RENDERED: MAY 10, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0600-MR

RBRC, INC. D/B/A RIVER’S BEND 

RETIREMENT COMMUNITY; 

SANDY KAMINSKAS; STACY 

BULLOCK; AND THE GUARDIAN 

FOUNDATION, INC. APPELLANTS 

v. 

APPEAL FROM LYON CIRCUIT COURT

HONORABLE NATALIE WHITE, JUDGE

ACTION NO. 21-CI-00044

DAVID MASSAMORE, AS 

EXECUTOR OF THE ESTATE OF 

JEAN MASSAMORE APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CETRULO, GOODWINE, AND A. JONES, JUDGES.
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CETRULO, JUDGE: Appellants RBRC, Inc. d/b/a River’s Bend Retirement 

Community (the “Retirement Community”), Sandy Kaminskas,1 Stacy Bullock,2

and the Guardian Foundation, Inc.3(together, “RBRC”) appeal the Lyon Circuit 

Court Order denying their motion to dismiss Appellee David Massamore’s 

(“Massamore”) complaint.

I. FACTUAL AND PROCEDURAL HISTORY

In March 2020, Jean Massamore (“Decedent”), lived in the 

Retirement Community. Around that time, the COVID-19 crisis proliferated in 

Kentucky, and RBRC began prohibiting access to outside visitors. However, it 

continued to host social events for the residents and did not require its employees 

to wear personal protective equipment. In late-March 2020, although Decedent

had no contact with outside visitors other than RBRC staff, she developed 

symptoms of COVID-19 and passed away a few days later. Prior to Decedent’s 

contraction of COVID-19, RBRC had conducted no COVID-19 testing on staff or 

residents with symptoms.

1 Sandy Kaminskas was an administrator of the Retirement Community during Decedent’s 

residency.

2 Stacy Bullock, too, was an administrator of the Retirement Community during Decedent’s 

residency.

3 The Guardian Foundation, Inc. “owned, operated, managed, controlled, and/or provided 

services to” the Retirement Community.
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In May 2021, Massamore, Decedent’s son, filed this action as 

executor of her estate. Massamore’s complaint4alleged that Decedent’s death was 

due to RBRC’s gross negligence. Specifically, the complaint alleged RBRC owed 

a duty to Decedent to provide custodial care, services, and supervision that a 

reasonably careful assisted living facility would provide under similar 

circumstances. Further, the complaint asserted that RBRC failed to deliver such 

care (breached their duty) and that it was foreseeable such failure would result in 

serious injury to Decedent. The complaint specified that RBRC “acted with 

oppression, fraud, and/or malice, or were grossly negligent by acting with wanton 

or reckless disregard for the health and safety of [Decedent]” and that Decedent

suffered injury as a direct and proximate result of such negligence, oppression, 

fraud, malice, or gross negligence.

In May 2021, RBRC removed the action to the United States District 

Court for the Western District of Kentucky (“District Court”) under the Public 

Readiness and Emergency Preparedness (“PREP”) Act, 42 United States Code 

(“U.S.C.”) §§ 247d-6d, 247d-6e, asserting the PREP Act’s exclusive-jurisdiction 

provision. The next month, Massamore moved to remand the action to state court, 

arguing the PREP Act did not apply to his claims. In March 2022, the District 

4 Massamore amended his complaint in August 2023. References to the complaint refer to the 

amended complaint.
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Court granted Massamore’s motion for remand because it found Massamore’s 

negligence claims did not meet the requirements for federal jurisdiction under the 

PREP Act. Massamore v RBRC, Inc., 595 F. Supp. 3d 594, 599-600 (W.D. Ky.

2022). In April 2022, RBRC appealed that decision to the United States Court of 

Appeals for the Sixth Circuit (“Sixth Circuit”).

In June 2022, the District Court filed the Order of Remand with the 

circuit court, which stated “[t]he State court may thereupon proceed with such 

case.” Therefore, the circuit court reopened the case. In January 2023, RBRC 

filed a motion in the District Court to stay the remand, which the District Court 

denied. RBRC then filed a petition for reconsideration of the motion to stay in the 

Sixth Circuit, which the Sixth Circuit denied.

