RENDERED: FEBRUARY 19, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0396-MR

MARK E. BOLTON APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE OLU A. STEVENS, JUDGE

ACTION NO. 19-CI-003600 

DANIELLA BLAINE, 

ADMINISTRATRIX, ESTATE OF 

KENNETH H. CROSS, II APPELLEE 

OPINION

AFFIRMING IN PART

AND REVERSING IN PART

**   **  **

BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.

DIXON, JUDGE: Mark E. Bolton appeals from the order denying his motion for 

summary judgment entered by the Jefferson Circuit Court on February 18, 2020,

asserting he is entitled to qualified immunity as to the negligence claims brought 

against him. After careful review of the briefs, record, and the law, we affirm in 

part and reverse in part.
-2-

FACTS AND PROCEDURAL BACKGROUND

This appeal stems from the death of Kenneth H. Cross, II, while an 

inmate with the Louisville Metro Department of Corrections (LMDOC). 

On August 25, 2012, at approximately 5:00 p.m., Cross was arrested 

pursuant to a warrant that included drug-related charges. He was subsequently 

evaluated and booked into the LMDOC facility. At the time of his evaluation by a 

booking nurse—a licensed practical nurse—Cross was exhibiting signs of drug 

overdose. Consequently, Cross was placed on a detoxification protocol and 

assigned a bottom bunk in an observation cell to minimize potential injuries were 

he to fall out of bed. Cross was to be checked every eight hours by medical 

personnel, as well as periodically by jail personnel, to make sure he was still 

breathing. Shortly after arriving at his bunk, Cross fell asleep and was snoring 

loudly. LMDOC policy at that time did not require jail personnel to attempt to 

wake Cross to see if he was still conscious, and none did.

At approximately 8:47 p.m., another inmate alerted jail personnel that 

something was wrong with Cross. By the time jail personnel arrived, Cross was 

not breathing; he was pale; his lips were blue; and he was unresponsive. Despite 

attempts to revive him, Cross passed away. It was later determined by the coroner 

that the cause of death was an overdose of drugs ingested prior to his booking.
-3-

At the time of Cross’s arrest, LMDOC policies prohibited the 

admission of unconscious arrestees to the facility; rather, policy required an 

unconscious arrestee be taken to a hospital. Pursuant to those same policies, jail 

personnel were only expected to assess arrestees before admission for 

unconsciousness where they might appear merely to be sleeping. Consequently, 

none of the jail personnel responsible for Cross’s care had been trained to wake 

intoxicated individuals to ensure that they did not fall into a state of 

unconsciousness after their admission. Ironically, both drug overdose and 

unconsciousness were considered medical emergencies in the jail.

Cross’s estate brought the instant action against Bolton, the LMDOC 

Director, alleging negligence and gross negligence.

1

 Bolton moved the trial court 

for summary judgment, alleging he is entitled to qualified immunity as to these 

negligence claims. The trial court denied Bolton’s motion, and this appeal 

followed.

QUALIFIED OFFICIAL IMMUNITY

Bolton filed an interlocutory appeal, arguing the negligence claims

against him in his individual capacity are barred by qualified official immunity. 

This appeal is properly before us because an order denying a substantial claim of 

qualified official immunity is immediately appealable. Harrod v. Caney, 547 

 

1

 The estate sued other entities as well, but they are not at issue here. 
-4-

S.W.3d 536, 540 (Ky. App. 2018); Breathitt Cty. Bd. of Educ. v. Prater, 292 

S.W.3d 883, 887 (Ky. 2009); Mattingly v. Mitchell, 425 S.W.3d 85, 89 (Ky. App. 

2013).

On appeal, Bolton argues the trial court erred by determining he is not

entitled to qualified immunity for the negligence claims against him in his 

individual capacity. This is the sole issue before us as “the scope of appellate 

review of an interlocutory appeal of the trial court’s determination of the 

application of qualified official immunity is limited to the specific issue of whether 

the immunity was properly denied and nothing more.” Baker v. Fields, 543 

S.W.3d 575, 578 (Ky. 2018).

The standard for immunity is well-settled:

“Official immunity” is immunity from tort liability 

afforded to public officers and employees for acts 

performed in the exercise of their discretionary functions. 

It rests not on the status or title of the officer or 

employee, but on the function performed. Salyer v. 

