RENDERED: MARCH 12, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky
Court of Appeals

NO. 2020

- CA

- 0224

- MR

FAITH ASHTON, IN HER OFFICIAL CAPACITY AND INDIVIDUALLY; CAROLYN FASSIO, IN HER OFFICIAL CAPACITY AND INDIVIDUALLY; J AHI PEAK E , IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY; LAURIE WORKMAN, IN HER OFFICIAL CAPACITY AND INDIVIDUALLY ; ALLEN BAKER, IN HER OFFICIAL CAPACITY AND INDIVIDUALLY; AND THE ESTATE OF BESSIE E. WADLINGTON, IN ITS OFFICIAL CAPACITY AND INDIVIDUALLY, BY A ND THROUGH THE ADMINISTRATOR, RICHARD E. WADLINGTON APPELLANTS

v. APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NO. 17

- CI

- 000059

A. A. , A MINOR, BY AND THROUGH HER MOTHER AND NEXT FRIEND, MARY AMES APPELLEE- 2

- OPINION REVERSING AND REMANDING

**   **  **

BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Faith Ashton , in her official capacity and individually;

Carolyn Fassio, in her official capacity and individually; J ahi Peak e , in his official

capacity and individually; Laurie Workman, in her official capacity and

individually; Allen Baker, in h er official capacity and individually; and t he Estate

o f Bessie E. Wadlington, in its official capacity and individually, by and through

the administrator, Richard E. Wadlington, bring this interlocutory appeal from a

January 16, 2020

, Opinion a nd Order of the Jefferson Circuit Court denying

appellants the shield of qualified official immunity. We reverse and remand.

This case involves the alleged sexual assault of a kindergarten student,

A.A., by another kindergarten student

, L.E., while both were attending Whitney

Young Elementary School. A.A. and L.E. attended kindergarten during the 2015

-
2016 school year. On February 13, 2016, A.A. ’ s mother, Mary Ames, informed

Principal Mary Minyard that L.E. had put his hand down A.A. ’ s pants. Ames als o

informed A.A. and L.E. ’ s primary teacher, Faith A shton

, o f the allegation. Ashton

and other teachers instituted several measures to prevent L.E. from having contact

with A.A. during the school day. Nonetheless, on February 24, Ames again

informed Princ ipal Minyard that L.E. had once more put his hand down A.A. ’ s- 3

-

pants. Ames also informed Ashton of the allegation. Additional measures were

put in place to ensure L.E. d id not have direct contact with A.A.

The Cabinet for Health and Family Services condu cted an

investigation of the allegations and found the allegations to be unsubstantiated.

The Jefferson County Public Schools, Office of Compliance and Investigations

, also investigated and found “the allegations that the . . . staff were aware of

[L.E. ’ s ] sexual behavior toward other students and did not address or ensure the

safety of the students to be unsubstantiated.” Report at 11.

On January 4, 2017, A.A., by her mother and next friend

, Ames

, f iled

a complaint in the Jefferson Circuit Court and named as defendants Donna

Hargans, Superintendent of Jefferson County Public Schools, in her official and

individual capaci ties , and Mary Minyard, P rincipal of Whitn e y Young Elementary

School, in her indi vidual and official capacities. A .A. also named as defendants:

(1) the primary kindergarten teacher

- Faith Ashton, in her official and individual

capacities; (2) the music teache r

- Carolyn Fassio, in her official and individual

capacities; (3) the art t eacher

- J ahi Peake, in h is official and individual capacities;

(4) the gym teacher

- Laurie Workman, in her official and individual capacities; (5)

the classroom volunteer

- Allen Baker, in h er official and individual capacities; and- 4

-

(6) the instructional assistan t , the Estate of Bessie E. Wad l ington, in its official and

individual capacities. 1 In the complaint, it was particularly alleged:

1. This is a case about an innocent five year old girl who was sexually assaulted twice by another child while in sc hool at Whitney Young Elementary School. The second incident of sexual assault occurred after Whitney Young administrators purportedly put measures into place to prevent another sexual assault from happening.

2. A.A. is a minor child, having been born June 5, 2010 and having no guardian, curator, or committee, sues by her mother, Mary Ames, as her mother and next friend.

. . . .

24. Each Defendant had a duty, pursuant to common law and/or statute and/or other written or unwritten policies, regulati ons and/or rules to A.A. to exercise due care for her safety while A.A. was under their direction and control.

