holding that a jailer sued in his official capacity is cloaked with the county’s sovereign immunity
How later courts described this case
- holding that a jailer sued in his official capacity is cloaked with the county’s sovereign immunity
Written by the judges who cited it.
The opinion
RENDERED: DECEMBER 6, 2024; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-1018-MR
BURL W. EVERMAN, IN HIS
INDIVIDUAL AND OFFICIAL
CAPACITIES AS A DEPUTY FOR
THE BATH COUNTY SHERIFF'S
DEPARTMENT; AND JESSE
STEWART, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITIES AS
SHERIFF OF BATH COUNTY,
KENTUCKY APPELLANTS
APPEAL FROM BATH CIRCUIT COURT
v. HONORABLE DAVID A. BARBER, JUDGE
ACTION NO. 21-CI-90138
LESA G. ROBINSON APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: COMBS, L. JONES, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Burl W. Everman, in his individual capacity and official
capacity as a deputy for the Bath County Sheriff’s Department, and Jesse Stewart,
in his individual capacity and official capacity as Sheriff of Bath County,
Kentucky, bring this appeal from an August 3, 2023, Order of the Bath Circuit
Court denying Deputy Everman’s and Sheriff Stewart’s motion for summary
judgment to dismiss the negligence action based upon qualified official immunity
and sovereign immunity. We affirm in part, reverse in part, and remand.
BACKGROUND
Deputy Everman is a deputy with the Bath County Sheriff’s
Department, and Sheriff Stewart is the Bath County Sheriff. On October 26, 2019,
Deputy Everman responded to a call concerning a motor vehicle accident on U.S.
Highway 60 near Owingsville in Bath County. Upon arriving at the scene, Deputy
Everman observed that the motor vehicle involved in the accident was on the
embankment adjacent and parallel to the highway. This portion of U.S. Highway
60 had no shoulders. Deputy Everman activated his police vehicle’s emergency
lights and parked his vehicle in the westbound lane beside the motor vehicle
involved in the accident, thereby leaving the eastbound lane open to traffic.
Shortly thereafter, Lesa Robinson, who was driving her motor vehicle in the
eastbound lane that was open to traffic, rounded a blind curve about fifty yards
from the accident scene. Robinson applied her brakes and lost control of her motor
vehicle. Robinson’s vehicle struck Deputy Everman’s vehicle, and as a result of
the accident, Robinson suffered significant injuries.
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Robinson filed a complaint in the Bath Circuit Court against Deputy
Everman, in his individual capacity and in his official capacity as a deputy of the
Bath County Sheriff Department, and against Sheriff Stewart, in his individual
capacity and in his official capacity as Sheriff of Bath County. In the complaint,
Robinson claimed, in relevant part:
FACTS
9. On or about October 26, 2019, Plaintiff [Robinson]
was operating her GMC Yukon, traveling eastbound on
U.S. Highway 60 near Owingsville in Bath County,
Kentucky.
10. At the time, the roadway was wet.
11. When Plaintiff [Robinson] rounded a curve in a
particularly curvy section of roadway, she encountered
Defendant Everman’s vehicle parked in the travel lanes
of the highway.
12. Unbeknownst to Plaintiff [Robinson], Defendant
Everman had parked his official vehicle in the westbound
travel lanes of U.S. 60 in violation of [Kentucky Revised
Statutes] KRS § 189.450 which states, “No person shall
stop a vehicle, leave it standing, or cause it to stop or to
be left standing upon any portion of the roadway.”
13. Defendant Everman’s vehicle had emergency
equipment activated, and was parked in such a way that
its orientation on the roadway was not immediately
apparent to other users of the highway, including Plaintiff
[Robinson].
....
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COUNT I
NEGLIGENCE
Defendant Everman
....
17. Defendant Everman had a duty to exercise due regard
for public safety in the operation of his emergency motor
vehicle to avoid creating hazards to other users of the
highway, including Plaintiff [Robinson].
18. Defendant Everman had a duty to obey all applicable
traffic laws that do not have a specific exception for law
enforcement officers, including KRS § 189.450’s
prohibition of stopping a motor vehicle on any portion of
a roadway.
19. The operation of an emergency vehicle by Defendant
Everman in his capacity as a Deputy Sheriff of Bath
County is a routine duty, ministerial in nature, requiring
that operation to be performed in adherence to standards
of care established under state law.
20. Defendant Everman did not exercise due regard for
public safety in the operation of his motor vehicle when
he parked his emergency vehicle in the travel lanes of a
U.S. Highway in violation of including KRS § 189.450,
and further violated this duty by parking his emergency
vehicle in such a manner as its position on the travel
lanes of the roadway was not immediately evident to
other users of the highway, including Plaintiff
[Robinson].
