City of Paintsville v. Paula M. Haney, as Personal Representative of Estate of Donald Prater, Jr.

RENDERED: AUGUST 14, 2025

TO BE PUBLISHED

Supreme Court of Kentucky

2023-SC-0361-DG

CITY OF PAINTSVILLE; PAINTSVILLE APPELLANTS

POLICE DEPARTMENT; SHANE

CANTRELL; AND ZACHARY

STAPLETON

ON REVIEW FROM COURT OF APPEALS

V. NO. 2022-CA-0402

JOHNSON CIRCUIT COURT NO. 21-CR-00019

PAULA M. HANEY, AS PERSONAL APPELLEES

REPRESENTATIVE OF THE ESTATE

OF DONALD PRATER, JR.; JOHNSON

COUNTY SHERIFF’S DEPARTMENT;

AND JEFF TABOR

AND

2024-SC-0074-DG

PAULA M. HANEY, AS PERSONAL CROSS-APPELLANT/APPELLEE

REPRESENTATIVE OF THE ESTATE

OF DONALD PRATER, JR.

ON REVIEW FROM COURT OF APPEALS

V. NO. 2022-CA-0402

JOHNSON CIRCUIT COURT NO. 21-CR-00019

CITY OF PAINTSVILLE; PAINTSVILLE CROSS-APPELLEES/APPELLANTS

POLICE DEPARTMENT; SHANE

CANTRELL; AND ZACHARY

STAPLETON

AND

JOHNSON COUNTY SHERIFF’S APPELLEES

DEPARTMENT; JEFF TABOR;

PAINTSVILLE FIRE DEPARTMENT;

AND RICK RATLIFF

OPINION OF THE COURT BY JUSTICE THOMPSON

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

Donald Prater, Jr. left a hospital nude from the waist down and

proceeded to enter a hotel. Law enforcement officers responded. After they

approached Prater, who was now on a public street and uncooperative, they

attempted to arrest him. Prater resisted arrest and the officers responded using

measured force against him. When this was not effective in subduing him, they

gradually escalated the force. Prater stopped breathing shortly after he was

finally handcuffed and taken into custody, and despite appropriate lifesaving

measures being implemented, he died.

Paula M. Haney, as personal representative of the Estate of Donald

Prater, Jr., filed a wrongful death suit against multiple defendants in two

general categories: (1) the City defendants: the City of Paintsville (the City); the

Paintsville Police Department (the Police Department); two Paintsville police

officers: Zach Stapleton and Shane Cantrell (the police officers); the Paintsville

Fire Department (the Fire Department); and its fire chief and head of its

emergency medical services (EMS), Rick Ratliff; and (2) the County defendants:

the Johnson County Sheriff’s Department (the Sheriff’s Department); and its

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deputy, Jeff Tabor. 1 The circuit court dismissed by granting summary

judgment to all of the defendants in four separate orders.

On direct appeal, the Court of Appeals affirmed in part, reversed in part,

and remanded. The City defendants and Haney each sought and were granted

direct review and oral argument. In case number 2023-SC-0361-DG, the City

defendants appeal from the portions of the Court of Appeals’ opinion which

reversed the dismissals against the City defendants. In case number 2024-SC-

0074-DG, Haney appeals from the portion of the Court of Appeals’ opinion

which affirmed the circuit court’s orders. The County defendants did not

appeal.

We affirm the Court of Appeals in part and reverse in part, as we

conclude that the circuit court appropriately dismissed all of the defendants.

I. FACTUAL 2 AND LEGAL BACKGROUND

On April 17, 2020, at approximately 6:32 p.m., the Paintsville Fire

Department and EMS received a call about a man who was sitting on the front

1 To avoid confusion, we continue to refer to these parties as “the defendants.”

We also categorize sub-groups of the defendants by their roles. We use the term “first

responders” to collectively refer to Officers Stapleton and Cantrell, Deputy Tabor, and

Chief Ratliff and the term “government entities” to collectively refer to the City, the

Police Department, the Fire Department, and the Sheriff’s Department/County. We

use the terms “law enforcement officers” and “officers” interchangeably to collectively

refer to Officers Stapleton and Cantrell, and Deputy Tabor.

2 We follow the circuit court’s and the Court of Appeals’ practice of omitting

details provided in witness statements/depositions in which there is no corroboration

by another person so as to consider the facts in the most favorable light to Haney. In

doing so, we recognize that an omission of corroborating details is not necessarily a

contradiction. These omitted details are not needed for our decision affirming. Suffice

it to say, these additional details elevate the officers’ perception of the threat they were

facing if they were unsuccessful in countering Prater’s actions while they worked to

subdue him and place him under arrest.

3

porch of a vacant home on Main Street in Thelma, Kentucky, which was listed

for sale. EMS responded a few minutes later and found Prater on the porch; he

was wearing a t-shirt but was otherwise naked and had mud and blood all over

him. EMS transported Prater to Paul B. Hall Hospital at approximately 7:22

p.m. and Deputy Tabor of the Johnson County Sheriff’s Department was

dispatched to the hospital.

Deputy Tabor spoke to Prater at his bedside. Prater told Deputy Tabor

that he had consumed bad methamphetamine and had been hallucinating that

he had been hit by a train that pushed his soul out of his body. Deputy Tabor

left after being advised that the doctors would perform an examination of and

toxicology screening on Prater.

At approximately 7:54 p.m., hospital staff called 911 to notify the

dispatcher that Prater had ripped a phone off the wall and while clothed only in

a t-shirt, left the hospital through the back door. Officers Stapleton and

Cantrell of the Paintsville Police Department were dispatched to the hospital.

Deputy James Keeton with the Johnson County Sheriff’s Department called

Deputy Tabor on his personal cell phone to inform him that the Police

Department was responding to a call about a male who had run partially naked

from the hospital. 3

3 During oral argument, counsel for Haney stated a belief that Prater ran from

the hospital in a hospital gown. There is no support for this supposition based upon

any of the eyewitness accounts. Instead, at all relevant times Prater was apparently

wearing only his t-shirt.

4

Officers Stapleton and Cantrell arrived at the hospital and hospital staff

notified them that a security guard had followed Prater to the back of the

Ramada Inn. Officers Stapleton and Cantrell went in that direction and Deputy

Tabor went to the Ramada Inn parking lot to assist them.

The three officers met the hospital security guard at the Ramada Inn and

were advised that Prater went inside the hotel. After they were informed by

someone at the hotel that a naked man had been there but had since left, they

split up to look for Prater. Shortly thereafter, the officers were informed by

dispatch that someone from a nearby apartment complex reported that a naked

man was walking along Main Street.

Officer Cantrell made contact with Prater at approximately 8:12 p.m. on

Main Street. Prater was wearing only a t-shirt, was covered in mud, and had

blood and scrapes on his legs. Officer Cantrell asked Prater his name. Prater

yelled and cussed at Officer Cantrell.

Officer Stapleton arrived shortly thereafter. Prater began walking down

Main Street. Officer Cantrell ordered Prater to stop and then Officer Stapleton

also asked him to stop. Prater screamed and cussed at Officer Stapleton who

unholstered his taser and “presented” it to Prater. Prater went around a car

and rushed toward Officer Stapleton, who fired his taser. The probes struck

Prater, but seemingly “unfazed,” Prater ripped out the probes and ran up Main

Street.

Officers Stapleton and Cantrell ran after Prater. Eventually Prater turned

around and rushed toward Officer Cantrell, who in backing up tripped and fell.

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Officer Stapleton used pepper spray on Prater, but it also had no discernable

effect on him. Officer Stapleton continued to pursue Prater.

Next, Deputy Tabor arrived, and he heard Officer Stapleton order Prater

to stop and get on the ground. Prater did not obey.

Officer Stapleton hit Prater with his baton on Prater’s right thigh; the

strike had no visible effect on Prater. Officer Stapleton struck him a second

time in the same location.

Deputy Tabor was able to take Prater to the ground, resulting in Prater

being face-down in a prone position. Prater was flailing and fighting. He placed

his arms under his chest. Prater tried to get up and refused to move his arms

so that he could be handcuffed. Deputy Tabor responded with open handed

strikes to the left side of Prater’s torso, but this too appeared to have no effect.

Meanwhile, Officer Cantrell yelled at Prater to stop resisting and used his baton

to try to pry Prater’s right arm out from under him.

