*1 36 doubt, challenger prong the second of cast direct No.2000-4 satisfies
[t]o directly in that ordinance furthers present must evidence that O’Brien evidence, governmental county’s interest substantial contrary municipality’s to combating negative preventing in produce general study not a re- simply secondary sexually with effects associated is not futing secondary all effects. This Furthermore, Appel- oriented businesses. heightened evidentiary stan- new presented lee Jameson has not evidence interpretation as this is consistent dard evidentiary burden Renton, sufficient to shift the holding with the in which estab- by creating jury court back the fiscal evidentiary of proper lished the burden upon by relied issue that the rationale the parties. body its enactment was legislative during 455, Abed, City v. 677 465 Elko N.W.2d Ap- suppression. for The Court of pretext Moreover, find, as (Minn.App.2004). we peals concluding erred otherwise. found, likewise others courts have Books, did create a swpra, Alameda not CONCLUSION evidentiary new Giovani standard. See herein, For the reasons set forth we 507, Carandola, Bason, F.3d Ltd. v. Ap- reverse the of the Court (4th Cir.2002) (finding that a to the as it remands this case peals insofar in estab state carries minimal burden evidentiary for hear- district court further interest); lishing government a substantial County ings requires the McCracken Saloons, Baby Topless Dolls Inc. proffer supplementary evi- Fiscal Court to (5th Cir.2002) Dallas, 471, 295 F.3d No.2000-4, support dence Ordinance empirical required (finding that data not holding of prior thus reinstate the we will crime to show that ordinance lower the constitu- regarding the district court Bar, rates); Village Ben’s Inc. v. Som tionality of the ordinance. (7th Cir.2003) erset, 702, 316 F.3d 721-22 Kennedy’s concurrence (citing Justice All concur. opined he that a Alameda Books wherein establishing municipality’s burden slight); government
substantial interest Abed, 455, 465
City Elko v. 677 N.W.2d (concluding that Alameda (Minn.App.2004) a “new” evidentia- Books did establish (as PILE Executrix of the Bobbi standard). ry Foltz, Ann Estate of Theresa accept Finally, we that were we note Deceased), Appellant, reading Alameda Appeals’ mu- Books, shift to the the burden would BRANDENBURG and John CITY OF evi- supplementary nicipality proffer Officer, Appellees. Miller, justification regulation dence as presents evidence challenger whenever No. 2005-SC-0047-DG. any municipali- which casts doubt Kentucky. Court of Supreme ty’s “Parties these cases rationale. 21, Dec. 2006. merry- never-ending be on a would [then] Abed, shifting.” go-round of burden Rehearing As Corrected Denial at 464. N.W.2d 22, 2007. March above, we find For the reasons outlined County Ordinance
that McCracken *3 Butler, Louisville, for Ap-
Brett Counsel pellant. Bowles,
David Paul Landrum & Shouse LLP, Watson, Robert Thomas Landrum & LLP, Louisville, Ap- Counsel for Shouse pellees. of the Justice
Opinion Court WINTERSHEIMER.
REVERSING opinion is appeal This from an Appeals affirming Court city judgment of trial court for police wrongful officer death action. are questions presented whether controlling in this decision case Lathram; the Court of Jones v. considering erred discre- tionary distinguished acts as ministe- acts; special relationship rial whether a necessary for claims of this na- negligence ture; whether the officer was se; operating, con- per whether the active a motor vehicle trolling ownership ministerial, there was a and whether injury to and superseding cause for death of the victim. 12, July Ann on
Theresa Foltz was killed a curve she drove around on 2000 when head-on 1638 and struck Highway was City of vehicle Bran- a motor owned to Officer John Mil- denburg assigned at the operated The vehicle time ler. Blackwell, Timothy of the accident prisoner in the vehicle. handcuffed dispatched to Officer Miller had been p.m. of an at about 9:45 the scene accident County Depu- July Off-duty 12. Meade Embrey the accident in ty Jailer witnessed driver Blackwell which intoxicated n wreckedhis Foltz, thereby van and traveled backwards precluding recovery from city Miller, down an embankment Embrey citing near the or Officer Frank v. Ralston, 39-year-old residence. The F.Supp. (W.D.Ky.1956) Blackwell at- foot, tempted to flee the scene by but judge majority Both the circuit and the Embrey managed apprehend him and of Appeals panel acknowl- him place then in handcuffs before sum- edged no of either of the moning police. Miller, Officer young any “special defendants absent relation- policeman with several experi- months of ship” as considered in U.S.C. ence, answered the call in his Louisville, § 1983 of Ashby City case *4 cruiser. 