Opinion
Civil Action No. 5:99-CV-142-R
September 3, 1999.
MEMORANDUM OPINION ORDER
This matter is before the Court on Defendant Joseph Green's motions to dismiss (docs. # 2 and 15) and Defendant David Wilson's motions to dismiss (docs. # 3, 11, and 17). For the following reasons, Defendants' motions are GRANTED.
I.
The following facts are as set out in Plaintiff's complaints. Plaintiff Gail L. Minger is the mother and personal representative of the Estate of Michael Howard Minger. Michael was a student at Murray State University ("MSU") and a university dormitory resident. He died in a fire in his dormitory, Hester Residential College, on September 18, 1998. The cause of the fire was arson. Defendant Joseph Green is the Director of the Public Safety Department of MSU. Defendant David Wilson is the Assistant Director of housing at MSU.
On September 13, 1998 a fire ignited on Michael's floor in Hester Hall. Investigators suspected arson. Between September 13 and 18, MSU received false reports of fires on the floor. Gail Minger called Wilson in the MSU Housing Office on September 14, inquiring about the cause of the September 13 fire. Wilson did not tell her that arson was suspected. Wilson assured her that dorm residents were safe and discouraged her from calling the fire department. Michael was in his room during the September 18 fire and died of smoke inhalation.
Plaintiff filed suit against Green, alleging that he had the duty to prevent unlawful conduct and to protect all persons residing on campus from harm. Plaintiff alleges that the fourth-floor arson fire was a reasonably foreseeable criminal act and Green breached his duty to Michael by "failing to have in place an adequate system of security to assure [his] safety." Plaintiff also sued Wilson for negligent misrepresentation of the cause of the fire and of the inadequate security in the dorm. Plaintiff alleges that Michael relied on Wilson's statements to his mother by remaining in the dorm. He would have vacated had he known of the suspected arson. Plaintiff alleges that the negligence of the Defendants was a substantial factor in causing Michael's death, and she seeks compensatory damages and costs.
Defendants have filed motions to dismiss the complaint and the amended complaint.
II.
A motion to dismiss should be granted only if "there is no set of facts that would allow plaintiff to recover." Persian Galleries, Inc. v. Transcontinental Ins. Co., 38 F.3d 253, 258 (6th Cir. 1994). The Court considers all factual allegations as if they were true and all factual disputes are resolved in the plaintiff's favor. Id.
A.
Plaintiff's original complaint did not state in which capacity she was suing Defendants. In their first motions to dismiss, Defendants argue that they are entitled to Eleventh Amendment immunity for Plaintiff's claims against them in their official capacities. After the Defendants filed their motions, Plaintiff amended her Complaint, specifically alleging that she was suing Defendants in their individual capacities only. The Eleventh Amendment does not protect state employees from suit in their individual capacities in the performance of their employment duties. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 362-63, 116 L.Ed.2d 301 (1991). Thus, Defendants' arguments for Eleventh Amendment immunity fail.
B.
Defendants also argue that they are entitled to state sovereign immunity. Plaintiff has sued Defendants for negligent performance of their duties. The liability of Defendants, who are public officers and employees, depends on whether the acts or functions in question were ministerial or discretionary in nature. Ashby v. City of Louisville, 841 S.W.2d 184, 188 (Ky.App. 1992). A state official, sued in his individual capacity for discretionary acts is not personally liable for negligence if he was acting within "the general scope of the authority of office" and not illegally. Franklin County, Kentucky v. Malone, 957 S.W.2d 195, 202 (Ky. 1997). Prior to 1986, a state official sued in his individual capacity could be held individually liable for performing ministerial acts negligently. Id. However, amendments to the Board of Claims Act and the Kentucky Supreme Court's decision in Malone extended sovereign immunity to state officers and employees sued in their individual capacities who engage in activities not "outside the traditional role of government" and acted "within the scope of the authority of office" at the time of the alleged negligence. Malone, at 202.
The Defendants' actions appear to be discretionary in nature. "The essence of discretionary power is that the person or persons exercising it may choose which of several courses will be followed. The power to exercise an honest discretion necessarily includes the power to make an honest mistake." Malone, 957 S.W.2d at 201. Plaintiff is suing Green for breaching his duty to prevent crime and to protect residents of MSU's campus. How Green, the Director of the Public Safety Department, is to perform these duties involves "policy making" and "significant judgment." Id. Also, Wilson apparently could exercise judgment and make choices how, what, and when to communicate with Plaintiff. If Defendants were performing discretionary functions, they are entitled to absolute immunity from liability as long as they are acting within the general scope of their authority. Plaintiff has not alleged that either Defendant was acting beyond the scope of the authority of his office. Plaintiff also has not alleged intentional torts or illegal activity that would take the actions beyond the scope of authority.