By that point, Massamore had served discovery requests on RBRC, 

and in February 2023, RBRC moved the circuit court to stay the proceedings

pending the appeal regarding federal jurisdiction under the PREP Act. 

Additionally, RBRC moved the circuit court to dismiss Massamore’s complaint,

claiming lack of subject matter jurisdiction under Kentucky Rule of Civil 

Procedure (“CR”) 12.02(a); immunity under the PREP Act; federal defensive 

preemption; failure to exhaust administrative remedies; and Kentucky Revised 

Statute (“KRS”) 39A.275, the Kentucky COVID-19 Immunity Act (“KCIA”).
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In March 2023, the circuit court heard the motions and RBRC 

acknowledged the Sixth Circuit had denied its petition to reconsider the District 

Court’s denial of the motion to stay and therefore considered its motion to stay in 

the circuit court a “non-issue.” Further, RBRC asserted that it was not likely to be 

successful on the appeal to the Sixth Circuit regarding federal jurisdiction, so it

stated that filing a motion to dismiss in the state court proceedings was appropriate. 

As to the motion to dismiss, RBRC argued Massamore’s claims were barred by 

immunity under KCIA and KRS 39A.280, the Kentucky Emergency Management 

Act (“KEMA”).

In April 2023, the circuit court entered its order denying RBRC’s 

motion to stay the proceedings and motion to dismiss. The court reiterated 

RBRC’s acknowledgement that the Sixth Circuit had denied its petition for 

reconsideration regarding the stay; therefore, the motion to stay was a “non-issue.” 

Further, the court concluded that KCIA and KEMA have an exception to immunity 

for claims of gross negligence. As Massamore alleged gross negligence in his 

complaint, the circuit court found it was too early in the proceedings (prediscovery) to determine whether KCIA and KEMA immunity applied.

The court noted that because “[t]here is no sharp, well-defined, 

dividing line between simple negligence and gross negligence[,]” the degree of 

negligence is a question to be resolved by a jury, citing Darnell v. Hamilton, 358 
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S.W.2d 361, 362 (Ky. 1962), and Douglas v. Wood, 254 S.W.2d 490, 492 (Ky. 

1953). The court further explained that negligence “usually cannot be presumed 

and where evidence of negligence is so unsatisfactory as to require speculation, 

surmise or guesswork as to how the injury occurred, the case is not for the jury but 

for the court, which should hold as a matter of law that defendant is not liable[,]” 

citing Hollon v. Greyhound Corporation, 272 S.W.2d 329, 330-31 (Ky. 1954) 

(citations omitted). However, because “at this juncture in the case” there had not 

been any discovery conducted, the court concluded that it could not determine 

whether RBRC was immune from liability without first ascertaining whether the 

conduct alleged could be viewed as gross or ordinary negligence. To do so, 

discovery was required, and dismissal was inappropriate.

As to RBRC’s immunity claims under the PREP Act, the circuit court 

stated that “covered countermeasures” were limited to “any antiviral, any other 

drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, 

diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARSCoV-2 . . . or any device used in the administration of such product.” (Emphasis 

added.) The circuit court did not find Massamore’s allegations regarding lack of 

medical equipment and quarantine/distancing procedures to fall under “covered 

countermeasures.” The court emphasized that other cases supported such finding:

that the PREP Act protected covered persons who employ countermeasures, not 
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those who decline to employ them, citing Sherod v. Comprehensive Healthcare 

Management Services, LLC, No. 20-CV-1198, 2020 WL 6140474, at *7 (W.D. Pa. 

Oct. 16, 2020), and Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F. 

Supp. 3d 518, 529 (D.N.J. 2020) (“Nothing in the language of the [PREP] Act 

suggests that it was intended to more broadly displace state-law causes of action 

for, e.g., malpractice or substandard care – even if proper care possibly would have 

entailed administration of such countermeasures.”). As such, the court concluded 

the PREP Act did not apply to Massamore’s claims; therefore, RBRC was not 

immune under the PREP Act.

