Brabson v. Floyd County Board of Education et al
MEMORANDUM OPINION & ORDER: 1) the Board's motion for summary judgment 31 is GRANTED. Judgment is entered in favor of dft Floyd County BOE on all claims asserted in Brabson's complaint; 2) Brabson's pending motion to exclude the tes timony of architect William B. Richardson 40 is DENIED AS MOOT; 3) Clerk shall STRIKE case from active docket; 4) Court will issue a separate Judgment contemporaneously with this Memorandum Opinion & Order. Signed by Judge Amul R. Thapar on 5/30/2012.(RKT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
FLOYD COUNTY BOARD OF
EDUCATION, et al.,
Civil No. 10-159-ART
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Where does government end and business begin? Plaintiff Carey Brabson believes
that a board of education acts like a business when it opens the schoolhouse gates to an
outside group for its own use. But the Floyd County Board of Education did not expect or
realize any profit when it allowed the parents of a self-funded, school sports team to conduct
a fundraiser on school property. By providing a space for the parents to raise revenue, the
Board directly furthered interscholastic athletics as part of its educational mission. As a
result, the Board is entitled to governmental immunity and Brabson may not proceed with
Like many other privately owned companies throughout Kentucky, Patterson Dep.,
R. 29 at 43, Cheer Elite organizes and hosts private cheerleading competitions, id. at 9–10,
Unlike interscholastic competitions associated with the Kentucky High School
Athletics Association, Cheer Elite’s competitions include both school teams and private all-
star teams, and each team must pay a fee to participate. Id. at 23, 35. Its owner, Sherri
Patterson, usually holds these competitions at high schools or convention centers. Id. at 14.
When Cheer Elite uses a convention center, it must pay a rental fee but gets to keep all of the
competition’s admission fees. Id. at 24.
In February 2010, Patterson needed to reduce her overhead expenses for the
competition, so she decided to host it at a high school. Ousley Dep., R. 30 at 28. She
approached Leslie Ousley—a guidance counselor and the cheerleading coach at Prestonsburg
High School—about using the high school’s gymnasium as the competition venue. Id. at 28.
In exchange, the parents of the Prestonsburg High School cheerleaders, who were informally
organized as the team’s Boosters Club, would receive one-half of the admission fees.
Patterson Dep., R. 29 at 68–69; Ousley Dep., R. 30 at 31–32, 34. Consistent with the
Board’s policy for approving the use of school property by outside groups, Principal Ted
George approved the use of the school gymnasium.
Ousley Dep., R. 30 at 42–43;
Hammonds Dep., R. 52 at 10.
The Prestonsburg High School cheerleaders were fortunate that fundraising
opportunities like this one came along. After all, the cheerleading team did not receive any
funding, uniforms, or other supplies from the Board besides the occasional use of school
buses at cost (the Boosters Club would pay for the fuel). Id. at 8, 12–13; Nunnery Dep.,
R. 51 at 12–14. Much like any private cheerleading club, it was up to the parents to fully
finance the team. Hammonds Dep., R. 52 at 12–14. So the parents’ portion of the admission
fees from the Cheer Elite competition would go towards the cheerleaders’ uniforms, travel
expenses, and competition fees. Ousley Dep., R. 30 at 41.
Of course, a good plan means little without a successful execution. And the Cheer
Elite competition was well-executed. Twenty teams participated in the competition, seven of
which were school-affiliated and thirteen of which were private all-star teams. Patterson
Dep., R. 29 at 38–39.
Like the rest of the competitions that Cheer Elite hosts, each
participating cheerleader had to pay a registration fee of $20.00 to $25.00. Id. at 20, 35.
Cheer Elite also charged each audience member $5.00 to $8.00 as an admission fee. Id. at
Under its agreement with Cheer Elite, the Boosters Club received half of these
admission fees as well as all of the revenue from its own concessions and merchandise sales.
Id. at 25; Ousley Dep., R. 30 at 31–32, 34; Second George Aff., R. 38-1 at 1. Besides two
school custodians paid by the Boosters Club, only the parents and Cheer Elite ran this
competition; no school personnel were present. Hammonds Dep., R. 52 at 11.
The competition’s financial success, however, is the bright side of this story. Like
many other mothers in attendance, Carey Brabson was eager to see her daughter compete at
Cheer Elite’s competition. R. 17-1 at 1. Unaware of the raised gymnasium floor, Brabson
tripped over the floor’s edge and injured her right knee and left ankle. Id. at 2. She alleges
that these injuries have caused her to miss over a year of work, endure three surgeries, and
incur over $65,000 in medical expenses. Id. at 1.