Deputy Tabor “dry stunned” 4 Prater with his taser on the back of each of

Prater’s thighs so he could get Prater’s arms out from under his torso and

handcuff him. 5 Prater continued to resist and curse while the three officers

worked together to handcuff him.

4 Drying stunning is when the taser is directly applied to the body, rather than

applied at a distance through probes.

5 This puts the total taser stuns that Prater experienced at three. The witness

accounts are consistent on this figure. At oral argument, Haney’s counsel expressed a

belief that Prater was tased perhaps as many as six times. However, there is nothing

in the record to support this supposition.

6

While all this was occurring, Chief Ratliff arrived at approximately 8:13

p.m. with his wife Kerri Ratliff who remained in the vehicle but observed what

was occurring. Chief Ratliff held Prater’s left arm. It took two people on each

arm to get Prater cuffed by Officer Cantrell.

Prater was deemed to be in custody at approximately 8:14 p.m. and the

officers left him on the ground as they took a moment to catch their breath. At

approximately 8:16 p.m., Chief Ratliff, who was watching Prater, noticed that

Prater’s breathing become shallow and rolled him onto his back. Chief Ratliff

grabbed his pocket mask, started rescue breathing, and began monitoring

Prater’s pulse. Once Chief Ratliff determined he could not find Prater’s pulse,

officers began compressions for CPR and contacted EMS. Officers Stapleton

and Cantrell took turns performing CPR while Chief Ratliff administered

Narcan 6 to Prater.

CPR continued by those on the scene until the EMS crew arrived less

than two minutes after they were requested and took control. EMS immediately

took Prater back to the hospital. Prater was pronounced dead at 8:54 p.m.

The Kentucky State Medical Examiner, Dr. Meredith Frame, conducted a

postmortem examination of Prater’s body on April 18, 2020, and issued two

reports: the Post Mortem Examination and the Final Diagnosis. 7 In the Post

6 Narcan is the brand name of Naloxone. It is used to reverse the effects of life-

threatening reactions to the ingestion of opioids.

7 Deputy Coroner Harry Frisby of the Johnson County Coroner’s Office

produced these records at his deposition, along with his Coroner’s Investigation Report

which listed the cause of death as “Excited Delirium Syndrome per M.E./autopsy” and

the Kentucky Certificate of Death which also listed “Excited Delirium Syndrome.”

7

Mortem Examination, in the evidence of injury section, Dr. Frame noted

abrasions to Prater’s head, abrasions and contusions to his torso, upper

extremities and lower extremities, including “a pattern of linear contusion of

approximately 6 ½ inches in length with a periodicity of ¼ inch of the anterior

aspect of the right thigh.” 8 He noted “[u]pon internal examination, focal soft

tissue hemorrhage is associated with anterior rib fractures of right ribs 2-5 and

left ribs 4 and 6. These may be consistent with history of resuscitation

attempts.” Dr. Frame also noted the absence of any hemorrhage to Prater’s

head and neck, the lack of any damage to the neck structures, and the absence

of any fracture to his skull.

In the Final Diagnosis, Dr. Frame stated “[n]o lethal trauma identified”

but that Prater had abrasions, contusions, and evidence of medical

intervention and resuscitation attempts. Dr. Frame noted evidence of

hypertensive cardiovascular disease, extensive pleural adhesions, and that

Prater only tested positive for THC. Dr. Frame opined:

Based on the history provided and the postmortem findings, the

death of this 48-year-old man, Donald Prater, is attributed to

excited delirium syndrome. A psychiatric history for the decedent

is unknown at the time of this report, but excited delirium

syndrome can be associated with an acute psychotic episode that

may present with similar symptoms and findings as in this case.

The decedent also reportedly said that he had been up for several

days after using methamphetamine. Methamphetamine is not

detected in the blood or urine samples available at autopsy.

However, the presence of a drug not available for testing in the

extensive toxicology performed cannot be excluded. The history of a

physical altercation with police using a baton and conducted

electrical device is noted. No lethal trauma is identified. The

8 These contusions appear to be consistent with the reported baton strikes.

8

possibility of the physical altercation contributing to physiologic

stress resulting in cardiac arrest cannot be determined. Review of

the hospital lab findings during his first admission (prior to the

police encounter) suggests significant physiological derangements,

including renal failure, hyperammonemia and acute

rhabdomyolysis, that can result in sudden death. Hypertensive

cardiovascular disease is considered contributory.

A. Circuit Court Case

On January 27, 2021, Haney filed suit against the City and County

defendants. Haney alleged that Officers Stapleton and Cantrell, Deputy Tabor,

and Chief Ratliff in their individual capacities committed battery, wrongful

death, used excessive force, and were negligent and grossly negligent in

effecting the arrest of Prater in performing their ministerial duties or were

acting in bad faith in performing their discretionary duties. Although Haney

stated that the Police Department and the City were responsible for the

adoption and implementation of policies and procedures and supervision of

their employees, Haney did not bring any claims directly against any entities

for negligent hiring, training, retention, or supervision.

1. The Dismissal of the Fire Department Defendants

On May 5, 2021, the Fire Department and Chief Ratliff (the Fire

Department defendants) filed a Motion to Dismiss, alternatively arguing they

were entitled to summary judgment. On May 17, 2022, the circuit court

granted this motion and dismissed the Fire Department defendants with

prejudice. The circuit court ruled that the Fire Department was entitled to

governmental immunity and Chief Ratliff, as an agent of the Fire Department,

9

was clearly engaged in a discretionary function and was entitled to qualified

official immunity.

2. The Dismissal of the City

On June 14, 2021, the City filed a motion to dismiss the claims against it

or alternatively for summary judgment. On July 12, 2021, the circuit court

granted the City’s motion and dismissed the City with prejudice. The circuit

court ruled that the City was immune based on the Claims Against Local

Government Act (CALGA). Kentucky Revised Statutes (KRS) 65.200-65.2006.

3. The Police Defendants’ Premature Motion for Summary Judgment

On October 5, 2021, the Police Department and Officers Stapleton and

Cantrell (the Police defendants) brought a motion for summary judgment. On

October 15, 2021, the circuit court concluded that Haney should be allowed a

reasonable period of time to engage in discovery and denied the motion without

prejudice to the ability of the defendants to refile it once discovery had taken

place.

4. The Amended Complaint

On January 6, 2022, Haney filed a motion for leave to file an amended

complaint to include a new claim of negligent hiring, training, retention, and

supervision against the Police Department, the City, the Sheriff’s Department,

and the Fire Department. Haney alleged Officer Cantrell was negligently hired

and retained by the Police Department and the City because he had numerous

employee warning reports; Officers Stapleton and Cantrell were negligently

supervised as the entities should have known they were not qualified to deal

10

with a mentally incapacitated Prater and allowed them to use excessive force;

and they were negligently trained to deal with a person with an altered mental

state. Haney alleged the Fire Department negligently supervised Chief Ratliff by

allowing him to act outside of the scope of his duties and participate in an

arrest. Haney also alleged the Sheriff’s Department negligently supervised

Deputy Tabor by allowing him to use excessive force when apprehending

Prater.

On January 14, 2022, after a hearing, the circuit court granted the

motion for leave to amend the complaint but stated that the defendants were

not required to file an answer. Two motions for summary judgment soon

followed, one from the Police defendants and one from the County defendants.

5. Request for Continuance

On January 27, 2022, Haney asked for a thirty-day continuance

regarding the deadline to file the witness and exhibit list, noting it was to be

completed sixty days prior to trial and discovery was to be completed thirty

days prior to trial, with the trial scheduled for April 11, 2022. In support of this

request, Haney explained that several depositions had to be renoticed and

responses to discovery requests were due eight days before the current

deadline.

On February 10, 2022, Haney filed an amended motion for a continuance

of the discovery deadline and trial date.

At the same February 18, 2022, hearing addressing the two motions for

summary judgment discussed infra, the circuit court also considered Haney’s

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motion for a continuance. On February 21, 2022, the circuit court granted

both motions for summary judgment. These orders had the effect of denying

Haney’s motion for a continuance as all defendants were dismissed.

6. The Dismissal of the Police Defendants

On February 4, 2022, the Police defendants filed their renewed motion

for summary judgment. They argued it was now appropriate for them to be

granted summary judgment because depositions had been taken of Haney and

all the fact witnesses: Officer Stapleton, Officer Cantrell, Deputy Tabor, Chief

Ratliff, Kerri Ratliff, and Deputy Coroner Frisby.