In July 2023, the Sixth Circuit issued its opinion affirming the District 

Court’s remand to state court, finding the PREP Act did not apply to Massamore’s 

claims. Massamore v. RBRC, Inc., No. 22-5381, 2023 WL 4505074 (6th Cir. Jul. 

6, 2023).

RBRC appealed the circuit court’s order, claiming it erred in denying 

the motion to dismiss because the court lacked subject matter jurisdiction. 

Specifically, RBRC argues the court lacked subject matter jurisdiction because: 

(A) the action was still pending in the Sixth Circuit or, alternatively, (B) RBRC 

was entitled to immunity from the suit under the PREP Act, KCIA, and KEMA.

II. STANDARD OF REVIEW

It is well established that a court should not dismiss an 

action for failure to state a claim unless the pleading party 
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appears not to be entitled to relief under any set of facts 

which could be proven in support of his claim. Weller v. 

McCauley, 383 S.W.2d 356 (Ky. 1964). In ruling on a 

motion to dismiss, the pleadings should be liberally 

construed in the light most favorable to the plaintiff, all 

allegations being taken as true. Mims v. Western-Southern 

Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 2007). 

Therefore, “the question is purely a matter of law.” James 

v. Wilson, 95 S.W.3d 875, 884 (Ky. App. 2002). 

Accordingly, the trial court’s decision will be reviewed de 

novo. Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 

(Ky. 2000).

Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009).

Likewise, this Court reviews a circuit court’s determination as to 

subject matter jurisdiction de novo. Harrison v. Park Hills Bd. of Adjustment, 330 

S.W.3d 89, 93 (Ky. App. 2011) (citation omitted).

III. ANALYSIS

A. Subject Matter Jurisdiction while Appeal Pending in Federal 

Court

First, RBRC claims the circuit court’s order denying its motion to 

dismiss is void because the court did not have jurisdiction to rule on the motion

while the federal appeal regarding jurisdiction was pending in the Sixth Circuit. 

We disagree.

While RBRC is correct that the filing of a notice of removal effects

“the removal and the State court shall proceed no further unless and until the case 

is remanded” – 28 U.S.C. § 1446(d) – once the federal court remands the case, the 
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circuit court regains jurisdiction and may “thereupon proceed with such case.” 28 

U.S.C. § 1447(c). See also Bryan v. BellSouth Commc’ns, Inc., 492 F.3d 231, 241 

(4th Cir. 2007) (citing 28 U.S.C. 1447(c)) (“the state court may proceed with a 

case once the [D]istrict [C]ourt mails a certified copy of the remand order to the 

state court”).

Here, the District Court remanded the case in March 2022 and filed 

the Order of Remand with the circuit court in June 2022, which stated “[t]he State 

court may thereupon proceed with such case.” As such, the circuit court reopened 

the case. The circuit court did not rule on RBRC’s motion to dismiss until nearly a 

year after it received the Order of Remand and reopened the case. Further, as 

noted, the District Court denied RBRC’s motion to stay the remand, and the Sixth 

Circuit denied RBRC’s motion to reconsider the District Court’s decision. 

RBRC attempts to compare this case to Kern v. Huidekoper, 103 U.S.

485, 13 Otto 485, 26 L. Ed. 354 (1880). However, we do not find Kern

dispositive. There, the plaintiffs filed a petition to remove the action to federal 

court. Kern, 103 U.S. at 486. The United States Supreme Court explained that 

such removal granted the federal court jurisdiction and the state court lost 

jurisdiction. Id. at 491. The Supreme Court stated,

when a case has been properly removed from a State into 

a United States court, and the State court still goes on to 

adjudicate the case, against the resistance of the party at 

whose instance the removal was made, such action on its 
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part is a usurpation, and the fact that such a party has, after 

the removal, contested the suit, does not, after judgment 

against him, constitute a waiver on his part of the question 

of the jurisdiction of the State court to try the case.

Id. at 492 (citations omitted).

