Smith v. Holler Crawlers Off-Road Club, Inc. et al
Filing
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OPINION & ORDER: 1) the motion to dismiss (DE 21 ) by the individual defendants in their individual and official capacities is GRANTED in part and DENIED in part as follows: a) the motion is GRANTED as to the defendants Albey Brock in his individu al and official capacities, Rick Cornett in his individual and official capacities, Harold Brock in his individual and official capacities, Lonnie Maiden, Jr. in his individual and official capacities, Coyle Silcox in his individual and official cap acities, and Bill Partin in his individual and official capacities and all claims against these defendants are DISMISSED; b) the motion is GRANTED as to Jon Grace in his official capacity and all claims against this defendant in his official capacity are DISMISSED; and c) the motion is DENIED as to Jon Grace in his individual capacity; 2) the plaintiffs motion for order permitting additional support (DE 30 ) is GRANTED. The Court notes that it is the plaintiff's obligation to specifically point out relevant facts and legal arguments contained in the attachments that he would like the Court to consider in resolving any motions in this matter. The Court is not required to comb through these documents to find facts and legal arguments t hat may be favorable to the plaintiff; and 3) the plaintiffs motion (DE 36 ) to cite additional authority is GRANTED. Harold Brock (Individually), Harold Brock, Rick Cornett, Rick Cornett (Bell County Magistrate), Jon Grace, Lonnie Maiden, Jr (Bell County Magistrate), Lonnie Maiden, Jr, Bill Partin, Coye Silcox (Bell County Magistrate), Coye Silcox, Albey Brock (County Judge Executive) and Albey Brock terminated. Signed by Judge Karen K. Caldwell on 9/22/14.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
JOEY SMITH,
)
)
Plaintiff
)
)
v.
)
)
HOLLER CRAWLERS OFF-ROAD CLUB, INC., )
ASHER LAND AND MINERAL, LLLP,
)
ASHER COAL MINING COMPANY,
)
ALBEY BROCK,
)
individually and in his official capacity,
)
RICK CORNETT,
)
individually and in his official capacity,
)
HAROLD BROCK,
)
individually and in his official capacity,
)
LONNIE MAIDEN, JR.,
)
individually and in his official capacity,
)
COYLE SILCOX,
)
individually and in his official capacity,
)
BILL PARTIN,
)
individually and in his official capacity,
)
JON GRACE,
)
individually and in his official capacity,
)
and
)
YAMAHA CORPORATION, USA,
)
)
Defendants
)
CIVIL NO. 6:13-200
OPINION AND ORDER
*********
This matter is before the Court on the motion to dismiss (DE 21) filed by the
seven individual defendants in this matter. Those defendants are Albey Brock, Rick
Cornett, Harold Brock, Lonnie Maiden, Jr., Coyle Silcox, Bill Partin, and Jon Grace.
Defendant Brock was Bell County judge executive during the relevant time period.
Defendants Cornett, Brock, Maiden, Silcox, and Partin were magistrates of the Bell
County Fiscal Court. Defendant Grace was Bell County Adventure Tourism Director.
The plaintiff Joey Smith sues each of these defendants in their individual and official
capacities as public officials of Bell County, Kentucky.
I.
Background
The plaintiff Smith asserts that he took part in an event in Bell County at the
Wilderness Trail Off-Road Park. According to the plaintiff, the park consists of 9,000
acres and “advertises over 120 miles of off-road trails available to drivers of ATV’s, sideby-sides, dirt bikes, jeeps, trucks and other off-road vehicles.” (DE 5, Complaint ¶ 15.)
According to the plaintiff, the park is operated by the county. (DE 25 at CM-ECF p. 5.)
The event at issue occurred the weekend of October 19, 2012 and was organized by the
defendant Holler Crawlers Off-Road Club, Inc. (DE 5, Complaint ¶ 8.)
The event included a Holler Crawler Haunted Forest Ride, the goal of which was
to “break the world record for most ATV’s and utility terrain vehicles in a parade.”
(Complaint ¶ 18.) The forest ride occurred the afternoon of October 20, 2012. (DE 5,
Complaint ¶ 18.) That evening, a “haunted trail ride” and a concert took place on the
property. (DE 5, Complaint ¶ 19; DE 30-1, Mem. at 1.)