841 (Ky.App.1992). S.W.2d 184 The ma- jority opinion of the Court of held preliminary testing When breath of public policy limiting there is a the reading Blackwell revealed a of at least tort of officers. This Court ac- .287, allegedly Blackwell was secured in cepted discretionary review. handcuffs and placed in a point 3 restraint the back of police the cruiser Standard of Review separated which was from the front seat Summary judgment procedure plexiglass shield. Officer Miller was seq. authorized CR 56.01 et is intended driving the cruiser Embrey and awas to expedite disposition the of if cases and passenger in the front they seat as left the grounds provided by the the rule are es Embrey residence jail. enroute to the Offi- tablished, it is the responsibility of the cer stopped Miller police the cruiser in the judge trial to render appropriate an deci highway, got go out to down the embank- grounds sion. The judgment for such a ment gather regarding information the 1) are: there is no genuine any issue as to van, keys and left the ignition the with 2) fact; material moving party and engine and emergency lights on. a judgment entitled to as a matter of law. This effect left the cruiser in running summary The judgment procedure is not a Shortly thereafter, condition. Embrey substitute for trial. Hospi See Paintsville got also out and went to assist with traffic Rose, tal Co. v. (Ky.1985); S.W.2d 255 control on highway. As the sole re- Center, Steelvest Inc. v. Scansteel Service maining occupant cruiser, Blackwell Inc., 807 (Ky.1991); S.W.2d 476 James somehow was able to maneuver into the Foundation, Graham Brown Inc. v. St. front seat proceeded and to drive the Co., Paul Fire & Marine Ins. 814 S.W.2d away high cruiser at a speed. rate of With- (Ky.1991). minutes, police cruiser crossed the center line and crashed head on into the circuit judge The must examine car driven 57-year-old Ann Theresa matter, evidentiary not to decide an Foltz. Both the still handcuffed Blackwell fact, issue of but to if discover a real or and Mrs. Foltz died at the scene. genuine issue exists. All doubts are to be judge granted
The circuit
the motion of
resolved in favor of the party opposing the
and the
officer for a
motion. The movant should not succeed
judgment based on the reasoning
unless a
right
judgment is shown with
Chipman,
Florence v.
clarity
duty exists has fore- been seeability of harm is essential element. Lathram, In Jones It necessary identity is not to know the of 50 (Ky.2005), operat Officer Lathram was person endangered scope cruiser at time of fatal ing police danger. such collision. This Court determined that the in re officer undertook ministerial act obligation of a officer in sponding to an call for assis regard to is not individual citizens founded tance from fellow officer. The court foreseeability upon alone but rather *5 safely driving that the act of a stated relationship special existence a cruiser, police in not emergency, even is person likely injured. to be Two condi 1) requires any typically an act that delibera required. are victim must tions The judgment. or exercise of This court in tion custody or otherwise have been state in a decision the affir- by unanimous reversed restrained the state at the time the 2) a occurred, mance of and held injury producing act quali was not entitled to or conduct must officer violence other offensive liability. immunity committed a state fied official by have been actor. question there no that Black- is safely controlling po The a in custody. inquiry well was Then our act, discretionary lice cruiser is not but proceed must to whether the violence was case, In rather a ministerial function. this by can committed what be defined as operation Officer Miller had control of the actor. examination state Our focuses Thus, it police of his cruiser. would be responsibilities and his police officer requiring reactive decisions ministerial act parties performance in the his third training overall consid duty, based on operation duty. police The of a cruiser is public safety. question of eration of The in operation nature. The of the ministerial in negligent whether Officer Miller was daily responsibility, vehicle is routine under all the police his cruiser operating subject discretionary act and is to the matter and circumstances is a for facts applicable regulations police Thus, summary judg jury or trier of fact. statutory as traffic department as well in this ease. The inappropriate ment was regulations. Negligent operation of an acknowledged that also police vehicle officer who emergency in obviously negligent Officer Miller was procedures reg- existing police violates in duty of his at time performance ulations, statutes, is action- appropriate or question. clearly scope and is outside of able relationship “special doctrine.” KRS Acts Discretionary versus Ministerial II. 189.430, pertinent part that “no provides Lathram, language person charge or in of a motor In Jones v. operating (2001) Davis, permit it stand unattended Yanero vehicle shall employ- that an or engine, locking provides officer stopping without first immunity ee is afforded no regulations for tort obligated laws and that he was for the negligent performance of a obey ministe- performance his duties. act, i.e., rial one that requires only obedi- question The of whether Officer Miller ence to the orders of others or whether the negligent operation in the of his absolute, officer’s certain and im- jury. cruiser is reserved perative, involving merely execution of specific arising acts from a desig- fixed and Negligence III. Per Se nated fact. estate, urged by As the Foltz
Any
government
local
City
such as the
negligence per se merely
of Brandenburg could
negli-
be liable for
statutory
claim with a
standard of care
gence arising out of the acts or omissions
substituted for the common law standard
employees
of its
discharge
of their
of care. See Real
Marketing,
Estate
Inc.