RBRC argues that, here, the circuit court’s reopening of the case and 

its subsequent order denying RBRC’s motion to dismiss “usurped” the “thencurrent federal jurisdiction,” pursuant to Kern. We disagree. Unlike here, the 

federal court in Kern never remanded the case to state court. As discussed, the 

federal court retains jurisdiction only until it remands the case to state court. See 

Bryan, 492 F.3d at 241 (citation omitted) (“[I]t is clear that the state court regained 

jurisdiction when the [D]istrict [C]ourt remanded [the case] to state court.”). Here, 

the District Court entered the Order of Remand to the circuit court in June 2022 

and denied RBRC’s motion to stay the remand. As such, the circuit court regained

jurisdiction in June 2022, a year before it ruled on RBRC’s motion to dismiss.

B. Subject Matter Jurisdiction – Immunity claims

Second, RBRC argues it is immune from Massamore’s claims under

(1) the PREP Act, (2) KCIA, and (3) KEMA.

1. The PREP Act

RBRC asserts that Massamore’s claims invoke the PREP Act. 

Specifically, it argues that the PREP Act provides RBRC with immunity from suit, 

preempts Massamore’s claims, and requires Massamore to exhaust administrative 
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remedies, which it claims he failed to do. However, Massamore emphasizes that 

three separate courts (the circuit court, District Court, and Sixth Circuit) have 

explained that the PREP Act does not apply to Massamore’s claims. Moreover, 

Massamore asserts that he made no allegations regarding the use or administration 

of “covered countermeasures.”

The PREP Act provides that

(a) Liability protections

(1) In general

. . . a covered person shall be immune from suit and 

liability under Federal and State law with respect to all 

claims for loss[5]caused by, arising out of, relating to, or 

resulting from the administration to or the use by an 

individual of a covered countermeasure if a declaration 

under subsection (b) has been issued with respect to such 

countermeasure.

. . .

(2)(B) The immunity under paragraph (1) [above] applies 

to any claim for loss that has a causal relationship with the 

administration to or use by an individual of a covered 

countermeasure, including a causal relationship with the 

design, development, clinical testing or investigation, 

manufacture, labeling, distribution, formulation, 

packaging, marketing, promotion, sale, purchase, 

donation, dispensing, prescribing, administration, 

licensing, or use of such countermeasure.

42 U.S.C. § 247d-6d(a)(1) and (a)(2)(B) (emphasis added).

5

“‘[L]oss’ means any type of loss, including . . . death[.]” 42 U.S.C. § 247d-6d(a)(2)(A).
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A “covered countermeasure” is defined as 

(A) a qualified pandemic or epidemic product (as defined 

in paragraph (7)); (B) a security countermeasure (as 

defined in section 247d-6b(c)(1)(B) of this title); (C) a 

drug (as such term is defined in section 201(g)(1) of the 

Federal Food, Drug, and Cosmetic Act (21 U.S.C. 

321(g)(1))[)], biological product (as such term is defined 

by section 262(i) of this title), or device (as such term is 

defined by section 201(h) of the Federal Food, Drug and 

Cosmetic Act (21 U.S.C. 321(h)) that is authorized for 

emergency use in accordance with section 564, 564A, or 

564B of the Federal Food, Drug, and Cosmetic Act; or (D) 

a respiratory protective device that is approved by the 

National Institute for Occupational Safety and Health

under part 84 of title 42, Code of Federal Regulations (or 

any successor regulations), and that the Secretary 

determines to be a priority for use during a public health 

emergency declared under section 247d of this title.

42 U.S.C. § 247d-6d(i)(1) (footnote omitted).

RBRC claims the PREP Act applies because “management and 

operation of a countermeasure program” include “the way in which testing is 

applied to quarantine/isolation policies in order to ‘diagnose, mitigate, and prevent’ 

the transmission of COVID-19.” RBRC claims it provided such services; 

therefore, Massamore’s suit speaks to RBRC’s management and operation 

practices and is therefore barred.

However, Massamore contends that he has never claimed Decedent’s 

death was the result of the use or administration of “covered countermeasures.” 

