Peterson v. Foley, 2017-SC-000028-DG

• Decision Date: 01 November 2018
• Docket Number: 2017-SC-000028-DG
• Parties: Nicole PETERSON, Administratrix of the Estate of Peggy McWhorter (Deceased); and Wanda Russell, Guardian and Next Friend of D.M.M. and E.H.M., Minor Children of Peggy Gail McWhorter, Appellants v. Bethany FOLEY; Dennis Grayum Debbie Grayum; Scott Hadley; and Kevin Booth, Appellees
• Court: United States State Supreme Court — District of Kentucky

559 S.W.3d 346

Nicole PETERSON, Administratrix of the Estate of Peggy McWhorter (Deceased); and Wanda Russell, Guardian and Next Friend of D.M.M. and E.H.M., Minor Children of Peggy Gail McWhorter, Appellants

v.Bethany FOLEY; Dennis Grayum Debbie Grayum; Scott Hadley; and Kevin Booth, Appellees

2017-SC-000028-DG

Supreme Court of Kentucky.

NOVEMBER 1, 2018

COUNSEL FOR APPELLANTS: Corey Ann Finn, Stuart Wade Hampton Yeoman, Louisville, CAUDILL FINN & YEOMAN.

COUNSEL FOR APPELLEES: Stacey Blankenship, Kristen Nicole Worak, Paducah, KEULER, KELLY, HUTCHINS & BLANKENSHIP.

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

This case arises from the death of an inmate. The legal issue concerns the duties of jail personnel to protect inmates in their custody. In a split decision, the Court of Appeals affirmed the trial court’s order granting summary judgment in favor of the jail personnel. For the foregoing reasons, we affirm the decision of the Court of Appeals.

Background

On November 28, 2011, Peggy McWhorter pled guilty in Russell District Court to a drug-related second offense D.U.I., for which she had been arrested the previous month. McWhorter received a sentence of 60 days in jail, seven days of which were to be served on consecutive weekends beginning on December 9th. The remainder was to be probated for two years. McWhorter served the first weekend in jail, snoring loudly and sleeping most of the time.

When she reported for her second weekend shortly before 6 p.m. on Friday, December 16, 2011, McWhorter denied having ingested any dangerous amount or mixture of alcohol or drugs. McWhorter was then housed in a detoxification ("detox") cell with two other detainees. After receiving a dinner tray, McWhorter announced her intent to "sleep off her weekend." The Russell County Detention Center Detox Isolation Log and video surveillance verified that several deputies passed by the cell and signed the log approximately hourly, fifteen times in all. The first notation was entered at 6:30 p.m. and the second notation was entered at 7:00 p.m. Both stated "OK." All other entries simply noted "Asleep" prior to "No Response" at 6:10 a.m. McWhorter’s death was attributed primarily to a hydrocodone overdose. The precise timing of her death is unclear.

Appellant, Nicole Peterson as Executrix, filed a wrongful death suit on behalf of McWhorter’s estate. Wanda Russell is also an Appellant in this case. She is the guardian and next friend of McWhorter’s two minor children. The complaint named as defendants Russell County Jailer Bobby Dunbar and nine of his deputies. However, Appellants' brief on appeal from the Russell Circuit Court’s summary judgment for all defendants requested relief against only five deputies: Bethany Foley, Dennis Grayum, Debbie Grayum, Scott Hadley, and Kevin Booth (collectively referred to as "Deputies").

As previously noted, the Court of Appeals affirmed the trial court’s order granting summary judgment. We granted discretionary review.

Standard of Review

"The 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." Coomer v. CSX Transp. Inc. , 319 S.W.3d 366, 370 (Ky. 2010). We review a trial court's summary judgment ruling de novo. Blankenship v. Collier , 302 S.W.3d 665, 668 (Ky. 2010). We must also view the record in a light most favorable to the nonmoving party and resolve all reasonable doubts in that party's favor. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc. , 807 S.W.2d 476, 480 (Ky. 1991).

Qualified Immunity

For purposes of determining qualified immunity for government officials, the duties of those officials are categorized as either ministerial or discretionary. The Court explained this distinction in Yanero v. Davis :

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.

....

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.

65 S.W.3d 510, 522 (Ky. 2001) (citations omitted).

Intake Procedures

Deputy Foley participated in McWhorter’s intake processing and escorted her to the detox cell around 6:30 p.m. on December 16, 2011. Foley went off duty at 7 p.m.

