RENDERED: DECEMBER 3, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0072-MR

GABRIELL GRAY APPELLANT

APPEAL FROM HARDIN CIRCUIT COURT

v. HONORABLE KELLY MARK EASTON, JUDGE

ACTION NO. 18-CI-00175

MARK WELLS; EDDIE WILKERSON;

WES BLAIR; JENNY BROWN; AND

MELISSA CURTSINGER APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.

CETRULO, JUDGE: Gabriell Gray (Gabbie) appeals a judgment of the Hardin 

Circuit Court summarily dismissing her negligence claims against the abovecaptioned appellees based primarily upon qualified immunity. Upon review, we 

affirm.
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FACTUAL AND PROCEDURAL HISTORY

In its dispositive order of December 15, 2020, the circuit court 

accurately summarized the relevant history of this matter:

Just over four years ago, Gabbie was a student at John 

Hardin High School (“JHHS”). Prior to the incident 

which forms the basis of this suit, Gabbie had “issues” 

with the Defendant Shayla Chedwick (“Shayla”). While 

words had been exchanged, perhaps for years, there was 

no prior incident of actual physical violence between 

them reported to school officials.

On Monday morning, November 21, 2016, Gabbie and 

Shayla were both in the cafeteria or commons area of 

JHHS with a number and perhaps hundreds of other 

students. The approximate time was after 8 a.m. but 

before classes started for the day at 8:30 a.m. Students 

regularly had the opportunity for breakfast during this 

time.

Gabbie suggests the details of what happened on this 

morning are undisputed, but this record suggests 

otherwise. According to Gabbie’s statements, Shayla 

began the incident by asking Gabbie: “Do you have a 

problem?” This started from a distance. Then Shayla 

came closer to Gabbie repeating the question. Gabbie 

responded telling Shayla: “I just don’t like you.” As 

things escalated, Gabbie tells Shayla to get out of her 

face.

Gabbie says Shayla then pulled her hair. Shayla says 

Gabbie pushed her before Shayla used any force. Shayla 

has counterclaimed for assault and battery by Gabbie 

suggesting this possible initial aggressor argument. In 

any event, a fight starts between the girls. Another 

student and friend of Gabbie’s got between the girls 

disrupting the initial fight.
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At this point, Shayla’s brother, the Defendant Jaevoni 

Chedwick (“Voni”), interjected himself striking Gabbie. 

The situation ended when a staff member, ROTC Colonel 

Warren Griggs (“Griggs”), was passing by the area and 

intervened to break up the fight. Griggs himself was 

injured by Voni during the melee.

This matter was initiated in Hardin Circuit Court on February 2, 2018, 

against Gabbie’s attackers, and also the above-captioned appellees who were 

employed at JHHS in various roles at the time. Wells was the principal; Wilkerson

was the vice-principal; Blair was the director of the county school’s alternate 

school programs; and Brown and Curtsinger were teachers. In her complaint, 

Gabbie1asserted that these individuals had breached tort-related duties owed to her

by failing to prevent the above-described incident, and that they were accordingly 

negligent. As discussed in greater depth below, she believed these individuals 

should have either (1) stopped the fight from happening that day, or (2) ensured 

that she and Shayla were not in the same school.

In response, each of the appellees asserted qualified immunity; 

alternatively, they asserted no duty owed to Gabbie had been breached because the 

incident had been unforeseeable. After a period of discovery and motion practice, 

they also moved for summary judgment on those bases. Upon consideration, the 

 

1 This suit was initially filed on Gabbie’s behalf by Jessica Monique Gray, Gabbie’s mother and 

next friend. Gabbie was later substituted as the plaintiff.
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circuit court granted their motions. This appeal followed. To the extent necessary, 

additional details will be discussed below over the course of our analysis.

