasonable cause to believe that a child is


abused, the Court held that absent actual or personal knowledge of the alleged abuse, the determination that there is reasonable cause involves the exercise of discretion. Id. at 877-878. The Court again emphasized the rationale behind the qualified official immunity doctrine:

Since Turner did not have actual or personal knowledge of the events alleged, the only other basis upon which she was required to make a report would be the development of a “reasonable cause to believe” that one of the children had been abused. Making such a determination clearly involves the exercise of discretion. It is similar to a judicial decision that there is or is not probable cause to support an asserted proposition. The very purpose of the doctrine of qualified official immunity is to protect government officials exercising discretion from second-guessing of their good faith decisions made in difficult situations such as this. The essence of reaching a determination as to whether reasonable cause exists would require discretion. This requires that Turner make reasonable inquiry into the facts, weighing the credibility of each child and then using her judgment and experience of a teacher of kindergarten level students, to reach a decision as to whether there was reasonable cause to believe that sexual abuse had occurred.

The reasoning expressed in Turner is persuasive. The General Assembly did not intend that the Cabinet investigate every case of alleged abuse against an adult. The majority of such cases necessarily remain within the realm of law enforcement. Instead, as a threshold to the application of the Adult Protection Act, the alleged victim must be eighteen years of age or older and suffer from a mental or physical dysfunction that impairs his or her ability to manage his or her resources, perform daily activities, or protect against neglect or abuse.

Because Gibson did not have actual or personal knowledge of Hicks’s mental or physical condition, she was required to initiate an investigation only if there was reasonable cause to believe that Hicks was an adult as defined in the statute. “Making such a determination clearly involves the exercise of discretion.” Id. Therefore, as a part of the screening process, Gibson was required to exercise her professional judgment, based on training and experience, to determine whether the allegations of abuse met the statutory and regulatory criteria. We hold that Gibson is entitled to qualified official immunity.

Gibson’s allegation that she is entitled to statutory immunity under KRS 209.050 and KRS 44.070(1) is rendered moot by our decision that she was entitled to summary judgment.