Opinion
NO. 2012-CA-002157-MR
05-09-2014
GEORGE DAY APPELLANT v. THE CITY OF HENDERSON; THE HENDERSON POLICE DEPARTMENT; CERTAIN UNKNOWN OFFICERS, WHETHER INDIVIDUALLY AND/OR IN THEIR OFFICIAL CAPACITY; AND JASON MATTHEW HARGITT, A HENDERSON K-9 OFFICER APPELLEES
BRIEFS FOR APPELLANT: Zack N. Womack Henderson, Kentucky ORAL ARGUMENTS FOR APPELLANT: Zack N. Womack Henderson, Kentucky BRIEF FOR APPELLEES: Jeffrey C. Mando Daniel E. Linneman Covington, Kentucky ORAL ARGUMENT FOR APPELLEES: Jeffrey C. Mando Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 11-CI-00439
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND LAMBERT, JUDGES. CAPERTON, JUDGE: George Day appeals from the grant of summary judgment in favor of the Appellees, the City of Henderson, the Henderson Police Department ("HPD") and Officer Jason Matthew Hargitt in his official and individual capacity. After a thorough examination of the parties' arguments, the applicable law, and the record, we affirm.
Day owns a business, Day's Garden Center in Henderson, Kentucky. At about midnight on February 11, 2011, Day's neighbor, Joseph Allen Shreve, saw a man in a big, puffy jacket walking up to Day's. Shreve saw the man inside of Day's fence line and called the police. Before the police arrived a second man joined the first man on Day's property. The police later told Shreve that they caught one of the men but the other got away.
Around midnight on February 15, 2011, Shreve saw a man in a similar coat jump the fence into Day's and meet someone already on the inside. Shreve called the police again and dispatch put out a call advising a possible burglary with two male suspects at Day's. Several officers responded to the call. One officer, Jared Shehorn, saw a man near the office building. This man tried to open the front door and looked in several windows before Shehorn lost sight of him.
Officer Jason Hargitt and his canine unit Santo, a German Shepherd, responded to the call. While driving to the scene Hargitt heard Shehorn relay information about the man he saw by the office over the radio. Shehorn asked if he should try to make contact with the man he had seen. The officer in charge, Sgt. Edwards, decided instead to set up a perimeter around the fence line and to search the interior.
When Hargitt arrived, the gate to the fence was already open. The officers around the perimeter saw no one leave the property. The police did not find anyone in the open areas and decided to proceed to the buildings. Hargitt brought out Santo to assist and put him on a six-foot leash.
The police went to the closest building, a greenhouse, first. Hargitt called out that there was a police canine and that anyone inside should come out now because he would send in the dog and anyone located inside would be bitten. He waited and then gave the warning a second time. There was no response. Hargitt released Santo from his leash and sent him into the greenhouse. The dog located Kenneth Stone lying under some plants and bit him on the ankle. Stone did not have permission to be at Day's. When the dog bit Stone, he yelled. Hargitt went into the greenhouse and got Santo to release Stone. Santo was placed back on his leash.
Another officer reported over the radio that the door to the office building was open. Hargitt took Santo to the office door. He called out the same warning as before; when there was no response he repeated the warning. Santo was then released into the office. Santo located a man and bit him on the upper thigh. Unfortunately, this was not an intruder and instead was the owner of the property, Day.
The office at Day's has a small living area and Day would often sleep there during the winter when the greenhouse heaters could fail. Day asserted that the police department knew this and when there had been a problem in the past, an officer would call him on the phone.
In his deposition, Day stated that on the night of February 15, 2011, he had locked the door to the office and gone to bed. During the night, something woke him up. Day got out of bed, took about six steps and found himself "fighting a dog." He could not specify how many times he was bitten but it seemed "like a lot."
According to Hargitt, Santo went through the open door into the office building and encountered Day as he emerged from a hallway. Hargitt heard a call over the radio saying there might be someone on the property other than a suspect, but at that point the dog had already been released. He verbally called off Santo and also pulled him back by the collar. Santo was placed back into the car and Day was taken to the hospital.
On June 21, 2011, Day sued the Appellees alleging trespass, negligence, assault and battery, false imprisonment, and violation of Kentucky Revised Statutes (KRS) 258.235. The Appellees moved for summary judgment on Day's claims arguing that they were immune from liability under the Claims Against Local Government Act ("CALGA").
We do not believe that the statute is applicable sub judice as it clearly was not intended to prevent the use of police canines when utilized in their official police capacities.
