Opinion
NO. 2013-CA-001950-MR NO. 2013-CA-002036-MR
01-23-2015
JEREMY RANEY APPELLANT v. PAMELA MILLER APPELLEE AND PAMELA MILLER CROSS-APPELLANT v. TED PULLEN AND JEREMY RANEY CROSS-APPELLEES
BRIEF FOR APPELLANT: Stephanie A. French Kristie A. Daugherty Louisville, KY BRIEF FOR APPELLEE: Bruce Garrett Anderson Louisville, KY
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE FREDERIC COWAN, JUDGE
ACTION NO. 12-CI-000192
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE FREDERIC COWAN JUDGE
ACTION NO. 12-CI-003660
OPINION
VACATING AND REMANDING AS TO THE DIRECT APPEAL, AFFIRMING AS TO THE CROSS-APPEAL
BEFORE: CAPERTON, COMBS, VANMETER, JUDGES. COMBS, JUDGE: Jeremy Raney, former Assistant Director of Engineering Services for Louisville Jefferson County Metro Government Department of Public Works and Assets, appeals the trial court's denial of his motion for summary judgment based on qualified official immunity. Pamela Miller brought a negligence action against Raney and Ted Pullen, former Director of the Louisville Jefferson County Metro Government Department of Public Works and Assets. She cross-appeals the summary judgment entered in favor of Pullen. We affirm in part and vacate in part and remand.
Judge Caperton concurred in this opinion prior to Judge Debra Lambert being sworn in on January 5, 2015, as Judge of Division 1, Third Appellate District. Release of this opinion was delayed by administrative handling.
On January 10, 2012, Miller filed a negligence action against Ted Pullen in his individual capacity, seeking to recover for damages she sustained as a result of a fall on an uneven sidewalk in downtown Louisville. Miller alleged that Pullen had negligently inspected and maintained the sidewalk. On June 7, 2012, Pullen filed a motion for summary judgment based, in part, upon the contention that he was entitled to qualified official immunity.
On July 3, 2012, Miller filed a separate negligence action against Jeremy Raney, in his individual capacity. In this action, Miller made the same allegations against Raney as she made against Pullen. For the sake of efficiency, the two separate actions were consolidated by the Jefferson Circuit Court.
On August 8, 2012, Raney filed a motion for summary judgment. He contended that he, too, was entitled to qualified official immunity from suit. After a period of discovery, the trial court denied both motions for summary judgment. Pretrial practice continued until June 2013 when Raney and Pullen renewed their motions for summary judgment.
In an opinion and order entered on October 21, 2013, the Jefferson Circuit Court concluded that Pullen had now shown that he was entitled to qualified official immunity. Consequently, the circuit court granted summary judgment with respect to the negligence claim asserted against him. However, the court did not alter its analysis of the claim asserted against Raney. It denied the motion for summary judgment with respect to the negligence claim asserted against him. This appeal and cross-appeal followed.
In his appeal, Raney argues that the trial court erred by failing to conclude that he is entitled to qualified official immunity. In her cross-appeal, Miller contends that the court erred by concluding that Pullen is entitled to qualified official immunity.
The doctrine of qualified official immunity shields public officers and employees sued in their individual capacities from liability for the negligent performance of discretionary acts when the actions are undertaken in good faith and within the scope of the official's authority. Nelson Co. Bd. of Educ. v. Forte, 337 S.W.3d 617 (Ky.2011). However, qualified official immunity does not protect public employees from liability for the negligent performance of ministerial acts. Id. The focus of these appeals is the distinction between discretionary acts and ministerial ones.
Discretionary acts involve the exercise of judgment and deliberation. Yanero v. Davis, 65 S.W.3d 510 (Ky.2001). Ministerial acts involve the mere execution of a task arising from a set of designated facts even though the public employee may have some discretion with respect to the means or method by which a task is to be performed. Id. Determining whether a public official's acts are discretionary or ministerial entails a fact-specific analysis. Jerauld ex rel. Robinson v. Kroger, 353 S.W.3d 636 (Ky.App.2011). Often, the acts cannot be viewed as either purely discretionary or purely ministerial. Haney v. Monskey, 311 S.W.3d 235 (Ky.2010). In such a case, we must ascertain "the dominant nature of the act" or function at issue. Id. at 240.