On February 21, 2022, the circuit court granted the renewed motion for

summary judgment filed by the Police defendants and dismissed all claims

against the Police Department and Officers Stapleton and Cantrell. The circuit

court concluded that the police officers were entitled to qualified official

immunity because they acted in good faith, used reasonable force, and did not

use excessive force.

The circuit court further concluded that the use of force was reasonable

based upon Prater committing the possible crimes of indecent exposure, third

degree assault, menacing, resisting arrest, and disarming a police officer. The

circuit court noted Prater had damaged hospital property, threatened the staff,

and was walking around in public and entering businesses while half naked.

The circuit court explained that the police officers did not use force against

Prater until he attempted to attack them, and their response to his aggression

was appropriate given his attempt to assault them and the danger to the

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officers, the public, and Prater, based on his erratic behavior and attempts to

elude arrest. The circuit court noted the amount of force the police officers

could use was discretionary, there was no indication that they acted in bad

faith in their on-the-spot judgment, and “there is no evidentiary fact of record

that would suggest that at any point in their encounter with Mr. Prater that the

officers acted with excessive force.” Instead, the circuit court concluded the

police officers acted with reasonable force and Haney could not establish they

were negligent, committed battery, or engaged in excessive force. Further,

Haney provided no proof that the police officers caused Prater’s death.

The circuit court determined that the claim against the Police

Department for negligent hiring, retention, training, or supervision was

dependent on the police officers actually committing a tort or negligence

against Prater. The circuit court concluded that because Haney failed to

establish any tort or negligence by the police officers, the claims against the

Police Department failed as a matter of law.

7. The Dismissal of the County Defendants

On February 7, 2022, the County defendants filed a motion for summary

judgment. On February 21, 2022, the circuit court dismissed the County

defendants with prejudice. The circuit court explained that the Sheriff’s

Department was not a legal entity that could be sued and if such claims were

construed as against the County, it had sovereign immunity. The circuit court

determined Deputy Tabor was entitled to qualified official immunity because he

was acting within the scope of his discretionary authority, and Haney was not

13

able to show that Deputy Tabor did not act in good faith. The circuit court

concluded Haney had no evidence to establish: Deputy Tabor breached his

duty of care toward Prater, Deputy Tabor was negligent, or his actions were the

proximate cause of Prater’s death. The circuit court explained it would not

presume negligence from the fact that Prater died where there was no evidence

to support that there was negligence, Deputy Tabor was privileged to use

reasonable force to effect Prater’s arrest, mental illness did not exempt Prater

from having force used against him, and Prater could be tased while on the

ground where he continued to resist.

8. Motion to Alter, Amend, or Vacate

On March 3, 2022, Haney filed a timely motion to alter, amend, or vacate

the orders granting summary judgment to the remaining defendants, arguing

among other things that she still needed to depose additional persons and

believed Deputy Keeton 9 would verify that excessive force was used and the

circuit court overstated the medical opinions in opining there was no lethal

trauma or asphyxiation.

On March 18, 2022, the circuit court denied Haney’s motion.

9 Officer Stapleton’s report mentions Deputy Keeton’s vehicle being pulled in

after Officer Cantrell’s vehicle at the scene where they located Prater but does not

report Deputy Keeton participating in any way in their attempts to arrest Prater. In his

deposition, Officer Stapleton confirms seeing Deputy Keeton’s vehicle and seeing

Deputy Keeton standing beside it but explains he did not see Deputy Keeton after that

time.

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B. Direct Appeal

Haney filed an appeal as a matter of right with the Court of Appeals

regarding the circuit court’s orders granting: (1) the renewed motion for

summary judgment to the Police Department and Officers Stapleton and

Cantrell; (2) summary judgment to the Sheriff’s Department and Deputy Tabor;

(3) the motion to dismiss to the City; and (4) the motion to dismiss to the Fire

Department and Chief Ratliff. Haney argued the circuit court erred in granting

the renewed motion for summary judgment by: (1) engaging in fact finding

regarding Prater’s cause of death where there were conflicting medical opinions

and the trial court ignored Dr. Michael Freeman’s opinion; (2) ignoring her

argument in her motion to alter, amend, or vacate that the circuit court’s

findings of fact were incorrect in that Officer Stapleton escalated the level of

force in bad faith by unholstering his taser while Prater was walking away from

him; (3) disregarding evidence that Deputy Tabor did not follow the Sheriff’s

Department’s policy which cautions that multiple uses of an electronic control

device against an individual suffering from others symptoms such as cocaine

intoxication may increase the risk of serious injury by dry stunning Prater and

the Sheriff’s Department did not follow its policy and ministerial duty for a

complete investigation; (4) granting dismissal and summary judgment to the

defendants before discovery was completed; and (5) failing to consider new

evidence regarding Chief Ratliff’s material participation in the arrest which was

outside of his role and thus not subject to any type of immunity.

15

The Court of Appeals opinion affirmed in part, reversed in part, and

remanded. Haney v. City of Paintsville, No. 2022-CA-0402-MR, 2023 WL

3555507 (Ky. App. May 19, 2023) (unpublished). The Court of Appeals

concluded that the Fire Department was entitled to government immunity and

Chief Ratliff was clearly entitled to qualified immunity as he was acting in his

role overseeing emergency medical services and providing those services at the

scene. Id. at *4. The Court of Appeals determined that Chief Ratliff exercised

his discretion in that role in making a judgment that his assistance was needed

to place Prater in handcuffs. Id.

However, as to the City, the Court of Appeals disagreed with the circuit

court’s dismissal of the City on immunity grounds and reversed. The Court of

Appeals reasoned “KRS 65.2003 clearly limits the immunity granted by the

statute to those occasions when the municipality is engaged in judicial, quasi-

judicial, legislative, or quasi-legislative functions” but does not preclude

Haney’s theory of liability against the City for negligent hiring, oversight, and

retention because that “is as non-governmental a task as there can be” as such

“a theory of liability [is] regularly forwarded against private entities” and “in

hiring and overseeing an employee . . . a municipality acts most as a private

entity and least as a governmental one.” Id.

The Court of Appeals reversed the circuit court’s grant of summary

judgment to the Police Department as a subdivision of the City, as it was sued

under the theory of negligent hiring, training, and retention, and like the City

was not protected by immunity pursuant to KRS 65.2003. Id. at *5.

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The Court of Appeals affirmed the grant of summary judgment to the

Sheriff's Department as it was entitled to sovereign immunity as a subdivision

of the county government. Id.

As to Deputy Tabor and Officers Stapleton and Cantrell, the Court of

Appeals concluded that the circuit court’s finding that all three officers were

entitled to qualified immunity was premature, as there was no finding

regarding whether they owed Prater a duty of care above that owed to the

general public because there was a “special relationship” which existed

between the officers and Prater by virtue of them arresting him. Id.

Deputy Tabor and the City defendants filed petitions for rehearing which

the Court of Appeals denied. The City defendants then filed a motion for

discretionary review and Haney did as well.

C. Discretionary Review

We granted discretionary review for two separate but consolidated

appeals and held oral argument. In 2023-SC-0361-DG, the City defendants ask

our Court to reverse the portion of the Court of Appeals’ opinion which: (1)

reversed summary judgment as to Officers Stapleton and Cantrell on the basis

that the circuit court failed to make a finding as to whether there was a special

relationship between the parties; (2) reversed the dismissal of the Police

Department and the City for negligent hiring, training, retention, and

supervision on the basis that the Court of Appeals was incorrect that the

circuit court relied on CALGA as providing immunity when in fact the circuit

court concluded that these claims were not viable against the Police

17

Department because there was no underlying tort or negligence committed by

Officers Stapleton and Cantrell which could support such claims and the same

rationale should apply to the City; and (3) reversed the dismissal of the claims

made against Officer Cantrell where Haney failed to raise any discussion

regarding the dismissal of Officer Cantrell in her brief before the Court of

Appeals.

In 2024-SC-0074-DG, Haney cross-appeals and asks our Court to affirm

the portion of the Court of Appeals opinion which reverses portions of the

circuit court judgment, reverse the remainder of that opinion, and remand the

action to the circuit court for the completion of discovery and a trial on the

merits. Haney specifically argues that the Court of Appeals should not have

affirmed the portion of the circuit court’s opinion which granted summary

judgment because it applied the wrong summary judgment standard, a

genuine issue of material fact exists regarding Prater’s cause of death, and it

was premature to enter summary judgment on Prater’s cause of death prior to

the completion of discovery. Haney argues she properly alleged the existence of

a special relationship between the officers and Prater, the circuit court erred in

failing to find such a special relationship, any error the Court of Appeals may

have made in improperly characterizing the dismissal of certain claims against

the City was harmless error, and it was correct to reverse the dismissal of the

claims made against Officer Cantrell.

