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MODIFI'ED: AUGUST '24, 2017
CORRECTED: APRIL 1, 20.16
RENDERED: MARCH 17,2016
TO BE PUBLISHED

Supreme Tnnri of B”F‘HN H:,

2013-Sc-000560-DG qID)A:'-`RTE§riz'-l[l:[ }Z\E`, gsdmm. D<_

 

- FLOYD LAWRENCE PATTON, AS APPELLANT

ADMINISTRATOR OF THE ESTATE OF
STEPHEN LAWRENC-E PATTON

ON REVIEW FROM COURT OF APPEALS
V. CASE NQ. 2012-CA-000598
‘ FLOYD CIRCUIT COURT NO. 08-CI-'OO653

tDAVIDA BICKFORD, PALJL FANNING, . APPELLEES
/ RoNALD “sONNY” FENTRESS, JEREMY

HALL, ANGELA MULLINS, LYNN _
HANDSHOE, AND GREG NICHOLS

OI_’INION_OF THE COURT BY JUSTICE VENTERS-
AFFIRMING
Stephen Patton (Stephen) was’an eighth-grader at Allen Central Mid:ile
Scho_ol '(ACMS) when he committed suicide, allegedly because he Was being

bullied at school.1 Sheila Patton, as Administratrix of Stephen’s estate,2 filed

 

1This Court initially rendered an opinion in this case on. March 17, 2016,
affirming the Court of Appeals. A petition for rehearing and / or modification of opinion
was filed by Stephen’ s estate pursuant to CR 76. 32. This opinion is the result of that

reconsideration

2 Stephen’ s mother, Sheila Patton, Was the original personal representative of
his estate. She died during the reconsideration of our original opinion and Floyd

this lawsuit alleging various teachers3 and administrators4 knew oft or should
have known of, the bullying and taken steps to prevent it.

The circuit court granted summary judgment in favor of the Teachers
and the Ad'ministrators, ruling that they Were entitled to the-protection of

qualified official immunity from this lawsuit. The circuit court also held that h

l Stephen’s suicide Was a superseding intervening cause interrupting any

potential liability of the Teachers and Administrators, and Athu-s, the Estate
could not succeed in its claims, in any event. a
The Court of Appeals upheld the summary judgment solely on the

intervening cause issue. The Court of Appeals disagreed with the circuit
court;s ruling on qualified official immunity, holding that neither the
Administrators nor the Teachers were immune from liability because the duties
of both of these sets of defendants were ministerial in nature.

l We disagree with the Court of _Appeals and hold that the trial court
correctly determined that the Administrators were protected by qualified
immunity and entitled to summary judgment on that ground. We also

conclude that the Teachers are not immune from suit on the basis of qualified '

official immunity. We further conclude that the Estate presented multiple

 

Lawrence Patton was substituted as her successor. We refer to Stephen Patton’ s
estate as “the Estate” throughout this opinion. `

3 “The Teachers” collectively refers to Appellees Jeremy Hall, Angela Mullins,
Lynn Handshoe, and Greg Nichols, all teachers at ACMS.

4 “The Administrators” collectively refers to Appellees Davida Biclcford (ACMS
Principal), Paul Fanning (Floyd County School Superintendent], and Ronald “Sonny”
Fentress (Floyd County School Superintendent).

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affidavits from ACMS students attesting that Stephen was persistently bullied
at school and that the Teachers were aware of it, thus creating a genuine issue
of material fact concerning whether the Teachers were negligent either in their
duty to supervise their pupils or in their duty to handle bullying reports
appropriately

Contrary to the holdings of the lower courts,. we further determine that
bullying and torrnenting behavior, if shown to be the proximate cause of a
suicide, rnay form the basis for._a wrongful death claim by the decedent’s estate.

Nevertheless, under the facts and circumstances as presented in the
record before us, we further hold that the Estate has failed to make a prima
facie showing that the Teachers’ conduct of failing to prevent the bullying of
Stephen Patton was the cause-in-fact (the “but-for" cause) or the proximate
cause of Stephen’s suicide. For that rreason, summary judgment in favor of the
Appellee Teacherswas required.

-In summary, while we reject the Court of Appeals’ determinations that
the :Ieachers were cloaked with qualified official immunity and that suicide is a
superseding intervening event that necessarily severs any potential liability for
bullying, we affirm its opinion to uphold'the summary judgment However, we

do so for substantially different reasons.

I. FACTUAL AND PROCEDURAL BACKGROUND

T_hirteen-year old Stephen Patton was a well-liked, personabl_e young '
man inhrhe eighth grade at Allen central Middl`e school (ACMS) in Floyd
County. At six feet, three inches in height, and weighing 196 pounds, Stephen

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was large for his age. He was physically awkward, he had a stuttering
problem, he had more facial hair than most eighth graders, and at times he
dressed unconventionally. Stephen had suffered from migraine headaches _'
since the age of six, and his doctor had recently indicated that Stephen may
have agoraphobia-an abnormal fear of open, public spaces. He was also
bothered by-noise, and at.the time of the suicide, his school’s family planning
program was using noisy crying-baby simulators which apparently aggravated
his discomfort

Whether Stephen was actually bullied by his peers and, if so, Whet_her
Ap,pellees were aware of the bullying, are disputed issues of fact. Whethe_r the
bullying to which he may have been subjected induced him to commit suicide
is also a disputed factual issue. The Teachers’ and Administrators’ evidence
suggested tha-t the underlying cause of Stephen’s suicide was linked to the
chronic pain he suffered due to persistent migraine headaches, or alternatively,
' that he suffered from a mental disorder which led to the suicide,

The Estate’s complaint alleged that both the-Administrators and
Teachers_were negligent in discharging their duties to Stephen. The Estate
claimed that the Teachers knew, or should have known, that Stephen was
being bullied andmistreated by other students under their watch and they
failed to do anything to stop it, and the Administrators failed to implement
sound policies to address bullying at ACMS and proper pro'tocols for student

`supervision.

II. STANDARD OF REVIEW

Summary judgment is a remedy to be used sparingly,- i.e. “when,_-as a
matter of law, it appears that it would be impossible for the respondent to
-' produce evidence at the trial warranting a judgment in his favor and against
the movant.” Shelton v. Kentucky Easter Seais Socr'ety, In'c., 413 S.W.Sd 901,
905 (Ky. 2013) (citations omitted). We frequently caution, however, the term
“irnpossible” is to be used in a practical sense, not in an absolute sense. See
id. (c_iting.Perkins r). Hausiaden, 828 S.W.2d 652, 654 (Ky. 1992)). The trial
court’s primary directive in this context is to determine whether a genuine
issue of material fact exists; if so, summary judgment is improper. Steelvest,
Inc.~ v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). This
requires that the facts be viewed through a lens most favorable to the party
opposing summary judgrnent, here the Estate. Id. It is important to point out
that “a party opposing a properly supported summary judgment motion cannot
defeat it without presenting at least some affirmative evidence showing that .
there is a genuine issue of material fact for trial.” Id. at 482. l

A motion for summary judgment presents only questions of law and “a
determination of whether a disputed material issue of fact exists.” Sheiton, 413
S.W.3d at 905. Our review is de novo, and we afford no deference to the trial

court’s decision.