STANDARD OF REVIEW

Summary judgment serves to terminate litigation 

where “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 Rule of Civil Procedure (CR) 56.03. It is well 

established that a party responding to a properly 

supported summary judgment motion cannot merely rest 

on the allegations in his pleadings. Continental Cas. Co. 

v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 

(Ky. 1955). “[S]peculation and supposition are 

insufficient to justify a submission of a case to the jury, 

and . . . the question should be taken from the jury when 

the evidence is so unsatisfactory as to require a resort to 

surmise and speculation.” O’Bryan v. Cave, 202 S.W.3d 

585, 588 (Ky. 2006) (quoting Chesapeake & Ohio Ry. 

Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). “‘Belief’ 

is not evidence and does not create an issue of material 

fact.” Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 

(Ky. 1990); see also Haugh v. City of Louisville, 242 

S.W.3d 683, 686 (Ky. App. 2007) (“A party’s subjective 

beliefs about the nature of the evidence is not the sort of 

affirmative proof required to avoid summary 

judgment.”). Furthermore, the party opposing summary 

judgment “cannot rely on the hope that the trier of fact 

will disbelieve the movant’s denial of a disputed fact, but 

must present affirmative evidence in order to defeat a 

properly supported motion for summary judgment.” 

Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 

476, 481 (Ky. 1991) (citations and internal quotation 

marks omitted).
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On appeal, we must consider the evidence of 

record in the light most favorable to the non-movant and 

must further consider whether the circuit court correctly 

determined that there were no genuine issues of 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). “Because summary judgment involves 

only legal questions and the existence of any disputed 

material issues of fact, an appellate court need not defer 

to the trial court’s decision and will review the issue de 

novo.” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. 

App. 2001) (footnote omitted).

McAlpin v. American General Life Ins. Co., 601 S.W.3d 188, 193-94 (Ky. App. 

2020).

ANALYSIS

As discussed, Gabbie sued the appellees for negligence, a theory that 

generally requires a plaintiff to show “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). Consistent with her negligence theory, KRS2 161.180(1)3

illustrates that school personnel owe actionable duties to students:

Each teacher and administrator in the public schools shall 

in accordance with the rules, regulations, and bylaws of 

 

2 Kentucky Revised Statute.

3 Apart from KRS 161.180, Gabbie references eight other statutes (with dubious applicability), 

along with several numbered school board polices, in support of her overarching argument that 

school employees owe a duty to students to provide a safe learning environment. Because 

Gabbie adds little explanation regarding the applicability of what she has referenced, we will 

only state that, taken collectively, it does not conflict with our analysis.
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the board of education made and adopted pursuant to 

KRS 160.290 for the conduct of pupils, hold pupils to a 

strict account for their conduct on school premises, on 

the way to and from school, and on school sponsored 

trips and activities.

With that said, a dispositive issue presented in this appeal is what kind

of duty each of these appellees owed her relative to her negligence claims. To 

explain, qualified immunity provides a safe harbor for “public officers and 

employees” such as the appellees herein when “sued in their individual 

capacities . . . for good faith judgment calls made in a legally uncertain 

environment.” Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). In other words: 

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. . . .

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. . . . “That a necessity may 

exist for the ascertainment of those facts does not operate 

to convert the act into one discretionary in nature.”

Id. (citations omitted). 
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Accordingly, a court that considers a qualified immunity defense must 

determine whether the defendant’s alleged acts were ministerial acts, subject to 

negligence analysis, or discretionary tasks, subject only to bad faith examination.

Id. at 523. “The distinction between discretionary acts and mandatory acts is 

essentially the difference between making higher-level decisions and giving orders 

to effectuate those decisions, and simply following orders.” Marson v. Thomason, 

438 S.W.3d 292, 297 (Ky. 2014). In the context of student supervision, Kentucky 

draws a line between school administrators and teachers. “Because [the] task is so 

situation specific, and because it requires judgment rather than a fixed, routine 

performance, looking out for children’s safety is a discretionary function for a 

principal[.]” Id. at 299; but see id. (recognizing that “specific instructions could 

make such duties required and thus ministerial.”). On the other hand, “a teacher’s 

duty to supervise students is ministerial, as it requires enforcement of known 

rules.” Id. at 301. Although in the course of a ministerial or discretionary task 

“unexpected events [may] occur[,]” it is the nature of the official’s acts or 

omissions, rather than third party conduct, that “determines whether they are 

discretionary or ministerial.” Id. at 302.

