RENDERED: SEPTEMBER 16, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0327-MR

RICK HOLMAN APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 17-CI-01664

ESTATE OF TYLER WILLIAMS, 

BY AND THROUGH MEGAN WILLIAMS, 

AS ADMINISTRATRIX; KARSON HOLLAR;

L-M ASPHALT PARTNERS, LTD D/B/A ATS

CONSTRUCTION; ADALEY WILLIAMS; 

CARTER WILLIAMS; AND 

MEGAN WILLIAMS, INDIVIDUALLY APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, CETRULO, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Rick Holman (“Appellant”) appeals from an 

interlocutory order of the Fayette Circuit Court denying his motion for summary 
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judgment. Appellant argues that the circuit court erred in failing to properly apply 

Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), to conclude that Appellant is entitled 

to qualified official immunity. After careful review, we affirm the order on appeal.

FACTS AND PROCEDURAL HISTORY

L-M Asphalt Partners, Ltd., d/b/a ATS Construction (“ATS”),

contracted with the Kentucky Transportation Cabinet (“KYTC”) to perform road 

work on the Todd’s Road Project in Lexington, Kentucky. KYTC employee 

Robert Johnson was responsible for overseeing the project, supervising 

construction, and ensuring the overall safety on the project including Occupational 

Safety and Health Administration (“OSHA”) compliance. Appellant was the 

KYTC on-site inspector for the project and Mr. Johnson’s designee. Appellant’s 

responsibilities included completion of the project in compliance with state and 

federal safety laws and regulations. Appellant had the authority to stop work on 

the project if he observed unsafe conditions.

On the morning of May 4, 2016, Appellant was at the Todd’s Road 

Project site when he saw ATS employee Tyler Williams climb out of a trench in 

the ground that was approximately 13 feet deep. The trench had been excavated 

for the purpose of laying a drainage pipe. Appellant determined that the trench 

needed cave-in protection, and after Williams exited the trench, Appellant 
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commented that “it looks like there needs to be a trench box in there to me.”1

Appellant did not prevent Williams from re-entering the trench. Williams entered 

the trench, which collapsed on him resulting in his death.

Thereafter, Williams’ estate, Williams’ wife, Megan, their two 

children, and Megan’s child from a prior relationship filed a negligence action 

against Appellant and Johnson as a result of Williams’ death. The matter 

proceeded in Fayette Circuit Court, whereupon Appellant and Johnson filed a joint 

motion for summary judgment. In support of the motion, they claimed entitlement 

to qualified official immunity, argued that there was no breach of a duty, and that

Megan’s child from the prior relationship, Karson Hollar, failed to state a claim 

upon which relief could be granted. 

On March 10, 2021, the Fayette Circuit Court entered an order 

granting in part and denying in part the motion for summary judgment. The court 

determined that pursuant to Yanero, supra, Johnson’s duty to immediately halt 

work on a dangerous project was discretionary as he was a supervisor who was not 

present at the project when the trench collapsed. As such, the circuit court 

concluded that Johnson was shielded by qualified official immunity. The court 

sustained the motion for summary judgment as to Karson Hollar’s claim of loss of 

parental consortium, as Williams was not the child’s biological nor adoptive father. 

1 A trench box is a steel structure designed to prevent the walls of a trench from caving in.
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In examining the motion as to Appellant, the circuit court found that 

Appellant had the same duty as Johnson to stop work on the project if he observed 

an imminent danger. This duty derived from various provisions of KYTC’s 

Construction Guidance Manual, as well as KYTC’s Standard Specifications, which 

required Appellant to suspend work immediately if he recognized an imminent 

danger. The court determined that because Appellant was present at the site, and 

observed a dangerous condition (a deep trench with no trench box), Appellant’s 

duty to act was ministerial and did not require deliberation or analysis. Per 

Yanero, and having found that Appellant’s duty was ministerial, the court 

concluded that Appellant was not entitled to qualified official immunity. This 

interlocutory appeal followed.

STANDARD OF REVIEW

Summary judgment “shall be rendered forthwith 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.” Kentucky Rules of Civil Procedure (CR) 56.03. “The record must be 

viewed in a light most favorable to the party opposing the motion for summary 

judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. 

Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary 
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judgment should be granted only if it appears impossible that the nonmoving party 

will be able to produce evidence at trial warranting a judgment in his favor. Id. 

“Even though a trial court may believe the party opposing the motion may not 

succeed at trial, it should not render a summary judgment if there is any issue of 

material fact.” Id. Finally, “[t]he standard of review on appeal of a summary 

judgment is whether the trial court correctly found that there were no genuine 

issues as to any material fact and that the moving party was entitled to judgment as 

a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).

ARGUMENTS AND ANALYSIS

Appellant argues that he is entitled to qualified official immunity as a 

matter of law, and that the Fayette Circuit Court incorrectly determined that a

Construction Guidance Manual imposed on him a ministerial rather than 

discretionary duty. He argues that the challenged conduct involved him exercising 

personal judgment in a matter of seconds and was, therefore, discretionary in 

nature. He asserts that while the manual sets out both discretionary and ministerial

duties, Construction Guidance Manual section CST-111-4 provides KYTC 

officials with discretionary authority. Appellant asserts that deciding when to 

inspect and when enough information is available is a discretionary matter, that 

public policy favors a finding of qualified official immunity, that he was acting 

within the scope of his authority and that there was no basis for finding bad faith 
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per Yanero. He seeks an opinion reversing the order on appeal and a finding that 

he is entitled to qualified official immunity.