21. Defendant Everman’s operation of his emergency
motor vehicle, as described herein, created a substantial
and foreseeable risk that other users of the roadway,
including Plaintiff [Robinson], would take evasive action
in adverse weather conditions, that could result in a loss
of control.
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....
COUNT III
VICARIOUS LIABILITY
Sheriff Jesse Stewart
....
34. Defendant Everman was the agent of Defendant
Stewart at the time of the collision.
35. At the time of the collision, Defendant Stewart
exercised control over the instruments used by Defendant
Everman, including the subject emergency, in his
capacity as a Bath County Deputy Sheriff and in
furtherance of his official activities.
36. At the time of the collision, Defendant Everman was
acting within his official capacity as Deputy Sheriff of
Bath County in furtherance of his official duties.
37. Thus, at the time of the collision, Defendant Stewart
was vicariously liable for the tortious conduct of its
agent, Defendant Everman, by operation of KRS §
70.040, and the resulting damages suffered by Plaintiff
[Robinson].
October 14, 2021, Complaint at 2-6.
Deputy Everman and Sheriff Stewart filed an answer and alleged that
the doctrines of sovereign immunity, governmental immunity, and qualified
official immunity barred Robinson’s negligence claims. Ultimately, Deputy
Everman and Sheriff Stewart filed a motion for summary judgment. In the motion
for summary judgment, Deputy Everman and Sheriff Stewart maintained:
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Robinson alleges Deputy Everman parked his vehicle in
violation of KRS 189.450 and in a manner that caused
her to believe a collision was imminent when she came
around a curve on U.S. 60 and saw emergency lights
from his vehicle. However, Deputy Everman’s vehicle
was parked in accordance with KRS 189.940(4), and he
is entitled to qualified official immunity because the
manner and location in which he parked his vehicle was
discretionary and done in good faith in the course of his
employment. Sheriff Stewart also did not commit a
negligent act or omission and cannot, as a matter of law,
be held vicariously liable for Deputy Everman’s alleged
negligence. Accordingly, the Bath County Defendants
are entitled to summary judgment and dismissal with
prejudice of Robinson’s claims against them.
February 10, 2023, Motion for summary judgment at 1-2 (citations omitted).
In her response, Robinson maintained that Deputy Everman was
negligent for parking his motor vehicle in the roadway, which caused Robinson to
brake and lose control of her motor vehicle. Robinson argued that the act of safely
operating a police vehicle constituted a ministerial act; thus, Deputy Everman was
not entitled to qualified official immunity. As for sovereign immunity, Robinson
asserted that Sheriff Stewart and Deputy Everman in their respective official
capacities were not entitled to sovereign immunity as the Kentucky General
Assembly waived same by enactment of KRS 70.040.
On August 3, 2023, the circuit court denied Deputy Everman and
Sheriff Stewart’s motion for summary judgment. The court concluded that Deputy
Everman’s acts were ministerial and that neither Sheriff Stewart nor Deputy
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Everman was protected by sovereign immunity. The court also believed that
material issues of fact existed as to whether Deputy Everman was negligent. This
interlocutory appeal follows.
STANDARD OF REVIEW
To begin, summary judgment is proper where there exists no genuine
issue of material fact and movant is entitled to judgment as a matter of law.
Kentucky Rules of Civil Procedure (CR) 56.03; Ashland Hosp. Corp. v. Darwin
Select Ins. Co., 664 S.W.3d 509, 515-16 (Ky. 2022). Because we give no
deference to the trial court’s assessment of the record or its conclusions, our review
is de novo. Id. Likewise, any questions of law are also reviewed de novo.
Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010), as
modified on denial of reh’g (Ky. 2011).
ANALYSIS
Sheriff Stewart and Deputy Everman contend that the circuit court
erroneously denied their motion for summary judgment based upon qualified
official immunity and sovereign immunity. As to qualified official immunity,
Deputy Everman asserts that the act of parking his police vehicle at the accident
scene constituted a discretionary act, which is protected by qualified official
immunity. Deputy Everman points out that he parked his police vehicle in the
westbound lane with the emergency lights illuminated and that the eastbound lane
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was open for traffic. Deputy Everman maintains that no regulation or statute
imposes a duty upon him as to the parking of his police vehicle at an accident
scene when his vehicle’s emergency lights are illuminated; rather, Deputy
Everman had to assess the accident scene and use his judgment.1 Deputy Everman
also cites to the recent Opinion of the Court of Appeals in Sholar v. Turner, 664
S.W.3d 719 (Ky. App. 2023).2 Deputy Everman believes that Sholar, 664 S.W.3d
719 is dispositive. According to Deputy Everman, the Sholar Court viewed a
police officer’s decision of where to park a police vehicle upon responding to a
motor vehicle accident as discretionary. Id.