Relevant to our qualified immunity analysis, Gabbie does not contend 

that any of the alleged actions or inactions at issue in this matter fell outside the 

scope of any appellee’s authority. Therefore, considering what is set forth above, 
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we will first review whether the circuit court correctly determined each individual 

appellee’s at-issue conduct was discretionary, as opposed to ministerial. We will 

then review whether affirmative evidence supports that any appellee performed 

discretionary duties in bad faith or, as a triable issue, carried out ministerial 

responsibilities negligently. Lastly, we will address Gabbie’s additional argument 

that she was entitled to more time for discovery, and that the circuit court’s 

judgment was therefore premature.

1. The Teacher Appellees

As indicated, Brown and Curtsinger were teachers at JHHS. 

Regarding why Gabbie believes they are liable to her for negligence, she states on 

page 4 of her brief that in her view both Brown and Curtsinger “[s]hould have 

intervened or called the S.R.O. [student resource officer] when [Shayla] attacked 

[her].” Accordingly, Gabbie asserts, Brown and Curtsinger breached duties owed 

to her pursuant to KRS 161.180 and Hardin County School District policies.

Apart from making these general assertions, however, Gabbie does 

not specify where these teachers were required to supervise during the incident; 

nor does she detail the extent of her interaction – if any – with these teachers in 

relation to the incident. And, her failure to do so is detrimental to her case. 

As discussed, “a teacher’s duty to supervise students is ministerial, as 

it requires enforcement of known rules.” Marson, 438 S.W.3d at 301. However, 
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Kentucky recognizes an exception to this general rule, as illustrated in Ritchie v. 

Turner:

Like the general duty in Marson to provide a safe school 

environment, the duty in KRS 161.180(1) . . . to provide 

student supervision “is a discretionary function for 

[school officials] exercised most often by establishing 

and implementing [supervision] policies and 

procedures,” which is qualitatively different from 

actually supervising the students, a ministerial duty for 

those who are assigned such supervision. Marson, 438 

S.W.3d at 299, 302. Doe has not alleged that any of the 

school officials were assigned as supervisors of the 

meeting area she left to go to Mitchell’s classroom or 

that the school officials passed her in the halls on those 

occasions. Simply put, they were not actually involved 

in active supervision of the students at the times relevant 

to Doe’s complaint. Consequently, the school officials 

only had a general supervisory duty over Doe. We agree 

with the Court of Appeals that Marson resolves the 

question in favor of the school officials as to whether 

they are entitled to qualified immunity as to Doe’s

supervision, or the lack thereof, when she left the 

morning meeting area and met Mitchell in his classroom.

559 S.W.3d 822, 832 (Ky. 2018) (emphasis added).

To be clear, the “school official” defendants referenced in the quote 

set forth above – who were granted qualified immunity on the strength of its 

reasoning – included, as here, a teacher who was sued by a student for an alleged 

negligent failure to supervise. See id. at 829 n.12. And, with respect to that 

teacher and the other school official defendants, the Kentucky Supreme Court 

indicated that only a general “discretionary . . . supervisory duty” applied to them, 
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id. at 832, absent any evidence demonstrating either that those individuals were 

assigned to supervise the area in which the incident occurred or should have 

recognized that a known rule had been violated in their presence and required 

enforcement.