Instead, he asserts that his claims derived from RBRC’s failure to implement 
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proper infection control procedures. Further, he claims the PREP Act is 

inapplicable “where a plaintiff’s claim is premised on a failure to take preventative 

measures to stop the spread of COVID-19, as here, and where none of the alleged 

harm was causally connected to the administration or use of any countermeasure, 

which is the focus of the PREP Act,” citing Gwilt v. Harvard Square Retirement

and Assisted Living, 537 F. Supp. 3d 1231, 1240 (D. Colo. 2021).6

As the Sixth Circuit explained in RBRC’s federal appeal,

[i]n March 2020, the HHS [Department of Health and 

Human Services] Secretary issued a declaration under the 

PREP Act declaring COVID-19 a public health emergency 

and recommending “the manufacture, testing, 

development, distribution, administration, and use of the 

Covered Countermeasures,” which included “any 

antiviral, any other drug, any biologic, any diagnostic, any 

other device, or any vaccine, used to treat, diagnose, cure, 

prevent, or mitigate COVID-19, or the transmission of 

SARS-CoV-2 or a virus mutating therefrom, or any device 

used in the administration of any such product.” 

Declaration Under the Public Readiness and Emergency 

Preparedness Act for Medical Countermeasures Against 

COVID-19 (“Declaration”), 85 Fed. Reg. 15, 198, 15,

201-202 (Mar. 17, 2020).

Massamore, 2023 WL 4505074, at *2.

6 Additionally, Massamore lists numerous federal cases that found state law negligence and 

wrongful death claims relating to a nursing home’s failure to take steps to prevent the spread of 

COVID-19, including failure to use personal protective equipment, did not fall within the scope 

of the PREP Act. See, e.g., Sherod, 2020 WL 6140474, at *9; Est. of Maglioi, 478 F. Supp. 3d at

531; and Fortune v. Big Blue Healthcare, Inc., No. 2:20-CV-2318-HLT-JPO, 2020 WL 

4815097, at *8 (D. Kan. Aug. 19, 2020).
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Finding Massamore’s claims did not include reference to such 

“countermeasures,” the Sixth Circuit denied RBRC’s arguments that the PREP Act 

applied to Massamore’s claims:

In Hudak [v. Elmcroft of Sagamore Hills, 58 F.4th845 (6th

Cir. 2023)], we rejected the very arguments that the 

defendants [RBRC] now raise and held that, because the 

plaintiff did not allege that the defendants’ administration 

or use of a COVID-19 countermeasure involved willful 

misconduct, “the PREP Act d[id] not ‘provide[ ] the 

exclusive cause of action for the claim asserted’ and d[id] 

not completely preempt [the plaintiff]’s state-law claims.” 

58 F.4th at 857 (second alteration in original) (quoting 

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003)). 

Like the defendants in Hudak, the defendants here argue 

that, because the PREP Act created an exclusive federal 

cause of action, “all actions within that scope (e.g., tort 

claims arising from countermeasure administration in 

programs or facilities) are completely preempted 

regardless of standard of liability.” In rejecting this 

argument, we explained that the plain text of the [PREP] 

Act created an exclusive cause of action only for claims of 

willful misconduct rather than any claim implicating the 

[PREP] Act and that the doctrine of complete preemption 

requires courts to look at the elements of the state law 

claims “to determine whether federal law provides a 

substitute cause of action for the claims.” Id. at 855. 

Nowhere in the complaint did Massamore allege that the 

defendants acted “intentionally to achieve a wrongful 

purpose,” “knowingly without legal or factual 

justification,” or “in disregard of a known or obvious risk 

that is so great as to make it highly probable that the harm 

will outweigh the benefit.” 42 U.S.C. § 247d-6d(c)(1)(A). 

He therefore could not have brought an action under the 

PREP Act, and his claims are not completely preempted. 

See Hudak, 58 F.4th at 855; see also Solomon v. St. Joseph 

Hosp., 62 F.4th 54, 61-62 (2d Cir. 2023); Manyweather v. 

