COAKY Minutes: March 22, 2013 — Re: compensatory damages from wilfull trespass and qualified immunity relating to school bus driver and school transportation officers

Compensation is always the aim of the law. It is ‘the bottom principle of the law of damages. To restore the party injured, as near as may be, to his former position is the purpose of allowing a money equivalent of his property which has been taken, injured, or destroyed.’  Hughett, 313 Ky. at 91, 230 S.W.2d at 96 (quoting Cincinnati, N. O. & T. P. Ry. Co. v. Falconer, 30 Ky.L.Rptr. 152, 97 S.W. 727, 728 (1906)). As has been stated more recently, “[t]he object of compensatory damages is to make the injured party whole to the extent that it is possible to measure his injury in terms of money.” Ky. Cent. Ins. Co. v. Schneider, 15 S.W.3d 373, 374 (Ky. 2000) (citing 22 Am.Jur.2d Damages § 26 (1988)). Because Harrod admits the encroachment and the unauthorized removal of 164,000 tons of limestone from Crutcher’s land, the crux of this appeal is what amount of money will fairly compensate Crutcher for the trespass to its property and the limestone removed from its land.

COMBS, JUDGE: Emily Oliver, by and through her guardian, Patricia Oliver (Oliver), appeals the order of the Clay Circuit Court granting summary judgment to appellees Lisa Baker, Todd McDaniel, and Ronnie Mathis. Oliver also appeals theorder that dismissed her claims against Reuben Bennett. After our review, we vacate the orders and remand.

The trial court granted summary judgment to Baker, Mathis, and McDaniel based on its finding that they were entitled to qualified immunity. The doctrine of immunity is “a bedrock component” of our law. Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 799 (Ky. 2009). Sovereign immunity allows the “state, legislators, prosecutors, judges, and others doing the essential work of the state” an immunity from fear of suit. Autry v. Western Kentucky Univ., 219 S.W.3d 713, 717 (Ky. 2007).

School boards and their employees are not entitled to sovereign immunity; however, as agencies of the state, it is settled law that they enjoy governmental immunity. James v. Wilson, 95 S.W.3d 875, 903 (Ky. App. 2002). Governmental immunity is granted to state agencies in their performance of governmental functions. Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001). The doctrine arises from the reasoning that it is inappropriate for courts to:

pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions, because such actions furnish an inadequate crucible for testing the merits of social, political, or economic policy. Put another way, “it is not a tort for government to govern.”

Yanero, supra (quoting Dalehite v. United States, 346 U.S. 15, 57, 73 S.Ct. 956, 979, 97 L.Ed. 1427 (1953)). When employees of governmental agencies are sued in their individual capacities, they may enjoy a qualified official immunity. Bolin v. Davis, 283 S.W.3d 752, 757 (Ky. App. 2008).

Qualified official immunity shields public officers or employees from liability for:

the negligent performance . . . 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.

Yanero v. Davis, 65 S.W.3d at 522. However, public officers and employees are not entitled to qualified immunity if they have negligently performed a ministerial act; i.e., a duty that is “absolute, certain, and imperative[.]” Id. Thus, the distinction between discretionary versus ministerial as to the nature of duties is crucial and pivotal to the entitlement of a governmental employer to claim qualified immunity. That distinction must be analyzed and established on the particular facts of every case.

The General Assembly has instructed school boards to implement policies that define the duties of employees and the rules of conduct for students. Kentucky Revised Statute[s] (KRS) 160.290(2). Additionally, teachers and administrators are to “hold pupils to a strict account for the conduct . . . on the way to and from school[.]” KRS 161.180. In response to these requirements, the Clay County Board of Education has adopted the Student Code of Acceptable Behavior, which includes employee guidelines as well. Employees of the board of education are also subject to the duties that are detailed in the Local District Classification Plan.

We will address immunity as it relates to the bus drivers, Baker and Bennett. As to Baker, the trial court granted summary judgment because it believed that no genuine material issue of fact existed. The trial court based its summary judgment on a surveillance video from her bus. It found that the video conclusively proved that nothing sinister or irregular had occurred on Baker’s bus. We also have reviewed the same video, and we cannot reach the same conclusion as did the trial court.