“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. Official 

immunity can be absolute, as when an officer or 

employee of the state is sued in his/her representative 

capacity, in which event his/her actions are included 

under the umbrella of sovereign immunity 

. . . . Similarly, when 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. Qualified 

official immunity applies to the negligent performance by 

a public officer or employee of (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. 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. Qualified official immunity is an 

affirmative defense that must be specifically pled.

Yanero, 65 S.W.3d at 521-22 (citations omitted).

[D]iscretionary acts or functions are those that 

necessarily require the exercise of reason in the 

adaptation of means to an end, and discretion in 

determining how or whether the act shall be done or the 

course pursued. Discretion in the manner of the 
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performance of an act arises when the act may be 

performed in one or two or more ways, either of which 

would be lawful, and where it is left to the will or 

judgment of the performer to determine in which way it 

shall be performed.

Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (citation omitted).

In contrast, qualified official immunity does not protect one who 

negligently performs, or fails to perform, a ministerial duty. “A ministerial duty is 

one that requires only obedience to the orders of others.” Patton v. Bickford, 529 

S.W.3d 717, 724 (Ky. 2016), as modified on denial of reh’g (Aug. 24, 2017) 

(internal quotation marks and citation omitted). “The act of governing cannot be a 

tort, but failing to carry out the government’s commands properly when the acts [to 

be performed] are known and certain can be.” Id. (internal quotation marks and 

citation omitted). Stated differently, “a duty is ministerial when the officer’s duty 

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

arising from fixed and designated facts.” Id. (internal quotation marks and citation 

omitted).

Categorizing actions as either the performance of a 

discretionary duty or the performance of a ministerial 

duty is vexing to litigants and courts alike. . . . A 

somewhat rudimentary expression of the distinction 

between discretionary and ministerial acts provides that 

[p]romulgation of rules is a discretionary function; 

enforcement of those rules is a ministerial function.

Id. (internal quotation marks and citation omitted).
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The primary question for our consideration is whether the Fayette 

Circuit Court properly determined that Appellant’s duty was ministerial rather than 

discretionary. The KYTC Construction Guidance Manual provides in relevant part 

that Appellant had a duty to immediately suspend work when a recognized danger 

is considered to be imminent. CTS-111-4, et al. “Imminent danger is any situation 

or condition occurring on a construction project that, in the opinion of the SE 

[Section Engineer], may result in serious injury or death to construction personnel 

or the public.” CTS-111-4. 

A panel of this Court has previously held that the duty to immediately 

suspend work upon recognition of an imminent danger per KYTC’s Construction 

Guidance Manual is a ministerial duty. In Meredith v. Decker, No. 2016-CA000721-MR, 2018 WL 4054940 (Ky. App. Aug. 24, 2018), the employee of a

subcontractor working on a KYTC project was killed when the form used to pour a

concrete retaining wall collapsed. The decedent’s estate sued several KYTC

engineers in their individual capacities for negligence resulting from their alleged

breach of duty per the Construction Guidance Manual to suspend work after

recognizing an immediate danger. In considering their claim of entitlement to

qualified official immunity, the Barren Circuit Court rejected their immunity

arguments upon determining that the KYTC engineers’ duty was ministerial. It

based this finding in part on the mandatory “shall” language of the Construction
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Guidance Manual creating the duty. Upon finding the duty to be ministerial rather

than discretionary, the circuit court concluded that Yanero did not allow for the

application of qualified official immunity under the facts before it.

Similarly, in the matter at bar, Appellant had a mandatory duty to

suspend work if he recognized an immediate danger. Appellant’s deposition

testimony establishes that he recognized the immediate danger when he stated just

before the accident that “it looks like there needs to be a trench box in there to 

me.” It is uncontroverted that he observed the 13 foot deep trench with 

unsupported walls. Because Appellant had a mandatory duty to suspend work 

when the imminent danger was recognized, and as this duty did not implicate “the 

exercise of discretion and judgment, or personal deliberation, decision, and 

judgment,” Yanero, 65 S.W.4d at 552, we conclude that the duty was ministerial 

rather than discretionary. The remaining elements of Yanero, i.e., whether the 

public officer or employee acted in good faith and within the scope of his 

authority, are moot. We are not persuaded by Appellant’s argument that public 

policy considerations favor a finding that Appellant’s duty was discretionary rather 

than ministerial.

This decision addresses only whether Appellant’s duty was ministerial 

or discretionary, and the resultant application, if any, of qualified official 

immunity. We do not address whether Appellant breached his duty, nor whether 
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there was any proximate causation or damages. “[A]n appellate court reviewing an 

interlocutory appeal of a trial court’s determination of a defendant’s immunity 

from suit is limited to the specific issue of whether immunity was properly denied, 

nothing more.” Baker v. Fields, 543 S.W.3d 575, 578 (Ky. 2018). 

CONCLUSION

Per Yanero, Appellant’s duty to suspend work upon recognizing an 

imminent danger was ministerial rather than discretionary. As such, he is not 

entitled to qualified official immunity. The Fayette Circuit Court properly denied 

Appellant’s motion for summary judgment on this issue. Accordingly, we affirm 

the order of the Fayette Circuit Court denying Appellant’s motion for summary 

judgment.

ALL CONCUR.

BRIEFS FOR APPELLANT:

James G. Womack

Joshua L. Ellis

Sami C. Oudeh

Lexington, Kentucky

BRIEF FOR APPELLEES:

Jennifer A. Moore

Emily A. DeVuono

Louisville, Kentucky