Teacher Entitled To Qualified Official Immunity When Supervising Students

April 24, 2008

The Court of Appeals recently published Pennington v. Greenup Co. Board of Ed., which again dealt with when a state employee is entitled to qualified official immunity. At the time relevant to the action, Andrew was a special education student at Greenup County High School. While on a school outing, Andrew fell and broke his ankle. Andrew’s parents sued the Greenup County Board of Education and Andrew’s teacher, Tracey Kelley.

The issue presented on this appeal is whether or not the circuit court erred when it found that Tracey Kelley’s actions in supervising Andrew were discretionary rather than ministerial in nature, resulting in the legal conclusion that Ms. Kelley is entitled to the protection of qualified official immunity.

After reviewing the record and relevant case law on the issue, the Court concluded:

[W]e are unable to conclude that the circuit court erred as a matter of law by granting summary judgment in favor of Ms. Kelley. The record establishes that she had to exercise personal judgment and deliberation numerous times during this incident, including deciding how to best implement Andrew’s IEP, whether to take him on the outing, how and by whom he should be supervised, whether to permit him to skate, whether to lock his skates, and so on. For purposes of “discretionary versus ministerial” analysis, it is our opinion that Ms. Kelley’s decisions required as much personal deliberation and judgment as that exercised by the employees in Sloas and Lamb, and we are unable to rationally distinguish the relevant factual bases of those recent cases from that of the present case.

Editor’s Note:

Hasn’t the court of appeals just described many people who are sued? Aren’t many performing acts involving discretion? Why should Ms. Kelley be immune from her conduct any more than Jane Doe, who just doesn’t happen to be a teacher. While I agree that Ms. Kelley shouldn’t be held liable based on the facts, I continue to believe that the doctrine of sovereign immunity insulates government actors from exercising the same care the rest of the population is required to exercise. This doctrine does nothing but remove any incentive for the Commonwealth to use ordinary care in its day to day operations. It is outdated and unfair and should be abolished.

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