Here, in support of their motions for summary judgment, Brown and 

Curtsinger provided a copy of the JHHS duty roster from the 2017-2018 staff 

handbook. It indicates that when this incident occurred, Curtsinger was assigned 

to supervise “AM FRONT”; Brown was assigned to supervise “FRONT 

ENTRANCE”; and that neither was assigned to supervise the “COMMONS 

AREA” where the incident occurred. Below, Gabbie never rebutted this evidence.

Consistently with Ritchie, this was a point the circuit court found dispositive. In its 

order of summary judgment, the circuit court explained:

 The first problem for this part of the claim is that 

none of the school employees were assigned to the area 

where the fight occurred that morning, and they cannot 

be omnipresent. Had one of these employees been so 

assigned, there could have been ministerial duties to 

perform. This is illustrated by Marson v. Thomason, 438 

S.W.3d 292 (Ky. 2014).

. . . .

Regardless, most of these Defendants were not even at 

the scene and had no duty to be there that morning. If 

they had been there, they still would have engaged in 

discretionary actions, not ministerial ones.
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In her brief, Gabbie cites nothing that contradicts Brown’s and 

Curtsinger’s evidence; she does not detail the extent of her interaction – if any –

with these teachers in relation to the incident; nor, for that matter, does she even 

address this aspect of the circuit court’s order. And, it is not the obligation of this 

Court to do so for her. As an appellate court, we will not search the record to flesh 

out an argument for a party. We confine our review “to errors pointed out in the 

briefs.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). Consequently, 

Gabbie has not demonstrated the circuit court erred in determining Brown’s and 

Curtsinger’s duties were at most discretionary for purposes of a qualified immunity 

analysis. 

As to the remaining element of qualified immunity, the onus was upon 

Gabbie to prove bad faith. See Yanero, 65 S.W.3d at 523. Specifically, 

Curtinger’s and Brown’s qualified immunity could only have been defeated if

evidence demonstrated they knew or reasonably should have known that their 

actions, performed within the sphere of their official responsibility, would violate 

Gabbie’s constitutional rights or were motivated by a malicious intent to cause a 

deprivation of such rights or other injury. See James v. Wilson, 95 S.W.3d 875, 

909 (Ky. App. 2002) (citation omitted). 
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Here, Gabbie has failed to carry her burden. After accurately 

summarizing the substance of Gabbie’s deposition testimony, the circuit court 

explained in its order:

Gabbie offers nothing to show any evidence of bad faith. 

Although some of the school employees knew of the 

friction between Gabbie and Shayla, no one knew of 

prior physical violence. Gabbie had problems with at 

least two other girls before the events in question. None 

of those turned violent.

In short, Gabbie has failed to demonstrate the circuit court erred in 

dismissing her claims against Curtsinger and Brown on qualified immunity 

grounds. Thus, it is unnecessary to address Gabbie’s claims of negligence against 

these appellees any further.

2. The School Administrator Appellees

Next, we address Gabbie’s qualified immunity claims relative to 

Wells, Wilkerson, and Blair, each of whom were school administrators at all 

relevant times. Regarding why Gabbie believes they are liable to her for 

negligence, she explains on page 4 of her brief:

a. Mark Wells; He failed to take any action to have 

[Gabbie] transferred from John Hardin despite several 

requests by her parents to do so. He did not 

sufficiently supervise or discipline [Shayla] or [Voni]

so that their assault of [Gabbie] would not have 

happened.

b. Eddie Wilkerson; He failed to take any action to have 

[Gabbie] transferred from John Hardin despite several
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requests by her parents to do so. He did not 

sufficiently supervise or discipline [Shayla] and 

[Voni] so that their assault of [Gabbie] would not 

have happened.

c. Wes Blair; He failed to take any action to have 

[Gabbie] transferred from John Hardin despite several 

requests by her parents to do so.

