RENDERED: MARCH 12, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of 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; 

JAHI PEAKE, 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 AND 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 
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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; Jahi Peake, 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 and through 

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

January 16, 2020, Opinion and 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 also 

informed A.A. and L.E.’s primary teacher, Faith Ashton, of 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 Principal Minyard that L.E. had once more put his hand down A.A.’s 
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pants. Ames also informed Ashton of the allegation. Additional measures were 

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

The Cabinet for Health and Family Services conducted 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, filed 

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

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

individual capacities, and Mary Minyard, Principal of Whitney Young Elementary 

School, in her individual 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 teacher - Carolyn Fassio, in her official and individual 

capacities; (3) the art teacher - Jahi Peake, in his official and individual capacities; 

(4) the gym teacher - Laurie Workman, in her official and individual capacities; (5) 

the classroom volunteer - Allen Baker, in her official and individual capacities; and 
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(6) the instructional assistant, the Estate of Bessie E. Wadlington, 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 school 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, regulations 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 complaint. Wadlington’s estate and its administrator were named parties to the action for the 

alleged claims against her.
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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 either 

not being supervised or was [sic] not being 

supervised adequately by Defendants. 
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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 supervise 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 constitutional, statutory, or other wellestablished 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., 

particularly when coupled with their knowledge 

that [L.E.] had a history of sexually assaulting 
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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 being 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 duty 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 Whitney 

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 enforcement 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 
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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 an answer and asserted the defense of 

immunity and subsequently filed a motion for summary judgment arguing 

entitlement to qualified official immunity. Defendants maintained 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 enjoyed 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 Superintendent Hargans and Principal Minyard were entitled 

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

and principal did not directly supervise children, and the principal acted in a 

discretionary function by investigating and implementing policies. However, the 

court also noted that Ashton, Fassio, Peake, and Workman were teachers directly 

tasked with supervising students. Likewise, Baker, a classroom volunteer, and 
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Wadlington, an instructional assistant, 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 held 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 begin, 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 review 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 supervision of A.A. was 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 
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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. 2001). 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 523. 

Under facts very similar to those 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 action against the kindergarten teacher for 

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

F.B. and C.Y. was discretionary:

[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).]
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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 appropriate 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 Court 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 case, 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 it 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 
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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. 2016); Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014); 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.3d at 

301, involved implementation of an unwritten “standard procedure[.]” 
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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, 

appellants 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 the interaction between the kindergarten 

students during each class.3

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

constituted discretionary acts. 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 523. It is clear that 

appellants were acting within the scope of their employment at the elementary 

school. As to good faith, there 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 Public School 

Policy 09.221 as support for the conclusion that appellants’ supervision constituted a ministerial 

function. However, neither the foregoing statute or policy changes the fundamental discretionary 

nature 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.
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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 foregoing reasons, the Opinion and Order of the Jefferson 

Circuit Court is reversed and remanded for proceedings consistent with this 

Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Mark S. Fenzel

Dana L. Collins

Elisabeth S. Gray

Louisville, Kentucky

ORAL ARGUMENT FOR 

APPELLANTS:

Dana L. Collins

Louisville, Kentucky

BRIEF AND ORAL ARGUMENT 

FOR APPELLEE:

A. Nicholas Naiser

Louisville, Kentucky