III. SCI'IOOL ADMINISTRATORS MAKING-SCHOOL POLICIES HAVE
QUALIFIED OFFICIAL IMMUNITY; TEACHERS IMPLEMENTING SCHOOL
POLICIES DO NOT ' '

We begin by more clearly delineating the Estate’s arguments The Estate
asserts that the Teachers, and to a limited extent the Administrators,
negligently supervised students and failed to follow school policy, Which
resulted in a culture of bullying at ACMS. The Estate also alleges that the
Teachers and Administrators were negligent because students told them that
Stephen was being bullied and they did nothing to stop it. The latter claim
focuses on the negligent implementation of the school’s policies. The Teachers
..and:Administrators respond that, regardless of their alleged_negligence, the
Estate’s claims should be dismissed because they are entitled to qualified
official immunity.

The application 'of qualified official immunity to particular activities has
long been problematic_an'd this case is no different Qualified official immunity,
generally speaking, is “irnmunity from tort liability afforded to public officers
and employees for acts performed in the exercise of their discretionary
` funct-ions.”5 Yanero v. Davis, 65 S.W.3d 510, 521 _(Ky. 2001.). Qualified
immunity applies only to the negligent performance of duties that_are
discretionary in nature. A government official is not afforded immunity from
tort liability for the negligent performance of a ministerial act. The act of

‘;governing cannot be a tort, but failing to carry out the government’s

 

5 Under certain conditions, immunity can be absolute. n

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commands properly when the acts [to be performed] are known and certain can`
5`bo.” Morson v. rhomason, 438 s.w.sd 292, 256 (Ky. .2014).

Categorizing actions as either the performance of a discretionary duty or
the performance of a ministerial duty i_s vexing to litigants and courts alike. We
recently affirmed that the distinction “rests not on the status or title of the
officer or employee, but on the function being performed. Indeed, most
immunity issues are resolved by examining the nature of the functions~with
which a particular official or class of officials has been lawfully entrusted.” Id.
at 296-297 (internal quotes and citation omitted). A somewhat rudimentary
expression of the distinction between discretionary and rninisterial.acts
provides that “[p]romulgation of rules is a discretionary function'; enforcement
of those rules is a ministerial function.” 'Willr'ams v. Kentucky Depar_'tment of -
Educc_rtion, l 13 S.W.3d 145, 150 (Ky. 2003) (citations omitted). This_ is,-of
course, too simple for most circumstances, but it serves as a sound point from
Which to begin. a

A ministerial duty is one that “requires only`obedience to the orders of
others.” Marson, 438 S.W.3d at;29`7 (quoting Yanero, 65 S.W.3d at 522). In
other words, a duty is ministerial “when the officer’s duty is absolute, certain,
and imperative, involving merely execution of a specific act arising from fixed
and designated facts.” Id. _Be that as it may, a ministerial duty does not
demand the simple rote application of a set of rules. A ministerial duty may
involve “ascertainment of . . . facts,”' Upchurch v. Clinton County, 330 S.W.2d

428, 430 (Ky. 1959), and an officer may be'.perrnitted “some discretion-with

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respect to the means or method`to be employed,’l id.; see also 63C Am. Jur. 2d
Public Omcers and lEmployees § 319 (2016] (“Even a ministerial act requires
some discretion.”). The point is that a government official performing a
ministerial duty does so without particular concern for his own judgment; or,
as we said in Marson, the act is ministerial “if the employee has no choice but
to do the act.” 438 S.W.3d at 297. .

ln contrast, discretionary acts or duties are “those involving the exercise
of discretion and judgment, or personal deliberation, decision, and judgment.”
Knott County Board ofEducation v. Patton, 415 S.W.3d 51, 57 (Ky. 2013)
(quoting Yanero, 65 .S.W.3d at 522). In Yanero, the seminal case in this arena,
we described discretionary acts as “good faith judgment calls made in a legally
uncertain environment.” 65 S.W.3d at 522. The underlying rationale for
providing immunity to discretionary acts is that “courts should not be called
upon to pass judgment on policy decisions made by members of coordinate
branches of government'in the context of tort actions, because such actions
furnish-an inadequate crucible for testing the merits of social,' political or
economic policy.” Id. at 519. This rationale makes clearer that discretionary
acts are those performed at the policy-making level, but acts performed at the

operational level are included within this category as well.

A. The Administrators Were Entitled to Qualified Of`f`icia.l Immunity as to
the Estate’s Claim that ACMS’s Policies Were Inadequate.

The Administrators, with perhaps the exception of Principal Bickford in
very limited circumstances, were not tasked with supervising students.6 The '
~Estate does not contend the Administrators negligently supervised or
monitored students; rather, the Estate faults the Administrators for not
promulgating adequate policies, and otherwise, for not following the policies
they had enacted. d

In promulgating behavioral policies for schools, the Administrators
operated under a legislative directive requiring “each local board of education”
to “formulat[e] a code of acceptable behavior and discipline to apply to the
students in each school operated by the board.”` KRS 158.148(4) (currently
codified within KRS'158.148(5](a]]; see also KRS 158.440. The legislative
mandate to formulate a code of student behavior does not cast the formation of
particular code provisions as a ministerial function. We dealt with this
question in Knott County Boarcl ofEducation, where school administrators had
a statutory duty to adopt a school curriculum and establish a policy for
assessing curriculum needs. The duty to adopt a curriculum was held to be a
ministerial duty because it was mandated by'statute, but the policy choice of

what subjects to include within the curriculum (i.e., whether to teach Spanish

 

6 ln her deposition, for example, Principal Bickford acknowledged that she
would aid in supervising the cafeteria when a sufficient number of teachers was not
available. Normally, ACMS had at least two teachers-three on most occasions_
supervising the cafeteria during lunchtime [roughly 100 students]. If a teacher had to
leave the cafeteria for some reason or was otherwise unavailable to supervise
lunchtime, Principal Bicki`ord acknowledged she would help.

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or French when neither was mandated by law) was held to be a discretionary
duty to which qualified immunity attached. 415 S.W.3d at 58.

Such i's the case here. The duty to implement a code of appropriate
student behavior was a ministerial duty. The Administrators complied by
enacting extensive policies regarding bullying and harassment The choice of
specific provisions and the assessment of their adequacy to address all
concerns are purely of a discretionary character.7 Consequently, the
Administrators are entitled to qualified official immunity against the Estate’s
claim that the policies were inadequate.

B.. The Administrators Were Entitled to Summary Judgment on the
Estate’s Failure to Supervise Claim, but the Teachers Werez Not.

Before reviewing the claims that the Administrators failed to follow the
very policies they promulgated, a claim closely related to the Estate’s claim that
the Teachers negligently supervised students, an overview of the policies ACMS
had in place to prevent or resolve harassment is helpful.

The ACMS policy clearly_expressed its intention to create a safe school
environment for students Critical to the success of that goal was the
elimination and prevention of bullying: g

What parents want most is for their children to be safe on their way
to / from and at school. When a child does not feel safe at school, it

 

7 To the extent that the Estate argues that Administrators were negligent in
implementing the policies by not filing proper reports, supervising students, or
otherwise failing to create a healthy culture within ACMS and the Floyd County School
Systern, this argument is refuted by the record. The record attempts to highlighteach
_. of the Administrators’ deviations, regardless of degree, from the strict language of the
` policy, A prima facie claim of negligence fails, however, because the record rs devoid of
any connection between these deviations and bullying that occurred at ACMS or
bullying endured by Stephen. .

