April 2010
Supreme Court
Sovereign Immunity - Qualified Official Immunity
Haney v. Monsky, 311 S.W.3d 235 (Ky. April 22, 2010)
Once it is determined that an agency meets the test for sovereign immunity, the question remains as to whether the employee of that agency may be held liable for the tort individually. This question is resolved by the doctrine of qualified official immunity, which is in turn decided by whether the employee or agent was engaged in a ministerial or discretionary act at the time in question. While those categorizations appear at first blush to be clear cut, in practice their application can be a nightmare. In this case, Haney was a full-time summer employee at a camp run by the Louisville Zoo. She was trained as to a number of types of activities and on the night in question chose to engage her campers in an activity called “Night Hike”. During the activity one of the 8 year old campers fell and sustained a shoulder injury. It was undisputed that Haney had the discretion to choose which activities her group would participate in. She had been trained in this exercise to “keep the children in the middle of the path”, and the claimant argued that this constituted a known rule about which there was no discretion. The Court rejected this contention because the application and enforcement of the rule varied with circumstances. The Court held that “how” to enforce the rule involved sufficient discretion to invoke the immunity. It might be generally said that the supervision of others tends to be discretionary because the acts required to supervise so often vary with the circumstances. It appears that for supervision to be ministerial, it must involve a black-white type of issue. If the supervisor is to make sure all participants wear a helmet, for example, the participant either is or is not wearing one, and the only solution available to the supervisor is to make him do so.
Employment - Preemption by Kentucky Civil Rights Act
Hill v. Kentucky Lottery Corporation, 327 S.W.3d 412 (Ky. April 22, 2010)
While Kentucky technically remains an at-will state, there are both statutory and common law exceptions to this rule, and the remedies available are not consistent. This case discusses the circumstances under which the Kentucky Civil Rights Act [KCRA] is the exclusive remedy. The KCRA protects against discrimination on the basis of “race, color, religion, national origin, sex, age forty (40) and over, because the person is a qualified individual with a disability, or because the individual is a smoker or nonsmoker.” 344.040(1). There are three common law exceptions to the at-will rule, one which is where the discharge is contrary to a well defined public policy as evidenced by the constitution or a statute. To make a long story short, the KCRA is the exclusive remedy only where the right in question is the same right as is protected by the KCRA. In other words, one cannot use the KCRA as a statutory expression of public policy to support a common law claim, but the KCRA has no impact on any other expressions of public policy. In that case, the plaintiff alleged that she was discharged for two reasons: 1) she testified in support of a KCRA claim, and 2) she refused to perjure herself. The former is exclusively within the province of the KCRA but the latter is not.
Defamation - Absolute Privilege
Hill v. Kentucky Lottery Corporation, 327 S.W.3d 412 (Ky. April 22, 2010)
In terminating an employee, a termination memo detailing the alleged misconduct was placed in their personnel files. The memo was produced to a television statement pursuant to a request made under the Kentucky Open Records Act. The employer contended that the publication was absolutely privileged because it was required to be published by law. The Court suggested on one hand that ordinarily this argument might be compelling, but then went on to say that the creation of the memo with malice while under no legal compulsion to do so the privilege would not apply. The key determination is probably the legal compulsion. If the creation fo the document was required, the privilege might be absolute, but if not, then only a qualified privilege would apply.
Procedure - Post-Judgment Interest
Hill v. Kentucky Lottery Corporation, 327 S.W.3d 412 (Ky. April 22, 2010)
While post-judgment interest is generally 12% per annum, KRS 360.040 permits the trial judge set another amount after a hearing. The Court held that this does not require an evidentiary hearing, but is satisfied if the parties have an opportunity to present its position which can be by filing a response.
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