Appellants argue that Deputy Foley erroneously failed to shower McWhorter prior to placing her in the cell. According to Appellants, this would have provided Foley with an additional opportunity to observe McWhorter’s behavior and to assess whether she was intoxicated. We disagree. First off, this argument is tangential to central issues argued in this case—the frequency and sufficiency of the Deputies' surveillance of McWhorter throughout the night she died. And although Appellants cite that Jailor Dunbar conceded that Deputy Foley violated jail procedures by not showering McWhorter, Appellants fail to cite which specific regulation was violated. Our review of the Russell County Detention Center Policies fails to indicate any showering regulation that was violated here. Moreover, it strains credulity to conclude that subjecting McWhorter to a shower would have had any material impact on the cause of her death.

501 KAR 3:090 § 1, subsections (7) and (9), create a duty to perform a medical screening of incoming inmates and to inform them of the methods of gaining access to medical care. These requirements are absolute, certain, and imperative. Therefore, they are ministerial. Deputy Foley satisfied her duties here by performing and documenting the medical screening and informing McWhorter of the methods of gaining access to medical care. Cf. Hedgepath v. Pelphrey , 520 Fed. Appx. 385 (6th Cir. 2013) (acknowledging that the duty described in 501 KAR 3:090 was violated where deputies failed to perform any initial medical assessment whatsoever). Since Deputy Foley went off duty at 7 p.m., she had no surveillance duties for the night in question. Thus, she was entitled to a judgment as a matter of law.

Detox Surveillance

501 KAR 3:060 § 2(2) governs surveillance procedures for certain types of inmates:

Jail personnel shall conduct and document direct in-person surveillance on an irregular schedule, at least every twenty (20) minutes on the following classes of prisoners:

(a) Suicidal;

(b) Mentally or emotionally disturbed, if housed in a single cell; or

(c) In detox cell.

It is undisputed that McWhorter was placed in a detox cell and that the Deputies did not perform twenty-minute checks. However, it is disputed whether McWhorter was placed in the detox cell for detox purposes or whether she was placed there due to her status as a weekend inmate. Nevertheless, she remained in the detox cell for the entirety of her incarceration. The surveillance log outside of her cell was labeled "Russell County Detention Center Detox Isolation Log." This log also specifically listed McWhorter as the cell’s inhabitant. The plain language of 501 KAR 3:060 § 2(2) and the clear designation of McWhorter’s cell as a "detox cell" required the Deputies to check on her every twenty-minutes, which they failed to do. Therefore, this ministerial duty was violated.

Much has been argued in this case about the application of qualified immunity to various jail regulations concerning the frequency and sufficiency of the Deputies' surveillance of McWhorter throughout the night she died. However, we need not address these issues.

The trial court’s order granting summary judgment in this case failed to provide any analysis whatsoever. The court’s order denying Appellants' motion to alter, amend, or vacate the summary judgment was also denied by the court without explanation. Therefore, it is unclear from the order on what basis the trial court ruled in favor of the Deputies. Although the arguments advanced by the parties on appeal primarily concern the issue of qualified immunity, it is well-established that this Court may affirm the trial court for any reason in the record. E.g., Ky. Farm Bureau Mut. Ins. Co. v. Shelter Mut. Ins. Co. , 326 S.W.3d 803, 805 n. 3 (Ky. 2010). Even if a jury could reasonably determine that the Deputies' ministerial duties were violated here, it is clear from the record that Appellants cannot prove causation.

Causation

The undisputed evidence indicates that several different Deputies visited McWhorter’s cell and signed the log at least every hour and, in fact, sometimes more frequently. As previously noted, the jailors signed the log fifteen times in all. The notations entered at 6:30 and 7:00 p.m. stated "OK." All other entries simply noted "Asleep" prior to "No Response" at 6:10 a.m. Although the Deputies may not have looked into her cell on every occasion, the record reflects that they often did. In fact, the jail surveillance video revealed that six different Deputies observed McWhorter for a total of twenty-seven times in the eleven hours and forty minutes she was held in the Detention Center. Not all these observations were officially logged.

In any event, there is no way that Appellants can prove which of these Deputies, if any, was the cause of McWhorter’s death. Similarly, apportionment of fault under these facts would be purely speculative. It is also critical that nothing in the record indicates McWhorter’s time of death. As noted by the Deputies in their brief, "Appellants offered no medical expert, nor could they have found one, to suggest to a reasonable degree of medical probability that McWhorter could have been revived after not breathing for...