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affects other areas of that child’s life. Students who feel anxious about
their personal safety are sometimes reluctant to attend. Once students
and community are aware that bullying is not tolerated at school,
students will be less guarded and concentrate more on learning than
staying safe. The victim, the bully, as well as witnesses to bullying acts
are more comfortable when they know the community, students, staff
rand administration stand together against bullying. Our school will then
be viewed as a safe school. `

_ The ACMS code of conduct included the following definition: “Bullying is

defined as (but not limited to) communicating'verbally and nonverbally using:

teasing; mocking; sending/writing negative / hurtful notes;

rude/negative / hurtful/ off color comment; rude gestures/ ‘flipping off' another

person; isolating another from a group.”8 The school’s code of conduct also

included the following physical acts as examples of bullying “on school

property, at any school function, or on school transportation[:]

Grabbing;

Pinching;

’I`Wisting body parts;

Trippins;

Pushing;

Shoving;

Flip/throw/toss objects at another student;
POking; -
Punching; '

Kicking; '

Hiding or damaging another student’s' property.”

These specified acts are expansive, to be sure,j but the policy provides a clear

illustration of prohibited conduct.

The ACMS policy requires school staff, including teachers and

l
administrators, who observe bullying or receive a report of bullying, to report

 

3 Bullet points omitted.

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the incident to their supervisor: “all bullying [behaviors] as defined [above]
WI_L,L be reported for investigation._” A multilateral general investigative process
then followed: (l) “Report bullying incident to principal or designee for
investigation”; f2) “"Prin_cipal or designee investigates”; and (3) “Documentation
of evidence is gathered and evaluated.” After the investigation, if the report is
substantiated, the student found to have bullied is disciplinedl from a range of
possible penalties. ' - l l

In addition to the actual policy language, ACMS also took steps to train
its staff to recognize bullying and to raise awareness among its student body
and their parents on matters related to bullying. The bullying policy was read
aloud to students by teachers on the first day of school; the policy was
distributed to students so they could take it home for parents to review;
students were surveyed during the first week of school and asked to respond
anonymously regarding who they perceived as potential bullies for the
upcoming school year; an anti-bullying program was presented each year; anti-
bullying posters were hung throughout the school; and a box was placed
outside Principal Bickford’s office so that students could submit anonymous
claims of bullying. lf a student was reported as bullying, or if a_ student was
the victim of bullying, parents were notified.

Particular to the Teachers and Administrators (especially Principal
Bickford), ACMS conducted various professional development programs to
further educate personnel on the importance of bullying prevention and

detection. Before the first day of the school year, ACMS personnel were

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informed of their responsibility to nurture a positive classroom environment 7
and follow appropriate discipline procedures Likewise, personnel received
training on bullying via a PowerPoint presentation and training on appropriate
management of classroom behavior, which predic`tably, included strategies for
dealing with bullying and harassment
This case mirrors our recent decision in Marson in important Ways. We

noted in Marson that school principals have a “duty to provide a safe school
' environment, but they are not insurers of` chil'dren’s_ safety.” 438 S.W.3d at
29§. The duty is discretionarylbecause it is “so situation specific, and because
it requires judgment rather than a fixed, routine performance;”. Id|. Ordinarily,
the duty is “exercised most often by establishing and implementing safety
policies and procedures.” Id. There is a “qualitative difference in actually
[supervising students] and assigning someone to fill that task.” Id. The
Administrators- are a degree removed from the actual execution of the policies.
Instead, their role i_s lto monitor the implementation of the policies and react as
needed.g. Disciplining students for policy violations 'is likewise a discretionary
function. v

' _Principal Bickford had only a general supervisory duty over the students
Although at times she helped to monitor the cafeteria duringlunchtime, her

role as principal did not entail the specific supervision required of the

 

9 Again, as we outlined in Mdrsori, the Administrators “had a general rather
than a specific duty, [which] requir[ed them] to act in a discretionary manner by
devising school procedures, assigning specific tasks to other employees, and providing
general supervision of those employees.” 438 S.W.3d at 299. '

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Teachers. With respect to the allegations thater policies were negligently
implemented, the Administrators are entitled to qualified official immunityl

The Teachers, on the-other.'han_d, were tasked not with the promulgation
' of policy, but with its enforcement We have consistently held that the general
supervision of students by teachers is ministerial in nature “as it requires
enforcement of known rules.” Marson, 438 S.W.3d at 301 (citing Williams, 113
S.W.3d at 150). In fact, we have only labeled the duty of supervision to be
discretionary in two cases illustrating the same factual scenario. The
distinguishing factor in those cases was that the supervisory official Was given
little or no direction or guidance on how the supervision was to be performed.
See `Haney v. Monsky, 311 S.W.3d 235 (Ky. 2010]; Ro`wan County v. 8loas, 2011
S.W.3d 469 (Ky. 2006). Unlike those situations, the Teachers here received
ample training on the policies and instructions on what to look f`or during their
supervision to detect bullying. This is not a situation in which an officer
performed a governmental act that was “not prescribed” or was left “without
clear directive.” Marson, 438 S.W.3d at 302.

We acknowledge the unique circumstances presented by a school
environment, We have recognized “that teachers maintain the discretion to
teach|, supervise, and appropriately discipline children in the classroom.”
Tumer v. Nelson, 342 S.W.3d 866, 876 (Ky. 201 1). To succeed, teachers “must
have appropriate leeway to do so, to investigate complaints by parents, or
others, as to the conduct of their students, to form conclusions as to what

actually happened, and ultimately to determine an appropriate course of

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action,'which may at times, involve reporting the conduct of the child to the
appropriate authorities.” Id. To be sure, there is a degree of discretion
associated with the Teachers’ duties here. But this discretion does not in and
of itself transform an otherwise ministerial duty to a discretionary one.

The duty to report bullying is clearly ministerial, but it could be argued
that determining whether bullying is occurring requires judgment and is,
therefore, discretionary _However, our case law disagrees “That- a necessity
may exist for the ascertainment of . . . facts does not operate to'convert the act
into one discretionary in nature.” Upchurch, 330 S.W.Qd at 430. A.degree of
discretion “with respect to 'the means or method to be _employed” in the
performance of a duty does not strip away the ministerial nature of the duty,
Id. n

We reiterated that rule in Marson. Recasting an otherwise ministerial
duty as discretionary simply because it required some modicum of discretion of
judgment “would undermine the rule that an act can be ministerial even n
though it has a component of discretion.” 438 S.W.3d at 302. The discretion
inherent in the ministerial duty in Morson was arguably greater than that `
found here. In Marson, the teacher’s ministerial task of “bus duty” included
“looking out for [the children’s] safety” or, in the teacher’s own words, looking
out for “any kinds of safety things that might cause problems for the lcids.” Id.
at 300, 302. There-was no formal policy or guideline that defined “safety
things” to alert the teacher to specific potential safety issues. The need to use

common sense and ordinary judgment to avoid negligence did not convert the

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task to a discretionary duty. The Teachers in this instant case exercised less

discretion than the teacher in Marson because bullying was expressly defined

- and the policy required the conduct consistent with that definition be reported.

