Candy Rogers, as Mother and Next Friend of Zachary Rogers v. Julie Williams ( 2023 )

RENDERED: MARCH 3, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0775-MR
CANDY ROGERS, AS MOTHER
AND NEXT FRIEND OF ZACHARY
ROGERS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 17-CI-000232
JULIE WILLIAMS APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND TAYLOR,
JUDGES.
TAYLOR, JUDGE: Candy Rogers, as Mother and Next Friend of Zachary Rogers,
brings this appeal from a June 8, 2021, Memorandum and Order of the Jefferson
Circuit Court granting summary judgment in favor of Julie Williams and
dismissing the claims against her. We affirm.
BACKGROUND
The underlying relevant facts are as follows:
In the fall of 2016, [Zachary] was a seventh grader
at Frederick Law Olmsted Academy North (“Olmsted”),
an all-boys middle school in the Jefferson County Public
School System (“JCPS”). On the morning of December
16, 2016, between 11:20 and 11:50, [Zachary] and
several other students were eating lunch in the cafeteria.
Williams, the seventh-grade counselor, was one of
three employees supervising the students in the
cafeteria. She was at one end of the cafeteria facing the
students and directly in front of [Zachary]. The other two
supervisors, the assistant principal and security guard,
were at the other end of the cafeteria, also facing the
students. Williams was walking around the cafeteria.
For a short period of time, she was sitting in front of the
table where [Zachary], K.T., and another boy sat. The
boys were being rambunctious. Williams told them to
stop “clowning around.” After a few minutes, she got up
to walk to another part of the cafeteria. Within seconds,
a fight broke out between [Zachary] and K.T. The
assistant principal and security guard rushed over and
broke up the fight, separating the boys. Immediately,
[Zachary] went to the office, utilized an ice pack, and
waited for his mother to pick him up. . . .
Williams v. Rogers, as Mother and Next Friend of Z.R., No. 2017-CA-001945-MR,
2019 WL 2157576, at *1-2 (Ky. App. May 17, 2019) (footnotes omitted). Zachary
was subsequently taken to Norton Children’s Hospital where it was determined
that he suffered multiple fractures to his face.
On January 12, 2017, Candy Rogers, as Mother and Next Friend of
Zachary Rogers, filed a complaint in Jefferson Circuit Court (Action No. 17-CI-
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000232) against, inter alios, the school principal, the assistant principal, and
Williams. Relevant to this appeal, Rogers asserted claims against the three
defendants for negligence and negligent supervision. The principal, the assistant
principal, and Williams filed a motion for summary judgment arguing that
qualified official immunity barred Rogers’ claims. The circuit court ultimately
granted partial summary judgment dismissing the claims against the principal and
the assistant principal; however, the court denied summary judgment as to
Williams.
In denying summary judgment as to Williams, the circuit court
determined that Williams was performing a ministerial act while supervising the
students; thus, she was not entitled to qualified official immunity. Williams
pursued a direct appeal to this Court (Appeal No. 2017-CA-001945-MR) from the
circuit court’s interlocutory order denying her motion for summary judgment. This
Court affirmed the circuit court’s order denying summary judgment as to Williams.
The Kentucky Supreme Court denied discretionary review.
As Williams was not entitled to qualified official immunity, Williams
and Rogers then engaged in additional discovery regarding Rogers’ claims for
negligence and negligent supervision. Williams subsequently filed another motion
for summary judgment claiming she did not breach any duty owed to Zachary and
that the altercation between Zachary and K.T. was not reasonably foreseeable.
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By Memorandum and Order entered June 8, 2021, the circuit court
granted summary judgment in favor of Williams on the claims for negligence and
negligent supervision. The circuit court held that Zachary’s “injuries were not
foreseeable and there is no causal link between any action or omission on the part
of Williams and [Zachary’s] claimed injuries. Accordingly, Williams cannot be
held liable for [Zachary’s] injuries as a matter of law.” June 8, 2021,
Memorandum and Order at 11. Rogers’ claims against Williams were dismissed
with prejudice. This appeal follows.