On December 22, 2010, Brabson sued the Floyd County Board of Education and
Patterson. R. 1. She alleges that these defendants failed to warn invitees and licensees (such
as herself) about the dangerous and unsafe condition that caused her injuries. Compl., R. 1 at
2–3. Brabson also filed a claim against the Board of Education in the Kentucky Board of
Claims. R. 14-1. The Board responded with a motion to dismiss this lawsuit, claiming that it
was entitled to governmental immunity. R. 14. The Court denied that motion because the
Board did not provide enough information to show that it was entitled to immunity. R. 21 at
With the benefit of discovery, the Board moved for summary judgment, again
claiming governmental immunity. R. 31. Patterson also moved for summary judgment,
contending that she was not the possessor of the school gymnasium and that the tripping
hazard was open and obvious. R. 39. The Court granted Patterson’s motion for summary
judgment on the former grounds, R. 50 at 3, but the Court could not decide the Board’s
motion for summary judgment without additional information about the relationship between
the Board and the Boosters Club, see R. 45. With the agreement of the parties, the Court
ordered the parties to take limited deposition testimony and file supplemental briefing on this
factual issue. R. 49. The Board’s motion is now ripe for consideration.
American government has a long history of making its property available for the
public and outside groups to use. For example, public streets and parks “have immemorially
been held in trust for the use of the public and, time out of mind, have been used for purposes
of assembly, communicating thoughts between citizens, and discussing public questions.”
Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009) ((quoting Hague v. Comm.
for Indus. Org., 307 U.S. 496, 515 (1939)). Public schools and libraries joined in this
tradition once public education evolved beyond the one-room schoolhouse.
See 5 A
Cyclopedia of Education 260–67 (Paul Monroe ed., 1913) (describing the development of
schools as civic centers for the use of community groups outside of school hours). After all,
schools were “accessible, often had gymnasiums, were seldom used in the evening, and were
presumably run by and for the people.” David V. Mollenhoff, Madison: A History of the
Formative Years 382 (2d ed. 2003); see also Kentucky Heritage Council, A Historic Context
of the New Deal in East Kentucky, 1933 to 1943, at 130 (2005), available at
.pdf (“The [school] buildings were also meant to serve as community centers through
utilization of the cafeteria and gymnasium for entertainment purposes, and classroom space
for adult education programs.”).
Filling this same governmental role, the Board in this case made one of its school’s
gymnasiums available to the parents of its cheerleading team so that they could conduct a
fundraiser. And as a state agency, the Board’s choice to do so entitles it to governmental
immunity from Brabson’s tort claims. See Grayson Cnty. Bd. of Educ. v. Casey, 157 S.W.3d
201, 202–03 (Ky. 2005) (citing Schwindel v. Meade Cnty., 113 S.W.3d 159, 168 (Ky. 2003)).
Under the doctrine of governmental immunity, a state agency is liable only for
damages caused by its tortious performance of a proprietary function—not those caused by
its tortious performance of a governmental function. Id. Like many distinctions born from
common-law decision-making, it can be difficult to neatly separate borderline cases into
either category. And it is especially difficult to do so when the distinction itself is not based
on a well-settled observation about the world around us, such as the difference between
positive and negative numbers, but instead reflects a more controversial subject, such as the
role of government.
To make this task more manageable, Kentucky courts have provided some guidelines.
Governmental functions involve acts that are “integral” to or “paradigmatic of” government.
Crittenden Cnty. Bd. of Educ. v. Hargis, No. 2009-CA-1673-MR, 2011 WL 474811, at *2
(Ky. Ct. App. Jan. 21, 2011) (quoting Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d
883, 887 (Ky. 2009)); Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, 286
S.W.3d 790, 799 (Ky. 2009). By contrast, proprietary functions involve “undertakings of a
sort [that] private persons or businesses might engage in for profit,” especially if done with
the purpose of raising revenue or participating in a commercial market. Prater, 292 S.W.3d
Here, the Board engaged in not just one but two governmental functions. First, the
Board acted in “direct furtherance of education.” Letcher Cnty. Bd. of Educ. v. Tackett, 2011
WL 4861128, at *2 (Ky. App. Oct. 14, 2011) (citing Breathitt Cnty. Bd. of Educ., 292
S.W.3d at 887)).
