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Reading the legal tea leaves: Development of qualified immunity in Kentucky

10/24/24

By: Lucas Ryan Harrison

In Jones v. Lathram, the Kentucky Supreme Court set a bright-line rule related to qualified immunity for law enforcement officers. In that case, a State Trooper responded to an emergency call and entered a “blind” intersection, colliding with another vehicle. Lathram established that the operation of a police cruiser, even in an emergency, does not afford the driver qualified immunity from potential liability. 150 S.W.3d 50 (Ky. 2004).  

The Court reasoned that driving a police cruiser was ministerial in nature, only requiring obedience to orders and training, as opposed to a discretionary act requiring the exercise of reason and adaption, with only the latter deserving of qualified immunity. Since that time, Kentucky courts have been steadily eroding the Lathram rule. 

Seven years later, Haney v. Monsky clarified there are few actions that are purely discretionary or ministerial, requiring analysis of the “dominant nature” of the act in question. 311 S.W.3d 235 (Ky. 2010). Despite this change, Lathram survived a 2017 opinion that included a concurrence from the Chief Judge of the Kentucky Court of Appeals, who stated the Lathram rule had “long puzzled” him. City of Brooksville v. Warner, 533 S.W.3d 688 (Ky. Ct. App. 2017) (Kramer, C.J., concurring). 

In Meinhart v. Louisville Metro Government, the Court further blurred the bright lines of the Lathram rule, establishing that the decision to engage in a pursuit of a suspect, considering the weather, time of day, and traffic conditions, is discretionary. 627 S.W.3d 824 (Ky. 2021). Sholar v. Turner followed two years later, deeming the act of parking at an accident scene to be discretionary as well. 664 S.W.3d 719 (Ky. Ct. App. 2023). 

The most recent blow struck against the Lathram rule came earlier this year. Wilson v. England is a yet-to-be-finalized Court of Appeals opinion issued in July that evaluated the discretion involved in a volunteer firefighter being pressed into duty to drive an ambulance carrying a critically ill infant to the hospital. 2024 WL 3380981. The firefighter had no training and little experience in operating an ambulance. He took a circuitous route, traveled at excessive speeds, and ran multiple stop signs. At one point, the ambulance became airborne, leading to severe injuries suffered by one of the EMTs in the back of the vehicle.  

Citing Meinhart, Monsky, and Turner, the Kentucky Court of Appeals deemed the firefighter’s operation of the ambulance to be discretionary and therefore entitled to qualified immunity. The Court identified the discretion in the method of navigation, the lack of specific instructions in traveling to the hospital, and the discretion necessary to determine how to transport the patient as quickly as possible while operating the vehicle in a manner that avoids injuries to others.  

Kentucky law exempts ambulances (and police cruisers), from following speed limits and other traffic laws under specific circumstances. Still, it requires such vehicles to operate with due regard for the safety of all persons on the road. While Wilson attempted to distinguish itself from Lathram by noting that a pursuit requires the officer only to follow a suspect removed from any discretion on route or speed, a police vehicle responding to an emergency would have the discretion of speed, route, and any stops or pauses, all factors identified as discretionary in Wilson.  

A future opinion may retire the Lathram rule outright or Lathram may die a death of a thousand exceptions. Either way, the Commonwealth’s courts are signaling that the Lathram rule will be unable to survive the development of the qualified immunity doctrine in Kentucky.  

For more information, please contact Lucas Ryan Harrison at lucas.harrison@fmglaw.com or your FMG relationship partner.