Paula M. Haney, as Personal Representative of Estate of Donald Prater, Jr. v. Shane Cantrell

RENDERED: MAY 19, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0402-MR

PAULA M. HANEY, AS PERSONAL

REPRESENTATIVE OF ESTATE OF

DONALD PRATER, JR. APPELLANT

APPEAL FROM JOHNSON CIRCUIT COURT

v. HONORABLE JOHN DAVID PRESTON, JUDGE

ACTION NO. 21-CI-00019

CITY OF PAINTSVILLE; JEFF

TABOR; JOHNSON COUNTY

SHERIFF’S DEPARTMENT;

PAINTSVILLE FIRE DEPARTMENT;

PAINTSVILLE POLICE

DEPARTMENT; RICK RATLIFF;

SHANE CANTRELL; AND

ZACHARY STAPLETON APPELLEES

OPINION

AFFIRMING IN PART, REVERSING IN PART,

AND REMANDING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND GOODWINE,

JUDGES.

CALDWELL, JUDGE: Paula Haney (Haney), as the representative of the Estate

of Donald Prater, Jr. (the Estate), brought suit against the Paintsville Police and

Fire Departments, the Johnson County Sheriff’s Department, and individuals

employed by those entities. The suit alleged wrongful death, battery, excessive

force, and negligence, as well as negligent hiring, retention, training, and

supervision against the City of Paintsville.

The Johnson Circuit Court dismissed the suit against the Paintsville

Fire Department and Chief Rick Ratliff, finding that the Department was entitled to

governmental immunity and the Chief to qualified official immunity. The court

dismissed the suit against the City of Paintsville, finding the city enjoyed immunity

from suit pursuant to the Local Governments Act, KRS1 65.2003.

Summary judgment was entered in favor of the Johnson County

Sheriff’s Department and Deputy Jeff Tabor, finding the Department was entitled

to sovereign immunity and Tabor to qualified official immunity. The court

likewise entered summary judgment in favor of the Paintsville Police Department

and Officers Zachary Stapleton and Shane Cantrell, based on qualified official

immunity.

1

Kentucky Revised Statute.

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The Estate appeals the rulings of the Johnson Circuit Court dismissing

the actions or granting summary judgment. We affirm in part, reverse in part, and

remand.

FACTS

On April 17, 2020, the Paintsville Fire Department received a call that

an injured man was sitting on the porch of an abandoned home on Main Street in

Thelma, Kentucky, a community in Johnson County. When emergency medical

services responded, they found Donald Prater, Jr. (Prater) sitting on the porch, clad

only in a t-shirt. He was covered in mud and blood and was clearly under the

influence of a controlled substance. He was transported to the hospital by

emergency medical services.

Deputy Jeff Tabor of the Johnson County Sheriff’s Department

responded to the hospital. There, he interviewed Prater who told him he believed

he had ingested some “bad meth” and had been hallucinating that he had been run

over by a train which had “pushed his soul out of his body.” Before leaving the

hospital, Tabor spoke with doctors who said they would perform toxicology testing

upon Prater.

Shortly after Tabor left the hospital, an emergency call was received

into dispatch from the hospital, reporting that a man had torn a telephone off the

wall of the emergency department and then had run naked out a back door of the

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hospital. Paintsville Police Department officers were dispatched to the hospital,

where they learned that the man had been seen running in the direction of a nearby

hotel. Deputy Tabor also responded back to the scene. Along with the hospital

security guard, the three officers went to the hotel, where they were told that the

naked man had been there, but he had already run out the front door. The officers

split up to search the area for the man, believed to be Prater.

A call came in from a nearby apartment complex reporting a naked

man walking down Main Street. The law enforcement officers all converged on

Main Street, with Paintsville Police Department (PPD) Officer Shane Cantrell

arriving first. He made contact with Prater, who refused to heed his commands

and started yelling and cursing at him. PPD Officer Zachary Stapleton then arrived

on the scene and Prater began yelling and cursing at him and began advancing

toward him. Officer Stapleton unholstered his taser and ordered Prater to stand

still. Instead, Prater rushed towards Stapleton, who deployed his taser. Unfazed

by the shock, Prater pulled the taser probes from his body and ran away up Main

Street.