At about 4:00 that afternoon, an event participant named Steve Payne was killed
when two underage motorcylists collided with his motorcyle. (DE 30-1, Mem. at 2.) A
couple of hours later, the plaintiff Joey Smith was driving a side-by-side ATV to the
concert with Luke Woodward and two other passengers. (DE 30-1, Mem. at 2.) Smith’s
ATV was overturned and he and Woodward were injured. (DE 30-1, Mem. at 2.)
The Court construes Smith’s complaint to assert a negligence claim against all of
the individual defendants. These defendants move to dismiss the claim against them.
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I.
Analysis
The claims against the individual defendants in their official capacities must be
dismissed under the doctrine of official immunity. “Kentucky counties are cloaked with
sovereign immunity. This immunity flows from the Commonwealth's inherent immunity
by virtue of a Kentucky county's status as an arm or political subdivision of the
Commonwealth.” Lexington–Fayette Urban County Gov't v. Smolcic, 142 S.W.3d 128,
132 (Ky.2004) (citations omitted). When fiscal court members are sued in their official
capacity, the action is essentially brought against the county. Edmonson County v.
French, 394 S.W.3d 410, 414 (Ky. App. 2013) (citations omitted). Like the county, the
fiscal court and its members, who are sued in their official capacity, are entitled to
sovereign immunity. Id. Accordingly, the claims against the individual defendants in
their “official capacity” will be dismissed.
The individual defendants also allege that the claims against them in their
individual capacities should be dismissed under the doctrine of qualified official
immunity. While public officials sued in their official capacities are entitled to absolute
immunity, public officials sued in their individual capacities “enjoy only qualified official
immunity, which affords protection from damages liability for good faith judgment calls
made in a legally uncertain environment.” Yanero v. Davis, 65 S.W.3d 510, 521-22
(2001). Qualified official immunity ensures that “[o]fficials are not liable for bad guesses
in gray areas.” Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (citation
omitted). “Most government officials are not expected to engage in the kind of legal
scholarship normally associated with law professors and academicians. ” Id. (quotations
and citation omitted). Qualified immunity is said to protect “all but the plainly
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incompetent or those who knowingly violate the law.” Id. (quoting Anderson v.
Creighton, 483 U.S. 635, 638 (1987)).
Public officials are entitled to qualified official immunity for negligent conduct
when their negligent acts were 1) discretionary acts or functions; 2) made in good faith;
and 3) within the scope of the employee’s authority. Yanero, 65 S.W.3d at 522.
In order to determine whether the individual defendants are entitled to qualified
official immunity, the Court must first determine the acts that the plaintiff alleges these
defendants performed negligently.
Smith alleges that the individual defendants “planned, financed, staffed,
promoted, supervised, and sponsored” the Haunted Forest Ride. (DE 5, Complaint ¶ ¶ 20,
21, 22.) As to defendant Jon Grace, the plaintiff alleges that, as the County Adventure
Tourism Director, he was the “chief organizer and promoter of the events at Wilderness
Trail Off-Road Park.” (DE 5, Complaint, ¶¶ 6, 17.)
Smith asserts that the defendants were negligent in performing these functions
because they failed to do certain things. He alleges that these defendants failed to 1)
adequately staff the event, 2) institute or enforce general safe driving standards, 3)
institute or enforce a minimum age requirement for participating riders, 4) ensure the
participating riders had the necessary experience and proper safety equipment, 5) ensure
the roadways were clearly marked and structurally safe, 6) adequately train and supervise
staff, 7) adequately supervise the participants, or 8) provide adequate safeguards to
accommodate the “huge crowds” invited to participate in the event. (DE 5, Complaint, ¶¶
29, 34.)
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The Court will look first to the third prong of the analysis – whether the alleged
negligent acts were within the scope of the individual defendants’ authority. In
determining whether actions are taken within the scope of a defendant’s authority, the
issue is whether the actions are “within the general scope of the official’s authority.”
