This week’s Court of Appeals decisions numbered 590-609 (no 598, 599), with 20 decisions; 1 of which has been designated “to be published”. COA addressed taxation for 911 services; qualified official immunity in police arrest; relation back of amendments and estoppel arguments rejected in statute of limitations dismissal of complaint.
Stone Fence Row running along the Paris Pike, Bourbon County, Kentucky. Color picture, but looks almost black and white.
Photo by Michael Stevens, 4/2/2014.
The published decisions for July 3, 2014 with name, link to full text, and key issues are:
606. Revenue & Taxation. COA reversed and remanded summary judgment dismissing city’s suit against county opposing water meter tax to fund 911 emergency phone services in county of Garrard.
City of Lancaster, Kentucky vs. Garrard County, Kentucky
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“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.
The Tort Report – Selected decisions this week on tort, insurance and civil law.
596. Qualified official immunity and police arrest.
Matt Jones vs. Larry Bennett, Russell County Sheriff
COA Not Published 7/3/2014
Affirming trial courts summary judgment dismissing complaint against individual police officers under qualified official immunity.
Immunity from suit is not only available to a state, but “…also extends to public officials sued in their representative (official) capacities…” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001). Qualified official immunity is an affirmative defense that must be specifically pled. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980).
Official immunity can be absolute, as when an officer or employee of the state is sued in his/her representative capacity, in which event his/her actions are included under the umbrella of sovereign immunity… Similarly, when an officer or employee of a governmental agency is sued in his/her representative capacity, the officer’s or employee’s actions are afforded the same immunity, if any, to which the agency, itself, would be entitled… But when sued in their individual capacities, public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment. 63C Am.Jur.2d, Public Officers and Employees, § 309 (1997). Qualified official immunity applies to the negligent performance by a public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment, Id. § 322; (2) in good faith; and (3) within the scope of the employee’s authority. Id. § 309; Restatement (Second) Torts, supra, § 895D cmt. g.
Yanero, supra, at p. 521.
In determining whether a government official is entitled to qualified immunity, a court must look at the alleged facts to see whether the defendant’s actions are discretionary or ministerial. “[W]e have continued to recognize the distinction between discretionary and ministerial acts and have held that the wrongful performance of a ministerial act can subject the officer or employee to liability for damages. Kea–Ham Contracting, Inc. v. Floyd County Dev. Auth., Ky., 37 S.W.3d 703 (Ky. 2000).” Yanero, supra at pp. 523.
[A]n act is not necessarily taken out of the class styled “ministerial” because the officer performing it is vested with a discretion respecting the means or method to be employed.
Franklin County, Kentucky v. Malone, 957 S.W.2d 195, 201 (Ky. 1997) (quoting Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky. 1959)). “[I]n the final analysis, the decision as to whether a public official’s acts are discretionary or ministerial must be determined by the facts of each particular case…” Caneyville Volunteer Fire Dept. v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790 (Ky. 2009).
In Fryman v Harrison, 896 S.W.2d 908, 910 (Ky. 1995), the Kentucky Supreme Court held that:
To establish a negligence claim against a public official, the complaint must allege a violation of a special duty owed to a specific identifiable person and not merely the breach of a general duty owed to the public at large.
In the present case, the trial court is correct that the actions of Deputy Bennett were within the course and scope of his employment. Bennett was actively within his law enforcement duties in pursuing an individual whom he suspected of driving under the influence. Thus, his actions were discretionary acts and he is, therefore, subject to qualified immunity. It also follows that the Russell County Sheriff’s Office is also shielded under the doctrine.
Appellants next assert that the actions of Lawless were not an intervening cause, however, given our holding regarding the qualified immunity, this argument is moot. For the above reasons, we affirm the decision of the trial court.
607. Tort Statute of Limitations.
Laurie Rogers vs. Yellowwood Franchise Services dba Fantastic Sams
COA Not Published 7/3/2014
LAMBERT, JUDGE: Laurie M. Rogers has appealed from the May 31, 2013, order of the Jefferson Circuit Court granting the motion for summary judgment filed by Yellowwood Franchise Services, Inc., d/b/a Fantastic Sams and dismissingher complaint as untimely because it was not filed within the one-year statute of limitations period. We affirm.
Time line is slip and fall on 2/8/2012; complaint filed on 2/7/12 against Tenco Inc. d/b/a Frantastic Sams Yellowood; plaintiff then amended complaint on 2/15/2014 learning the business where she fell was Yellowwood Franchise Services, Inc., d/b/a Fantastic Sams.
COA affirmed dismissal as complaint was time barred, rejecting Plaintiff’s arguments that there was sufficient identity of interest to relate back the amendment and the defendants were estopped based upon actions of the liability insurer.
COA did not find support for Rogers’ argument in either Harralson or Munday, because the misrepresentation of the proper entity was cured months before the limitations period expired, and Rogers did not submit any evidence or argument regarding why the correct corporate name could not have been discovered during the limitations period. T
There is no relationship between the original defendant, Tenco, and the later named defendant, Yellowwood. Therefore, Yellowwood had no means to receive notice of the originally filed complaint. It is not enough that the name “Yellowwood” was used in the original complaint because it had no relationship with Tenco.
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