In Kentucky, a public official sued in his individual capacity may be
entitled to the shield of qualified official immunity. Generally, a public official is
entitled to qualified official immunity when performing a discretionary act as
opposed to a ministerial act. Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001).
Thus, the differentiation between a discretionary act and ministerial act is
1
While Kentucky Revised Statutes (KRS) 189.450 prohibits the stopping or parking of a vehicle
on a roadway, KRS 189.940 exempts application of KRS 189.450 to emergency vehicles with
their emergency lights activated.
2
Lesa G. Robinson contends that Sholar v. Turner, 664 S.W.3d 719 (Ky. App. 2023) was not
brought to the attention of the circuit court. As a result, Robinson argues that Deputy Burl W.
Everman may not rely on Sholar, 664 S.W.3d 719 for the first time on appeal. Robinson
supports this argument by pointing out that issues or arguments must first be presented to the
circuit court before presented on appeal. While issues and arguments may generally not be
raised for the first time on appeal, the citation to case law is not similarly treated as the Court is
duty bound to be cognizant of and to apply the proper law to dispose of the issues presented on
appeal (entitlement to qualified official immunity). Cmty. Fin. Servs. v. Stamper, 586 S.W.3d
737, 740-41 (Ky. 2019).
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paramount. Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010). A ministerial act
is “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.” Yanero, 65 S.W.3d at 522. As for a
discretionary act, it is one “involving the exercise of discretion and judgment, or
personal deliberation, decision, and judgment[.]” Id. Moreover, the discretionary
act must be performed in good faith and within the public official’s authority. Id.
Some acts may have features of both a discretionary act and a ministerial act;
however, in such cases, the dominant nature of the act controls. Haney, 311
S.W.3d at 240. Therefore, to be entitled to qualified official immunity, the public
official must have performed a discretionary act, in good faith, and within the
official’s authority.
This Court was previously faced with the issue of whether the parking
of a police vehicle at an accident scene constituted a discretionary act or a
ministerial act. In Sholar, 664 S.W.3d 719, two officers, with the Louisville Metro
Police Department, responded to a motor vehicle accident in the eastbound lane of
I-64. Id. at 721. The officers parked their police vehicles beside a concrete barrier
between the eastbound lane and westbound lane of I-64 and close to the accident
scene. Id. Shortly thereafter, appellee rear-ended one of the police vehicles and
suffered injuries as a result of the accident. Appellee filed an action against the
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officers, in their official capacities and individual capacities, for negligently
parking their police vehicles, thereby causing the accident. Both officers filed a
motion for summary judgment seeking dismissal of the negligence action against
them in their individual capacities based upon the doctrine of qualified official
immunity. The circuit court denied the motion for summary judgment. In
reversing and remanding for dismissal of the action against the officers in their
individual capacities, the Court of Appeals initially noted that “[w]hile general
operation of a vehicle is ministerial [per Jones v. Lathram, 150 S.W.3d 50 (Ky.
2004)], Meinhart [v. Louisville Metro Government, 627 S.W.3d 824 (Ky. 2021)]
makes it clear decisions in emergencies, such as high-speed pursuits, cross the line
into discretion.” Sholar, 664 S.W.3d at 724. In determining that the act of parking
a police vehicle at the accident scene was discretionary, the Court of Appeals
explained:
Turner [Appellee] claims the Officers’ actions
were in violation of KRS 189.450 (prohibiting the
leaving of vehicles on roadway or shoulders). The
Officers counter they have an exemption from such
traffic violations provided by KRS 189.940. Whether
argued as negligence per se for violation of a statute or
general negligence for failure to exercise ordinary care,
the existence of a negligence claim is not the issue on this
appeal. We would not be able to determine the
negligence claim here on summary judgment. We need
not decide this issue. The issue is whether qualified
official immunity applies to bar a negligence claim if one
could be established.
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....
The decision about exercise of discretion requires
consideration of what the Officers knew at the time, not
what hindsight would show. Meinhart, 627 S.W.3d at
835. The apparent fact the accident to which the Officers
responded thankfully did not lead to serious injuries does
not change the nature of any discretion exercised at the
time of the reports. For example, the Officers could not
know the report of blood was oil on the highway because
of the impact until they saw it for themselves. The
Officers could not be sure of the seriousness of the
situation and the need for their help until they got there.