The County defendants are appellees in both of these appeals.

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II. ANALYSIS

Collectively the defendants brought four successful motions that

dismissed claims against them. Two motions were filed seeking dismissal

pursuant to the Kentucky Rules of Civil Procedure (CR) 12.02(f) but

alternatively requested summary judgment pursuant to CR 56.02. The latter

two motions only sought summary judgment. In each case the defendants

incorporated matters outside the pleadings to their motions and Haney did

likewise in her responsive pleadings.

CR 12.02 provides:

If . . . matters outside the pleading are presented to and not

excluded by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in Rule 56, and all

parties shall be given reasonable opportunity to present all

material made pertinent to such a motion by Rule 56.

Accordingly, we review all the grants of dismissal and summary judgment

under the summary judgment standard specified in CR 56.03:

The judgment sought shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, stipulations, and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.

“The standard of review on appeal of a summary judgment is whether the

trial court correctly found that there were no genuine issues as to any material

fact and that the moving party was entitled to judgment as a matter of law.”

Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). “The record must be

viewed in a light most favorable to the party opposing the motion for summary

judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.

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Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment

can only be properly granted “where the movant shows that the adverse party

could not prevail under any circumstances.” Paintsville Hosp. Co. v. Rose, 683

S.W.2d 255, 256 (Ky. 1985).

We disagree with Haney that the trial court erroneously applied the

federal summary judgment standard (which was discussed and rejected as the

Kentucky standard in Steelvest, Inc., 807 S.W.2d at 483) in resolving the

defendants’ motions. Summary judgment is appropriately granted where the

opposing party only offers mere speculation to show that her version of events,

which results in liability, is more likely than an alternative explanation which

results in no liability: a mere possibility of wrongdoing is not enough to render

the grant of summary judgment improper. See Carucci v. N. Ky. Water Dist.,

657 S.W.3d 924, 931 (Ky. App. 2022).

The key to resolving whether the governmental entities were properly

dismissed involves determining if the individuals employed by the Police

Department, the Sheriff’s Department, and the Fire Department are immune

from suit under the doctrine of qualified official immunity. If they are, their

respective employers cannot be liable for their actions or for any failures for not

appropriately hiring, retaining, supervising, or training them, as we explain

infra.

A. Sufficient Time for Discovery

Haney argues she did not have sufficient time to complete discovery

before the trial court granted the defendants’ motions and dismissed them from

20

the case when in granting the final motions for summary judgment the

discovery deadline had not yet elapsed. She states she had scheduled

depositions to be held prior to the discovery deadline for Police Chief Mike Roe,

Captain Jonathan Holbrook, Dr. Willard Arnold, and Dr. Meredith, and claims

they are material witnesses. Haney further argues that Deputy Keeton is

believed to have observed what occurred on scene and will verify excessive use

of force. Haney also states she was unable to notice his deposition prior to

entry of the order. She argues her motion for a thirty-day continuance of

discovery was properly filed prior to the motions for summary judgment and

should have been granted.

The defendants counter Haney did not engage in any discovery for

months after filing her complaint, Haney repeatedly cancelled scheduled

depositions, and all fact witnesses had been deposed prior to the Police

Department filing its renewed motion for summary judgment and the Sheriff’s

Department filing its motion for summary judgment. The defendants argue that

dismissal was appropriate as they were entitled to a cessation of the burdens of

litigation as soon as possible where immunity shields them from liability. They

note that after summary judgment was granted, Haney cancelled all further

pending depositions, thus declining to investigate whether there was any

support whatsoever for her allegations about how any undeposed witnesses

would testify.

Summary judgment can only be properly granted after the party

opposing it “has been given ample opportunity to complete discovery, and then

21

fails to offer controverting evidence.” Pendleton Bros. Vending, Inc. v.

Commonwealth Fin. & Admin. Cabinet, 758 S.W.2d 24, 29 (Ky. 1988); see also

Suter v. Mazyck, 226 S.W.3d 837, 841 (Ky. App. 2007). “It is not necessary to

show that the respondent has actually completed discovery, but only that

respondent has had an opportunity to do so.” Hartford Ins. Grp. v. Citizens Fid.

Bank & Tr. Co., 579 S.W.2d 628, 630 (Ky. App. 1979). Absent a sufficient

opportunity to develop the facts, however, summary judgment cannot be used

as a tool to terminate the litigation. Suter, 226 S.W.3d at 842 (internal citation

omitted).

Regarding immunity, the United States Supreme Court has “repeatedly .

. . stressed the importance of resolving immunity questions at the earliest

possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per

curium). This is in accordance with our own precedent. See Breathitt Cty. Bd. of

Educ. v. Prater, 292 S.W.3d 883, 886 (Ky. 2009) (providing that an order

denying sovereign immunity qualifies for an interlocutory appeal).

Having reviewed the record, the evidence establishes that Haney did not

begin to engage in discovery until after the first motion to dismiss was filed.

While there were delays at times in the defendants responding to discovery,

Haney failed to use the mechanisms available to her to address these delays.

She could have, but did not, file public records requests or file motions to

compel. Haney also delayed previously scheduled depositions by rescheduling

them. Even so, the fact witnesses, with the exception of Deputy Keeton, were

deposed prior to the trial court granting the motions for summary judgment.

22

Chief Roe and Captain Holbrook were not present at the scene and only

received reports from Officers Stapleton and Cantrell at the hospital about

what had occurred. Therefore, they are not fact witnesses to what occurred at

the scene and any information they had was derived from others’ hearsay

statements.

A year to complete discovery was more than ample time and it is not

dispositive that the discovery deadline had not yet elapsed at the time the

motions for summary judgment were granted.

We agree with the defendants that any further discovery on Haney’s part

would be futile as she cannot establish that there are any factual disputes

which could result in a verdict in her favor. Waiting another month for the

discovery deadline to pass would not have made any difference. Haney relies on

supposition regarding how Deputy Keeton could testify and anticipates that if

he had been deposed, he would have provided the “smoking gun” that would

establish bad faith and improper use of force. Such supposition is not at all

supported by any record evidence. While there is a basis to believe he was

present at the scene of the arrest in his law enforcement vehicle, it is unclear

whether Deputy Keeton observed any substantive part of the confrontation

between the officers and Prater from his location. Therefore, it is unclear

whether he could offer any useful eyewitness testimony, and if he could, it is

unknown whether his testimony would be consistent or contrary to that of the

officers more directly involved. A factual dispute cannot be manufactured on

such a paucity of evidence.

23

Haney also had the opportunity to locate other eyewitnesses as the

confrontation between Prater and the officers took place on a public street, but

either has not done so or was not able to find any potential witness whose

testimony would be helpful for her position.

Testimony from the medical examiner and the doctor who treated Prater

would not have raised a factual issue either. Haney has failed to identify

anything in the medical examiner’s reports or Prater’s medical records

indicating there was any possible issue of fact as to Prater’s cause of death

which would make the first responders liable for his death. Accordingly,

summary judgment was not granted prematurely.

B. Dismissal of Suits against the First Responders was Appropriate based

on Qualified Official Immunity.

“[O]nce the material facts are resolved, whether a particular defendant is

protected by official immunity is a question of law which we review de novo.”

Rowan Cty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (internal citation

omitted). When a party is dismissed on the basis of immunity, we have only a

legal question to resolve under the de novo standard, whether in fact such

immunity exists; if it did, dismissal was warranted. Jacobi v. Holbert, 553

S.W.3d 246, 252 (Ky. 2018).

Qualified official immunity applies to the negligent performance by a

public officer or employee of (1) discretionary acts or functions, i.e., those

involving the exercise of discretion and judgment, or personal

deliberation, decision, and judgment; (2) in good faith; and (3) within the

scope of the employee’s authority.

Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001) (internal citation omitted).

24

[Qualified official immunity] is intended to protect governmental

officers or employees from liability for good faith judgment calls in

a legally uncertain environment. An act is not “discretionary”

merely because some judgment is used in deciding on the means

or method used. However, even if an act is discretionary, there is

no immunity if it violates constitutional, statutory, or other clearly

established rights, or if it is done willfully or maliciously with

intent to harm, or if it is committed with a corrupt motive or in bad

faith.