Our research discloses only zone instance in which we determined a
teacher’s supervisory duty which combined a ministerial task with a degree of '
discretion to be a discretionary duty. Tizmer v. Nelson,' 342 S.W.3d 866 (Ky.
`201_1), is an atypical case. Tumer involved a kindergarten teacher with
statutory duty to report suspected sexual abuse if she knew or had reasonable
cause to believe that a child was abused. Id. at 877. The alleged abuse
involved a five-year old kindergartener’s touching-of a five-year old playmate.
Determining whether to report the incident as sexual abuse required
investigating the facts, weighing the credibility of the children, and exercising
judgment ito discover if the alleged actions of the five-year old could even
qualify as “seXual abuse.” The degree of discretion required is evident and
clearly outweighs the ministerial duty of making a binary decision to report the
incident or not. This case is far different. ACMS policy provided a list of
specific conduct eonsidered to be bullying and required the reporting of any
listed act.r No discretion or_ judgment Was required to determine if specific
conduct qualified as ;bullying. Tumer is different and so it results in a different
conclusion. d

l The duty of the Teachers to report bullying was ministerial and so they
lack the protection of qualified immunity. That is, of course, not to say they

are liable. They, and others similarly situated, may have defenses; they simply

16

/

are not immune from suit. `Plaintiffs have the burden of establishing a prima
facie case of negligence in the breach of the applicable ministerial 'duty.
Having determined that under the circumstances of this case; the
Teachers are not immune from suit, we next examine whether there is a
genuine issue of material fact which would necessitate this case proceeding to
trial. The Teachers claim that summary judgment is proper because the Estate
failed to produce evidence to show that Stephen was bullied, which is a
necessary prerequisite for the Teacher’s duty to ireport the bullying to be
triggered Affidavits submitted by the Estate in opposition to summary
judgment are replete with averments asserting that Stephen was bullied and
that school personnel knew or should have known about it: “Stephen was
bullied every day-in the lunch room”; the bullies would steal items daily from
his lunch box and scatter what they didn§t want on the floor; the bullies would
make fun of Stephen’s stuttering and cowboy boots; Ms. Bickford was told .
-about the bullying but “blew us off”; “I have personally seen Stephen Patton
being bullied"; “I witnessed both physical and verbal bullying of Stephen”; “I
saw Stephen get hit and jumped on”; “In the hallways, lined up to go to lunch,
the teachers would be in the hallways when people would make fun of
q Stephen’s stutter and the teachers Would not say or do anything about it”; and
“From what I witnessed, the bullying of Stephen Patton at ACMS was not taken
seriously and generally ignored by adults at All'en Central Middle School”; etc.
The incorporation of these affidavits into the Steelvest analysis makes it

immediately clear that a genuine issue of material fact exists concerning

17

whether Stephen was bullied as claimed by the Estate and Whether the
Teachers knew, or should have known about it, and thereby violated their
ministerial duty to stop it and report it. On this point the Estate has

adequately met its burden under Steelvest.

IV. CAUSATION: SUICIDE AS A SUPERSEDING INTERVENING EVENT
Appellees have argued at all stages of the litigation that they cannot be

held liable for Stephen’s suicide because suicide is, as a matter of law, a
superseding intervening event, legally independent of any negligence they may
have committed with respect to the alleged bullying. Both the circuit court and
the Court of Appeals agreed with Appellees, holding that suicide is always a
superseding intervening event except in three instances, which do not include
bullying.

We disagree. As further discussed below, we determine that bullying
(andl similar behavior intended to torment another person) may form the basis
of a wrongful death claim when death by suicide is a direct consequence ln
such instances, suicide is not intrinsically a superseding and intervening event
which under all circumstances terminates the liability of those whose conduct n
led to the death. Under Kentucky law, bullying may qualify as an exception to
the rule that generally regards suicide as a superseding intervening event.

The Estate’s wrongful death claim against the Teachers is, at its core, a
tort claim based upon negligence. The elements of a negligence claim are (1.) a
legally-cognizable duty, (2] a breach of that duty, (3] causation linking the

- breach to an injury, and (4} damages Pathways, Inc. v. Hammons, 113 S.W.3d

18

85_, 88 (Ky. 2003) (citing Mullin,s v. Commonwealth L_ife Insurance Co., 839
S.W.2d 245, 247 (Ky. 1992)). Duty presents a question of law, whereas breach
l and injury are questions of fact for the jury to decide.. Id. at89 (citations
omitted). Causation presents a mixed question o`f law and fact Id. (citing
Deutsch v. Shein, 597 S.Wi2d 141, 145 (Ky. 1980)10).

As stated above, the Teachers had a duty to supervise students so as to
prevent‘bullying, to stop bullying as it occurred, and to report bullying to the
Administrators if it occurred. As noted above, a genuine issue of material fact
exists as to whether the Teachers’ acts and omissions breached that duty. As
to the final element of-` the tort damages Stephen’ s anguish suffered before his
death and the destruction of his power to earn due to his death are
compensable damages if the suicide i_s traceable to bullying by his fellow
students and the corresponding)negligence of the Teachers` in failing to stop it.
_The Estate has incontestably presented evidence sufficient to survive summary
judgment as to the first second, and fourth elements of a tort negligence claim.

_Causation is the element remaining for which it must be determined
whether a genuine issue of` material fact exists Causation consists of two
distinct components “but-for” causation, also referred to as causation i_n fact,
and proximate causation, “[L]iterally speaking there can never be only one
_ ‘cause’ of any result Every cause is a collection of many factors, some

identifiable and others not, all determined by prior events The law seeks out

 

10 Abrogated on other grounds by Osbome v. Keeney, 399 S.W.3d 1 (Ky. 2012].

19

only the collective cause or causes for which it lays responsibility on some
person or persons.” Hous_e v.'Kellennan, 519 S.W.2d 380, 382 (Ky. 1974). But-
for causation requires the existence of a direct, distinct, and identifiable nexus
between the defendant’s breach of duty (n'egligence] and the plaintiff"s damages
such that the event would not have occurred “but for” the defendant’s negligent
or wrongful conduct in breach of a duty. “An act or omission is not regarded
as a cause of 4an event if the particular event would have occurred without it.”
Gross-v. FBL Financial Services, Inc., 557 U.S.167, 176-177 (2009) (quoting W.
Keeton, D. Dobbs, R. Keeton, 85 D. _Owen, P[osser and Keeton on Law of Torts
265 {5th ed. 1984)).

Asided from many well-documented anecdotal accounts attributing
suicide to bullying, there is also a growing professional consensus suggesting
that torment experienced from being bullied by one’s peers can lproduce, for
some individuals such severe emotional distress and'depression that suicide is
seen as the only means to escape the agony. See e.g., Dunkley v. Boar_'d of
Educati_on of the Greater Egg Harbor Regional High School, 20 16 W_L 6134518 at
*9 (D.N.J. 2016) (“the chronic persistence of school bullying has led to student
suicides across the country”); Neil Marr and ;I`im Field, Bullycide: Death at
Playtime -An. Expose' of Child Suici`deCaused by Bullying [Success Unlimited
2001). We readily conclude that bullying in severe cases may produce such an
extreme emotional response that an individual is driven to find refuge in
suicide, and so under the proper circumstances bullying may satisfy the`but-

for component of the causation elementi

20

But-for causation is a factual question to be answered in an individual
case by the factfinder deciding if`_ the defendant’s conduct was a “substantial
factor"’ in causing the suicide. Restatement_(Second) of Torts -§ 431 (1965) (“The
actor?s negligent conduct is a legal cause of harm to another if (a) his conduct
is a substantial factor in bringing about the harm, and (b) there is no rule of
law relieving the actor from liability because of the manner in which his
negligence has resulted in the harm.”]; Deutsch v. Shein, 597 S.W.2d 141;11
Claycomb v. Howard, 493 S.W.2d 714, 718 (Ky. 1973); CertainTeed Corp. v.
Dex:er, 330 s.w.3d 64, 77 (Ky. 201'0). For example were this ease to reaeh.
that stage, the jury in'this case would be asked te determine whether it
believed from the evidence presented that the Teachers’ failure to prevent, to
stop, or to report the bullying was a substantial factor in causing Stephen’s
suicide, l

l The other aspect of causation is proximate causation. Proximate
causation captures the '-notion that, although conduct in breach of an
established duty may be an actual but-for cause of the plaintist damages it is
nevertheless too attenuated from the damages in time,_ place, or foreseeability
to reasonably impose liability upon the defendant ‘FProximate cause is
bottomed on public policy as a limitation on how far society is willing to extend

liability for a defendant’s actions.” Ashley County, Arkansas. v. Pfizer, Inc., 552