When they got there, the Officers moved their
vehicle to be as close to the concrete barrier as they
could. They turned their emergency lights on, which
would have been visible as vehicles approached them.
Turner says she did not see them. But this does not alter
the fact they were on. In the context of summary
judgment, we are not required to ignore indisputable
video evidence (here four separate videos) of such a fact.
See Degolia v. Kenton Cnty., 381 F. Supp. 3d 740, 759
(E.D. Ky. 2019).
The Officers had two options: to drive farther
down to another exit, turn around and respond on
eastbound I-64 where the accident was located, or
respond immediately by parking on westbound I-64.
Both options were valid options, and there was no legal
or procedural restriction on either choice. The Officers
explained the exercise of their discretion. They drove to
the location as they did and parked as they parked to get
to the scene promptly to be able to render aid as needed
and address traffic flow to avoid further collisions to the
extent possible.
In determining the Officers’ actions were
discretionary, we have a prior decision of this Court
which, although not published, provides specific
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guidance, because the facts have substantial similarity.
Estate of Brown ex rel. Brown v. Preston, No. 2009-CA-
002362-MR, 2010 WL 5018558 (Ky. App. Dec. 10,
2010). In Preston, an officer responded to a single
vehicle accident scene. The officer parked his vehicle on
the shoulder of the road behind an ambulance which had
parked behind the vehicle involved in the accident. The
officer had his emergency lights activated. Within
minutes another vehicle came upon the scene striking and
killing two people. We held the actions taken to secure
the accident scene, which included the location of the
cruiser, were discretionary.
Id. at 722-25 (footnotes omitted).
As in Sholar, 664 S.W.3d 719, we, likewise, conclude that Deputy
Everman’s decision concerning where to park his police vehicle at the accident
scene constituted a discretionary act. It is undisputed that Deputy Everman was
called to an accident involving a single motor vehicle. When he arrived, Deputy
Everman discovered that the motor vehicle was off the roadway and resting in an
embankment parallel to the roadway. The road was a two-lane roadway without
shoulders. Deputy Everman’s decision to park his police vehicle beside the motor
vehicle involved in the accident left the eastbound lane of the roadway open for
traffic. Deputy Everman illuminated the emergency lights on his police vehicle
and called for a tow truck. About fifteen minutes later, Robinson, who was
traveling in the eastbound lane that was open to traffic, rounded a blind curve
about fifty yards from the accident scene, applied her brakes, and lost control of
her vehicle. Similar to the officers’ decisions in Sholar, 664 S.W.3d 719, Deputy
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Everman had to exercise his professional expertise and judgment to decide where
to park his police vehicle while working the scene of the accident. As there is no
material issue of fact as to Deputy Everman’s good faith, we are of the opinion that
Deputy Everman in his individual capacity is entitled to qualified official
immunity. Thus, the circuit court erred by rendering summary judgment
concluding otherwise.
Deputy Everman and Sheriff Stewart also argue on appeal that the
circuit court erred by determining that they, in their respective official capacities,
were not entitled to sovereign immunity. For the following reasons, we disagree.
In Kentucky, the office of sheriff is a constitutional office and is
elected from each county. Kentucky Constitution §§ 99-100; Shipp v. Rodes, 245
S.W. 157 (Ky. 1922). The sheriff is recognized as the chief law enforcement
officer of the county. Shipp, 245 S.W. 157. The office of the sheriff receives most
of its funding from the county and its residents. See KRS 64.121; KRS 70.036.
Accordingly, a sheriff is a county official and absent a waiver thereof is cloaked
with sovereign immunity when sued in his official capacity. See Com. Bd. of
Claims v. Harris, 59 S.W.3d 896 (Ky. 2001) (holding that a jailer sued in his
official capacity is cloaked with the county’s sovereign immunity). Hence, a
sheriff is entitled to sovereign immunity when sued in his official capacity.
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It is well established that KRS 70.040 operates as a legislative waiver
of the sovereign immunity historically enjoyed by the office of sheriff for the acts
and omissions of his or her deputies. Jones v. Cross, 260 S.W.3d 343, 346 (Ky.
2008). KRS 70.040 reads:
The sheriff shall be liable for the acts or omissions of his
deputies; except that, the office of sheriff, and not the
individual holder thereof, shall be liable under this
section. When a deputy sheriff omits to act or acts in
such a way as to render his principal responsible, and the
latter discharges such responsibility, the deputy shall be
liable to the principal for all damages and costs which are
caused by the deputy’s act or omission.
