Minger v. Green et al

• Decision Date: 21 September 2000
• Docket Number: No. 99-6373,99-6373
• Parties: (6th Cir. 2001) Gail Minger, as Personal Representative of the Estate of Michael Howard Minger, Plaintiff-Appellant, v. Joseph Green, Director, Public Safety Department, Murray State University; David Wilson, Associate Director, Housing, Murray State University, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 793

239 F.3d 793 (6th Cir. 2001)

Gail Minger, as Personal Representative of the Estate of Michael Howard Minger, Plaintiff-Appellant, v. Joseph Green, Director, Public Safety Department, Murray State University; David Wilson, Associate Director, Housing, Murray State University, Defendants-Appellees.

No. 99-6373

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: September 21, 2000

Decided and Filed: February 9, 2001

Appeal from the United States District Court for the Western District of Kentucky at Paducah. No. 99-00142, Thomas B. Russell, District Judge. [Copyrighted Material Omitted] Jennifer J. Hall, Louisville, Kentucky, Gail Minger, pro se, Niceville, FL, for Plaintiff-Appellant.

Jonathan Freed, BRADLEY & FREED, Paducah, Kentucky, for Appellee.

John P. Rall, MURRAY STATE UNIVERSITY, GENERAL COUNSEL, Murray, Kentucky, for Appellees.

Before: BOGGS and SUHRHEINRICH, Circuit Judges; and ALDRICH, District Judge^*.

OPINION

BOGGS, Circuit Judge.

Plaintiff-appellant, Gail Minger, appeals a district court decision granting the Fed. R. Civ. P. 12(b)(6) motions of defendant-appellees, Joseph Green and David Wilson, to dismiss Minger's wrongful death diversity action. For the following reasons, we affirm in part and reverse in part.

I

Gail Minger is the mother and personal representative of the Estate of Michael Howard Minger. In 1997, Michael, a student from Niceville, Florida, enrolled at Murray State University (MSU) in Murray, Kentucky, as a vocal performance major. All MSU first- and second-year students are required to live in on-campus dormitories. Michael had documented disabilities, including attention-deficit disorder, dyslexia, and perception/spatial disorientation. According to Minger's complaint, Michael and his parents sought an exemption from the dormitory residency requirements because of Michael's disabilities, but their requests were denied. In late 1998, at the beginning of Michael's second year at MSU, Michael moved in to Room 413 in Hester Hall.

Early on the morning of September 13, 1998, a fire started on Michael's floor in Hester Hall. According to Minger's complaint, investigators suspected arson. Minger's complaint also states that between September 13 and 18, MSU received false reports of fires on Michael's floor. On September 14, 1998, Gail Minger called the MSU housing office to inquire about the cause of the September 13 fire. She spoke with David Wilson, the Associate Director of the housing office. Minger's complaint states that Wilson did not tell Gail that arson was the suspected cause of the fire. Instead, Wilson called the fire "minor" and "nothing to worry about" and told her that the dorm residents were safe. Wilson discouraged Gail from calling the fire department.

On September 18, 1998, a second fire was set on Michael's floor in the same location as the first fire. Michael was sleeping in his room at the time. He arose and attempted to escape Hester Hall, but he died of smoke inhalation. Michael was the only student who died in the fire.

Gail Minger filed a complaint in federal district court on the basis of diversity jurisdiction on May 13, 1999, asserting state law claims against Wilson and Joseph Green, Director of Public Safety at MSU. In her complaint, Minger stated that when she called Wilson on September 14, 1998, to inquire about the cause of the September 13 fire, Wilson

never at any time, in response to Gail Minger's inquiries, revealed to her that the September 13 fire was suspected to be a set fire. Instead, when Gain [sic] Minger indicated that she was going to call the Murray Fire Department to find out how the September 13 fire started and to get someone from the fire department to check out her son's room, Defendant, David Wilson, told her, 'No, no, no. You don't need to do that.' He said the September 13 fire was 'minor' and that 'there was nothing to worry about.'

(J.A. 16). As a result, Minger claimed that Wilson

negligently misrepresented the cause of the September 13 fire to Gail Minger by not revealing to Gail Minger that the fire was suspected to be arson and by discouraging Gail Minger from the need to investigate the fire further. Had he revealed to Gail Minger that the fire was suspected to be arson, or had he not discouraged Gail Minger from the need to investigate the fire further, Gail Minger would have determined that the fire was a set fire.