 

11 Abrogated on other grounds by osborne v. Keeney, 399 s.W.Sd 1 (xy. 2012).

21

F.3d 659, 671 (8th Cir. .2009]; Accordingly, proximate causation is regarded as
an issue of law to be decided by the courts '

An important appendage of proximate causation analysis is the
superseding intervening cause doctrine.12 See Restatement (Second} of Torts §§;
_ 440-453. Aswith the determination of proximate cause generally, “whether an.
undisputed act or circumstance was or Was not a superseding cause is ajlegal
issue for the court to resolve, and not a factual question for the jury.” House,l
519 S.W.2d at 382. “By its nature, the question must be decided empirically,
on a case-by-case basis, and cannot be practically fitted intoinstructions to
juries.” Id.; cf. McCoy v. Carier, 323 S.W.2d 210, 215 (Ky. 1959] (“The question

of proximate cause in connection with the occurrence of an accident is one of
fact to be left to the jury where such cause is open to a reasonable difference of
opinion Stated somewhat differently, the issue of proximate cause should be
withheld from the jury only if there is no dispute about the essential facts and
' but one conclusion may reasonably be drawn from the evidence.”).
1 Courts apply the superseding intervening cause doctrine by determining
whether the chain of causation applicable to a defendant’s conduct has been
broken by “facts [that] are legally sufficient to constitute an intervening cause.”
Montgomer_y Elevator` Company v. McCullough, 67 6_S.W.2d 776, 780 (Ky. 1984).:

Facts sufficient to constitute a su ersedin intervenin cause “are facts of such-
P 8 g

"extraordinary rather than normal,’ or ‘highly extraordinary,’ nature,

 

12 Also known as superseding cause, intervening-cause, and supervening cause.

22

unforeseeable in character, as to relieve the original wrongdoer of liability to
the ultimate victim.” Icl_. (quoting House, 519 S.W.2d at 382).

Generally, in the past, courts did not accept suicide as a foreseeable
consequence of otherwise tortious behavior.

Courts have long been rather reluctant to recognize suicide as a

' proximate consequence of a defendant’ s wrongful act See, e. g. .,

Sche_ffer v. Washington City V.M. & G. S. R. R., 105 U. S. 249, 26 L. Ed.

1070 (1882). Generally speaking, it has been said, the act of

suicide is viewed as ‘an independent intervening act which the

original tortfeasor could not have reasonably [been] expected to

fore`see;’ Stasiof v. Chicago Hoist & Body Co., 50 Ill.App.2d 1 15,

122, 200 N.E.2d 88, 92 (lst Dist.1964), affd.sub nom. Little v.

Chieago Ho_ist & Body Co., 32 Ill.2d 156, 203 N.E.2d 902 (-1965), as

quoted in Jarvis v. Ston.e, 517 F.Supp. 1173, 1175 (N.D.lll. 1981).
Watters \v.~ TSR, Inc;, 904 F.2d 378, 383 (6th Cir. 1990] (manufacturer of
“Dungeons &. Dragons” game held not negligent in marketing'the game to
“mentally fragile persons” and the teenager’s suicide was an intervening_causel
of his death); see also Epelbaum v. ElfAtochem, North Amen'ca, Inc., 40 F. Supp.J
2d 429, 431 (E.D. Ky. 1999); Jutzi-Johnson v. United States, 263_li`.3d 753, 755
[7th Cir. 2001); Beul v. ASSE Intematr'onal, Inc., 233 F.3d 441 (7th Cir. 2000];
McMahon v. St. Croi_x Falls Sc_hool Distn'ct, 596 N.W.2d 875, 879 (Wis. App.
1999); Wyke v. Pozk county Sohool Boord, 129 F.3d 560, 574_575 (1 1111 cir.

J _.

1997]; Bruzga v. PMR Architects, P./C., 693 A.2d 401 l(N.H. 1997); Edwara's v;
'Tardi_f; 692 A.2d 1266, '1269 (Conn. 1997). And as noted by Prosser and
' Keeton:
if one is sane, or if the suicide` 1s during a lucid interval, when one

is in full command of all faculties, but life has become
unendurable by reason of the' 1njury, it is agreed' 1n negligence

23

cases .that the voluntary choice of suicide is an abnormal thing,
which supersedes the defendants liability.

W. Page Keeton et al., Prosser and Keeton on the Law _of Torts § 44, 311 .(5th ed.
1934).13 ` '

The foregoing precedent and other similar authorities led the circuit
court and the Court of Appeals to hold that Stephen’s suicide was a
superseding intervening event, outside the range of the recognized exceptions
and thus acted to cut off liability arising from any negligent breach of duty
attributable to the Appellees.

_But, as reported in Corpus Jun's Secundum,, the general rule regarding
suicide as a superseding intervening event does not apply to conduct that, by
negligence or intent, foreseeably induces a suicidal reaction: .“A wrongful death
action will lie for damages from the suicide of another where the defendant is
found to have actually caused the suicide or where the defendant is found to
have had a duty to prevent the suicide from-occurring.” 25A C.J.S. Death § 68
(2017). “[A]ctions are allowed where the defendant is found to have actually
caused the suicide, such that the defendant’s conduct led to the decedent’s

death by suicide, and the.death was a natural and probable consequence of the

 

13 Citing Arsnow v. Red Top Cab Co., 292 P. 436 (Wash. 1930); Tucson Rapr`d
Transit Co. v. Tocci, 414 P.2d 179 (Ariz. App. 1966]; Lancaster v. Montesi, 390 S.W.2d
217 (Tenn. 1965); Stasiof v. Chz'cago Hoist & Body Co., 200 N;E._2d 88 (Ill. App. 1964);
Wallace u. Bounds, 369 S.W.2d 138 {Mo. 1963]; McLaugfrlin v. Sullivan, 461 A.2d 123
(N.H. 1983). See also Jamison v. Storer Broadcasting Co., 511 F; Supp. 1286, 1291-
1292 {E.D. Mich. 1981); Halko v. New Jersey Transit Rail Operations, Inc., 677 F.

. Supp. 135, 142 {S.D.N.Y. 1987); and Rodriguez v. Admiral Lee Towing Inc., 103 F.3d
124 (Sth Cir. 1996).

.24

defendant’s conduct and was a foreseeable consequence of the tortfeasor's
acts.” Id. (citations omitted).
Similarly, Amerr'can Jun`sprudence, Second states:

. Liabi]ity may also exist because the defendant actually caused the
suicide, Moreover, it has also been 'held that a tortfeasor may be held
liable for the suicide of a person that is the'result of a tortfeasor'sl
negligent conduct provided the suicide is a foreseeable consequence of
the tortf`easor's acts n

Indeed, in examining proximate causation.in order to determine if suicide
is an intervening cause, the crucial inquiry is whether the defendant’s
negligent conduct led to or made it reasonably foreseeable that the
deceased would commit suicide. A plaintiff can alternatively show that
the defendant’s negligence was the proximate cause o`f` the suicide by
presenting evidence that the decedent's suicide was the natural and s
probable consequence of the 1njury he or she suffered at the hands of the
defendant

22A Am. Jur. 2d Death § 41 (2017] (citations omitted).