STANDARD OF REVIEW
Our standard of review upon 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.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing Kentucky
Rules of Civil Procedure (CR) 56.03). Upon a motion for summary judgment, all
facts and inferences in the record are viewed in a light most favorable to the
nonmoving party and “all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citation omitted). As
if there are no factual issues, a summary judgment looks only to questions of law
and we review a trial court’s decision to grant summary judgment de novo. Brown
v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016); see also Blackstone Mining Co.
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v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010), as modified on denial of
reh’g (Nov. 23, 2011).
Rogers contends the circuit court erred by granting summary
judgment in favor of Williams. More particularly, Rogers contends the circuit
court erred by determining that Williams owed no duty of care to Zachary as the
altercation between Zachary and K.T. was not foreseeable. In other words, Rogers
asserts the circuit court failed to address genuine issues of material fact that were
germane “to the issue of foreseeability of harm as an element of the duty of care in
Rogers’ negligence and negligent supervision claim(s)[.]” Rogers’ Brief at 19.
Our review proceeds accordingly.
ANALYSIS
It is well established that in order to prevail upon a claim of
negligence, a plaintiff must demonstrate “(1) a legally-cognizable duty, (2) a
breach of that duty, (3) causation linking the breach to an injury, and (4) damages.”
Patton v. Bickford, 529 S.W.3d 717, 729 (Ky. 2016). And, although duty may be
established in various ways, ultimately the decisive factor is foreseeability.
Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 686 (Ky. App.
2009) (citation omitted); see also Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89
(Ky. 2003). And, whether a duty is owed is a question of law for the court to
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decide. Pathways, Inc., 113 S.W.3d at 89.1 It is equally well settled that a teacher
may be liable for injuries caused by his or her negligent supervision and must take
“all reasonable steps to prevent foreseeable harm to its students.” Williams v. Ky.
Dep’t of Educ., 113 S.W.3d 145, 148 (Ky. 2003). As Rogers’ claims of negligence
and negligent supervision hinge upon foreseeability, our focus shifts there.
It has been said generally that every person “owes a duty to every
other person to exercise ordinary care in his activities to prevent foreseeable
injury.” Burnett, 302 S.W.3d at 686 (citation omitted). And, as this Court pointed
out in Burnett “[a]lthough foreseeability tends to be elusive in definition, perhaps
most famously, Judge Cardozo stated on the subject of duty that ‘[t]he risk
reasonably to be perceived defines the duty to be obeyed[.]’” Id. at 686 (quoting
Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 100 (N.Y. 1928)). As to
foreseeability in a negligent supervision claim, the court should only consider the
facts that the defendant “knew, or should have known, about before the incident at
issue.” Hugenberg v. W. Am. Ins. Co./Ohio Cas. Grp., 249 S.W.3d 174, 182 (Ky.
App. 2006).
1
This Court is cognizant of the ruling in Shelton v. Kentucky Easter Seals Society, 413 S.W.3d
901 (Ky. 2013) where the Supreme Court arguably moved any from analyzing foreseeability as a
matter of law under the duty prong of negligence, but rather under the breach prong. However,
Shelton, 413 S.W.3d 901, is a premises liability case that involved an analysis of open and
obvious risks, and to date is limited in application to premises actions of alleged negligence
against landowners and landlords. Accordingly, we do not believe it is applicable to this case.
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In the case sub judice, based on the record on appeal, we agree with
the circuit court that the altercation between Zachary and K.T. was not reasonably
foreseeable by Williams. It is undisputed that neither Zachary nor K.T. had ever
been involved in any incidents at school that would put Williams on notice of a
potential physical altercation. Also, it is uncontroverted that neither Zachary nor
K.T. had ever been involved in a fight at school, had any history of disciplinary
issues, or had engaged in the sort of behavior that would put Williams on notice of
a possible physical altercation. There was certainly nothing in the record to
indicate that Williams knew or should have known that a physical altercation
might occur between Zachary and K.T. In the absence of foreseeability, there was
simply no duty upon Williams to anticipate the physical altercation that occurred.
As the undisputed facts reflect the altercation between Zachary and K.T. was not
reasonably foreseeable by Williams, we believe the circuit court properly granted
summary judgment in favor of Williams and dismissed Rogers’ claims for
negligence and negligent supervision against Williams.
For the foregoing reasons, the Memorandum and Order of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Andrew E. Mize Mark S. Fenzel
Louisville, Kentucky Matthew P. Dearmond
Louisville, Kentucky
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