RENDERED: FEBRUARY 9, 2024; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0110-MR

VANESSA BURNS APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE

ACTION NO. 21-CI-005435

BEATRICE AISTROP APPELLEE 

OPINION

REVERSING

**   **  **

BEFORE: COMBS, JONES, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: In 2021, Appellee, Beatrice Aistrop, tripped and fell while 

walking on a public sidewalk in Louisville, Kentucky. As a result of injuries

sustained, she filed suit in Jefferson Circuit Court seeking damages against the City 

of Louisville and Appellant, Vanessa Burns. Ms. Burns is the Director of 

Louisville Metro Public Works, which is responsible for solid waste management, 

traffic signals, electrical maintenance, road maintenance, road signs and markings, 

and engineering. Sidewalks are included in road maintenance. 
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The Jefferson County Attorney filed a motion to dismiss the City of 

Louisville, and Ms. Burns in her official capacity, based on the doctrine of 

sovereign immunity. The court granted the motion. Ms. Burns, in her individual 

capacity, filed a motion summary judgment based on her qualified immunity, 

which the court denied. The court reasoned in part as follows: “[s]omeone has to 

be the individual responsible for keeping sidewalks safe in our community. Burns 

seems to be that person.” Ms. Burns appeals to this Court as a matter of right. For 

the following reasons, we reverse.1 

STANDARD OF REVIEW

As an initial matter, we note that the denial of a motion for summary 

judgment is generally considered an interlocutory order and is not appealable. 

However, an order denying a substantial claim of absolute immunity is 

immediately appealable even in the absence of a final order. Breathitt County Bd. 

of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009). As a result, we have 

jurisdiction to address Ms. Burns’ claim that the circuit court improperly denied 

her motion for summary judgment.

1

 The record does not indicate whether notice required by Kentucky Revised Statutes (KRS)

411.110 has been satisfied here. To be clear, this issue has not been raised. We note this 

provision only to indicate its potential relevancy in future cases. Compare Muhammad v. City of

Louisville, No. 3:05CV-506-H, 2006 WL 3043422, at *2 (W.D. Ky. Oct. 18, 2006), with Settle v.

Franconia, No. 2022-CA-0099-MR, 2023 WL 3556331, at *2 (Ky. App. May 19, 2023), review

denied (Dec. 6, 2023). 
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A motion for summary judgment should be granted “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.” CR2 56.03. “Because no factual issues are involved and only a legal issue is 

before the court on the motion for summary judgment, we do not defer to the trial 

court and our review is de novo.” Univ. of Louisville v. Sharp, 416 S.W.3d 313, 

315 (Ky. App. 2013) (citation omitted). With this standard in mind, we turn to the 

substantive law and the facts of the present case.

ANALYSIS

The sole question on appeal is whether the circuit court properly 

denied Ms. Burns’ motion for summary judgment based upon qualified immunity. 

Qualified official immunity applies to a negligent act or omission by a public 

officer or employee for his or her “(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) (citing

RESTATEMENT (SECOND) OF TORTS § 895D (1979)). However, qualified immunity 

does not extend to the negligent performance of ministerial acts. Id. In Marson v. 

2

 Kentucky Rules of Civil Procedure. 
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Thomason, 438 S.W.3d 292 (Ky. 2014), the Kentucky Supreme Court observed 

that the distinction between ministerial and discretionary duties is often difficult to 

discern. Id. at 296.

At its most basic, a ministerial act is “one that 

requires only obedience to the orders of others, or when 

the officer’s duty is absolute, certain, and imperative, 

involving merely execution of a specific act arising from 

fixed and designated facts.” [Yanero, 65 S.W.3d] at 522.

. . . In reality, a ministerial act or function is one that the 

government employee must do “without regard to his or 

her own judgment or opinion concerning the propriety of 

the act to be performed.” 63C Am.Jur.2d Public Officers 

and Employees § 318 (updated through Feb. 2014). In 

other words, if the employee has no choice but to do the 

act, it is ministerial. 

On the other hand, a discretionary act is usually 

described as one calling for a “good faith judgment call[] 

made in a legally uncertain environment.” Yanero, 65 

S.W.3d at 522. It is an act “involving the exercise of 

discretion and judgment, or personal deliberation, 

decision, and judgment.” Id. Given the volume of 

litigation on the subject, it is clear that these definitions 

are not a model of clarity. No doubt, this is due to their 

having been written in general, somewhat sweeping 

terms.

Id. at 297. In addition to the aforementioned authority, we find Wales v. Pullen

particularly instructive. 390 S.W.3d 160, 167 (Ky. App. 2012). 