KRS 70.040 has been interpreted as imposing “liability on the sheriff in his official
capacity for acts committed by his deputies.” Jones, 260 S.W.3d at 346. Hence,
KRS 70.040 constitutes a legislative waiver of the sovereign immunity
traditionally enjoyed by a sheriff at common law. Id. As a result, the office of
sheriff, and not the sheriff individually, is liable for the acts or omissions of his
deputies per KRS 70.040.3
In this case, Sheriff Stewart, in his official capacity, is not shielded by
sovereign immunity for claims arising from the alleged wrongful acts of Deputy
Everman pursuant to KRS 70.040. Under KRS 70.040, the General Assembly has
3
Our interpretation of Jones v. Cross, 260 S.W.3d 343 (Ky. 2008) in conjunction with the plain
language of KRS 70.040 requires us to conclude that a sheriff acting in his official capacity
constitutes the office of sheriff and not the sheriff individually.
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clearly waived the sovereign immunity traditionally enjoyed by a county sheriff in
regard to acts of his deputy. See Jones, 260 S.W.3d at 346. However, KRS 70.040
does not waive sovereign immunity as to acts of the sheriff individually. KRS
70.040 is clear that the office of sheriff is only liable for acts of his deputies.
Therefore, Sheriff Stewart, in his official capacity, is still shielded from liability for
his own intentional or unintentional torts as KRS 70.040 does not operate as a
waiver thereof and no other authority is cited to support such a waiver. See Jones,
260 S.W.3d at 345-46. Hence, Sheriff Stewart, in his official capacity, is shielded
from liability by the doctrine of sovereign immunity for his own acts but the office
of sheriff is not shielded from liability for the acts of Deputy Everman.
We now turn to Deputy Everman’s argument for immunity in his
official capacity. A deputy sheriff, unlike the sheriff, is not a constitutional officer
named and designated in the Constitution. However, the deputy sheriff is an
employee of the sheriff and acts in an official capacity for that office. KRS
70.030. An action against an official in his official capacity is in reality an action
against the pertinent governmental entity, and an official sued in his official
capacity is shielded by the same immunity enjoyed by such governmental entity.
Yanero, 65 S.W.3d at 518. Accordingly, we believe, Deputy Everman would be
entitled to the same immunity possessed by Sheriff Stewart in his official capacity
while performing duties as deputy sheriff. As hereinbefore discussed, Sheriff
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Stewart, in his official capacity, was protected by sovereign immunity at common
law; however, such sovereign immunity was waived by the General Assembly by
enactment of KRS 70.040 as concerns actions of a sheriff’s deputy. The plain
language of this statute clearly contemplates that deputies shall be liable for
damages to the office of sheriff incurred as a result of the waiver of immunity
against the sheriff based upon the deputies’ acts or omissions. Accordingly, the
only logical interpretation of the statute is to hold that the statute waives immunity
for deputies also while acting in their official capacity. Thus, Deputy Everman, in
his official capacity as a deputy sheriff, is not entitled to the protection of
sovereign immunity. However, given that we have concluded that Deputy
Everman is entitled to qualified official immunity, in his personal capacity, any
liability in his official capacity is moot.4
However, this immunity does not exonerate Deputy Everman under
KRS 70.040 should Sheriff Stewart’s office be found liable for damages as a result
of the deputy’s actions in this case. Therein, Deputy Everman would still be liable
to Sheriff Stewart’s office for any damages or costs attributable to Deputy
Everman’s acts or omissions. We must emphasize that the concept of immunity in
this case means “immunity from suit,” and nothing more. Grayson Cnty. Bd. of
4
Any liability of Deputy Everman in his official capacity would be through the office of sheriff
under KRS 70.040. We have previously held that the office of sheriff is not protected from
liability for the actions of its deputies under the statute.
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Educ. v. Casey, 157 S.W.3d 201, 207 (Ky. 2005). In other words, whether Deputy
Everman’s acts or omissions were negligent in this case and the cause of
Robinson’s injuries is a factual matter for the jury to decide, whereupon any
damages would be assessed against the office of sheriff only.
On remand, Deputy Everman shall be dismissed as a party and the
case may proceed against the office of the sheriff only as provided for in KRS
70.040.5 Sheriff Stewart has sovereign immunity against any claims in his
personal capacity and shall not be held personally liable for any claims asserted in
this case.
For the foregoing reasons, the Order of the Bath Circuit Court is
affirmed in part, reversed in part, and remanded for proceedings consistent with
this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
D. Barry Stilz Laraclay Parker
Lynn Sowards Zellen Cody P. McIlvoy
Lexington, Kentucky Lexington, Kentucky
5
Nothing in this Opinion shall preclude the sheriff’s office from bringing a third-party complaint
or separate action against Deputy Everman pursuant to KRS 70.040.
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