1 lWhile the question has not been previously addressed by this Court, at
least one Kentucky court has upheld a plaintiffs wrongful death claim against
a defendant based upon an underlying suicide, In Sudderth v. White, 621
S.W.2d 33 (Ky. App. 1981), the Court of Appeals held that a defendant may be
held responsible for a resultant suicide when a person known to be suicidal is
placed in his direct care and he then negligently fails to take appropriate

measures to guard against the foreseeable suicide.14

 

14 In the worker’s compensation context where the foreseeability of the harm
caused by a work-related injury is not a decisive factor, the Kentucky'Court of Appeals
held that a worker's suicide was compensable under the workers’ compensation act as
an injury sustained in the course of the worker’s employment if it resulted from a

25

Upon` our review,of this issue, and as noted above, we are mindful that
bullying as a source of torment has been recognized as a foreseeable cause of
suicide and medical/ psychological professionals now widely acknowledge this
societal 'concern. Our legislature has responded to these concerns by enacting
so-called “bullying bills” which, among other things, mandate that school
teachers be trained in suicide prevention policies See e.g., KRS 158.070(3](b)
(“[A_] minimum of ltwo (2) hours of self-study review of suicide prevention 1
materials shall bel required for all high school and middle school principals,
guidance counselors, and teachers each school year.”); KRS 156.095(6).15. In
advancement of the public policy expressed by the legislature in these bullying
bills, the Kentucky Department of Education has incorporated a significant

volume of information relating to school bullying on its websit.'e,16 including an

entry relating to a “Dear Colleague” letter fro`m the United States Department of

 

work~related mental disorder sufficient to impair the worker’ s normal and rational
judgment Wel£s v. Harrell, 714 S. W. 2d 498 (Ky.App.1986].

15 KRS 156. 095(6) provides:

(a) By August 1, 2010, the Kentucky Cabinet for Health and Fam_ily
Services shall post on its Web page suicide prevention awareness

. information, to include-recognizing the warning signs of a suicide crisis
The Web page shall include information related to suicide prevention
training opportunities offered by the cabinet or an agency recognized by
the cabinet as a training provider.

(b) By September 1, 2010, and September l of each year thereafter, every
public middle and high school administrator shall disseminate suicide
prevention awareness information to all middle and high school
students The information may be obtained from the Cabinet for Health
and Family Services or from a commercially developed suicide prevention
training program.

16 See generally http: / / education ky. gov / pages / search aspx?terms=
bullying&afiiliateld=EDUCATlON (Aug`ust 20 17).

26

Education which includes the statement: “As you know, student suicides
resulting from the bullying and harassment activities of other youths have
escalated in the recent past and much of the focus has been on school
knowledge of and response to the bullying and harassing behavior.”17

These expressions of the legislature and associated state agencies reflect
a public policy decision to stop bullying in schools 'As noted above,
“[p]roximate cause is bottomed on public policy as a limitation on how far
society is willing to extend liability for a defendant’s actions.” Ashley County,
Arkansas, 552 F.3d at 671. Moreover, the historic purpose of tort law as it has
evolved throughout our common law tradition has been the discouragement of
harmful socially unacceptable behavior by imposing liability'upon the
wrongdoer for the wrong done.

Finally, we heed as we must the language of Section 24 1 of the Kentucky
Constitution, which establishes a cause of action for wrongful death. Section
241 states in pertinent part: “[w]henever the death of a person shall result from
an injury inflicted by negligence or a wrongful act, then, in every such case,`
damages may be recovered for such death,' from the corporations and persons
so causing the same.” (Emphasis added.) If a person’s death by suicide was
wrongfqu induced by torment negligently or intentionally inflicted by bullying,
or by a negligent failure to prevent, stop, or"report the bullying when there is a `

duty to do so, and we are bound by the constitutional mandate to` acknowledge

 

17 http: / / education.ky.gov / school / sdfs / Pages / Letter-n‘om-Ofiice-of-Civil~
Rights-Bullying.aspx (Au gust 20 17) .

27

the wrongful death claim in every such case, then we must do so in the case of`
negligently or intentionally-induced suicide, Section 241 is codified in KRS
411.130(1), the wrongful`death statute, which provides as follows:

Whenever the death of a person results from an injury inflicted by

the negligence or wrongful act of another, damages may be

recovered for the death from the person who caused it, or whose

agent or servant caused it. lf` the act was willful or the negligence

gross, punitive damages may be recovered. The action shall be

prosecuted by the personal representative of the deceased.

(Emphasis added.) KRS 4~1 1.130(1) reflects the language of Section 241, and
- its plain language, too, compels the conclusion that a wrongful death action
may be premised upon a bullying-induced suicide when it can be shown that
the offensive conduct caused the death.

We, therefore, are constrained to conclude that when the anxiety or
torment of bullying is shown to have been a- substantial factor in causing death
by suicide, the resulting suicide is not a superseding intervening event which
bars a victim’s estate from prosecuting a wrongful death claim. Asjalways, the
burden rests upon the plaintiff, the estate of a decedent who committed
suicide, to prove all of the elements of the tort CR 43.01 (“(1] The‘party'holding
l the affirmative of an issue must produce the evidence to prove it. (2] The ` n
burden of proof in the whole action lies on the party who would be defeated if
no evidence were given on either side.”).

Our recognition of- an estate’s right to seek recompense for the bullying of

its decedent is likewise consistent with, and a natural extension of, our

adoption in Craft v. Rice, 671 S.W.2d 247 (Ky. 1984), of Restatement (Seconcl) of

28

- Tort._s § 46 (Outrageous Conduct Causing Severe Emotional Distress), which
provides that “(1) One who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability for
such emotional distress, and if bodily harm to the other results from ity for
such bodily _harm.” As noted .in that case: “There is a right to be free of
emotional distress arising from conduct by another.” Id. at 251. We see no

rational basis for holding that a person who engages in bullying behavior (or
~ . . ` ‘ /
knowingly tolerates it despite an affirmative duty to prevent it, stop it, and

report it) will be liable for damagesif he drives the victim only to the brink of
suicide, but will escape liability if the torment results in suicide.

Craft sets forth several limiting factors which are appropriately extended
to wrongful death cases premised upon a suicide caused by bullyin'g:

y One, the wrongdoer’s conduct was intentional or reckless This
element is` satisfied where the wrongdoer had the specific-purpose
of inflicting emotional distress.or where he intended his specific
conduct and knew or should have known that emotional distress
would likely result Two, the conduct was outrageous and
intolerable`in that it offends against the generally accepted
standards of decency and morality. This requirement is aimed at
limiting frivolous suits and avoiding litigation in situations where
only bad manners and mere hurt feelings are involved.‘ Three,
there was a causal connection between the wrongdoer' s conduct
and the emotional distress Four, the emotional distress was
severe.

. 671 S.W.2d at 249.18

 

13 lt should be o`bvious that most cases premised upon bullying will involve a
wrongful death case with intentional infliction of emotional distress being the
underlying tort. Here, negligence' 1s the underlying -,tort and a wrongful death suicide
case based upon negligence would be less common, but nevertheless would still fall
within our holding so as to capture, inter alia, this very situation: a situation when
teachers negligently fail to stop bullying. In such negligence cases element one of the

:29

-In light of the above discussion, we now return to the specifics of this
case as reflected in -the record to examine whether there is a genuine issue of
material fact concerning but-for causation, and further, whether in this case-
specific‘ situation, the Estate’s claim can survive proximate cause scrutiny. Of
course, within 'our examination we consider-that the Teachers did not
perpetrate the actual bullying of Stephen; rather, they were his in loco parentis
guardians with a ministerial duty to identify and stop the bullying being
perpetrated against h`im. `

For purposes of this review,` We must accept as true the detailed
allegations as contained in the student affidavits that Stephen was deliberately
bullied on a regular basis and that the Teachers knew (or should have known]
about it, did nothing to stop it, 'and‘ failed to report it. 'While we-accept as true
that bullying can lead to suicide, under the circumstances of this case there is
no obvious evidentiary link between the bullying and Stephen’s suicide.

