Ashby v. City of Louisville

• Decision Date: 20 November 1992
• Docket Number: No. 91-CA-1703-MR,91-CA-1703-MR
• Citation: 841 S.W.2d 184
• Parties: Betty ASHBY, Decedent, by Betty Ashby Harris, Administratrix of the Estate of Betty Jean Ashby; Carl Ashby, Dequita Ashby, Mattie Ashby, and Shimika Ashby, by their Temporary Custodian, Betty Ashby Harris; and Betty Ashby Harris, Appellants, v. CITY OF LOUISVILLE, Kentucky; Louisville Division of Police; Jerry Abramson, in his official capacity as Mayor of the City of Louisville; Richard Dotson, Individually and in his official capacity as Chief of Police; Officer P. Sweitzer, Officer Jesse Foley, Officer Wendell Ennis, Officer Gary Hearn, and Officer M.W. Mitchell, Individually and in their official capacities as Louisville Division of Police Officers; and Tami Lynn Bender, Administratrix of the Estate of Mark Edward Bender, Appellees.
• Court: Kentucky Court of Appeals

Page 184

841 S.W.2d 184

Betty ASHBY, Decedent, by Betty Ashby Harris, Administratrix of the Estate of Betty Jean Ashby; Carl Ashby, Dequita Ashby, Mattie Ashby, and Shimika Ashby, by their Temporary Custodian, Betty Ashby Harris; and Betty Ashby Harris Appellants, v. CITY OF LOUISVILLE, Kentucky; Louisville Division of Police; Jerry Abramson, in his official capacity as Mayor of the City of Louisville; Richard Dotson, Individually and in his official capacity as Chief of Police; Officer P Sweitzer, Officer Jesse Foley, Officer Wendell Ennis Officer Gary Hearn, and Officer M.W. Mitchell, Individually and in their official capacities as Louisville Division of Police Officers; and Tami Lynn Bender, Administratrix of the Estate of Mark Edward Bender, Appellees.

No. 91-CA-1703-MR.

Court of Appeals of Kentucky.

Nov. 20, 1992.

Joseph L. White, Karen M. Timmel, Louisville, for appellants.

William E. McAnulty, Jr., Janet P. Jakubowicz, Louisville, Robert L. Roark, Lexington, for City of Louisville; Louisville Div. of Police; Jerry Abramson, in his official capacity as Mayor of the City of Louisville; Officer P. Sweitzer, Officer Jesse Foley, Officer Wendell Ennis, Officer Gary Hearn, and Officer M.W. Mitchell, Individually and in their official capacities as Louisville Div. of Police Officers; and Tami Lynn Bender, Administratrix of the Estate of Mark Edward Bender.

A. Courtney Guild, Jan M. West, Louisville, for Richard Dotson, Individually and in his official capacity as Chief of Police.

Before EMBERTON, GUDGEL and WILHOIT, JJ.

GUDGEL, Judge:

This is an appeal from orders entered by the Jefferson Circuit Court in an action stemming from a tragic domestic violence incident which resulted in the death of appellants' decedent, Betty Ashby (hereinafter Ashby). The circuit court granted a summary judgment in favor of Richard Dotson, the former Louisville Police Chief, and dismissed the claims asserted against the remaining appellees. Appellants contend that the trial court erred by concluding that appellees are immune from tort liability with respect to the incidents which led to the filing of this action. They also contend that the trial court erred by finding that appellees are not liable to them (1) for negligently failing to utilize due care in protecting Ashby as required by a "special relationship" which allegedly existed between Ashby and appellees, (2) pursuant to 42 U.S.C. Sec. 1983, for allegedly denying Ashby her due process rights, and (3) pursuant to 42 U.S.C. Sec. 1983, for allegedly denying Ashby her right to equal protection of the law. We agree with appellants' contention as to immunity from tort liability, but otherwise disagree with their contentions. Hence, we affirm in part, and reverse and remand in part.

Ashby and one Carl Branch engaged in a lengthy personal relationship, including an extended period of cohabitation, which produced four children. The relationship deteriorated, however, and on December 12, 1988, Ashby filed a domestic violence petition and succeeded in obtaining an emergency protective order (EPO). This order directed Branch to vacate the parties' residence, to refrain from committing further acts of violence against Ashby, and to refrain from disposing of or damaging the parties' property. At a January 6, 1989, hearing on Ashby's petition, Branch admitted committing acts of abuse. He was ordered to refrain from either committing further acts of violence and abuse, or disposing of or damaging any property of the parties. However, Branch was not ordered to vacate the parties' residence because, according to the court record, Ashby did not want such an order to be entered.