As with Curtsinger and Brown, Gabbie asserts these appellees also 

breached duties owed to her pursuant to KRS 161.180 and Hardin County School 

District policies. Unlike her claims against those two teachers, she does not argue 

that Wells, Wilkerson, and Blair should have been actively supervising the 

commons area, or that they should have intervened during the incident. Rather, 

she faults these individuals for failing to prevent the incident from happening – by

either transferring Gabbie or properly disciplining Shayla and Voni. In support of 

her claims, Gabbie explains that approximately one month before the incident, her 

parents asked Wells, Wilkerson, and Blair to transfer her to a different school; and, 

that the requested transfer was not granted until the day after the incident.

However, we agree with the circuit court’s assessment that the record 

shows these appellees had no duty more specific than their general responsibility to 

“provide a safe school environment,” which, as to Kentucky school administrators, 

“is a discretionary function.” Marson, 438 S.W.3d at 299. To begin, Gabbie cites 

nothing of record indicating any of the appellees herein, prior to this incident, were 

aware or should have been aware of anything capable of triggering an “absolute, 
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certain, and imperative [duty]” to keep her separated from Shayla and Voni. 

Yanero, 65 S.W.3d at 522. Indeed, as Gabbie and Shayla each testified in their 

respective depositions, their interactions never became physical until this incident 

occurred. Likewise, as the circuit court correctly observed in its order,

Gabbie’s parents did ask for a transfer of their children[4]

to Central Hardin High School about a month before this 

fight at JHHS. Although it was later suggested this 

transfer request was due to safety concerns, the reason 

actually stated in writing was “the children can not [sic] 

focus on school work due to other children harassing 

them.”[5]

Gabbie apparently assumes this transfer decision rested 

with the Defendants she has sued. The uncontradicted 

evidence is this record indicates this would require a 

decision (and a discretionary one at that) by Central 

Hardin staff or others. The transferee school has a say in 

the decision. Gabbie and her parents knew this. This 

was not the first transfer request for Gabbie. She had 

most recently been transferred to JHHS.

As to whether any of these school administrator appellees acted in bad 

faith, Gabbie argues “[i]t is a self-proven fact that there WAS a threat to her safety 

because of what did happen to [her],” and:

Insofar as bad faith, how much more bad faith is required 

when it is a proven fact that the school officials ignored 

the parents’ requests and actual written transfer request 

 

4 The October 25, 2016 transfer request was for both Gabbie and her sister, who was one grade 

below her.

5 Likewise, Gabbie’s mother, Jessica Gray, testified Shayla was not among the “other children 

harassing” Gabbie and her sister described in the transfer request, and that her concern was with 

a different student.
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for over three weeks when prompt action on their part to 

accomplish the transfer would have prevented this assault 

on Gabriell.

Taken objectively, Gabbie’s argument is illogical. She is arguing the 

school administrator appellees knew or should have known, prior to when this 

incident occurred, that there was an imminent risk to her safety at JHHS because

this incident occurred. It is unnecessary to delve any further into this point beyond 

noting that hindsight is not the proper metric for assessing bad faith. See Wilson, 

95 S.W.3d at 910 (explaining, with respect to a school official’s discretion for 

purposes of qualified immunity, that “their judgment may arguably be 

questionable, particularly with the benefit of hindsight, but applying such an 

unrealistic standard is not only unjust, it’s unauthorized.”). Apart from this 

argument, Gabbie cites no evidence supportive of bad faith. Therefore, we discern 

no error with this aspect of the circuit court’s judgment, and it is unnecessary to 

address Gabbie’s claims of negligence against these appellees any further.

3. Adequate Time for Discovery

Gabbie’s final argument concerns her allotted time for discovery. The 

extent of her contention is as follows:

 After some discovery had taken place, the Motion 

for Summary Judgment was filed by the 

Appellees/Defendants who were the employees/agents of 

the school and school board on September 22, 2020. 

Summary judgment was premature for these 

Appellees/Defendants because the Appellant/Plaintiff 
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had not had an opportunity to take the depositions of 

these Appellees/Defendants, Mark Wells, Eddie 

Wilkerson, West [sic] Blair, Jenny Brown, and Melissa 

Curtsinger, (hereinafter referenced as HCBOE 

employees) and thus to complete discovery.