Stephen apparently never complained about being bullied and he left no note

 

Crajt elements would apply to the underlying bullying, but element one would be .
modified as to the negligent actor sd as t_o apply the negligence standards as discussed l
herein. `-
We further note that our holding today is consistent with our recent holding in
Osbome v. Keeney, 399 S.W.3d 1 (Ky. 2012], which permits recovery for negligently
inflicted emotional distress in the absence of a physical impact This rule, in turn, is
consistent with Restatement [Second}-ofTorts § 455 (1965) which provides that “If the
actor’s" negligent conduct so brings about the delirium or insanity of another as to
make the actor liable for it, the actor is also liable for harm done by the other to
himself while de]irious or insane, if his delirium or insanity (a] prevents him from §
realizing the nature of his act and the certainty or risk of harm involved therein, or (b)
makes it impossible for him to resist an impulse caused by his insanity which deprives
him of his capacity to govern his conduct in accordance with reason.” Bullying to a
degree driving one to suicide is, in essencej the bringing about of a delirium in the
victim and a consequent impulse to self-harm which the victim is unable to resist

30

or social media trail to that effect. And as Appellees noted, Stephen had a
history‘of migraine headaches; they suggest that this was likely the reason for ‘
his suicide. l

The Estate places significant weight upon an email exchange between
Stephen’s mother, Sheila Patton, and a telacher, Appellee Lynn Handshoe,
‘shortly'before Stephen’s death. Sheila explained in the email:that she was
concerned about why Stephen did not want to go -to school. She cited a
number of concerns`which might be symptomatic oi bullying`, such as poor
grades, but she did not express concern about bullying and she did not suggest
that Stephen was so distressed that suicide was a concern. The email also
suggests explanations other than bullying for Stephen’s distress.

The Elstate also provided evidence from two expert witnesses retained fo'r- l
this litigation, Barbara Coloroso and psychologist Dr. Susan Lipkins. Neither
expert opined with any degree of certainty that Stephen’s suicide was caused
by bullying. At the time of their respective depositions, neither Oi` the experts
had conducted any interviews or investigations into the matter, but rather had
relied exclusively upon statements and information provided by the Estate’s
attorneys. Ms. Coloroso and Dr. Lipkins provided no evidence.that serves to
establish bullying as'the cause of Stephen’s death by suicide.

Under the Steelvest standard, we are left with evidence, albeit disputed
evidence, that Stephen was subjected to persistent bullying by other students '
at school; that the Teachers knew about it and violated their ministerial duty to

stop it, or were negligent in failing to detect it; and that Stephen committed

31

suicide. Without more to establish a link between bullying and Stephen’s
death, there is, nothing to advance the case from mere speculation and `
supposition to a reasonable inference. It may seem to some that-bullying must
have been a factor, but we are unable to identify any non-speculative evidence
to sustain that position.l As we stated in Blaclcstorte Mining Company v.
Trav_elers Insurance Com_pany, '351 S.W.3d 193, 201 (Ky. 2010]:19

Designed to be narrow and exacting so as to preserve one’s right to

trial by jury, summary judgment is nevertheless appropriate in

cases where the nonmoving party relies on little more than

‘speculation and supposition’ to support his claims. O'Br_'yan v.

Cave, 202 S§W.3d 585, 588 (Ky. 2006]. ‘The party opposing

summary judgment cannot rely on their own claims or arguments

without significant evidence in order to prevent a summary

» judgment.’ Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky.

2001t .

Based upon our review of the trial record, we are persuaded that there is
insufficient evidence to create a genuine issue of material fact about whether
Stephen’ s suicide was caused by bullying. Accordingly, while we reject the
conclusions of the Court of Appeals and circuit court that bar liability on the
grounds that Stephen’s suicide Was a superseding intervening cause, we
nevertheless affirm the judgment that the Teachers are entitled _to summary
judgment We do so upon our conclusion that summary judgment 1s proper
when the plaintiff` 1s unable to assemble sufficient evidence to demonstrate that d

' a reasonable jury could, without resorting to speculation, return a verdict

finding the suicide was caused by the bullying.

 

19 As modified on denial of rehearing (Nov. 23, 201 1).

32

1v. 'PAUL n. covERDALE TEAcHER PRoTEcrron Ac'r
Appellees also contend that they were entitled to summary judgment
under the Paul D. Coverdell Teacher Protection Act of 2001, 201 U.S.C. §§ 6731
et seq. The Paul D. Coverdell Teacher Protection.Act, a component of the “N_o
Child Left Behind” education bill, “allows school officials to use reasonable
measures ‘to maintain order, ldiscipline, and an appropriate educational -

environment.’” Dennis v. Board of Education of Talbot County, 21 F. Supp. 3d

' 497, 502 (D. Md. 2014) (citing 20 U.S.C. `§ 6732]. “[N]o teacher, administrator,

or individual member of al school board is liable for harm to .a student if he was
acting within his‘scope of employment, and the actions complied with the law
and were in an effort to discipline a student or maintain-control."’ Id; (citing 20
U.S.C. §§ 6733(6]`(A), 6733(6](D), 6736(a)(1) - (2)). Having disposed of this case
on other grounds, we need not plumb the depths of the Act to determine its

applicability to the unusual_and tragic circumstances of this case. -

v'. concLUsroN

We have consistently held that a teacher’s duty to supervise students is
ministerial in nature and that the consequences for .a breach of_` that duty _may _
not be dismissed under the cover of qualified immunity. We reiterate that
holding in this case. The Estate?s evidence presented a genuine issue of
material fact concerning whether the Appellee Teachers complied with that
duty. The Appellee Administrators, however, were entitled to qualified ofEcial
immunity because their duty was discretionary, a conclusion that is also

consistent with -our precedent

33"

We further conclude that suicide as a result of bullying is not a
superseding intervening event that bars the imposition of liability for the
bullying behavior. However, summary judgment dismissing the complaint was
proper because the evidence did ndt sufficiently establish bullying as a cause of
the suicide so'as to create a genuine issue of material fact as to causation.
Therefore, we affirm the decision of the Court of Appeals although we‘do so on
different grounds.

Minton, C.J.; Hughes, Keller, Venters,-and llVright, JJ., concur.
Cunningham concurs in result only by separate opinion. VanMeter, J., .not
sitting. ~

CUNNINGHAM, J., CONC'URRING IN RESULT: I concur in= result With
the Majority’s opinion. However, with profound respect and appreciation for the
excellent research and writing of Justice Venters, there are some unsettling
things about the Majo`rity opinion with which I cannot accept. l fear that we
are slowly shifting our mounting societal ills onto the shoulders of our
underpaid teachers who are already burdened with trying to teach our young, n
while at the same time dealing with students who have been emotionally and
psychologically damaged from causes outside the classroom.

First, 1 cannot conclude that the Allen Central Middle School Bullying Policy
(the “Policy"), and similar and-bullying policies throughout our school districts,
_are ministerial in nature. The duty to report bullying may be ministerial, but
determining the existence of the proscribed behavior is a discretionary task.

Upchurch v. Clinton. County, which was decided in 1959, dealt with a statutory

34

f`l

directive for the County to hire a dog warden. 330 S.W.2d 428 (Ky. 1959].
Simple enough to follow. In our Marson v. Thomason, decision cited by
Majority, it was a simple chore of making sure the bleachers were pulled out.