Patrick, 874 F.2d 374 (6th Cir. 1989). . . . [W]hen an 

officer or employee of a governmental agency is sued in 

his/her representative capacity, the officer’s or 

employee’s actions are afforded the same immunity, if 

any, to which the agency, itself, would be entitled . . . . 

But when sued in their individual capacities, public 

officers and employees enjoy only qualified official 

immunity, which affords protection from damages 

liability for good faith judgment calls made in a legally 

uncertain environment. 63C AM.JUR. 2d, Public Officers 

and Employees, § 309 (1997). Qualified official 

immunity applies to the negligent performance by a 

public officer or employee of (1) discretionary acts or 
-5-

functions, i.e., those involving the exercise of discretion 

and judgment, or personal deliberation, decision, and 

judgment, id. § 322; (2) in good faith; and (3) within the 

scope of the employee’s authority. Id. § 309; 

RESTATEMENT (SECOND) [OF THE LAW OF TORTS § 895D 

cmt. g. (A.L.I. 1979)]. An act is not necessarily 

“discretionary” just because the officer performing it has 

some discretion with respect to the means or method to 

be employed. Franklin [Cty.] v. Malone, [957 S.W.2d 

195, 201 (Ky. 1997) (quoting Upchurch v. Clinton Cty., 

330 S.W.2d 428, 430 (Ky. 1959))]. Qualified official 

immunity is an affirmative defense that must be 

specifically pled. Gomez v. Toledo, 446 U.S. 635, 100 S.

Ct. 1920, 64 L. Ed. 2d 572 (1980).

Conversely, an officer or employee is afforded no 

immunity from tort liability for the negligent 

performance of a ministerial act, i.e., 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. Franklin [Cty.] v. Malone, 

supra, at 201. “That a necessity may exist for the 

ascertainment of those facts does not operate to convert 

the act into one discretionary in nature.” Upchurch v. 

Clinton [Cty.], supra, at 430. See also RESTATEMENT 

(SECOND) TORTS, supra, § 895D cmt. h; 63C AM.JUR. 

2d, Public Officers and Employees, §§ 324, 325 (1997).

Yanero v. Davis, 65 S.W.3d 510, 521-22 (Ky. 2001).

Here, we must determine what qualified immunity Bolton enjoys, if 

any, as an affirmative defense to the claims against him. We note that qualified 

immunity is not a blanket shield for all tort claims. Yanero, the seminal authority 

on governmental immunity in Kentucky, held that qualified official immunity 

protects discretionary acts negligently performed by public officials so long as 
-6-

they are acting within their authority and in good faith. Id. “Qualified immunity 

gives government officials breathing room to make reasonable but mistaken 

judgments, and protects all but the plainly incompetent or those who knowingly

violate the law.” Stanton v. Sims, 571 U.S. 3, 6, 134 S. Ct. 3, 5, 187 L. Ed. 2d 341 

(2013) (per curiam) (emphasis added) (citations and internal quotation marks 

omitted). “[W]hen sued in their individual capacities, public officers and 

employees enjoy only qualified official immunity, which affords protection from 

damages liability for good faith judgment calls made in a legally uncertain 

environment.” Yanero, 65 S.W.3d at 522 (emphasis added) (citation omitted).

Here, the trial court found Bolton was not entitled to qualified official 

immunity because his actions were ministerial rather than discretionary. The trial 

court opined:

Director Bolton properly asserts that supervising 

employees is a discretionary function protected by 

qualified immunity. He also properly asserts that 

establishing jail policy is a discretionary function. But 

those are not the Plaintiff’s claims here. Plaintiff alleges 

Director Bolton was negligent in failing to properly 

enforce [LMDOC] policy regarding medical 

emergencies. Specifically, Plaintiff claims Director 

Bolton failed to train employees to awaken intoxicated 

individuals to ensure they have not fallen into a state of 

unconsciousness. The Court finds this is a ministerial 

function to which qualified immunity does not apply. 

(Emphasis added.)
-7-

Our review requires us to first revisit the estate’s claims in its 

complaint. Count I of the complaint asserts the defendants—including Bolton—

“were negligent and grossly negligent.” Count IV alleges Cross’s death was 

substantially caused by Bolton’s failure “to properly or conscientiously train and 

supervise the conduct of [his] employees and subordinates, and/or to promulgate 

appropriate operating policies and procedures either formally or by custom and 

practice to protect inmates like Mr. Cross.” For purposes of this appeal, we first 

discuss whether immunity applies to the gross negligence claims and then whether 

immunity applies to the other, ordinary negligence claims against Bolton. 