By allowing the Boosters Club—the sole source of funding for the
cheerleading team—to conduct a fundraiser on school property, the Board fostered
interscholastic athletics. See Yanero v. Davis, 65 S.W.3d 510, 527–28 (Ky. 2001) (holding
that authorizing and conducting interscholastic athletics is part of the governmental function
of public education); Schwindel, 113 S.W.3d at 168 (holding that hosting interscholastic
sports in a public park is a governmental function). Second, the Board also continued a
tradition of making government property available for use by the Boosters Club on a not-forprofit basis. See supra p. 4.
Moreover, this case threatens precisely the sort of concerns that lie at the core of
governmental immunity. Governmental immunity prevents courts from “pass[ing] judgment
on policy decisions made by members of coordinate branches of government in the context
of tort actions” because tort actions “furnish an inadequate crucible for testing the merits of
social, political or economic policy.” Tackett, 2011 WL 4861128, at *2; see also Yanero, 65
S.W.2d at 521 (noting that the doctrine prevents state agencies from “having to answer for
their [governmental] decisions in the context of tort litigation”). A judgment on the Board’s
liability would thrust the Board’s budgeting policy into the judicial spotlight. After all,
finding the Board liable would be equivalent to overriding the Board’s policy decisions about
how to allocate its limited financial resources among its schools and requiring the Board to
maintain, repair, or renovate certain schools at the expense of others. The order of the
Board’s economic priorities about which of its school properties should be renovated and
when to do so is best left to the Board. Cf. Lincoln v. Vigil, 508 U.S. 182, 193 (1993)
(discussing how a federal agency is “far better equipped than the courts to deal with the
many variables involved in the proper ordering of its priorities” involved in allocating its
funds from a lump-sum appropriation to its various programs (quoting Heckler v. Chaney,
370 U.S. 821, 831–32 (1985))).
Brabson, however, points out an opposing concern. She argues that granting the
Board immunity would give it an “unfair competitive advantage” over private venues
because state agencies could provide similar services “without the same costs and risks
inherent in commercial enterprise.” Young, 2008 WL 2779902, at *5 (quoting Yanero, 65
S.W.2d at 521). Indeed, Brabson says, there is evidence in this case that Cheer Elite
switched from the Pikeville Expo Center to the Prestonsburg High School gymnasium
because the latter was less expensive. See R. 54 at 5. Perhaps so. But the Kentucky
Supreme Court rejected a similar argument in Withers v. Univ. of Ky., 939 S.W.2d 340, 343
(Ky. 1997). There, the plaintiffs sued the University of Kentucky for wrongful death caused
by the negligence of the decedent’s physicians at the University of Kentucky Medical Center.
Id. Trying to cast the Medical Center as a proprietary venture, the plaintiffs argued that it is
“nothing more than a hospital” that competes with and “performs the same function as
private hospitals.” Id. The Kentucky Supreme Court rejected this argument because the
Medical Center’s operation was “essential to the teaching and research function of the
medical school.” Id. Likewise, it is not enough that the Board’s choice to make its property
available for use by outside groups might compete with for-profit venues; this fact is true
whenever government and business occupy overlapping roles in society. Because the Board
was facilitating the parents’ efforts to self-fund the cheerleading team, the Board was
furthering the governmental function of facilitating interscholastic athletics.
Brabson also offers a different characterization of the relationship between the Board
and the Boosters Club. The cheerleading parents who profited from the fundraiser, she
argues, are an arm of the Board. From this premise, Brabson concludes that the Boosters
Club’s fundraising should be attributed to the Board and that the Board thus engaged in a
proprietary function. See R. 54 at 3. Of course, a state agency’s conduct slides towards the
proprietary end of the spectrum when it receives a tangible benefit. See, e.g., Brewer v.
Sheco Constr. Co., 327 F. Supp. 1017, 1019 (W.D. Ky. 1971) (noting that the Tennessee
Valley Authority’s construction of a new power substation for its sale of electrical energy
was “more closely akin to its work in the commercial field” than its governmental function).
But all of the available evidence in this case shows that the Board and the Boosters Club are
entirely separate entities. The Boosters Club is not a formal school organization, and no
school official oversaw its formation or operation. Hammonds Dep., R. 52 at 7–9, 18–19.