65.2003(8).
ministerial duties. See KRS
Franz,
(Ky.1994).
The clear purpose
victim,
this statute is
care to the deceased
the
prevent
to
theft or
Timothy
unauthorized use of a
tortious conduct of
Blackwell was
motor vehicle as
protection
well as for the
superseding
a
injury
cause
the
and
safety
and
general
the
public.
They
OAG death.
contend that
un
but for the
Cf.
79.559. If this statute had
properly
Blackwell,
been
lawful conduct of
the victim
followed, the tragic accident would not would not have died in this accident and
have occurred. As noted in
the dissent
that
fatal consequences
the
were
outside
Judge Taylor, police
exempt
officers are
in the control of Miller after Blackwell stole
certain
situations from the ap
the
cruiser
and drove it
a reckless
plication of traffic regulations as
noted
manner so
to
They
crash head on.
Specific
189.940.
give police
KRS
statutes
question
further claim that the
of foresee
exemptions from
regu
certain other traffic
ability is without merit because the officer
189.450(7).
lations as noted in KRS
How
contemplate
prisoner
could not
that
the
ever, in this case there
no statutory
would steal the cruiser and kill someone.
exception
exemption
that
appellees
relieves Offi The
maintain that a superseding
189.430(3).
cer Miller from
independent
KRS
cause is an
force that relieves
“special relationships”
ap
original
liability.
doctrine has no
the
actor from
See NKC
plication to the issue of
Hospitals,
Anthony,
whether Officer
Inc. v.
S.W.3d created vehicle was which agree. for the to opportunity prisoner escape Com., Bab- Transportation Cabinet in the operate it fash- with vehicle bitt, (Ky.2005), provides S.W.3d 786 fatality. the ultimate ion which caused analysis superseding instructive the key Brack involved situation where Babbitt, cause involves supra, doctrine. the vehicle ignition was left in the while the claims of three individuals denied driveway in the and determined that was the Board of The case involved Claims. private apply did not to statute guardrails, the erection of barriers and driveway. the officer backed out of strips as warn- rumble that were intended driveway stopped pick up to to It states the ratio- ings motorists. belonging prisoner. to the tennis shoe superseding nale for doctrine cause up drove The officer then further road substantially diminished has been license to check on the van obtain infor- adoption comparative negligence, and running mation. He then left the motor ultimately negligence that the of a holds key in the so as allow with road- driving motorist a vehicle off the conditioning air to continue because so as way superseding cause temperature was in mid-70’s and trans- prevent battery running keep down. Quoting the Restate- portation cabinet. circumstances, Under all the we must (Second) (1965), § of Torts ment conduct of conclude that the tortious cause opinion asserts that not an or su- Blackwell was person an act of third or other force accident. perseding cause of fatal prevents ac- by its which intervention to another being tor from liable harm Fryman Ashby Chipman, V. negligence his is a factor which antecedent majority of the The cases cited bringing Donegan See about. also involve different issues (Ky.1970). Denney, *7 clearly distinguishable on their and are Florence v. facts. Reliance Bruck, supra, distinguishable is on its of Fryman and v. Harri- Chipman, supra, supra, As in the Anthony, facts. noted son, (Ky.1995), is mis- 896 S.W.2d intervening or event must of inde- act be owners, operators persons and placed. All orig- origin, unassociated with the pendent to duty in control of motor vehicles owe officer had an intoxi- inal act. the using roadway pursu- persons all other the in the back of his person cated handcuffed 304.39, Rep- the ant to Motor Vehicle KRS left cruiser with cruiser. The officer the in that Act nothing There is arations Act. engine key in and the the the from the police officers that exonerates necessary it running, arguing that was in duty negligent not to be the of care that the air conditioner leave the vehicle so control of their vehicle. operation or power in the operation be and would Another on the vehicle. do or not fights Chipman has to with whether noted in assessing in these situations have someone. guide an officer arrested should act or no intervening is