Woodlawn Manor, Inc., 40 F.4th 237, 245 (5th Cir. 2022); 
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Maglioli v. All. HC Holdings LLC, 16 F.4th 393, 411 (3d 

Cir. 2021).

Massamore, 2023 WL 4505074, at *3.

However, RBRC argues the PREP Act applies to claims for loss 

causally relating to the “administration” of a countermeasure – not to the 

countermeasure alone. RBRC encourages this Court to look to M.T. as next friend 

of M.K. v. Walmart Stores, Inc., 528 P.3d 1067, 1070-71, 1079 (Kan. App. 2023) 

(finding the PREP Act’s causal language applied to the “administration” of the 

vaccine countermeasure and dismissing the plaintiff’s claims) and Storment v.

Walgreen, Co., No. 1:21-CV-00898 MIS/CG, 2022 WL 2966607 (D.N.M Jul. 27, 

2022) (dismissing case under PREP Act immunity because alleged injuries 

sustained in parking lot fall after receiving a COVID-19 vaccine constituted a 

claim for loss “relating to” the administration of a countermeasure).

However, importantly, those cases involved countermeasures –

vaccines – unlike Massamore’s claims. Here, Massamore alleged RBRC was 

grossly negligent for failing to implement safety procedures during the COVID-19 

outbreak, including use of personal protective equipment, testing protocols for 

patients and staff with symptoms, and isolation/quarantining procedures. As the 

Sixth Circuit explained, these claims do not fall under the PREP Act’s definition of 

“countermeasures.”
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As such, Massamore’s claims did not involve countermeasures and 

did not invoke the PREP Act;7therefore, the PREP Act’s immunity provisions do 

not apply to RBRC.

2. KCIA8

Next, RBRC claims that Massamore’s complaint fails to allege facts 

that could constitute gross negligence. However, Massamore asserts that his 

complaint appropriately alleged gross negligence, which renders KCIA’s immunity 

provisions inapplicable, and he therefore is entitled to pursue discovery.

KCIA provides a defense for certain “essential service providers” but

“[n]othing in this subsection limits any liability of an essential service provider for 

gross negligence, or wanton, willful, malicious, or intentional misconduct.” KRS 

39A.275(3). Thus, the issue is whether Massamore adequately alleged gross 

negligence in his complaint. We find he did.

Our Supreme Court has recognized that gross negligence is “a wanton 

or reckless disregard for the lives, safety or property of other persons.” Horton v. 

7 Likewise, because Massamore’s claims did not invoke the PREP Act, RBRC’s arguments that 

the PREP Act preempted Massamore’s state law claims and that Massamore failed to exhaust 

administrative remedies under the PREP Act are meritless.

8 Although KCIA was repealed, effective December 2023, it was valid at the time of the alleged 

actions and during the circuit court’s proceedings. Cf. Orchard v. W. Energy Prod., LP, No. 

2019-CA-000066-MR, 2019 WL 5293489, at *2 (Ky. App. Oct. 18, 2019) (finding the alleged 

actions occurred prior to the statute’s repeal; therefore, the circuit court “erred in finding [the 

plaintiff] lacked” standing under the statute).
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Union Light, Heat & Power Co., 690 S.W.2d 382, 389 (Ky. 1985). Moreover, 

“[e]ven where a single act of negligence might not constitute gross negligence, 

gross negligence may result from the several acts.” Id. at 388 (citation omitted). 

Policies and procedures of a company may be a basis for a finding of gross 

negligence. MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 338 (Ky. 2014) (citing 

id.). As the circuit court noted, “there is no sharp, well-defined, dividing line 

between simple negligence and gross negligence,” thus, it is a question for the jury. 

Zewoldi v. Transit Auth. of River City, 553 S.W.3d 841, 850 (Ky. App. 2018)

(citations omitted).