The court below concluded that the police's actions at Day's were discretionary acts and not ministerial acts. The court found that the police entry onto Day's property and the use of a police dog in particular were discretionary actions. While a written policy was in place for using canine units, the court found that this did not transform the discretionary acts into ministerial acts. The officers were required to make moment by moment decisions in a decidedly fluid situation taking into account multiple factors. These details do not go to the execution of a ministerial duty; instead, they go to the heart of deciding what actions need to be taken.
As to Officer Hargitt specifically, the court noted that it was uncontroverted that Hargitt was acting within the scope of his duties during the events in question. As the actions were discretionary in nature, the court looked at whether there was any proof that Hargitt acted in bad faith. The court concluded that there was no proof that Hargitt acted in bad faith. There was no proof that Hargitt failed to give the warnings required by policy. There was no proof that he released Santo knowing that someone other than a trespasser was inside. Hargitt testified that he believed that Day's Garden Center was solely a commercial property and did not know that anyone might be on the premises until after he released Santo. There is no evidence that the police tampered with the door which they found open. Day admitted that the door to the office could have failed to stay closed because of the cold. As there was no proof of bad faith on the part of Hargitt, the court concluded that Officer Hargitt was entitled to qualified official immunity. Thus, the court granted summary judgment to the City, HPD, and Hargitt on all of Day's claims. It is from this that Day now appeals.
On appeal, Day presents two arguments, namely: (1) the trial court erred in granting summary judgment on the matter as there were genuine issues of material facts in dispute; and (2) the court improperly concluded that the City of Henderson was entitled to immunity and that Officer Hargitt was entitled to "qualified immunity." In response, the Appellees argue: (1) there are no genuine issues of material fact; (2) the city has immunity from liability under the Claims Against Local Government Act; (3) Officer Hargitt in his official capacity has the same immunity as the city; (4) Officer Hargitt in his individual capacity was entitled to qualified official immunity.
We believe that Day is referring to qualified official immunity.
At the outset, we note that the applicable standard of review on appeal of a summary judgment is, "Whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. The trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id. However, "a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial." Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992), citing Steelvest, supra. See also O'Bryan v. Cave, 202 S.W.3d 585, 587 (Ky. 2006); Hallahan v. The Courier Journal, 138 S.W.3d 699, 705 (Ky. App. 2004). Since summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App. 2001). With this standard in mind we now turn to the parties' arguments.
First we note that the defense of immunity "renders one immune not just from liability, but also from suit itself." Haney v. Monsky, 311 S.W.3d 235, 239 -240 (Ky. 2010) (citations omitted).
In Schwindel v. Meade County, the Kentucky Supreme Court addressed CALGA and the inherent difference between immunity for a county and that for a city:
Per KRS 65.200(3), CALGA applies not only to counties but also to municipalities and taxing districts. Counties and municipalities are afforded different degrees of immunity from tort liability. Whereas a county enjoys sovereign immunity and cannot be held vicariously liable for the torts of its employees, a municipality is immune only for torts committed in the performance of legislativeSchwindel v. Meade County, 113 S.W.3d 159, 164 (Ky. 2003).
or judicial or quasi-legislative or quasi-judicial functions, Gas Service Co., supra, and can otherwise be held vicariously liable for the torts of its employees. 57 AmJur.2d, Municipal, County, School, and State Tort Liability § 147 (West 2001); e.g., City of Louisville v. Chapman, Ky., 413 S.W.2d 74, 76-77 (1967).
See also Ashby v. City of Louisville, 841 S.W.2d 184, 186-87 (Ky. App. 1992):
Municipal corporations are immune from tort liability only in very limited circumstances. As stated in Gas Service Co., Inc. v. City of London, Ky., 687 S.W.2d 144, 148 (1985):
The duty to exercise ordinary care commensurate with the circumstances is a standard of conduct that does not turn on and off depending on who is negligent. With a municipal corporation as with all other legal entities, the question is not whether such a duty exists, but whether it has been violated and what are the consequences. Constitutionally, statutorily, or by court decisions, on occasion we excuse the nonperformance of this duty, but no purpose is served by denying its existence. (Footnote omitted.) More specifically, Kentucky's highest court repeatedly has held that municipal immunity from liability for "ordinary torts" exists only in situations involving "the exercise of legislative or judicial or quasi-legislative or quasi-judicial functions." Haney v. City of Lexington, Ky., 386 S.W.2d 738, 742 (1964). See also Bolden v. City of Covington, Ky., 803 S.W.2d 577 (1991); Gas Service Co., supra. This judicially-recognized exception to the rule of municipal tort liability was recently codified in KRS 65.2003.