Immunity Unavailable for Gross Negligence

To establish negligence, a plaintiff must prove “that (1) the defendant 

owed the plaintiff a duty of care, (2) the defendant breached the standard by which 

his or her duty is measured, and (3) consequent injury.” Pathways, Inc. v. 

Hammons, 113 S.W.3d 85, 88 (Ky. 2003) (citation omitted). By contrast, a gross 

negligence claim has only two elements: (1) “a finding of failure to exercise 

reasonable care” and (2) “an additional finding that this negligence was 

accompanied by wanton or reckless disregard for the lives, safety, or property of 

others.” Gibson v. Fuel Transp., Inc., 410 S.W.3d 56, 59 (Ky. 2013) (citation 

omitted). Stated another way, “there must be an element either of malice or 

willfulness or such an utter and wanton disregard of the rights of others as from 
-8-

which it may be assumed the act was malicious or willful.” City of Middlesboro v. 

Brown, 63 S.W.3d 179, 181 (Ky. 2001) (citation omitted). 

In Martin v. O’Daniel, 507 S.W.3d 1 (Ky. 2016), the Supreme Court 

explained:

Acting with malice and acting in good faith are

mutually exclusive. . . . But, it is also a fact that defeats 

the defendant’s assertion of qualified official immunity. 

Official immunity is unavailable to public officers who 

acted “with the malicious intention to cause a deprivation 

of constitutional rights or other injury . . . .” Yanero, 65 

S.W.3d at 523 (quoting Harlow v. Fitzgerald, 457 U.S. 

800, 815, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)).

It thus becomes apparent that the very same 

evidence that establishes the eponymous element of a 

malicious prosecution action simultaneously negates the 

defense of official immunity. In simpler terms, if a 

plaintiff can prove that a police officer acted with malice, 

the officer has no immunity; if the plaintiff cannot prove 

malice, the officer needs no immunity.

Id. at 5 (emphasis added). The same logic applies to gross negligence actions. 

Consequently, and pursuant to Martin, Bolton is not entitled to summary judgment 

on grounds of qualified official immunity pertaining to any claim of gross 

negligence. If Bolton acted with malice, he is not entitled to immunity; if he had 

no malice, he needs no immunity, since proof of malice is a necessary element to

prevail on a claim of gross negligence. Id. Accordingly, the trial court correctly 

denied summary judgment to Bolton on the gross negligence claim as it was not 

barred by qualified official immunity, and we must affirm this part of its decision. 
-9-

Ordinary Negligence:

Immunity for Discretionary but Not Ministerial Acts

This now leaves us to determine whether the trial court properly 

denied summary judgment as to the ordinary negligence claims against Bolton on 

grounds of lack of qualified official immunity. Under Yanero, whether qualified 

official immunity is available to Bolton will depend on the characterization of each 

of his actions, whether they are discretionary or ministerial in nature. 

It is well-established that “[p]romulgation of rules is a discretionary 

function; enforcement of those rules is a ministerial function.” Williams v. 

Kentucky Dep’t of Educ., 113 S.W.3d 145, 150 (Ky. 2003). Thus, to the extent the 

estate attempts to pursue any claims against Bolton concerning promulgation of 

rules, such claims are barred; however, to the extent the estate pursues its claims 

against Bolton for enforcement of said rules, such claims are not typically barred

on qualified official immunity grounds.

We further note, “the determination of whether a particular act is 

discretionary or ministerial focuses on the ‘dominant nature of the act’ and is 

inherently fact-sensitive. [Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010).]” 

Hedgepath v. Pelphrey, 520 Fed. App’x 385, 389 (6th Cir. 2013) (emphasis in 

original). Although factual issues cannot be resolved at this stage of the litigation, 

we must still bear these principles in mind during our immunity analysis. As 

previously stated, we lack jurisdiction to consider factual issues on appeal; rather, 
-10-

we only review legal questions as to whether Bolton is entitled to qualified official 

immunity.

Negligent Training and Supervision

Herein, the complaint explicitly alleges that Bolton failed “to properly 

or conscientiously train and supervise the conduct of [his] employees and 

subordinates, and/or to promulgate appropriate operating policies and procedures 

either formally or by custom and practice to protect inmates like Mr. Cross.” The 

first part of this allegation contends that Bolton negligently trained and supervised

his employees. “These legal questions are well-settled. As to training, although 

deciding on the content of policies and training is a discretionary function, the 

training of employees to adhere to their duties once that content is decided is a 

ministerial function. See Yanero, 65 S.W.3d at 529.” Hedgepath, 520 Fed. App’x 

at 391. 