438 S.W.2d 2_92 (Ky. 2014). These ministerial acts are almost mechanical

- compared to the arduous task of a teacher judging student behavior to

determine if he or she is being bullied,

The Policy at issue went well beyond listing specific behavior which constituted
bullying and instead provided an overly broad definition Further inspection of
the Policy language reveals that the bullying definition is so broad that it
requires teachers to make fact-intensive decisions, and should cloak them in
qualified immunity. Indeed, the Policy defines bullying as any form of
communication that teases, mocks, or is “rude / negative/ hurtful / off color . . . .”
Our interpretation of this Policy confers upon the teachers a duty to report
even the most minuscule infraction, or worst yet, a suspected infraction.

In our opinion here today, we afford the administrators a safe haven of
qualified immunity. In not extending the same protection to the teachers, we
are encouraging an unworkable school environment, Desk generals may draw
up exact and precise instructions for the foot soldiers, which in the classrooms
and hallway prove impractical Such_directives so easily drawn, protect the
administrators from lawsuits. But they are unworkable, unless teachers use
common sense and discretion in their implementation ’l`hrough this process,

teachers are thrown under the bus, unless they follow these instructions in

35

such an exacting way that will prove catastrophic to the smooth and orderly

' working of a school day. n

If every teacher cited to the principal’s office every high school student who hit
someone in the hallway, no matter how jokingly; grabbed someone in the
hallway; pinched someone in the hallway; twisted arms in the hallway; pushed
or shoved someone in the hallway; flipped, threw or tossed paper wads at
another student in the hallway; poked or punched someone in the hallway; or
hid the Mad magazine of another student; there would not be a high school
football team in Kentucky that wasn’t on pro'bation. .

Teenage youngsters.are not robots, moving about the cl'assrooms, -hallways,
school yards or gym in drill-like precision. ’l`hey are full of vim, vigor and
bursting with energy screaming to be released from an hour of confinement in
a geometry classroom.

Kids can either be cru'el, or jokineg engaging in good matured ribbing with a

-‘ good friend. Some`times there is a thin line between the two. Discretion is
required. d '

Bullying is defined by the U.S. Department of Health and I-luman Services as
the “repeated” and “unwanted, aggressive behavior among school aged children
that involves a real or perceived power imbalance.” U.S.. Dep‘t of Health 85
Human Servs., W-hat ls -Bullying: Bullying Defi_nition, stopbullyin`g.gov,

httpi / / www.stopbullying.gov/ what-is~bullying/ definition / index.h`tml (last ,-
visited Nov. 23, 2016); I would submit that under this broad based definition,‘ .

much discretion is mandated The definition in this case attempts to be more

36

specific,` but in doing so encompasses conduct which almost every young

. student will exhibit in some form during the course of any school day. _

lf we impose a ministerial duty on teachers in this respect they will have no
time to teach; rather they will be obsessed with the fear of lawsuits hovering
over their every act and every decision.

In the real world, teachers likely only report the serious infractions, such as
verbal or physical intimidation and abuse. Since any bullying policy will
inherently recognize a hierarchy of bullying behavior, it requires the teachers to
'“exercise [] discretion and judgment, or personal deliberation” whether or not
such behavior is severe enough to report. Yanero v. Davis, 65 S.W.3d_510,` 522
n (2001). In doing so, the teachers are left with “a legally uncertain

' environment.” Id. We must keep in mind that insuring student safety is `_

_ “situation specific, and .` . . requires judgment rather than a fixed, routine
performanpe.” Marson, 438 s`.W.sd ar 299.-`

The examination of the discretionary or. ministerial functions of these types of
policies is “inherently- fact-sensitive.” Haney v. Monsky, 131 1 S.W.3d 235, 246
_(Ky. 2010). In the case before :us, the Policy not only included the catch all
“rude"/ negative / hurtful/off color” comments, but also specified that “hi`tting,
grabbing . . . pushing . . . [and] hiding or damaging another'student’s property”
is bullying '

There are other conclusions in the Majority,-which give me pause.
; I am-troubled with concluding that-administrators supervise teachers and not

students. Unless things have changed drastically since the dark ages when

37

.C\

this writer was in school, the principal still gazes out with intense supervision
over every school assembly, proms, and athletic contests. That’ s not to
mention the preeminence of the school warden patrolling the hallways on a
regular basis. n l

Furthermore, we should go ahead and provide our teachers the protection
which our U.S. Congress intended them to have with the enactment of the Paul

D. Coverdell Teacher Protection Act of 2001, 20 U.S.C. §§ 6731 et seq. The

part germane to this case reads “[N]o teacher, administrator, or individual

member of a school'board is liable for harm to a student if he-was acting within
his scope of employment, and the actions complied with the law and were in an
effort to discipline a- student or maintain control.-” Id. (citing 20 U.S.C. §§
6733(6)(A), 6733(6)(D], 6736(a)(_1) - (2)). l

Lastly, there is:the searing and most tragic of all tragedies_teenage suicide. lt
is both a heart breaking and unfathomable occurrence that baffles _our
communities and homes with soul numbing despair. As our hearts break, we
strive to understand this tragedy of all tragedies. But alas, we stand mute and
witless to any answer. I`n spite of the excellent analysis written by the Majority
in this case, I ar_n not ready to say that in cases such as this, it is not, as the
trial judge found, a superseding intervening cause interrupting any potential

liability of the administrators and teachers alike.

` For these reasons,.l respectfully concur in result only with the Majority

opinion.

38

COUNSEL FOR APPELLANT:

Vanessa B. Cantley
Bahe, Cook, Cantley Br. Nefzger, PLC

COUNSEL FO_R APPELLEES DAVIDA BICKFORD,' PAUL FANNING AND
RONALD “SONNY” FENTRESS:

Michael J. Schmitt .
Jonathan C. Shaw
Porter, Banks, Baldwin, & Shaw

COUNSEL FOR APPELLEES JEREMY HALL, ANGELA MULLINS, LYNN
HANDSHOE AND GREG NICHOLS:

Neal Smith
Todd P. Kennedy
Smith Thompson 85 Kennedy, PLLC.

39

.§upreme Tnnrf rr’f_;l Benfnckg

2013‘-SC=000560-DG

FLOYD LAWRENCE PATTON, AS l - APPELLANT
ADMINISTRATOR OF THE ESTATE OF
STEPHEN LAWRENCE _PATTON

ON REVIEW FROM COURT OF APPEALS
V. ' CASE NO. 2012-CA~000598
FLOYD CIRCUIT COURT NO. 08-'CI-00653

DAVIDA BICKFORD, PAUL FAl\_lNING, APPELLEES
RONALD “SONNY” FENTRESS, JEREMY

HALL, ANGELA MULLINS, LYNN '

HANDSHOE, AND GREG NICHOLS

oR'DER DENYING PETITIoN F<ME_HEARING AND GRANTING
MODIFICATION OF OPINION
The Petition for Rehearing filed by the Appellant, Floyd Lawrence Patton, _
as Administrator of the Estate of Stephen Lawrence Patton, rendered March 17,
2016, is DENIED, and the Opinionl of this Court is modified bysubstitution of
the attached Opinion in lieu of the original Opinion of the Qourt. Said

modification does not affect the holding of the original Opinion of the Court`._

..
r \\ "¢

Minton, C.J.; Hughes, Keller, Venters,' and Wright, JJ., concur.'
Cunningham concurs in result only by separate opinion. VanMeter, J., not
sitting.

ENTERED: August 24, 2017.

 

 

IEF JUSTICE