Branch evidently physically abused Ashby on at least one more occasion prior to the date of her death. On January 31 Ashby filed an affidavit to this effect and on February 1, the district court entered a "forthwith order of arrest" based upon "probable cause to believe that respondent has violated the terms or conditions of an Order or Judgment of this court." The order of arrest directed that Branch should be arrested and confined pending a hearing on February 3. However, Branch was not arrested prior to Ashby's death on February 10.

Although the parties dispute many of the circumstances leading to Ashby's death, it is undisputed that on February 9 Ashby's apartment door was kicked in by Branch or some other unknown person. It also is undisputed that after speaking with the investigating police officers Ashby left her apartment and went to her sister's nearby apartment, but that she returned to her own apartment before morning. Tragically, Branch forced his way into Ashby's apartment the next morning and chased her out of a window and into a neighbor's apartment, where he brutally murdered her by beating her with a crowbar. Branch was subsequently convicted of Ashby's murder.

This civil action for damages was filed by Ashby's mother, who is the executrix of Ashby's estate and the custodian for her four children. In short, it was alleged that one or more of the appellee city's police officers failed to arrest Branch pursuant to an alleged mandatory arrest warrant despite several opportunities to do so. Moreover, appellants alleged that these police officers failed to know about the existing EPO order, failed to respond appropriately to the acts of domestic violence committed against Ashby including those which occurred on the morning of her death, and negligently failed to provide Ashby with necessary and appropriate assistance. Predictably, appellees claimed in response that Branch could not be located by the police officers for purposes of making an arrest, that the officers responded appropriately to the domestic violence situation including the violence which occurred on the morning of Ashby's death, and that after Ashby's door was kicked in the night before her death the police officers offered appropriate assistance to her, including a suggestion that she go to the local spouse abuse center. According to appellees, Ashby declined to accept such assistance or to follow their advice.

Appellee Dotson, Louisville's former police chief, made a motion for a summary judgment. The remaining appellees made a joint motion either to dismiss the action for failure to state a claim upon which relief could be granted, or for a summary judgment. The trial court granted a summary judgment in favor of Dotson, and dismissed with prejudice the claims against the remaining appellees. This appeal followed.

Appellants argue first that the trial court erred by concluding that appellee City of Louisville, and the individual appellees who are its agents and officers, are as a matter of law immune from liability in tort concerning the incident which precipitated the filing of this action. We agree.

Municipal corporations are immune from tort liability only in very limited circumstances. As stated in Gas Service Co., Inc. v. City of London, Ky., 687 S.W.2d 144, 148 (1985):

The duty to exercise ordinary care commensurate with the circumstances is a standard of conduct that does not turn on and off depending on who is negligent. With a municipal corporation as with all other legal entities, the question is not whether such a duty exists, but whether it has been violated and what are the consequences. Constitutionally, statutorily, or by court decisions, on occasion we excuse the nonperformance of this duty, but no purpose is served by denying its existence. (Footnote omitted.)

More specifically, Kentucky's highest court repeatedly has held that municipal immunity from liability for "ordinary torts" exists only in situations involving "the exercise of legislative or judicial or quasi-legislative or quasi-judicial functions." Haney v. City of Lexington, Ky., 386 S.W.2d 738, 742 (1964). See also Bolden v. City of Covington, Ky., 803 S.W.2d 577 (1991); Gas Service Co. supra. This judicially-recognized exception to the rule of municipal tort liability was recently codified in KRS 65.2003. This statute, enacted in 1988, states in pertinent part as follows:

Notwithstanding KRS 65.2001, a local government shall not be liable for injuries or losses resulting from:

....

(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.

Nothing contained in this subsection shall be construed to exempt a local government from liability for negligence arising out of acts or omissions of its employees in carrying out their ministerial duties. (Emphasis added.)

See, e.g., Robert R. Sparks, Comment, A Survey of Kentucky Tort Reform, 17 N.Ky.L.Rev. 473, 483 (1990).

Here, appellees assert that all of the tortious conduct alleged by appellants falls within the quoted statutory exception to municipal tort liability. Specifically, they interpret KRS 65.2003(3) as pertaining not only to the exercise of judicial, quasi-judicial, legislative or quasi-legislative authority, but also to any other "exercise of judgment or discretion vested in the local government," including any "failure to enforce any law." We disagree with their argument.

Quite frankly, we are unable to determine the legislative intent embodied in the portion of KRS 65.2003(3) which refers to "the exercise of judicial, quasi-judicial, legislative or quasi-legislative authority or...