We disagree. To be sure, “for summary judgment to be properly 

granted, the party opposing the motion must have been given adequate opportunity 

to discover the relevant facts. Only if that opportunity was given do we reach the 

issue of whether there were any material issues of fact precluding summary 

judgment.” Suter v. Mazyck, 226 S.W.3d 837, 842 (Ky. App. 2007). However, 

“opportunity” is the operative word in this context: “There is no requirement that 

discovery be completed, only that the non-moving party have ‘had an opportunity 

to do so.’” Carberry v. Golden Hawk Transp. Co., 402 S.W.3d 556, 564 (Ky. App. 

2013) (citation omitted). To that end, 

[w]hether a summary judgment was prematurely granted 

must be determined within the context of the individual 

case. In the absence of a pretrial discovery order, there 

are no time limitations within which a party is required to 

commence or complete discovery. As a practical matter, 

complex factual cases necessarily require more discovery 

than those where the facts are straightforward and readily 

accessible to all parties.

Suter, 226 S.W.3d at 842. Moreover, to demonstrate that more discovery is 

needed, the party opposing summary judgment must proffer “specific examples of 

what discovery could have been undertaken that would have affected the outcome 
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had it been conducted.” Benton v. Boyd & Boyd, PLLC, 387 S.W.3d 341, 344 (Ky. 

App. 2012).

Here, in rejecting Gabbie’s contention below, the circuit court 

explained:

A prior Motion for Summary Judgment first raised the 

question of immunity in 2018. The prior Motion was 

limited to the status of the Defendant school employees 

in their official capacities. As previously ruled, a suit 

against individuals in an official capacity is essentially 

the same as a suit against their state agency employer. 

As a result, these same Defendants were immune from 

suit in their official capacities.

The Court entered that Order on July 16, 2018, now over 

two years and four months ago. The Order includes a 

reference to the bigger issue of qualified official 

immunity for these Defendants sued in their individual

capacities. Immunity is not just immunity from an 

eventual adverse judgment but to the ordeal of being a 

party to a suit at all. Questions of immunity should be 

addressed promptly at the outset of a suit and are subject 

to interlocutory appeal.

The fact Gabbie has not taken depositions or otherwise 

created a record of her contentions about immunity does 

not mean she has not had the opportunity to do so. In 

[Hartford Ins. Group v. Citizen’s Fidelity Bank & Trust 

Co., 579 S.W.2d 628 (Ky. App. 1979)], the court found 

six months sufficient in the circumstances. Gabbie has 

had the required opportunity for discovery.

In any event, Gabbie’s own testimony and other 

evidentiary materials are sufficient to evaluate the 

qualified official immunity questions.
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As the circuit court indicated, qualified immunity is an issue that 

should be resolved promptly; and for general summary judgment purposes, six 

months has been deemed an adequate period. Here, Gabbie was given over two

years. Moreover, Gabbie does not provide “specific examples of what discovery 

could have been undertaken that would have affected the outcome had it been 

conducted.” Benton, 387 S.W.3d at 344. At most, her argument merely expresses 

her hope or belief that, if given more time, “something will ‘turn up’” – which is 

wholly inadequate for summary judgment purposes. See Benningfield v. Pettit 

Env’t., Inc., 183 S.W.3d 567, 573 (Ky. App. 2005) (quoting Neal v. Welker, 426 

S.W.2d 476, 479-80 (Ky. 1968)). Accordingly, we find no error in this respect, 

either.

CONCLUSION

Consistent with our analysis set forth above, we AFFIRM.

ALL CONCUR.

BRIEF FOR APPELLANT:

Dwight Preston

Elizabethtown, Kentucky

BRIEF FOR APPELLEES:

Samuel E.T. Jones

Charles H. Cassis

Prospect, Kentucky