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NOT TO BE PUBLISHED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 

v. 

APPEAL FROM JOHNSON CIRCUIT COURT

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.
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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:

Andre F. Regard

Charles W. Rowland

Lexington, Kentucky

BRIEF FOR APPELLEE JOHNSON 

COUNTY SHERIFF’S 

DEPARTMENT AND JEFF TABOR:

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