the fact the officer has Anthony that The that must, itself, or capable bringing person from crime protect be another event The negli- issue intervening and that accident not an here. injury, the the is about the violation of reasonably fore- of Officer Miller and gence must not have been possible it for Blackwell the made original actor. statute seeable the McANULTY, J., by separate the vehicle to crash. dissents to take and cause it joined NOBLE, opinion and J. question not a the This is whether The should have arrested someone. case MINTON, J., sitting. not ordinary in here raises the issue of care of the violation statute. McANULTY, Justice, dissenting. I I that Respectfully, dissent. believe Fryman, supra, criminal relates to a major difficulty in case resolving the this being jail defendant released from without wrong party from the fact that the stems being properly posted. bail bond The placed was sued. Officer Miller had jail ap- defendant was released from and custody Embrey, prisoner Deputy in the proximately two assaulted months later Deputy Embrey assumed control jail- argued the victim. Harrison that It prisoner. follows that Miller Officer er the clerk in negligent were regarded cannot as a acci- be cause of the completion the bond revocation docu- Additionally, pris- dent. the actions of the jailer ments and in was a superseding pre- oner were act which releasing prisoner. again, Once this for the cludes accident on the situation, Officer Miller the statu- violated City. or the Officer Miller tory keys requirement leaving that, is stated superseding The rule “[a] ignition. Ashby Kentucky notes that force; intervening independent cause anis personal liability for public officer’s or however, nec- cause not public employee’s negligent performance if essarily superseding cause. ... duty depends in part injury reasonably resultant foreseeable powers question duties in were ministe- actor, original from the then view rial discretionary. We believe re- about causing bring other factors sponsibilities here were rather ministerial not injury are cause.” Thus, discretionary. than we further con- Inc. v. Hospitals, Anthony, NKC ap- clude that authorities not cited do 564, 568 (Ky.App.1993). In ply- bar, resulting injury case at not was to the original foreseeable actor —that be- The decision the Court of ing pris- He Officer Miller. handcuffed his the circuit court public is reversed. The oner, put him the back seat of the police duty doctrine does provide a shield for a Plexiglas place, vehicle with divider in or the liability. officer from in the custody and left him of another law responsibility of the officer to remove *8 officer. It enforcement was not foresee- vehicle, from key and the ultimate able to Miller that prisoner Officer theft the car prisoner and result- be left alone would then and allowed ing accident fatal was not an cause escape ensuing accident. Summary judgment or event. prisoner He did not leave the completely improper moving party because the alone. did not commit He thus an act judgment was not entitled to a a matter Therefore, negligence. which events of law. surely in- followed must be considered an This matter is remanded the circuit dependent chain events which were court trial. foreseeable.
Further, majority I do not believe the LAMBERT, C.J., convincingly case opinion distinguishes GRAVES this JJ., SCOTT, concur. in which special those relation- ship special rela- applied. test was
tionship is an additional when the test test
issue enforcement failed to is whether law
protect their I re- acts omissions.
gard the real issue in the case at bar as Mrs. not protected Foltz was officials from a drunk law enforcement Thus, relationship special
driver. test
must considered for this case. Under be test, victim, special relationship Foltz, custody
Mrs. was not state inju- restrained at time
otherwise Therefore,
ry-producing occurred. legal duty had
police officer no affirmative Fryman
to act on behalf of Mrs. Foltz.
Harrison, 908, (Ky. 909-10
1995).
I court’s decision was believe trial granting
sound in I af- City and Officer Miller. would Appeals’ opinion.
firm the Court J.,
NOBLE, joins dissent. this Kentucky,
COMMONWEALTH
Appellant,
Phillip YORK, Appellee.
No. 2005-SC-000348-DG. Kentucky.
Supreme Court 22, 2007.
Feb. 26, 2007.
As Corrected Feb.