As to the sufficiency of such allegations, our Supreme Court has 

explained that in Kentucky, the sufficiency of a pleading is determined under a 

commonsense standard to do substantial justice. McCollum v. Garrett, 880 S.W.2d 

530 (Ky. 1994); see also CR 8.06. To meet such standard, a pleading must simply 

identify the basis of the claim. Nat. Res. & Env’t Prot. Cabinet v. Williams, 768 

S.W.2d 47, 51 (Ky. 1989). In making this determination, wide latitude is granted

in the exact language used in pleadings, and liberal interpretation is to be used to 

construe a pleading as stating a cause of action or a defense. See W.R. Willett 

Lumber Co., Inc. v. Hall, 375 S.W.2d 266 (Ky. 1964).9

9 RBRC asserts that Tipton v. St. Joseph Health Sysyems, Inc., No. 2021-CA-0985-MR, 2022 

WL 2541827 (Ky. App. Jul. 8, 2022), review denied and ordered depublished (Dec. 7, 2022), is 

dispositive here; however, we disagree. RBRC claims that KCIA barred the plaintiff’s claims 
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As detailed, here, the complaint alleged RBRC owed a duty to 

Decedent to provide custodial care, services, and supervision; and that RBRC

breached that duty. Further, Massamore asserted that it was foreseeable such 

breach would result in serious injury to Decedent. The complaint specified that 

RBRC was “grossly negligent by acting with wanton or reckless disregard for the 

health and safety of [Decedent]” and that Decedent suffered injury as a direct and 

proximate result of such gross negligence. Additionally, Massamore’s complaint 

alleged that RBRC failed to protect residents from COVID-19. For example, when

RBRC shut down the Retirement Community to visitors, it continued to hold group 

events and allowed residents to congregate together. Further, staff did not use 

personal protective equipment such as masks and gloves when interacting with the 

residents, and RBRC failed to timely implement testing of staff and residents.

The pleading identified the basis of a gross negligence claim and 

provided facts to support such contention. As we are to grant wide latitude when 

reviewing this common sense standard, we find Massamore sufficiently alleged 

gross negligence against RBRC to withstand the motion to dismiss. See W.R. 

despite the plaintiff’s contention the defendants were grossly negligent; however, there, this 

Court held the plaintiffs were “not asserting that they presented any evidence of gross negligence 

capable of withstanding summary judgment . . . . Indeed, they cite no such evidence. Instead, 

the crux of their argument is that they would like more time to gather more evidence in support 

of their claims.” Tipton, 2022 WL 2541827, at *5. Here, however, Massamore does assert that 

he adequately alleged gross negligence, cites support, and argues KCIA’s immunity provisions 

do not apply because he sufficiently pled gross negligence.
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Willett Lumber Co. v. Hall, 375 S.W.2d 266 (Ky. 1964). As Massamore’s claims 

of gross negligence are adequately alleged, KCIA’s immunity provisions do not 

apply.

3. KEMA

Finally, RBRC argues it is immune from Massamore’s claims under 

KEMA. Again, Massamore disagrees, noting that such immunity does not apply 

where gross negligence is alleged. Like KCIA, KEMA limits immunity in cases of 

gross negligence: “neither the state nor any political subdivision of the state nor, 

except in cases of gross negligence or wanton, willful, malicious, or intentional 

misconduct . . . shall be liable for the death of or injury to persons, or for damage 

to property, as a result of that activity.” KRS 39A.280(3).

As discussed, Massamore adequately alleged gross negligence, 

rendering KEMA’s immunity provisions inapplicable at this stage in the 

proceedings.

VI. CONCLUSION

The Lyon Circuit Court had jurisdiction to enter its order denying 

RBRC’s motion to dismiss Massamore’s complaint. Additionally, the motion to 

dismiss was properly denied because, at this stage in the proceedings, it is not clear 

that he would not to be entitled to relief under any set of facts which could be 
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proven in support of his claim. For the foregoing reasons, we AFFIRM the Lyon

Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Clay A. Edwards

Nicholas J. Davis

Louisville, Kentucky

Teresa Pike Tomlinson

Columbus, Georgia

BRIEF FOR APPELLEE:

Lindsy Lopez

Tad Thomas

Julie Anderson

Louisville, Kentucky