Sloas, 201 S.W.3d 469 at 487 (citation and brackets omitted). It is sufficient if the actions
taken were “within the outer perimeter of an official’s line of duty.” Id. (brackets and
citation omitted). “In other words, an act is within the official's jurisdiction if it is not
manifestly or palpably beyond his authority.” Id. at 487-88 (citation omitted). “To be
within that perimeter, and therefore ... privileged, [i]t is only necessary that the action
bear some reasonable relation to and connection with the duties and responsibilities of the
official.” Id. at 488 (quotations and citation omitted).
A Kentucky state statute specifically provides that the development and operation
of parks and recreation centers is “a proper municipal purpose for all cities and counties.”
KRS § 97.010. Another statute provides that the fiscal court has the power to appropriate
funds and employ personnel to provide parks, recreation areas, and other recreational
facilities and programs. KRS § 67.083(3). That statute “has been liberally construed to
provide fiscal courts with broad powers related to governmental functions so long as the
power at issue has not been specifically restricted by other legislation.” Concerned
Citizens for Pike County v. County of Pike, 984 S.W.2d 102, 103 (Ky. App. 1998). Thus,
by statute, the operation of the Wilderness Trail Off-Road Park was within the scope of
authority of the county judge executive and the magistrates. This scope would include the
planning, financing, staffing, promotion, supervision, and sponsoring of events there,
including the one at issue in this action.
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The plaintiff argues that the event was not within the scope of the judge executive
or magistrates’ authority because it involved “the death of one individual and injuries to
two others” and because the event “turned into a holocaust.” (DE 25, Response at CMECF p. 4.) But, in determining whether an act complained of is within the scope of an
individual official’s authority, “the issue is not whether the official properly exercised his
discretionary duties or whether he violated the law.” Sloas, 201 S.W.3d at 487. “If these
were the relevant inquiries, any illegal action would, by definition, fall outside the scope
of an official's authority.” Id. (quoting In re Allen, 106 F.3d 582, 594 (4th Cir.1997)).
“Simply put, the alleged wrongfulness of one's act is not determinative of the general
scope of one's authority.” Id.
As to defendant Grace, however, he was not a fiscal court magistrate but instead it
appears he was a county employee. The defendants do not address what the scope of
Grace’s authority was as County Adventure Tourism Director or even specifically discuss
him in their motion to dismiss. Accordingly, the motion must be denied as to the claim
against Grace in his individual capacity.
The next issue with regard to the county judge executive and the fiscal court
magistrates is whether the actions at issue were “discretionary.” It is the officer or
employee’s burden to show that the acts were discretionary. Sloas, 201 S.W.3d at 476. If
he does so, then the burden shifts to the plaintiff to establish that the acts were performed
in bad faith. Id.
Discretionary acts are those acts that involve “the exercise of discretion and
judgment, or personal deliberation, decision, and judgment.” Yanero, 65 S.W.3d at 522.
In contrast, a public officer or employee is afforded no immunity for the negligent
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performance of a ministerial act, which is an act “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.” Id.
Discretionary or judicial duties are such as necessarily require the exercise
of reason in the adaptation of means to an end, and discretion in
determining how or whether the act shall be done or the course pursued.
Discretion in the manner of the performance of an act arises when the act
may be performed in one of two or more ways, either of which would be
lawful, and where it is left to the will or judgment of the performer to
determine in which way it shall be performed.
Collins v. Commonwealth of Ky. Natural Resources and Environmental Protection
Cabinet, 10 S.W.3d 122, 125 (Ky.1999) (citation omitted).
The decision by the county judge executive and the magistrates regarding the how
the event at issue would be conducted were discretionary acts, involving personal
judgments, not merely obedience to the orders of others or execution of specific, defined
acts. These decisions included decisions about how the event would be staffed and
supervised; the standards, rules, and regulations that would govern the event; and the
preparation of the property for the event. These are the decisions and actions that form
the basis for the plaintiff’s complaint and they are all discretionary acts.
Accordingly, the burden shifts to Smith to show that the acts complained of were
taken in bad faith. This element has both objective and subjective components. Yanero,
65 S.W.3d at 523. An official is not entitled to qualified official immunity if he took
actions that he knew or reasonably should have known would violate the constitutional,
statutory, or other clearly established right of the plaintiff. Id.; Sloas, 201 SW.3d at 486.