Sub judice we must conclude that the City of Henderson was not entitled to immunity as the torts alleged were not committed in the performance of legislative or judicial or quasi-legislative or quasi-judicial functions; the exercise of police action at issue here does not fall into one of those designations. Unlike a county which enjoys sovereign immunity, a city may be vicariously liable for the torts of its employees. See Schwindel, supra. Accordingly, our focus turns to the actions of Officer Hargitt.
See Combs v. Commonwealth, 965 S.W.2d 161, 163 (Ky. 1998)("The effect of this exception is to direct all executive branch employees, including police....").
We must assess whether the court erred in concluding that immunity was available to Officer Hargitt in his individual capacity. For purposes of determining whether the defense of qualified official immunity is available, a distinction is made between ministerial and discretionary acts. Immunity is never available for the former; it may be available for the latter.
[A]n officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act, i.e., one that requires 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. That a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in nature.Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001) (citations and quotation marks omitted).
By contrast,Id. (citations omitted).
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; (2) in good faith; and (3) within the scope of the employee's authority. An act is not necessarily "discretionary" just because the officer performing it has some discretion with respect to the means or method to be employed.
The seminal case on this issue, Yanero v. Davis, holds "that an official sued in his or her individual capacity 'enjoy[s] only qualified official immunity, which affords protection ... for good faith judgment calls made in a legally uncertain environment.'" Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006), quoting Yanero at 522. Sloas further quoted Yanero in stating: "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." Sloas at 475, quoting Yanero at 523. However, "good faith" is actually determined by the absence of "bad faith." "In fact, in most cases, "good faith" is just a presumption that exists absent evidence of "bad faith."' Sloas at 475. Indeed,
Yanero also noted that "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...." Yanero v. Davis at 522.
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[B]ad faith can be predicated on a violation of a [causally related] constitutional, statutory, or other clearly established right which a person in a public employee's position presumptively would have known was afforded to a person in the plaintiff's position ... or if the officer or employee willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive.Yanero at 523.
In conducting our analysis we must first ascertain whether Officer Hargitt's actions were discretionary or ministerial in nature. If they were ministerial, then Day may sue for negligent performance. If they were discretionary, then we must ascertain whether Day met his burden of proof in establishing that the discretionary act was not performed in good faith.
This court addressed a similar situation in Haugh v. City of Louisville:
We affirm the circuit court's determination that the peace officers' decision to storm Hines's residence and to use nonlethal force to quickly subdue him is entitled to qualified immunity, because, at minimum, it was a good faith judgment call made in legally uncertain circumstances.Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007).
We believe that as in Haugh, sub judice Officer Hargitt was entitled to qualified immunity in the usage of a police dog in conducting a search of a business with a possible burglary because, at a minimum, it was a good faith judgment call made in legally uncertain circumstances. Accordingly, we must ascertain whether Day met his burden of proof in establishing that this discretionary act was not performed in good faith.
As previously noted, good faith is determined by the absence of bad faith. Sloas at 475. Bad faith is then predicated on:
[A] violation of a [causally related] constitutional, statutory, or other clearly established right which a person in a public employee's position presumptively would have known was afforded to a person in the plaintiff's position ... or if the officer or employee willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive.Yanero at 523.
The trial court concluded that there was no proof that Officer Hargitt acted in self-interest, deliberate indifference, or with a sinister motive, but instead made an honest oversight. The court concluded that there was no evidence of bad faith and, thus, the actions were made in good faith. We agree. Sub judice there was no assertion that Officer Hargitt willfully or maliciously intended to harm Day or acted with a corrupt motive. Thus, we must conclude that Day failed to meet his burden of proof that the discretionary act of utilizing a police dog to search a business possibly being burglarized was not performed in good faith. Accordingly, we affirm the trial court on this ground.
Having found no primary liability on the part of Officer Hargitt we must conclude that the City of Henderson likewise is not liable:
Because we find no primary liability on the part of the arresting officers, we agree with the circuit court's holding that the Louisville-Jefferson County Metro Government, which is the legal successor of the City of Louisville, likewise cannot be held vicariously liable for Hines's death. Indeed, vicarious liability is not possible without primary liability.Haugh v. City of Louisville at 687, citing City of Louisville v. Bergel, 610 S.W.2d 292, 293 (Ky. 1980).
In light of the aforementioned, we affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: Zack N. Womack
Henderson, Kentucky
ORAL ARGUMENTS FOR
APPELLANT:
Zack N. Womack
Henderson, Kentucky
BRIEF FOR APPELLEES: Jeffrey C. Mando
Daniel E. Linneman
Covington, Kentucky
ORAL ARGUMENT FOR
APPELLEES:
Jeffrey C. Mando
Covington, Kentucky
Ashby v. City of Louisville, 841 S.W. at 186-87.