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 It is outdated and unfair and should be abolished.

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The Kentucky Supreme Court has published Autry v. Western Kentucky Univ., which again dealt with the defense of immunity by a state agency. This case stems from the horrific death of Katie Autry at WKU and the subsequent wrongful death action by her parents against WKU and The Student Life Foundation, Inc. The opinion is important mostly for the background discussing immunity as it applies to state agencies. My quick tutorial:

A. Sovereign immunity applies to the state, legislators, prosecutors, judges, and others doing essential work for the state and it is absolute.

B. Governmental immunity extends to state agencies that perform governmental functions AND are supported by money from the state treasury AND were created for that purpose.

1. Official immunity: If a state agency is deemed to have governmental immunity its officers or employees have official immunity when they are sued in their official or representative capacity or it involves official acts.

2. Qualified official immunity: If officers or employees are sued in their individual capacities, they have qualified official immunity if their acts are:

1a. Discretionary, ie, made in good faith and within the scope of their authority or employment. An act is not discretionary merely because some judgment is used in deciding on the means of method used.

2a. Discretionary acts that violate constitutional, statutory, or other clearly established rights are not entitled to immunity or if they are done willfully or maliciously with intent to harm or committed with a corrupt motive or bad faith.

3a. Ministerial, ie, absolute, certain, and imperative, involving the mere execution of a specific act based on a fixed and designated facts are not entitled to immunity.

  • If the ministerial acts are proper, then the public officer or employee has official immunity (see A. above) without qualification.

4a. If an official act is done by a public officer or employee which is known or should have been known by that officer or employee to be a violation of constitutional right or done maliciously to cause injury, there is no immunity.

Simple right? The time and effort required to reach a decision is the best evidence that immunity is an archaic concept that has outlived its usefulness. At the least it should be simplified and used only in limited circumstances.