Perhaps Plaintiff is correct in that she is entitled to limited discovery as to whether Defendants' actions were ministerial or discretionary. Plaintiff argues that some university policy or regulation may exist that mandated action by Green and Wilson. However, even if the Court characterizes their actions as ministerial in nature, Defendants are still entitled to immunity, because their actions are not outside the traditional role of government and they were acting within the scope of their authority.
The phrase "not outside the traditional role of government" has not been clearly defined by Kentucky courts. In Malone, a police officer's ability to search a prisoner was within the traditional role of government because only a government agent can lawfully search a prisoner. In Gould v. O'Bannon, 770 S.W.2d 220 (Ky. 1989), the Kentucky Supreme Court would not extend sovereign immunity to physicians at the University of Louisville hospital for negligence in the performance of ministerial acts. One commentator states that Gould stands for the principal that "individuals should receive no more protection as a government employee than they would if they performed the same service for a private corporation." 13 David J. Leibson, Kentucky Practice § 10.53. Kentucky Center for the Arts Corp. v. Berns, 801 S.W.2d 327 (Ky. 1990), supports that principal. In Berns, the Kentucky Supreme Court held that the Kentucky Center for the Arts Corporation, an entity established by the state to promote tourism and economic welfare of Jefferson County, was not entitled to sovereign immunity because it performs substantially the same function as any private business engaged in the entertainment business. Unlike the entertainment business and the practice of medicine, "higher education has long been recognized as a governmental function." Hutsell v. Sayre, 5 F.3d 996, 1002 (6th Cir. 1993). Murray State University is a statutorily designated public university. K.R.S. 164.290. Because private businesses are generally not involved in law enforcement and administration of public educational institutions, Green and Wilson were not performing substantially the same functions as any employee in a private business.
Wilson was acting as an administrator of housing, a statutorily mandated function of state universities:
The purpose of the state universities and colleges is to give instruction at the college level, in residence and through extension study, in academic, vocational and professional subjects and in the science and art of teaching, including professional ethics, to conduct training schools, field service and research, and to render such supplemental services as conducting libraries and museums, dormitories, farms, recreational facilities and offering instruction in such general and cultural subjects as constitute a part of their curricula.
K.R.S. 164.300 (emphasis added). Green's position as a public university safety officer is authorized by state statute. See KRS 164.950. His powers and duties are set forth there:
Safety and security officers so appointed shall be peace officers and conservators of the peace. They shall have general police powers including the power to arrest, without process, all persons who within their view commit any crime or misdemeanor. They shall possess all of the common law and statutory powers, privileges, and immunities of sheriffs, except that they shall be empowered to serve civil process to the extent authorized by the employing governing board of the respective institution employing them. Without limiting the generality of the foregoing, such safety and security officers are hereby specifically authorized and empowered, and it shall be their duty:
(a) To preserve the peace, maintain order and prevent unlawful use of force or violence or other unlawful conduct on the campuses of their respective institutions, and to protect all persons and property located thereon from injury, harm and damage;
KRS 164.955(1). The traditional role of government involves police protection of citizens from crime as well as administration of public educational institutions.
The doctrine of sovereign immunity is not new. Nevertheless, the parameters of sovereign immunity have been evolving, if not changing, in Kentucky in the last decade. Legislative enactments and recent decisions such as Malone, supra, have redefined the contours of sovereign immunity. The concept of what is "outside the traditional role of government" has not been clearly defined. However, under the current case law the Courts is compelled to conclude that Defendants are entitled to official immunity against Plaintiff's negligence claims, and this Court does not have jurisdiction to hear Plaintiff's claims. K.R.S. 44.072-.073.
Regardless of Green's immunity, Plaintiff fails to demonstrate that Green had a legal duty to her son. "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." Fryman v. Harrison, 896 S.W.2d 908, 910 (Ky. 1995). Green does not have special duty to protect Michael Minger from crime in the absence of a "special relationship." Id.; see also Ashby, supra. There is a two-part test for determining whether a special relationship existed: 1) whether "the victim was in custody or was otherwise restrained by the state at the time in question" and 2) whether "the violence or other offensive conduct was perpetrated by a state actor." Fryman, at 910. Even assuming that a state actor was responsible for the fire, Michael Minger was not "otherwise restrained by the state" when he was required to live in the MSU dorm. Unlike imprisonment or commitment to mental institution, he was free to come and go as he pleased. Dorm residency requirements did not restrict Michael's liberty such that he was unable to attend to his basic human needs. See Sargi v. Kent Board of Education, 70 F.3d 907 (6th Cir. 1995) (holding that compulsory school attendance laws for minors does not create special relationship between school board and students).
An appropriate order shall issue.
ORDER
Defendants Joseph Green and David Wilson having filed motions to dismiss, and upon consideration by the Court,
IT IS ORDERED:
Defendant Joseph Green's motions to dismiss (docs. # 2 and 15) and Defendant David Wilson's motions to dismiss (docs. # 3, 11, and 17) are GRANTED. This case is dismissed with prejudice in its entirety.
This is a final and appealable order. There is no just cause for delay.