Autry v. W. Kentucky Univ., 219 S.W.3d 713, 717 (Ky. 2007).

Accordingly, “qualified immunity protects ‘all but the plainly incompetent or

those who knowingly violate the law.’” Sloas, 201 S.W.3d at 475 (quoting

Anderson v. Creighton, 483 U.S. 635, 638 (1987)).

“Once the officer or employee has shown prima facie that the act was

performed within the scope of his/her discretionary authority, the burden

shifts to the plaintiff to establish by direct or circumstantial evidence that the

discretionary act was not performed in good faith.” Yanero, 65 S.W.3d at 523. If

an employee’s acts are discretionary and there is no allegation or suggestion

that the employee’s decision was made in bad faith, that employee is entitled to

qualified official immunity. Caneyville Volunteer Fire Dep’t. v. Green’s

Motorcycle Salvage, Inc., 286 S.W.3d 790, 810 (Ky. 2009).

1. The Law Enforcement Officers Were Engaged in a Discretionary

Act within the Scope of Their Authority.

As to the law enforcement officers (Officer Stapleton, Officer Cantrell, and

Deputy Tabor), Haney argues that they were engaged in a ministerial act when

they arrested Prater. We disagree that the officers were engaged in any kind of

ministerial act in their efforts to arrest Prater. As explained in Smith v. Norton

25

Hosps., Inc., 488 S.W.3d 23, 31 (Ky. App. 2016), “the determination of the

amount of force required to effect . . . [an] arrest is . . . a discretionary act

within the scope of a peace officer’s authority.” Therefore, they have already

satisfied the first prong of qualified official immunity, that they were performing

discretionary acts or functions in arresting Prater. It is similarly easy to

determine that the officers act within the scope of their authority in arresting

individuals as long as that arrest is warranted.

2. The Law Enforcement Officers Were Acting in Good Faith in Using

the Force Necessary to Arrest Prater.

Haney does not seriously contest that Prater running about nude from

the waist down in public was against the law. Haney argues that if the officers

were engaged in a discretionary act in arresting Prater, they acted in bad faith

in choosing to arrest him given that he had only committed a misdemeanor and

was obviously suffering from a mental health crisis. She also argues that the

measures they took to arrest him were inappropriate and constituted excessive

and unjustifiable force which resulted in his death.

Haney argues that there was an issue of fact created by the opinion she

provided from Dr. Freeman that the cause of Prater’s death was attributable to

the type, severity, and duration of restraint used on Prater by the defendants,

26

which most probably resulted in fatal injuries related to restraint-related

asphyxia. 10 Haney argues that Prater was beaten to death. 11

To determine whether the officers acted in good faith (or whether Haney

has established that they acted in bad faith), we examine whether arresting

Prater was permissible under the United States Constitution and state law, and

if so, whether the force used to arrest him was permissible.

a. It was Permissible to Arrest Prater for Committing a Crime.

“A warrantless arrest is [constitutionally] reasonable if the officer has

probable cause to believe that the suspect committed a crime in the officer’s

presence.” Dist. of Columbia v. Wesby, 583 U.S. 48, 56 (2018); see also Beck v.

Ohio, 379 U.S. 89, 91 (1964). Even a very minor criminal offense committed in

an officer’s presence allows for an arrest without violating the Fourth

Amendment. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

Under Kentucky law, officers are expected to use reasonable judgment in

deciding whether to arrest a suspect. Myers v. City of Louisville, 590 S.W.2d

348, 350 (Ky. App. 1979). Pursuant to KRS 431.015(1)(b)3., “[a] peace officer

may make an arrest instead of issuing a citation for a misdemeanor committed

in his or her presence if the misdemeanor is: . . . An offense in which the

defendant refuses to follow the peace officer’s reasonable instructions.”

10 There is no evidence of record to indicate that Prater’s cause of death was

restraint-related asphyxia and Dr. Freeman’s opinion was formed not by any of the

evidence, but only from his examination of the pleadings.

11 There is no evidence of record to indicate that Prater was beaten to death.

The medical examiner noted only superficial trauma to Prater’s body.

27

Therefore, the officers were properly exercising their discretion and conforming

their actions to what the law requires in determining to arrest Prater for

committing a misdemeanor, whether it be characterized as indecent exposure,

disorderly conduct, or another crime, when he refused their commands to stop.

b. The Level of Force Used was Reasonable because Prater was

Actively Resisting Arrest and Lesser Types of Force Did Not

Subdue Him.

The next question is whether the law enforcement officers used

reasonable force in effecting Prater’s arrest. To resolve this issue, we consider

what level of force is constitutionally permissible, statutorily permissible, and

otherwise in conformity with controlling policies.

i. Constitutional Requirements

In Graham v. Connor, 490 U.S. 386, 388, 395 (1989), the United States

Supreme Court held that the constitutional standard governing a claim that

officers used excessive force in the course of making an arrest is properly

analyzed under the Fourth Amendment’s “objective reasonableness” standard.

The Court further clarified:

Determining whether the force used to effect a particular seizure is

“reasonable” under the Fourth Amendment requires a careful

balancing of the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the

countervailing governmental interests at stake. Our Fourth

Amendment jurisprudence has long recognized that the right to

make an arrest . . . necessarily carries with it the right to use some

degree of physical coercion or threat thereof to effect it. Because

the test of reasonableness under the Fourth Amendment is not

capable of precise definition or mechanical application, however,

its proper application requires careful attention to the facts and

circumstances of each particular case, including the severity of the

crime at issue, whether the suspect poses an immediate threat to

28

the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.

The “reasonableness” of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight . . . With respect to a

claim of excessive force, the same standard of reasonableness at

the moment applies: Not every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers, violates the

Fourth Amendment. The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.

Id. at 396–97 (internal quotation marks, citations, and parentheticals omitted).

In other words, in determining whether the force used is objectively reasonable,

the “totality of the circumstances” must be considered “[t]o assess whether an

officer acted reasonably in using force[.]” Barnes v. Felix, 605 U.S. ___, 145 S.

Ct. 1353, 1356 (2025) (internal citation omitted). This inquiry includes a

consideration of “all the relevant circumstances, including facts and events

leading up to the [claimed use of excessive force].” Id.

When a suspect is actively resisting arrest by being noncompliant, force

may appropriately be employed to force the suspect to surrender. “[T]he police

may use significant force to subdue someone who is actively resisting lawful

detention.” Turner v. City of Champaign, 979 F.3d 563, 569 (7th Cir. 2020). The

use of escalating force is a constitutionally permissible response to continued

resistance. Id. at 570; see also Orr v. Copeland, 844 F.3d 484, 493 (5th Cir.

2016); Mobley v. Palm Beach Cty. Sheriff Dept., 783 F.3d 1347, 1355 (11th Cir.

2015); Hinton v. City of Elwood, Kan., 997 F.2d 774, 781 (10th Cir. 1993).

29

For example, in Estate of Collins v. Wilburn, 755 Fed. Appx. 550, 555 (6th

Cir. 2018), the Sixth Circuit explained that it had previously found that active

resistance to arrest included a suspect “physically struggling with, threatening,

or disobeying officers as well as refusing to allow oneself to be handcuffed when

coupled with disobedience of officer orders or threatening behavior.” (Internal

quotation marks and citation omitted). The Court concluded that where the

evidence established that the suspect was actively resisting arrest and refusing

to be handcuffed, it was appropriate for the officers to use force (which

consisted of a knee strike and taser deployment) to make the suspect submit.

Id. The Court further rejected the Estate’s argument that a lesser degree of

force is reasonable to make a misdemeanor arrest as ignoring two Graham

factors, the suspect’s violence in the course of the arrest and his active

resistance to the attempts to subdue him. Id.

In considering whether an officer has violated the Fourth Amendment by

using excessive force, the relevant consideration is “not the ‘extent of the injury

inflicted’ but whether an officer subjects a detainee to ‘gratuitous violence.’”

Miller v. Sanilac Cty., 606 F.3d 240, 252 (6th Cir. 2010) (quoting Morrison v. Bd.

of Tr. of Green Twp., 583 F.3d 394, 407 (6th Cir. 2009)). Therefore, once an

individual is in custody and is not actively resisting, it is excessive force to use

pepper spray, deploy a taser, or hit the suspect. See Champion v. Outlook

Nashville, Inc., 380 F.3d 893, 902–03 (6th Cir. 2004); Darden v. City of Fort

Worth, Tex., 880 F.3d 722, 731-32 (5th Cir. 2018).