The officers followed Prater until he rushed towards Officer Cantrell,

who deployed pepper spray at him. Prater continued to resist, undaunted. Officer

Stapleton struck Prater with his baton on Prater’s right thigh, but Prater still

continued to resist arrest. Deputy Tabor arrived on the scene and managed to get

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Prater prone on the ground, but Prater kept his arms beneath him making it

impossible to handcuff him. Tabor deployed his taser without probes in a “dry

stun” hoping to subdue Prater, but it had no effect. Instead, all three officers, along

with Fire Department Chief Ratliff who had arrived on the scene to respond as a

medical responder, worked together to handcuff Prater.

Once they were able to secure him, Ratliff noticed that Prater’s

breathing had become shallow. Ratliff grabbed a pocket mask from his vehicle

and started rescue breathing and monitoring Prater’s pulse. While waiting for an

ambulance to arrive, Prater went into full arrest, with Ratliff attempting CPR. The

EMS crew took over lifesaving efforts and Prater was transported to the hospital.

He was pronounced deceased a short time later.

The emergency room physician believed that Prater had died from

cardiac arrest brought about by excited delirium due to drug use. The medical

examiner found no evidence of lethal trauma. Haney, as the personal

representative for Prater’s estate, alleged in a complaint filed in Johnson Circuit

Court that it was the actions of the officers and Ratliff which had caused Prater’s

death. She sought damages for battery, wrongful death, and negligence, against

the officers and Ratliff, as well as suing the City of Paintsville, its fire and police

departments and the Johnson County Sheriff’s Office for negligent hiring, training,

and retention.

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The Johnson Circuit Court dismissed the suit against the City of

Paintsville and the Fire Department, finding they enjoyed governmental immunity.

The suit against Ratliff was dismissed after the court found he was entitled to

official qualified immunity. Summary judgment was entered in favor of the

Johnson County Sheriff’s Department after finding it was entitled to sovereign

immunity and in favor of Deputy Tabor, finding he was entitled to qualified

official immunity. Finally, summary judgment was entered in favor of the

Paintsville Police Department and Officers Stapleton and Cantrell after finding all

were entitled to qualified official immunity. The Estate appealed and we affirm in

part, reverse in part, and remand the matter to the Johnson Circuit Court for

proceedings consistent with this Opinion.

STANDARDS OF REVIEW

Appellate courts review the granting of motions to dismiss by trial

courts de novo. “Since a motion to dismiss for failure to state a claim upon which

relief may be granted is a pure question of law, a reviewing court owes no

deference to a trial court’s determination; instead, an appellate court reviews the

issue de novo.” Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010).

Motions for summary judgment are similarly reviewed by appellate

courts with no deference granted to the trial court’s legal determinations.

The proper standard of review on appeal when a

trial judge has granted a motion for summary judgment is

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whether the record, when examined in its entirety, shows

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

moving party is entitled to a judgment as a matter of

law.” CR 56.03. The trial judge must view the evidence

in a light most favorable to the nonmoving party,

resolving all doubts in its favor. Spencer v. Estate of

Spencer, 313 S.W.3d 534, 537 (Ky. 2010) (quoting

Steelvest, Inc. v. Scansteel Service Center, Inc., 807

S.W.2d 476 (Ky. 1991)).

Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010).

ANALYSIS

1. Dismissal of Suits

The trial court granted motions to dismiss in favor of the City of

Paintsville and the Paintsville Fire Department, as well as the suit against Fire

Chief Rick Ratliff personally. The trial court held that the Paintsville Fire

Department was entitled to governmental immunity, pursuant to Caneyville

Volunteer Fire Department v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790

(Ky. 2009). Finding Ratliff’s actions on that day were discretionary, the trial court

found the Chief was entitled to the protections of qualified official immunity. The

trial court held that the City of Paintsville was immune from suit pursuant to KRS

65.2003.

The trial court cited the Caneyville Volunteer Fire case to support its

finding both that the department was entitled to governmental immunity, as well as

the Chief being entitled to qualified official immunity. In that opinion, the

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Kentucky Supreme Court cited the case of Autry v. Western Kentucky University to

explain the difference between governmental immunity of agencies of the

government and qualified official immunity for the employees of those agencies

when sued individually:

Governmental immunity extends to state agencies

that perform governmental functions (i.e., act as an arm

of the central state government) and are supported by

money from the state treasury. Yanero v. Davis, 65

S.W.3d 510 (Ky. 2001). However, unless created to

perform a governmental function, a state agency is not

entitled to governmental immunity. Kentucky Center for

the Arts Corp. v. Berns, 801 S.W.2d 327 (Ky. 1990). An

analysis of what an agency actually does is required to

determine its immunity status.