The Prestonsburg High School cheerleading parents created this informal club as a way of
pooling their fundraising efforts to finance the cheerleading team—an activity that the Board
does not fund at all. There is only a single, limited link between the Board and the Boosters
Club: Coach Ousley. The Board pays Ousley a small stipend to coach the cheerleading team,
and she also occasionally participates in the Boosters Club’s meetings. There is no evidence,
however, that the Board required or directed Ousley to work with the Boosters Club. Indeed,
she did so voluntarily and offered only recommendations, not oversight. See R. 54 at 2;
Hammonds Dep., R. 52 at 12, 21.
Further, the Board did not directly or indirectly receive anything in exchange for
making the gymnasium available. The Board did not charge the Boosters Club or Cheer
Elite for using the gymnasium. Cf. City of Hopskinsville v. Burchett, 254 S.W.2d 333, 334
(Ky. 1953) (holding that a municipal cemetery’s sale of burial lots constituted a proprietary
function). The Board did not receive any of the money raised by the Boosters Club, see
Hammonds Dep., R. 52 at 45–46, and because the cheerleading team is entirely self-funded,
this fundraising revenue did not offset any expenses that the Board would have otherwise had
By contrast, this is not a case in which the Board acted like a for-profit venue by
renting its space to a private cheerleading competition in exchange for part of the admission
fees. Cf. Sawaya v. Tucson High Sch. Dist. No. 1, 281 P.2d 105, 106 (Ariz. 1955) (holding
that a school district engaged in a proprietary function when it directly profited from renting
a stadium to other schools for interscholastic football games); see also Kootsillas v. City of
Riverview, 543 N.W.2d 356, 358 (Mich. Ct. App. 1995), aff’d, 564 N.W.2d 45 (Mich. 1997)
(holding that a state agency engages in a proprietary function when it charges fees in excess
of amounts needed to offset related expenses). And the Board did not play any part in
hosting the cheerleading competition itself. Instead, the Board only provided the space
necessary for the Boosters Club and Cheer Elite to run their event. Accord Comair, Inc. v.
Lexington-Fayette Urban Cnty. Airport Corp., 295 S.W.3d 91, 101–02 (Ky. 2009) (rejecting
the broad characterization of a county airport board as engaging in the proprietary function of
“transportation” because the board provided only the “runways, terminals, and other
infrastructure that private airline companies” use for a fee). Absent evidence that the Board
intended to raise revenue or to participate in a commercial market, there is no “genuine
dispute of material fact” that the Board engaged in a governmental function entitling it to
immunity. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)); see also Prater, 292 S.W.3d at 888 (holding that a board of education’s provision of
housing on school premises for its night watchperson was governmental because the board’s
purpose was “not to raise revenue or to participate in the local housing market”).
This conclusion does not mean that Brabson cannot recover for her injuries. The
Kentucky General Assembly created the Board of Claims as a partial waiver of immunity for
negligently performed governmental functions.
Ky. Rev. Stat. § 44.070(1); see, e.g.,
Williams v. Ky. Dep’t of Educ., 113 S.W.3d 145, 154 (Ky. 2003) (“In enacting the Board of
Claims Act, the General Assembly exercised its authority under Sections 230 and 231 of our
Constitution to partially waive immunities enjoyed by otherwise immune entities.”).
Brabson is well aware of this administrative scheme: she has a parallel action for this same
injury currently pending before the Board of Claims. R. 14-1; R. 21 at 2.
Instead, she argues that the Board of Claims “will not adequately compensate” her
because relief before the Board of Claims is statutorily limited.
Brabson cannot, for
example, receive damages for pain and suffering, and any award of compensation will be
offset by any third-party benefits she received, such as medical insurance. See Ky. Rev. Stat.
Although this may seem unfair when compared to the broader scope of
recovery available in a courtroom, the Kentucky Constitution gives the General Assembly
authority to “direct in what manner and in what court suits may be brought against the
Commonwealth.” Ky. Const. § 231. The Court has no power to permit Brabson’s suit to
proceed here simply because she believes that the General Assembly’s administrative
scheme is unfair.
Accordingly, it is ORDERED that:
The Board’s motion for summary judgment, R. 31, is GRANTED. Judgment
is entered in favor of defendant Floyd County Board of Education on all
claims asserted in Brabson’s complaint.
Brabson’s pending motion to exclude the testimony of architect William B.
Richardson, R. 40, is DENIED AS MOOT.
The Clerk shall STRIKE this case from the Court’s active docket.
The Court will issue a separate Judgment contemporaneously with this
Memorandum Opinion and Order.
This the 30th day of May, 2012.
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