30

A failure to follow “best police practices” does not establish that a

constitutional violation has occurred. Turner, 979 F.3d at 568. While use of

another approach, when considered with the benefit of hindsight, may have

resulted in a better outcome, that is not the relevant standard. Id.

[E]xpert testimony, which essentially opines on the best approach

that the deputies could have taken in ideal circumstances, . . .

does not establish that the [officers] violated [the suspect’s] clearly

established rights. As an initial matter, “[t]he Fourth Amendment .

. . does not require police officers to take the better approach[,] . . .

only that they take a reasonable approach.”

Roell v. Hamilton Cty., Ohio/Hamilton Cty. Bd. of Cty. Comm’rs, 870 F.3d 471,

486 (6th Cir. 2017) (quoting Cook v. Bastin, 590 Fed.Appx. 523, 528 (6th Cir.

2014)). Qualified immunity can still be satisfied if in considering the specific

situation confronting the officers, they had sufficient reason to believe that

their conduct was justified under the constitution and state law. City & Cty. of

San Francisco, Calif. v. Sheehan, 575 U.S. 600, 617 (2015).

The fact that a suspect ultimately dies after resisting arrest which

officers respond to with escalating force does not mean that the suspect’s

rights were violated. See Turner, 979 F.3d at 569–70; Mann v. Taser Int’l., Inc.,

588 F.3d 1291, 1306 (11th Cir. 2009); Wagner v. Bay City, Tex., 227 F.3d 316,

323–24 (5th Cir. 2000); Estate of Phillips v. City of Milwaukee, 123 F.3d 586,

593–94 (7th Cir. 1997).

Sometimes when force is combined with a suspect’s underlying health

problems the suspect may die, but such result does not mean that the officers’

use of force was unreasonable. Turner, 979 F.3d at 570. Additionally, leaving a

31

suspect face down in handcuffs while being monitored is not life-threatening

force. See Estate of Phillips, 123 F.3d at 598.

ii. Statutory Requirements

Similarly, “[u]nder Kentucky statutory law, a peace officer is not allowed

to use unnecessary force or violence in making an arrest. KRS 431.025(3). But,

he is entitled to use such force as is necessary, or reasonably appears so, to

take a suspect into custody.” Haugh v. City of Louisville, 242 S.W.3d 683, 686

(Ky. App. 2007) (citing City of Lexington v. Gray, 499 S.W.2d 72, 74 (Ky. 1973)).

Thus, an officer should “only [use] such force as is dictated by the

circumstances.” Myers, 590 S.W.2d at 350. Pursuant to KRS 503.090:

(1) The use of physical force by a defendant upon another person is

justifiable when the defendant, acting under official authority, is

making or assisting in making an arrest, and he:

(a) Believes that such force is necessary to effect the

arrest;

(b) Makes known the purpose of the arrest or believes

that it is otherwise known or cannot reasonably be

made known to the person to be arrested; and

(c) Believes the arrest to be lawful.

“[A]ll persons have a legal duty to surrender to lawful arrest.” Haugh, 242

S.W.3d at 686.

“Mental illness does not exempt a person from the use of reasonable

force by the police.” Id. at 687. In fact, a suspect’s mental illness could provide

an additional justification to try to take a suspect into custody quickly because

a delay could increase the chance of the suspect harming himself, an officer, or

32

an innocent bystander. Id. Known mental illness is a factor to consider

regarding the amount of force exerted, but it can still be reasonable to use a

taser or pepper spray on a mentally ill person depending upon the specific

situation. See Palma v. Johns, 27 F.4th 419, 438 (6th Cir. 2022).

iii. Police Policies

The Police Department adopted the version of the Kentucky League of

Cities’ (KLC) Response to Resistance Policy implemented on May 22, 2008

(Police Policy). Pursuant to this policy, “[o]fficers have several force options that

will be dictated by the actions of the suspect upon the appearance of the police

officer. Officers may be limited in their options due to the circumstances and

actions of the subject.” These options are listed as: command presence, verbal

commands, soft empty hand control, chemical spray, electronic control devices

(tasers or stun guns), hard hand control (punches and other physical strikes),

impact weapons (batons), canine, and deadly force.

The Police Policy relies on and incorporates KRS 503.090(1), discussed

supra, without citing to it, regarding when the use of physical force is legally

justifiable. 12 A policy that repeats statutory standards is of course appropriate.

The Police Policy further states:

Once the subject’s active resistance has ceased and control has been

gained an officer is no longer authorized to use force. Officers should

immediately provide any necessary medical assistance to the subject to

the degree in which they are trained and provide for emergency medical

response where needed.

12 The Police Policy only differs from KRS 503.090(1) in that it replaces the

wording of “a defendant” in the first line with “an officer.”

33

The Police Policy provides that police should use less-lethal

weapons/tactics, including chemical spray and electronic control devices

(tasers), to address “active resistance/active aggression[.]” It states that

“Impact Weapons” (here the baton) can be used other places than the person’s

head and states they

may be utilized in cases where the officers believe the use of these

weapons would be reasonable to bring the event under control.

Examples would be where other options have been utilized and

failed or where based on the officer’s perception at the time, the

other options would not be successful in bringing the event to a

successful conclusion.

There is no evidence in record that the Sheriff’s Department had any

specific policies on the use of force. 13 Thus, whether Deputy Tabor’s actions

were appropriate, is governed by the constitutional and statutory requirements

on use of force.

c. The Law Enforcement Officers Used Appropriate Force

Against Prater.

There is no genuine dispute of material fact that Prater was actively

resisting arrest. The undisputed evidence, which Haney has failed to counter in

any significant way, is that Prater repeatedly failed to yield to law enforcement

who tried to detain him when they observed him committing misdemeanors in

their presence and they used gradually escalating appropriate force to attempt

to subdue him and protect themselves and the other officers from harm. Thus,

13 Although Haney references having been provided with the Sheriff’s

Department policies, the only policies in the record appear to be its Hiring Practice

and its Training Directive, both of which are KLC’s policies dated May 22, 2008. These

policies do not establish standards for use of force.

34

they were using the amount of force that was dictated by the circumstances.

Myers, 590 S.W.2d at 350.

When Prater was first encountered on a porch, he was taken to the

hospital for an assessment. After he fled the hospital, still nude from the waist

down, after engaging in vandalism, the law enforcement officers located him

and asked him to stop. Prater would not obey and acted in an aggressive

manner toward the officers. Each time they used force against him, it was

insufficient to make him submit. Yet they kept using measured force against

him in a reasonable manner that, while designed to cause discomfort so that

he would surrender and allow himself to be arrested, was not likely to cause

any serious or lasting harm.

Each of the measures the officers used (tasing, pepper spray, baton blow,

tackling, or prying his arms free) were permissible to administer under the

circumstances and did not violate the Constitution, our statute, or the Police

Policies on use of force. The officers reacted appropriately within their

discretion by countering Prater’s continued resistance with the force they

deemed necessary to arrest him and when that force did not force him to stop,

they tried other appropriate non-life-threatening acts of force in conformity

with all relevant law and policies.

Haney relies on the affidavit of a policing expert, Daniel J. Buskin, to

establish that the officers acted improperly in reacting to Prater. He opined that

“the tactics used by Officers on April 17, 2020, during their encounter with

Prater were inconsistent with established law enforcement best practices and

35

KLC Policy creating a situation that led to the use of unnecessary force.”

Buskin admits he relied on standards available on the KLC website, rather

than just Police Policies. 14 The law neither requires that officers adhere to “best

practices” nor establishes that they must conform their actions to unadopted

standards. Haney also argues that because Prater was at times walking away

from the officers that force should not have been used to arrest him. This does

not create any issue of fact.

It was Prater’s own actions in failing to follow directions, fleeing, and

resisting arrest which necessitated the use of force exercised in arresting him.

Had Prater yielded to the law enforcement officers, force would not have been

necessary, but Prater did not yield at any time and engaged in actions the

officers perceived as threatening. It is immaterial then whether he was walking

away from them at certain points. The key to the reasonableness of the officers’

actions was that they had an absolute right to take Prater into custody for

violating the law and continuing to violate the law, and when they tried to

arrest him, Prater actively resisted them and continued to actively resist them

while they used escalating non-life-threatening force in an attempt to subdue

him until they finally were able to handcuff him.