If a state agency is deemed to have governmental

immunity, its officers or employees have official

immunity when they are sued in their official or

representative capacity. The immunity that an agency

enjoys is extended to the official acts of its officers and

employees. However, when such officers or employees

are sued for negligent acts in their individual capacities,

they have qualified official immunity.

Qualified official immunity applies to public

officers or employees if their actions are discretionary

(i.e., involving personal deliberation, decisions and

judgment) and are made in good faith and within the

scope of their authority or employment. This 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

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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. The burden is on the plaintiff to show that the

public official or employee was not acting in good faith.

Yanero, 65 S.W.3d at 522-23.

If the negligent acts of public officers or

employees are ministerial, there is no immunity. An act

is ministerial if the duty is absolute, certain, and

imperative, involving mere execution of a specific act

based on fixed and designated facts. If ministerial acts

are proper, then the public officer or employee has

official immunity without qualification. Id. at 522. Any

act done by a public officer or employee who knows or

should have known that his actions, even though official

in nature, would violate constitutional rights or who

maliciously intends to cause injury, has no immunity.

Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73

L. Ed. 2d 396 (1982).

219 S.W.3d 713, 717 (Ky. 2007)

In the Caneyville Volunteer Fire matter, the Kentucky Supreme Court

determined that municipal fire departments, such as the Paintsville Fire

Department, are perhaps the archetypal example of governmental function.

It is incontrovertible that fire departments perform

a paradigmatic function of the government in keeping the

populous and its property safe from fire. Indeed, one

would be hard-pressed to think of a more representative

government function. Notably, Kentucky has a

longstanding tradition of treating firefighting as a

governmental function and thereby cloaking it in

immunity.

286 S.W.3d 790, 799 (Ky. 2009).

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The trial court’s determination as to whether the Paintsville Fire

Department is entitled to governmental immunity was correct. Turning to the

determination as to Chief Ratliff personally, the trial court determined that his

actions on that day were discretionary. We agree. As Chief Ratliff is a firefighter

and emergency medical responder, he is not ordinarily engaged in participating in

the arrest of citizens. He made a judgment that his assistance was needed to place

Prater in handcuffs. The exercise of judgment is the gravamen of the exercise of

discretion.

The Estate argues that Chief Ratliff was not acting as Fire Chief at the

time of the incident and so he was not entitled to immunity as he was not engaged

in discretionary functions of being a firefighter, but rather was acting as a police

officer by helping with the detention of Prater. Such argument ignores the facts

that Prater had originally been transported to the hospital by emergency medical

services and that as the Fire Chief, Ratliff also had oversight of the emergency

medical services provided in the area. He responded to the later scene in his

capacity as a provider of emergency medical services and provided those services

in determining Prater had a weak pulse and in providing emergency medical

measures on the scene. He was clearly providing emergency services pursuant to

KRS 75.070 and is therefore entitled to qualified immunity.

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The City of Paintsville was sued by the Estate on a theory of negligent

hiring, training, and retention. The trial court cited KRS 65.2001 and 65.2003 as

providing municipalities immunity from lawsuits. We find the trial court painted

this immunity with too broad a brush.

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.2 We cannot agree that the theory under

which the Estate was suing the City of Paintsville falls under these categories.

Rather, the theory of liability forwarded here is as non-governmental a task as

there can be. The theory of negligent hiring, oversight, and retention is a theory of

2

KRS 65.2003(3):

Any claim arising from the exercise of judicial, quasi-judicial, legislative or

quasi-legislative authority or others, exercise of judgment or discretion vested in

the local government, which shall include by example, but not be limited to:

(a) The adoption or failure to adopt any ordinance, resolution, order,

regulation, or rule;

(b) The failure to enforce any law;

(c) The issuance, denial, suspension, revocation of, or failure or refusal to

issue, deny, suspend or revoke any permit, license, certificate, approval, order

or similar authorization;

(d) The exercise of discretion when in the face of competing demands, the

local government determines whether and how to utilize or apply existing

resources; or

(e) Failure to make an inspection.

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liability regularly forwarded against private entities.3 It is in hiring and overseeing

an employee that a municipality acts most as a private entity and least as a

governmental one.