25. Each Defendant breached said duty, and said breach caused injury to A.A.

. . . .
28. In or about January 2016, A.A. was sexually assaulted by a male student hereinafter referred to for anonymity purposes as “ [L.E.] ” while both

1 Bessie E. Wadlington was an instructional assistant at Whitney Young Elementary School at the time of the alleged incidents. Wadlington passed away on July 17, 2016, prior to the filing of the c omplaint. Wadlington ’ s e state and its administrator were na med parties to the action for the alleged claims against her.- 5

- students were under the supervision of certain Defendants herein.

29. Specifically, without the consent of A.A., [L.E.] put his hands in A.A. ’ s pants and digitally penetrated A.A. ’ s vagina.

. . . .

31. A.A. should not have been sexually assaulted.

32. Immediately after learning of the foregoing incident, A.A. ’ s mother Mary informed Whitney Young administration, including some or all Defendants, that A.A. had been sexually assaulted during school hours.

33. Mary was informed that A.A. was not the first female student sexually assaulted in this manner by [L.E.]
, and that administration would assign another adult to stay with [L.E.] at all times to prevent him from sexually assaulting anyone else.

. . . .

36. A.A. was sexually assaulted again.

37. Specifically, on or about February 23, 2016, [L.E.] again put his hands in A.A. ’ s pants and again digitally penetrated A.A. ’ s vagina, again while both students were under the supervision of certain Defendants herein.

. . . .

41. The foregoing incidents of sexual assault occurred because A.A. and/or [L.E.] were ei ther not being supervised or was [sic] not being supervised adequately by Defendants.- 6

- 42. Pursuant to common law and/or statute and/or other written or unwritten policies, regulations and/or rules, Defendants herein had a ministerial duty to adequately su pervise students in their charge, including A.A.

43. The conduct of Defendants was ministerial in nature, and/or was taken in bad faith, and/or was outside of the scope of their respective employment or authority, and/or violated Plaintiff ’ s constitution al, statutory, or other well

established rights (which include but are not limited to rights contained in policies or procedures and/or case law and/or Kentucky Administrative Regulations), and/or is otherwise conduct for which Defendants are not entitled to immunity.

44. Defendants negligently and inadequately supervised A.A., thus breaching their ministerial duty.

45. Defendants had a duty to reasonably supervise A.A. while A.A. was at school to prevent A.A. from being sexually assaulted and to otherwise avoid and minimize injury to A.A., and that Defendants breached this duty.

46. Defendants had a duty to reasonably supervise [L.E.] while [L.E.] was at school to prevent [L.E.] from assaulting (sexually or otherwise) other students, and Defendants breached this duty, causing harm and damages to A.A.

. . . .

50. Defendants ’ special relationship with A.A., particula rly when coupled with their knowledge that [L.E.] had a history of sexually assaulting- 7

- A.A. and other female students, required them to take all reasonable steps to protect A.A. from harm, ensure A.A. ’ s safety, and otherwise prevent A.A. from needlessly be ing injured and/or sexually assaulted by fellow students.

51. The Defendants herein failed to take reasonable steps to protect A.A., and Defendants took no action to prevent A.A. ’ s injury and damages.

52. The Defendants herein further had a common law d uty to A.A. requiring them to exercise reasonable care to ensure her safety while at Whitney Young Elementary School.

53. Defendants ’ acts and/or omissions described herein above breached their duty to exercise reasonable care to ensure A.A. ’ s safety at W hitney Young Elementary School.

54. Each Defendant was negligent in failing to exercise due care for A.A. ’ s safety.

55. Each Defendant was negligent in failing to provide supervision reasonably necessary to safeguard A.A.

56. Defendants ’ failure to appropriately supervise A.A. constituted a violation of Kentucky law, including but not limited to law regarding the general supervision of the general conduct of the schools pursuant to KRS 160.370 and law requiring the implementation and enfo rcement of student discipline guidelines pursuant to KRS 158.148 et seq. , and Defendants are therefore negligent per se.

57. Defendants ’ negligence per se caused A.A. to endure and will continue to endure in the future- 8

- extensive mental and physical pain and suffering and medical expenses all in an amount sufficient to invoke the jurisdiction of this Court.

58. Plaintiff ’ s injury was further directly and proximately caused by Defendants ’ negligent hiring, training, supervision, and/or retention of others, including but not limited to employees, independent contractors, or volunteers.