In Wales, Plaintiff sued Ted Pullen, the Director of the Louisville 

Metro Department of Public Works at the time, for injuries resulting from the 

alleged failure to remove a downed tree that was in the roadway or otherwise warn 
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motorists about the tree. Id. at 163. The trial court granted Pullen summary 

judgment on the basis of qualified immunity. The Court of Appeals affirmed and

explained: 

As the director of public works, Pullen presided over a 

department with eight divisions and nearly 800 

employees. . . . We agree with the trial court that none of 

these duties involve obedience to the orders of others or 

the execution of any specific act, such that they are 

ministerial in nature. Thus, Pullen’s duties were 

discretionary in nature under Yanero. Pullen was entitled 

to qualified immunity[.]

Id. at 167. In contrast, Ms. Aistrop cites to an earlier unpublished decision by this 

Court also involving Director Pullen. See Pullen v. Conder, No. 2009-CA-000450-

MR, 2010 WL 4295582, at *3 (Ky. App. Oct. 29, 2010). Therein, the Court 

reasoned: 

In his complaint, Conder alleged that Pullen had a 

duty to maintain the sidewalk. In his answer, Pullen 

denied any such duty. Therefore, at this stage of the 

litigation, the question before the court was: did Pullen 

have a duty to repair defective sidewalks? In his 

affidavit, Pullen stated that he makes decisions regarding 

a number of things, including what “sites requir[e] 

maintenance, remodeling, and repair.” Furthermore, 

Pullen stated that his Department responds to citizen 

complaints about sidewalk defects. Pullen did not state 

that he or the Department can choose not to repair a 

sidewalk. Therefore, Pullen admitted that the 

Department has responsibility for repairing sidewalks, an 

admission confirmed by the Department’s website. 

Because repairing sidewalks is mandatory, doing so is a 

ministerial function of Pullen’s office. How to make 

repairs and, possibly, when to make those repairs, would 
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be discretionary functions of Pullen’s office, but, 

on the record as it currently exists, making repairs 

is ministerial. Just as the coaches in Yanero were 

required to enforce the rule regarding the use of 

batting helmets, the Department and Pullen, as its 

head, are required to maintain sidewalks. Because 

that function is not discretionary but ministerial, 

the trial court correctly denied Pullen’s motion for 

summary judgment on the issue of qualified 

immunity.

Id. 

On balance, the present case is more like Wales than Pullen. Wales is 

also the more recent of the two, and is published. And we agree with Ms. Burns 

that the record here is more complete than in Pullen, and indicates the 

discretionary nature of her executive role. More precisely, her deposition 

testimony indicates that no individuals were specifically tasked with proactively 

assessing the concrete labyrinth crisscrossing our Commonwealth’s largest Metro 

area. However, once a complaint was filed, an assessment of the alleged defect 

would be made by those Metro employees or agents possessing the relevant 

expertise and skill necessary. The most poorly rated sidewalks would receive 

repair priority. There is no indication that Ms. Burns had any connection to the 

day-to-day workings of the specific subordinate subdivision tasked with repairing 

sidewalks. Therefore, at least in this instance, Ms. Burns’ acts and functions

pertaining to sidewalk repair were discretionary.
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And of course, the entirety of this system of assessment and repair is 

confined by the discretionary fiscal realities facing all of our municipalities – from 

our towering towns to our most humble hamlets. Nevertheless, we find Ms. Burns’ 

final argument unconvincing – that the present action was barred by the Claims 

Against Local Governments Act (CALGA), KRS 65.200 et seq. A similar issue

was addressed by this Court in Russell v. City of Owensboro, No. 2012-CA002006-MR, 2014 WL 1407238, at *5 (Ky. App. Apr. 11, 2014). Therein, the 

Court held:

the City’s Sidewalk Plan falls squarely within the quasilegislative authority of the City and its decision regarding 

which sidewalks to repair was made in its discretion 

when allocating the City’s resources. Consequently, we 

hold it is exempt from liability under the CALGA.

Unlike the present case, the holding was confined to the defendant, the City of 

Owensboro. And the plan at issue, the “Sidewalk Policy and Construction and 

Maintenance Plan,” was expressly established “because the City lacks the physical 

and financial ability to repair the many miles of sidewalks within the City.” Id. at 

*1. No such evidence exists in the present case. Therefore, while the reasoning in 

Russell may be sound, it is distinguishable from the present case, is unpublished,

and has not been applied on its merits since its rendition in 2014. Although

instructive, Russell is certainly not dispositive here, and we decline the invitation

to extend it further. 
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CONCLUSION

For the foregoing reasons, we reverse the Jefferson Circuit Court’s 

denial of summary judgment. 

COMBS, JUDGE, CONCURS.

JONES, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE 

OPINION. 

BRIEFS FOR APPELLANT:

Michael J. O’Connell

Jefferson County Attorney

Richard Elder

Roy C. Denny

Assistant Jefferson County Attorneys

Louisville, Kentucky

BRIEF FOR APPELLEE:

Damon Blake Willis

Louisville, Kentucky