SOVEREIGN IMMUNITY: School board employees afforded same immunity, if any, to which agency entitled; discretionary vs. ministerial acts are not bright line and measured against Yanero: PENNINGTON V. GREENUP COUNTY BOARD OF EDUCATION

PENNINGTON V. GREENUP COUNTY BOARD OF EDUCATION
SOVEREIGN IMMUNITY: School board employees afforded same immunity, if any, to which agency entitled; discretionary vs. ministerial acts are not bright line and measured against Yanero
RENDERED: APRIL 11, 28, 2008; 2:00 P
PUBLISHED: AFFIRMING
GREENUP COUNTY
DATE RENDERED: 4/18/2008

Parent of child who was mentally retarded brought action against school and his teacher when child fell and broke his ankle at school outing. The circuit court granted summary judgment to both defendants, holding that the Board of Education is protected from suit by governmental immunity and that Ms. Kelley (teacher) is protected by qualified immunity.

The issue presented on this appeal was whether or not the circuit court erred when it found that Tracey Kelley’s actions in supervising Andrew were discretionary rather than ministerial in nature, resulting in the legal conclusion that Ms. Kelley is entitled to the protection of qualified official immunity. COA affirmed.

The child broke his ankle when he reached over and attempted to kiss another student.

The extent to which local school boards and their employees are protected from suit by governmental immunity is an area of law which has received considerable attention in Kentucky’s appellate courts in recent years. Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), the most frequently cited recent Kentucky case relating to governmental immunity, involved a high school student who was injured when he was struck by a baseball thrown by another student on school grounds. In Lamb v. Holmes, 162 S.W.3d 902 (Ky. 2005), our Supreme Court, relying on qualified official immunity, dismissed a 42 U.S.C. § 1983 “strip search” action against school employees.

It is now familiar law in Kentucky that when an employee of a local board of education is sued in her representative capacity, her “actions are afforded the same immunity, if any, to which the agency, itself, would be entitled[.]” Yanero at 522.

The courts cannot make a “bright line” rule of demarcation between discretionary and ministerial acts. The act or acts complained of in each case must be measured against the standards quoted above from Yanero. Consistent application of those standards can prove difficult, as seen in Williams at 150 (teachers’ duty to supervise students a ministerial function); Sloas at 479-481 (deputy jailer’s supervision of inmates while cutting trees and brush a discretionary function) and Lamb at 909 (search of students by school personnel a discretionary function).

After examining these precedents and others, the COA was unable to conclude that the circuit court erred as a matter of law by granting summary judgment in favor of Ms. Kelley.

For purposes of “discretionary versus ministerial” analysis, it was the COA’s opinion that the teacher’s decisions required as much personal deliberation and judgment as that exercised by the employees in Sloas and Lamb, and we are unable to rationally distinguish the relevant factual bases of those recent cases from that of the present case.

Digested by Michael Stevens

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