14 Buskin specifically relied upon the KLC Response to Resistance Policy 2020

which references Related Policies: Duty to Intervene, Ethics, Excited Delirium, and

Dealing with Persons of Diminished Capacity.

36

Haney also relies upon her medical expert, Dr. Michael Freeman, to

establish a question of fact about Prater’s cause of death which would preclude

summary judgment. Dr. Freeman opined in his affidavit as follows:

Based on my preliminary review of the records in this matter, it is

my opinion that the cause of Donald Prater’s [death] is primarily

attributable to the type, severity, and duration of restraint used on

Mr. Prater by the Defendants, which most probably resulted in

fatal injuries related to restraint-related asphyxia.

Dr. Freeman also opined that attributing Prater’s death to “‘excited delirium

syndrome’ is scientifically invalid” and such diagnosis “has been disavowed by

a number of national medical organizations, including the American Medical

Association, and when it is used in the context of a death investigation is

almost exclusively used in situations involving prone restraint by law

enforcement.” Dr. Freeman admitted that his opinion was solely based on his

review of the complaint, the amended complaint, and the answers of the

defendants.

The defendants have challenged whether Dr. Freeman is qualified to

provide any opinions, based on the fact that he is only licensed in the United

States as a chiropractor and that he does not have a sufficient basis for his

opinions. We need not resolve whether he would qualify as a medical expert as

we reject any consideration of Dr. Freeman’s opinion as it was solely based on

his review of the pleadings, none of which are evidence as no binding

admissions were made in the answers. As this was Haney’s expert, it was

wholly within her power to provide him with the available evidence at any time.

37

Importantly, the State Medical Examiner’s reports confirmed that Prater

did not sustain any serious injuries based upon the force used upon him and

provided a cause of death that was not attributable to the officers’ actions. It

matters little whether excited delirium is an appropriate cause of death or not.

Even if Prater’s cause of death was listed as “undetermined,” what matters is

that Haney failed to produce any proof that Prater was killed because of

excessive force, such as a blow to the head, damage to his airway, or positional

asphyxiation. Instead, Haney relies upon the fact that Prater died after his

arrest as proof that the officers must have killed him by using excessive force

against him; this is not sufficient.

In conforming their actions to constitutional, statutory, and policy limits,

the law enforcement officers established that they acted in good faith and

qualified official immunity applies. The fact that in hindsight knowing that the

officers’ use of force may have contributed to Prater’s fatal cardiac event might

have led to different decision-making, does not make what was otherwise a

reasonable level of force improper.

Because the officers were entitled to use force to arrest Haney, and the

level of force used was appropriate, they were entitled to qualified official

immunity. Haney has failed to provide any evidence to raise a question of fact

regarding whether they committed battery, caused Prater’s wrongful death,

used excessive force in arresting him, or were even negligent (let alone grossly

negligent).

38

3. Chief Ratliff is Entitled to Qualified Official Immunity and was

Appropriately Dismissed.

Haney argues that because Chief Ratliff was not a law enforcement

officer, he was acting outside the scope of his duties to hold Prater’s arm so

that he could be arrested and, thus, is not entitled to qualified immunity.

We agree with the circuit court and the Court of Appeals that Chief

Ratliff was clearly acting within the scope of his discretion as a fire chief and

head of EMS in first determining how best to assist the officers in securing

Prater, in supervising Prater while he was in custody, and then in rendering

first aid to Prater after observing his breathing difficulties. See Caneyville

Volunteer Fire Dept., 286 S.W.3d at 807-10 (explaining how qualified official

immunity applies to a fire chief sued in his personal capacity for his official

actions which include, pursuant to KRS 75.070(1), the provision of emergency

services).

Haney has not made allegations which would create a factual question as

to whether Chief Ratliff was acting in “bad faith.” There is no allegation that he

observed any use of force prior to the officers attempting to handcuff Prater

and his only participation was to hold Prater’s arm so this could be

accomplished. There is also no allegation that he failed to render appropriate

aid based on his observations and training. Accordingly, the determination that

Chief Ratcliff was entitled to qualified official immunity properly resulted in his

dismissal from the case.

Additionally, Haney has failed to explain how Chief Ratliff’s simple

holding of Prater’s arm so that he could be lawfully arrested constituted

39

excessive force, battery, or any kind of negligence. Even if he were acting as a

private citizen in assisting the officers, he simply cannot be liable as a matter of

law.

Finally, the only possible remaining basis upon which Chief Ratliff could

be liable is if he improperly administered medical aid to Prater, but Haney has

failed to make any allegations that Prater did not receive appropriate medical

treatment from Chief Ratliff and the officers.

C. Reversal for Consideration of Whether there was a Special Relationship

between Prater and the Law Enforcement Officers was Not Warranted.

We disagree that there was any need for the Court of Appeals to reverse

the grant of summary judgment to the law enforcement officers for the circuit

court to consider whether Prater was due additional consideration because he

had a “special relationship” with the officers by virtue of being in their custody.

Not only did Haney never raise this issue below, but the existence of a special

relationship with the officers cannot establish liability given the uncontested

evidence.

Normally, government agents do not owe any duty to general members of

the public. Therefore, negligence claims brought against them will not be

actionable. Fryman v. Harrison, 896 S.W.2d 908, 910 (Ky. 1995).

To have an actionable negligence claim against governmental entities, the

plaintiff must establish that a special relationship was present between the

victim and those entities. City of Florence, Ky. v. Chipman, 38 S.W.3d 387, 392

(Ky. 2001). In other words, the plaintiff must establish that there is “special

40

duty owed to a specific identifiable person and not merely the breach of a

general duty owed to the public at large.” Fryman, 896 S.W.2d at 910.

In order for the special relationship to exist, two conditions are

required: 1) the victim must have been in state custody or

otherwise restrained by the state at the time the injury producing

act occurred, and 2) the violence or other offensive conduct must

have been committed by a state actor.

Chipman, 38 S.W.3d at 392. There are narrow exceptions to these

requirements: there is a special relationship between a Kentucky school district

and its students who are compelled to attend school, Ritchie v. Turner, 559

S.W.3d 822, 830 (Ky. 2018), and between the law enforcement officers and

recruited confidential informants, Gaither v. Justice & Pub. Safety Cabinet, 447

S.W.3d 628, 639 (Ky. 2014).

“[T]here is no duty to control the conduct of another or to warn those

endangered by such conduct in the absence of a special relationship.”

Chipman, 38 S.W.3d at 391. Only once Prater was restrained by the officers,

did the governmental entities have a special relationship with him, owing him

the duty to “exercise ordinary care for his safety.” Gaither, 447 S.W.3d at 639;

Commonwealth v. Russell, 578 S.W.3d 747, 752 (Ky. App. 2019). However, the

officers were privileged to use appropriate force to make Prater submit to being

arrested. There is no evidence that any negligence occurred during the time the

officers restrained Prater. Instead, they properly acted within the bounds of

their privileged use of force.

Chief Ratliff observed Prater’s condition after he was in handcuffs and

when he noticed Prater was in respiratory distress, both he and the officers

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immediately attempted lifesaving measures and summoned EMS. There is no

evidence that officers were negligent where they acted within their discretion in

allowing Chief Ratliff to supervise Prater’s condition for them, worked together

to perform CPR once Chief Ratliff indicated there was a problem, or permitted

Chief Ratliff to administer Narcan to Prater. Therefore, while the officers owed

Prater a duty while he was in their custody, Haney cannot establish any basis

for a violation of such duty, so no liability can arise.

Furthermore, the Court of Appeals was incorrect in its analysis that the

special relationship would provide an exemption from qualified official

immunity. Instead, the special relationship only entitles the plaintiff to pursue

an action for negligence. Qualified official immunity can still apply if the

claimed act is discretionary (rather than ministerial) and otherwise satisfies the

necessary requirements. Ritchie, 559 S.W.3d at 830–31; Doe v. Logan, 602

S.W.3d 177, 185 (Ky. App. 2020). 15

The Court of Appeals erred in reversing on the basis that the circuit

court acted prematurely in granting summary judgment based on qualified

official immunity where there was no finding of whether the officers owed

Prater a duty of care based on a “special relationship” which existed between

15 See Madden ex rel. Madden v. Town of Greene, 36 Misc. 3d 852, 861–62, 949

N.Y.S.2d 326, 334–35 (N.Y. Sup. Ct. 2012) (explaining that a special relationship

establishes the existence of a duty and is distinct from the question of qualified

immunity); Hernandez ex rel. Hernandez v. Tex. Dept. of Protective & Regulatory Servs.,

380 F.3d 872, 880, 885-86. (5th Cir. 2004) (determining a special relationship existed

between a foster child and the state and proceeding to determine that qualified official

immunity under Texas law applied to immunize the social workers’ reasonable

discretionary conduct).