Complaint at 3

- 9. Defendants filed a n answer and asserted the defense of

immunity and subsequently file d a motion for summary judgment arguing

entitlement to qualified official immunity

. Defendants maintain ed that decisions as

to appropriate measures to implement in the classroom in the wake of A.A. ’ s
allegations required the use of judgment and discretion by them. In A.A. ’ s
response, she maintained that the supervision of students was a ministerial act for

which defendants enjoy ed no official immunity.

By Opinion and Order entered January 16, 2020, the circuit court

granted in part and denied in part the motion for summary judgment. The circuit

court concluded that S uperintendent Harg a ns and Principal Minyard were entitled

to qualified official immunity. The circuit court observed that the superintendent

and principal did not directly supervise child ren, and the principal acted in a

discretionary function by investigating and implementing policies. However, the

court also noted that Ashton, Fassio, P eake , and W orkman were teachers directly

tasked with supervising students. Likewise, Baker , a classroom volunteer

, and- 9

-

Wadlington

, an instructional assistan t , also directly supervised students. The

circuit court concluded that the direct supervision of students by teachers or

teachers ’ aids was a ministerial act. As a result, the circuit court he ld that Ashton,

Fassio, Wadlington, Baker, Workman, and Peake (collectively referred to as

appellants) were performing ministerial functions during their supervision of A.A.

and were not entitled to qualified official immunity

. This appeal follows.

To be gin

, summary judgment is proper where there exists no material

issue of fact and movant is entitled to judgment as a matter of law. Kentucky

Rules of Civil Procedure 56; Steelvest, Inc. v. Scansteel Service Center, Inc. , 807

S.W.2d 476 (Ky. 1991). Our re view proceeds de novo

. Brown v. Griffin , 505

S.W.3d 777, 781 (Ky. App. 2016).

Appellants contend that the circuit court erred by denying their motion

for summary judgment and concluding they were not entitled to qualified official

immunity. Appellants maintain that their su pervi sion of A.A. w as fundamentally

discretionary acts to which qualified official immunity applies. For the reasons set

forth, we agree.

In Kentucky , a public official sued in his individual capacity for

negligence may be entitled to the shield of qualified official immunity. To be

entitled to qualified official immunity, the public official must have engaged in a

discretionary as opposed to a ministerial act. A ministerial act is generally “one- 10

-

that requires only obedience to the orders of others, or when the officer ’ s duty is

absolute, certain, and imperative, involving merely execution of a specific act

arising from fixed and designated facts.” Yanero v. Davis , 65 S.W.3d 510, 522

(Ky. 20 0 1). Conversely, a discretionary act is one “involving the exercise of

discretion and judgment, or personal deliberation, decision

, and judgment [

. ] ” Id.

If the public official performs a discretionary act

, the official is entitled to qualified

immunity if such act was carried out within the scope of her employment and in

good faith. Yanero , 65 S.W.3d at 5 23

.

Under facts very similar to th o s e presented in this case, the Supreme

Court held that supervision of students by a kindergarten teacher constituted a

discretionary act. In Turner v. Nelson , 342 S.W.3d 866 (Ky. 2011), a kindergarten

student, F.B., alleged that another kindergarten student, C.Y., sexually assaulted

her while at school and brought an actio n against the kindergarten teacher for

negligent supervision. The Supreme Court held that the teacher ’ s supervision of

F.B. and C.Y. was d i scretionary:

[W] e consider Turner ’ s actions in supervising the children to have been discretionary. While there may be legitimate disagreement as to the approach taken by Turner, the consequences of liability under such circumstances would injuriously “deter independent action and impair the effective performance of [teaching] duties.” [ Haney v. Monsky , 311 S.W.3d 235 , 245 (Ky. 2010).]- 11

- It is imperative that teachers maintain the discretion to teach, supervise, and appropriately discipline children in the classroom. To do this, they must have appropriate leeway to do so, to investigate complaints by parents, or others , as to the conduct of their students, to form conclusions (based on facts not always known) as to what actually happened, and ultimately to determine an appropriate course of action, which may, at times, involve reporting the conduct of a child to the app ropriate authorities. In fact, protection of the discretionary powers of our public officials and employees, exercised in good faith, is the very foundation of our doctrine of “qualified official immunity.”