In Hedgepath, the Court discussed claims concerning negligent 

training and supervision, explaining:

Hedgepath’s claim is that the contents of the policy were 

decided and that the Supervisory Jailers simply failed to 

train the jailers on how to comply with those policies. 

Because this claim implicates a ministerial duty, the 

District Court’s denial of qualified immunity will be 

affirmed. With respect to the negligent supervision

claim, the supervision of employees is a ministerial act 

when it merely involves enforcing known policies. See 

Yanero, 65 S.W.3d at 522. Hedgepath claims that the 

Supervisory Jailers did not enforce known policies. 
-11-

Consequently, the Supervisory Jailers are not entitled to 

qualified immunity because their duty to supervise the 

Deputy Jailers was ministerial.

Id. at 391-92 (emphasis added). Again, we note our lack of jurisdiction to consider 

any factual issues raised by Bolton. According to the estate’s claims, LMDOC’s 

policies specifically listed drug overdose and unconsciousness as medical 

emergencies, but inadequate training and supervision allowed Cross to experience 

these conditions without proper medical treatment, which led to his otherwise 

preventable death. Looking only at the legal issue of immunity, we agree with the 

trial court that—as observed in Hedgepath—qualified official immunity does not 

apply to the training or supervision claims brought herein. 

We disagree with Bolton that the case herein is less like Hedgepath 

and Finn v. Warren County, Kentucky, 768 F.3d 441 (6th Cir. 2014)—cases 

concerning immunity of jailers—and more similar to Wales v. Pullen, 390 S.W.3d 

160 (Ky. App. 2012)—which concerned immunity of a director of public works 

but not a county engineer. In Finn, the Court held that although a supervisor’s 

decision “on the content of policies and training is a discretionary function, the 

training of employees to adhere to their duties once that content is decided is a 

ministerial function.” 768 F.3d at 449 (citation omitted). This is essentially 

identical to allegations in the complaint herein. In Wales, the Court found the 

director of public works was entitled to qualified official immunity, but the county 
-12-

engineer who had a statutory duty to remove trees was not entitled to qualified 

official immunity. 390 S.W.3d at 167. Here, the buck does not necessarily stop 

with a lower level in the chain-of-command, as Bolton argues. There can be no 

doubt that the case herein bears more resemblance to Hedgepath and Finn than 

Wales in its fact pattern and (un)availability of qualified official immunity. 

Following the guidance of these cases, we affirm the trial court’s denial of 

summary judgment based on lack of qualified official immunity for Bolton against 

the estate’s claims of negligent training and supervision. 

Negligent Promulgation of Policies and Procedures

We next turn to the portion of the complaint concerning Bolton’s 

promulgation of policies and procedures—more specifically, the allegation that 

Bolton failed “to promulgate appropriate operating policies and procedures either 

formally or by custom and practice to protect inmates like Mr. Cross.” As 

previously noted, Bolton is clearly entitled to immunity for that claim. See 

Williams, 113 S.W.3d at 150. Consequently, the trial court erred in not granting 

Bolton’s motion for summary judgment against that claim, and we must reverse in 

part only. 

Negligent Enforcement of Policies 

The trial court noted that the estate alleged Bolton was negligent in 

failing to properly enforce LMDOC policy regarding medical emergencies and in 
-13-

failing to train employees to wake intoxicated individuals to ensure they did not 

fall into a state of unconsciousness. The trial court viewed these actions as 

ministerial functions to which qualified immunity does not apply. This is 

consistent with Williams in that “enforcement of those rules is a ministerial 

function.” Id. Therefore, we cannot say the trial court erred in denying Bolton’s 

motion for summary judgment requesting the trial court find him entitled to 

qualified official immunity for that claim. Accordingly, we also affirm that part of 

the trial court’s order.

CONCLUSION

Therefore, and for the foregoing reasons, the order entered by the 

Jefferson Circuit Court is AFFIRMED in part and REVERSED in part.

ALL CONCUR.

BRIEFS FOR APPELLANT:

J. Denis Ogburn 

Louisville, Kentucky

BRIEF FOR APPELLEE:

Gregory A. Belzley

Prospect, Kentucky

Paul Brizendine

Jeffersonville, Indiana