Therefore, we affirm the orders of dismissal as to Chief Ratliff and the

Paintsville Fire Department, but reverse and remand on the question of whether the

suit against the City of Paintsville for negligent hiring, training, and supervision

can go forward, finding that the trial court erred in holding that the city was

immune from suit pursuant to KRS 65.2003.

2. Entry of Summary Judgment

The trial court granted motions for summary judgment in favor of the

Johnson County Sheriff’s Department and Deputy Tabor and the Paintsville Police

Department and Officers Cantrell and Stapleton.

We find that the trial court erred in granting summary judgment for

the Paintsville Police Department. The Police Department, as a subdivision of the

City of Paintsville itself, was sued under the theory of negligent hiring, training,

3

Kentucky’s recognition of torts based upon negligent hiring, negligent training,

negligent supervision, and negligent retention is well established. See, e.g.,

Turner v. Pendennis Club, 19 S.W.3d 117, 121 (Ky. App. 2000) (“Kentucky has

indeed recognized and acknowledged the existence of claims of negligent training

and supervision.”); McDonald’s Corp. v. Ogborn, 309 S.W.3d 274, 291 (Ky. App.

2009) (recognizing negligent supervision); Oakley v. Flor-Shin, Inc., 964 S.W.2d

438, 441-42 (Ky. App. 1998) (recognizing negligent hiring and retention).

MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 336 n.10 (Ky. 2014).

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and retention. As we held above, the trial court too broadly relied upon KRS

65.2003 in finding immunity protected the police department, so we reverse as to

that entity and remand.

The Sheriff’s Department, however, is a subdivision of the county

government and is therefore entitled to sovereign immunity.

Whereas a county enjoys sovereign immunity and cannot

be held vicariously liable for the torts of its employees, a

municipality is immune only for torts committed in the

performance of legislative or judicial or quasi-legislative

or quasi-judicial functions, . . . and can otherwise be held

vicariously liable for the torts of its employees.

Schwindel v. Meade Cnty., 113 S.W.3d 159, 164 (Ky. 2003) (citations omitted).

As to the employees of the entities, all three were found to be entitled

to qualified immunity. We find that the granting of qualified immunity was

premature as there was no finding of whether there was a particular “special

relationship” which existed between the parties.

The caselaw is clear. Public officials owe the general public no duty

of care unless the public official has some particular “special relationship” with the

injured party.

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.

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City of Florence v. Chipman, 38 S.W.3d 387, 392 (Ky. 2001), as amended (Feb.

26, 2001).

There was no finding concerning whether the officers owed Prater a

duty of care due to this “special relationship.” As the trial court failed to review

the claims against Cantrell, Stapleton, and Tabor using the correct standard, we

reverse the granting of qualified immunity for each of them and remand for a

determination whether Prater was in state custody and, if so, whether any of the

officers committed “violence or offensive conduct” upon him during that custody.

Such is a very different question than what the trial court found, i.e., that the

officers were entitled to qualified governmental immunity. See Fryman v.

Harrison, 896 S.W.2d 908, 910 (Ky. 1995) (“In order to establish an affirmative

legal duty on public officials in the performance of their official duties, there must

exist a special relationship between the victim and the public officials.”). We

remand to the trial court for a determination as to whether this special relationship

existed.

CONCLUSION

The trial court properly granted dismissal to the City of Paintsville

Fire Department and Chief Rick Ratliff. However, we find that the trial court erred

in dismissing the claims against the City of Paintsville alleging negligent hiring,

training, and supervision as such are not judicial or legislative functions. The trial

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court properly granted summary judgment in favor of the Johnson County Sheriff’s

Department as a subdivision of the county government. However, we find that the

trial court improperly entered summary judgment in favor of the individual officers

and deputy without a finding that there was no “special relationship” between each

of them and Prater, and in favor of the Paintsville Police Department on the claim

of negligent hiring, training, and supervision as those are not judicial or legislative

functions.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE JOHNSON

COUNTY SHERIFF’S

Andre F. Regard DEPARTMENT AND JEFF TABOR:

Charles W. Rowland

Lexington, Kentucky Jonathan C. Shaw

Paintsville, Kentucky

BRIEF FOR APPELLEE

PAINTSVILLE POLICE

DEPARTMENT, ZACH

STAPLETON, SHANE CANTRELL,

RICK RATLIFF, PAINTSVILLE

FIRE DEPARTMENT, AND CITY

OF PAINTSVILLE:

Melissa Thompson Richardson

Colin Buckner

Lexington, Kentucky

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