Ibid. Minger claimed that if she had known that the cause of the September 13 fire was suspected to be arson, Michael would have immediately vacated the dormitory. Instead, Minger claimed that, in reliance on Wilson's statements regarding the September 13 fire, Michael remained in the dormitory. In addition, Minger alleged that Wilson knew or should have known that Gail and Michael would rely on Wilson's statements concerning the cause of the fire.

Minger alleged that Green had a statutory duty to prevent unlawful conduct and to protect all persons located on campus from harm. She also alleged that the arson was a reasonably foreseeable criminal act and that Green breached his duty to Michael by not having an adequate security system in place to assure his safety.

Green and Wilson filed motions to dismiss, claiming that Minger's suit was barred by the Eleventh Amendment of the United States Constitution as it was brought against each of them in their official capacity. Minger filed an amended complaint on June 28, 1999. The only change in the amended complaint was the statement that Green and Wilson were being sued in their individual capacities. The district court ruled that, since Minger's suit was no longer a suit against a state, it was not barred under the Eleventh Amendment.

Green and Wilson filed new motions to dismiss on the basis that they were entitled to immunity under Kentucky state law. On September 3, 1999, the district court granted the motions by Green and Wilson and dismissed the case.

II

Whether the district court properly dismissed a claim under Fed. R. Civ. P. 12(b)(6) is a question of law subject to de novo review. See Gao v. Jennifer, 185 F.3d 548, 552 (6th Cir. 1999); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996); Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138 (6th Cir. 1995). Motions to dismiss should be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."Sistrunk, 99 F.3d at 197. In considering the motion, all factual allegations in the complaint are accepted as true. See Gao, 185 F.3d at 552.

III

The district court ruled that Green and Wilson were entitled to immunity under Kentucky law on the basis that they were performing discretionary acts within the general scope of their authority. We will review Kentucky law regarding the immunity of state officers and employees and then assess Minger's claims against Wilson and Green in turn.

A

It is a well-established principle of Kentucky law that a state officer or employee is liable for "deliberate wrongdoing, regardless of whether he was acting within the scope of his authority." Carr v. Wright, 423 S.W.2d 521, 522 (Ky. 1968). This is based on the premise that, while a state officer or employee may be entitled to official immunity for actions authorized by law, when a state officer or employee "exceeds, ignores, or disregards the limits set to his authority, he cannot then justify his act at all, but must respond to the party injured like any other wrongdoer." Upchurch v. Clinton County, 330 S.W.2d 428, 431 (Ky. 1959). This principle recently was reaffirmed by the Kentucky Supreme Court when it stated that a state officer or employee is not immune from suit when a claim alleges "illegal action or action outside the scope of authority." Franklin County v. Malone, 957 S.W.2d 195, 202 (Ky. 1997). Therefore, a state officer or employee is not immune from suit under Kentucky law when the individual knowingly commits an intentional tort, wrongful act, or other form of deliberate wrongdoing.

In contrast, a state officer or employee who is negligent in the performance of the individual's duties may be immune from suit under Kentucky law. In Malone, its most recent pronouncement on the extent of the immunity of state officers and employees, the Kentucky Supreme Court analyzed the situations in which state officers and employees are immune from liability for actions they perform negligently. This court applies the Kentucky Supreme Court's analysis in Malone to the facts of this case because "[i]n those few instances in which the highest state court has recently spoken to the precise question at issue in a particular setting, the duty of the federal court to determine and apply state law is easily met." McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661 (3d Cir. 1980).

In Malone, the Kentucky Supreme Court noted the long-standing principle of Kentucky law that state officers and employees are entitled to immunity when performing discretionary functions within the general scope of their authority. 957 S.W.2d at 201. In addition, the Kentucky Supreme Court recognized that in enacting amendments to Kentucky's Board of Claims Act in 1986, the Kentucky state legislature enlarged the circumstances in which state officers and employees are entitled to immunity when acting within the scope of their employment. See id. at 202 (citing Ky. Rev. Stat. Ann. § 44.070et seq.). As a result of this legislation, Kentucky state officers and employees are immune from suit when they negligently perform ministerial functions within the scope of their employment¹. Discretionary functions are those that involve policy making or significant judgment, while ministerial functions involve carrying out routine duties. See ibid; see also Collins v. Commonwealth of Ky. Natural Res. & Envtl. Prot. Cabinet, 10 S.W.3d 122, 126 (Ky. 1999)². The Kentucky Supreme Court subsequently limited the scope of the 1986 Kentucky legi...