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the parties by virtue of them arresting him. No finding was needed on this non-

issue, which was not argued to the trial court and did not preclude the

determination that qualified official immunity applied.

Although Deputy Tabor did not seek discretionary review regarding the

Court of Appeals’ decision to reverse for consideration of whether he could be

liable to Haney based on him having a special relationship with Prater, to

produce a consistent outcome we conclude that summary judgment was

appropriately granted in his favor.

D. The Governmental Entities Cannot be Liable where their Employee

First Responders are Themselves Not Liable Based on Qualified Official

Immunity.

At the outset, we note that the Sheriff’s Department, as a subdivision of

the County, generally has the same sovereign immunity as the County, 16 the

Fire Department has governmental immunity, 17 and the City and its

subdivision the Police Department have some immunity pursuant to CALGA for

core governmental functions. This immunity is relevant in foreclosing suit

against them, but more importantly, they cannot be liable where their

employees are not liable when their actions meet the standard for qualified

official immunity as discussed infra.

16 Counties are cloaked with sovereign immunity as political subdivisions of the

Commonwealth. Lexington-Fayette Urban Cty. Gov’t v. Smolcic, 142 S.W.3d 128, 132

(Ky. 2004). Creations of the county also have sovereign immunity. See Bryant v.

Louisville Metro Hous. Auth., 568 S.W.3d 839, 846-47 (Ky. 2019); Comair, Inc. v.

Lexington-Fayette Urban Cty. Airport Corp., 295 S.W.3d 91, 102-03 (Ky. 2009).

Accordingly, the Sheriff’s Department as a direct political subdivision of the County

has sovereign immunity unless such sovereign immunity is waived.

17 See KRS 75.070(1); Caneyville Volunteer Fire Dept., 286 S.W.3d at 807.

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1. Vicarious Liability

To the extent that Haney sought vicarious liability against the

governmental entities, dismissal was appropriate. Pursuant to the Fire

Department’s governmental immunity, it cannot be held vicariously liable for

the actions of its employees because such would nullify its immunity. Sloas,

201 S.W.3d at 477 Schwindel v. Meade Cty., 113 S.W.3d 159, 163 (Ky. 2003);

Phillips v. Lexington-Fayette Urban Cnty. Gov’t, 331 S.W.3d 629, 632 (Ky. App.

2010).

While the Sheriff’s Department can be liable under the limited waiver of

sovereign immunity for the actions of its deputies as provided by KRS 70.040,

this waiver only applies to the extent that a deputy does not have qualified

official immunity. Sheehy v. Volentine, 706 S.W.3d 229, 244 (Ky. 2024).

Primary liability by employees is required for vicarious liability on the

part of employers. City of Louisville v. Bergel, 610 S.W.2d 292, 293 (Ky. 1980);

Carucci, 657 S.W.3d at 929; Haugh, 242 S.W.3d at 687. As the United States

Supreme Court held in City of L.A. v. Heller, 475 U.S. 796, 799 (1986), where

governmental entities are only sued because they are thought to be legally

responsible for their officers’ actions, if the officers inflicted no injury upon the

victim, it is inconceivable that the government entities can be liable. Therefore,

cities cannot be vicariously liable for the actions of their employees if their

employees have qualified official immunity. Bergel, 610 S.W.2d at 293; Haugh,

242 S.W.3d at 687.

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Accordingly, the question of whether the governmental entities are

immune is beside the point and irrelevant where there is no basis for liability

because the employee first responders themselves are immune as it was

previously established that their discretionary actions were protected by

qualified official immunity. See Grogan v. Commonwealth, 577 S.W.2d 4, 6 (Ky.

1979).

2. Negligent Hiring, Training, Retention, and Supervision

To maintain an action against the governmental entities based upon

their negligent hiring, training, retention, or supervision of their employees,

there must be a finding that those employees committed a tort (either

intentionally or negligently); otherwise, there is no basis to support liability and

damages. Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 727, 730 (Ky.

2009). If claims are properly dismissed against governmental employees based

on qualified official immunity, it follows that the claims against their employers

for negligent hiring, training, retention, or supervision are also properly

dismissed. Morgan v. Bird, 289 S.W.3d 222, 227 (Ky. App. 2009). This makes

logical sense as even if the governmental entities were negligent regarding the

hiring, training, retention, or supervision of such employees, such failure alone

did not result in any harm to the victim.

As we have already determined that there is no factual dispute that the

first responders acted appropriately in their use of force under the

circumstances and are wholly immune under the doctrine of qualified official

45

immunity, it follows that the City, Police Department, and Sheriff’s Department

cannot be liable for negligent hiring, training, retention, or supervision.

3. Failure to Investigate

Finally, although Haney complains about the failure of the Police

Department and the Sheriff’s Department to engage in additional investigation

after Prater died, 18 her amended complaint did not raise such failure as an

actionable claim against them. Additionally, immunity protects the County and

the Sheriff’s Department from any liability. To the extent that Haney is making

a claim that the City or its Police Department should have adopted or enforced

any rule regarding the required procedures for investigating the cause of any

in-custody death, this is a matter within the City’s discretion of how to use its

limited resources, a matter for which it is immune pursuant to CALGA. See

Morales v. City of Georgetown, 709 S.W.3d 146, 164-65 (Ky. 2024); Ashby v.

City of Louisville, 841 S.W.2d 184, 188 (Ky. App. 1992).

III. CONCLUSION

First responders have a very difficult job which requires them to

continually respond to rapidly evolving situations in a reasonable manner. For

this reason, qualified official immunity is necessary to protect them from

liability when they are acting appropriately within the bounds of the law, given

18 For this contention, Haney relies upon her policing expert, Buskin, who

stated “it is my opinion [that] the Lack of an Internal Investigation was inconsistent

with established law enforcement best practices.” As previously discussed, “best

practices” are not the relevant standard. Haney has failed to point to any

constitutional or statutory duty to conduct a more thorough investigation when there

was no indication that any wrongdoing occurred.

46

the information they have at the time. The law enforcement officers acted

judiciously in their application of force when faced with a difficult situation.

While it is always tragic when someone dies, the fact that such death occurred

while Prater was in custody is not enough to establish liability on the part of

the first responders or the governmental entities that employed them.

We conclude that the Johnson Circuit Court properly granted dismissal

to all of the defendants regarding each and every claim made by Haney for

death and injury to Prater as Haney failed to establish that there were

questions of fact left to be resolved. We affirm those portions of the Court of

Appeals’ opinion which dismissed claims against the defendants, reverse those

portions of its opinion which reversed and remanded to the Johnson Circuit

Court, and remand for any remaining proceedings which may be necessary.

Lambert, C.J.; Bisig, Conley, Keller, Nickell, and Thompson, JJ., sitting.

Bisig, Conley, Keller, and Nickell, JJ., concur. Lambert, C.J., concurs in result

only. Goodwine, J., not sitting.

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COUNSEL FOR APPELLANTS/CROSS-APPELLEES, PAINTSVILLE POLICE

DEPARTMENT, ZACH STAPLETON, SHANE CANTRELL, AND CITY OF

PAINTSVILLE:

Melissa Thompson Richardson

Colin Buckner

Zachary T. Epperson

Richardson Law Group, PLLC

COUNSEL FOR APPELLEE/CROSS-APPELLANT, PAULA M. HANEY, AS

PERSONAL REPRESENTATIVE OF THE ESTATE OF DONALD PRATER, JR.:

Andre F. Regard

Charles W. Rowland

Regard Law Group, PLLC

COUNSEL FOR APPELLEES, JEFF TABOR AND JOHNSON COUNTY

SHERIFF’S DEPARTMENT:

Jonathan C. Shaw

Harry Ryan Altman

Grant R. Chenoweth

Porter, Banks, Baldwin & Shaw, PLLC

COUNSEL FOR APPELLEES, PAINTSVILLE FIRE DEPARTMENT, AND RICK

RATLIFF:

Colin Buckner

Zachary T. Epperson

Melissa Thompson Richardson

Richardson Law Group, PLLC

48