Raney argues that the circuit court erred in concluding that his actions with respect to the uneven sidewalk were solely ministerial in nature, thus depriving him of the shield of qualified official immunity. We agree.
Raney's former job description indicates that he was responsible for assisting in the operation of the department of public works by planning and developing policy and procedure and by preparing budgetary data relevant to the engineering services division of the agency. In his deposition, Raney testified that his duties included the supervision of those employees assigned to oversee traffic signals, signs and markings, road paving, and sidewalk projects throughout the metropolitan area. He explained that his department employed eleven inspectors whose duties included either the inspection of sidewalks or the responsibility to assign others to do so. Raney indicated that aside from the Americans with Disabilities Act Transition Plan (requiring curb cuts to facilitate wheel chairs, etc.), inspections for sidewalk defects were not undertaken on any regular basis. Instead, sidewalks were only inspected when a specific complaint was lodged by a pedestrian.
Raney explained that sidewalk complaints were then routed to specific inspector managers by geographic region and were in turn addressed by individual employees assigned to evaluate the need for maintenance or repair of the stretch of sidewalk. These evaluations of the sidewalk included the use of a ranking system that employees were trained to use as part of their inspection. Raney indicated that maintenance and repairs were undertaken according to priority of need established under the ranking system and as budgetary constraints allowed. Raney testified that he was not bound by any ordinance, policy, or procedure that required that sidewalks in the metropolitan area to be regularly inspected for safety; that agency funding was never sufficient to implement a regular inspection program; and that he was never personally involved with the inspection, maintenance, or repair of sidewalks.
Based upon these undisputed facts, we conclude that Raney's duties with respect to area sidewalks must be characterized as discretionary. Raney's responsibilities required him to manage the design and construction of all public works projects -- including pedestrian facilities. He also engaged a system through which determinations with respect to the necessity and timing of sidewalk repair and maintenance could be made; he supervised those subordinate personnel whose job descriptions required them to assess the condition of sidewalks through a visual inspection. These acts involved the exercise of Raney's judgment and deliberation rather than the mere execution of a task arising from a fixed set of facts.
Miller takes issue with Raney's implementation of a complaint-driven system of sidewalk inspection and his method of allocating local and federal funds. Nevertheless, these policy-based choices had to be made from numerous options requiring the exercise of Raney's professional judgment. Since Miller did not allege -- and there is no evidence to indicate -- that Raney failed to undertake his responsibilities in good faith, Raney is entitled to qualified official immunity from suit. On appeal, we vacate the trial court's order denying summary judgment on this basis and remand.
THE CROSS-APPEAL
With respect to Miller's cross-appeal, we agree with the trial court that former director Pullen was entitled to qualified official immunity. Miller concedes that at the time of her injury, Pullen was not required by any statute, regulation, or ordinance to maintain or to repair public sidewalks. His job description identified no such responsibility. Nevertheless, in his affidavit, Pullen indicated that the department of public works made policy decisions concerning the implementation of a system by which sidewalk maintenance and repair issues could be addressed within its budgetary constraints. Pullen indicated that his department also had the discretion not to repair or maintain public sidewalks. In light of these facts, we agree with the trial court's conclusion that Pullen's acts or omissions at issue were discretionary. Thus, we affirm the trial court's judgment that Pullen is entitled to qualified official immunity from suit.
In summary, we vacate and remand with respect to the appeal. We affirm as to the cross-appeal.
ALL CONCUR. BRIEF FOR APPELLANT: Stephanie A. French
Kristie A. Daugherty
Louisville, KY
BRIEF FOR APPELLEE: Bruce Garrett Anderson
Louisville, KY