This is the objective component. Bad faith can also be based on a willful or malicious
intent by the public officer to harm the plaintiff. This is the subjective component.
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Yanero, 65 S.W.3d at 523. “There must be some implication of self-interest, or a
deliberate indifference, or sinister motive, rather than an honest mistake or oversight.”
Sloas, 201 S.W.3d at 485.
Smith does not allege any facts either in his complaint or in his response to the
motion to dismiss that would support a claim that the county judge executive or
magistrates willfully or maliciously intended to harm the plaintiff. Nor has the plaintiff
alleged any facts that would establish that these defendants knew or should have known
that the decisions they made would cause bodily harm to Smith.
Smith argues that it is improper for the Court to resolve the issue of qualified
official immunity until the parties have conducted some discovery. But, for purposes of
this motion, the Court has assumed as true all of the plaintiff’s allegations. Further,
“questions of qualified immunity should be resolved ‘at the earliest possible stage in
litigation’ or else ‘the driving force’ behind immunity—avoiding unwarranted discovery
and other litigation costs—will be defeated.” Everson v. Leis, 556 F.3d 484, 492 (6th Cir.
2009) (quoting Pearson v. Callahan, 555 U.S. 223 (2009)).
Smith has not explained precisely why discovery is necessary before resolving the
issue of qualified immunity with regard to the county judge executive or the fiscal court
magistrates. The Court recognizes that determining whether qualified immunity applies
may often require resolution of factual issues. In this case, however, a state statute makes
clear that the county judge executive and the magistrates were acting within the scope of
their official duties in undertaking the actions alleged by the plaintiff. That the actions
were discretionary is clear without any need for discovery. Further, the Court has
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assumed the truth of all of the plaintiff’s allegations and they do not support a claim that
these defendants acted in bad faith.
Neither in his complaint nor in response to the motion to dismiss does Smith ever
allege that the individual defendants acted in bad faith. In supporting his claim for
punitive damages, plaintiff alleges that the defendants were “reckless, wanton, willful and
oppressive” but he never sets forth any specific acts by the defendants that he alleges fit
this description. In federal court, A a plaintiff's obligation to provide the >grounds= of his
>entitle[ment] to relief= requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). In order to survive a
motion to dismiss, the factual allegations in the complaint Amust be enough to raise a
right to relief above the speculative level.@ Id. The plaintiff must plead Aenough facts to
state a claim to relief that is plausible on its face@ and to nudge his claim Aacross the line
from conceivable to plausible.@ Id. at 570.
Smith has failed to allege any facts that would support a finding of bad faith by
the county judge executive or the magistrates. Accordingly, they are entitled to qualified
immunity.
For all these reasons, the Court hereby ORDERS as follows:
1) the motion to dismiss (DE 21) by the individual defendants in their individual
and official capacities is GRANTED in part and DENIED in part as follows:
a) the motion is GRANTED as to the defendants Albey Brock in his
individual and official capacities, Rick Cornett in his individual and
official capacities, Harold Brock in his individual and official capacities,
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Lonnie Maiden, Jr. in his individual and official capacities, Coyle Silcox
in his individual and official capacities, and Bill Partin in his individual
and official capacities and all claims against these defendants are
DISMISSED;
b) the motion is GRANTED as to Jon Grace in his official capacity and all
claims against this defendant in his official capacity are DISMISSED; and
c) the motion is DENIED as to Jon Grace in his individual capacity;
2) the plaintiff’s motion for order permitting additional support (DE 30) is
GRANTED to the extent that the plaintiff asks for the attachments to the
motion to be filed in the record of this matter. The attachments consist of the
pleadings filed by parties in a state-court action by Luke Woodward, a
passenger in the ATV driven by the plaintiff in this action. The Court notes
that it is the plaintiff’s obligation to specifically point out relevant facts and
legal arguments contained in the attachments that he would like the Court to
consider in resolving any motions in this matter. The Court is not required to
comb through these documents to find facts and legal arguments that may be
favorable to the plaintiff; and
3) the plaintiff’s motion (DE 36) to cite additional authority is GRANTED, the
additional authority consisting of state court opinions in a related case.
Dated September 22, 2014.
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