Id. at 876

. By so holding, the Supreme Court recognized that an “apparent

incongruity with our precedent” existed as the Court had previously held that the

direct supervision of students by a teacher constituted a ministerial act. Turner
,

342 S.W.3d at 876. The Cour t resolved this apparent incongruity by pointing out

the factual distinctions between the cases:

In Yanero, this Court deemed “enforcement of a known rule requiring that student athletes wear batting helmets during baseball batting practice” to be ministerial. 65 S.W.3d at 522. Unlike the teacher ’ s decision

- making in this c ase, a helmet requirement constitutes “an essentially objective and binary directive.” Haney
, 311 S.W.3d at 242 ( discussing Yanero
, 65 S.W.3d 510). As a result, “[t]here is no substantial compliance with such an order and i t cannot be a matter of degree: its enforcement was absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” Id. (citation omitted) (internal quotation omitted). You do it- 12

- or you don ’ t

— and unlike here, there is no factual determination required for its application.

Admittedly, we have also “rejected the notion that the failure of teachers

. . . to supervise their students in the face of known and recognized misbehavior was a discretionary act.” Id. at 244 ( discussing Williams

, 113 S.W.3d at 150). This decision stemmed from the requirement in KRS 161.180(1) that teachers must “hold pupils to strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities.” Id. The dispute in this case, though, concerns the means of supervision rather than a failure to supervise students who were drinking and driving to and from a school

- sponsored function as occurred in Williams.

Id. at 876

- 77.

We too are cognizant of a line of Supreme Court cases holding that

the supervision of students by a teacher /coach constitutes a ministerial act. See

Ritchie v. Turner , 559 S.W.3d 822 (Ky. 2018); Patton v. Bickford , 529 S.W.3d 717

(Ky. 201 6 ); Marson v. Tho ma son , 438 S.W.3d 292 (Ky. 201 4 ); Williams v. Ky.

Dep ’ t of Educ. , 113 S.W.3d 145 (Ky. 2003); Yanero , 65 S.W.3d 510. In these

cases, the teachers ’ supervision involved enforcement of a known

, specific rule or

the complete failure to supervise. For instance, Yanero , 65 S.W.3d 510, involved

enforcement of a helmet mandate during ball practice; and Marson
, 438 S.W.3 d at

301, involved implementation of an unwritten “standard procedure [

. ] ”- 13

- In the case at hand, we believe the particular facts herein are wholly

consistent with those in Turner , 342 S.W.3d 866

. 2 As in Turner
, appellants were

kindergarten teachers faced with allegations of sexual assault made by one

kindergarten student against another kindergarten student. And, in both cases,

a ppellants were not enforcing a specific rule or a standard procedure with only

binary options . Rather, appellants necessarily utilized their judgment and

discretion on a daily basis to govern th e interaction between the kindergarten

students during each class. 3

Accordingly, we hold that appellants ’ supervision of A.A. and L.E.

constituted discretionary a cts. As discretionary acts, appellants are entitled to

qualified immunity if such acts were carried out within the scope of their

employment and in good faith. Yanero , 65 S.W.3d at 5 23 . It is clear that

appellants were acting within the scope of their e mployment at the elementary

school

. As to good faith, ther e has not been an allegation that appellants failed to

2 A.A., a minor by and though her mother and next friend

, Mary Ames, argues that Turner v. Nelson , 342 S.W.3d 866 (Ky. 2011) has been impliedly “overruled,” constitutes “bad law” and should be “ ignored” by this Court. A.A. ’ s Brief at 12. As an intermediate appellate court, we are bound to follow Supreme Court precedent. Rules of the Supreme of Court 1.030(8)(a).

3 A.A. also cites to Kentucky Revised Statutes 161.180 and Jefferson County Publi c School Policy 09.221 as support for the conclusion that appellants ’ supervision constituted a ministerial function. However, neither the for e going statute or policy changes the fundamental discretionary
natur e of appellants ’ supervision under the unique facts of this case. On the contrary, this case is controlled by the Supreme Court ’ s holding and reasoning in Turner , 342 S.W.3d 866.- 14

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act in good faith. Therefore , we are of the opinion that appellants are entitled to

the shield of qualified official immunity.

For the fore going reasons, the Opinion and Order of the Jefferson

Circuit Court is reversed and remanded for proceedings consistent with this

Opinion.

ALL CONCUR.

BRIEF S FOR APPELLANT S :

Mark S. Fenzel Dana L. Collins Eli sabeth S. Gray Louisville, Kentucky

ORAL ARGUMENT FOR APPELLANTS:

Dana L. Collins Louisville, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE:

A. Nicholas Naiser Louisville, Kentucky