Opinion
NO. 2012-CA-001641-MR
2013-09-27
GREG CUMMINS APPELLANT v. CITY OF AUGUSTA, KENTUCKY; AND JOHN LAYCOCK APPELLEES
BRIEFS FOR APPELLANT: Stephen D. Wolnitzek Shane C. Sidebottom Covington, Kentucky BRIEF FOR APPELLEE, CITY OF AUGUSTA, KENTUCKY: Cynthia C. Thompson Augusta, Kentucky BRIEF FOR APPELLEE, JOHN LAYCOCK: Charles D. Cole Derrick T. Wright Lexington Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BRACKEN CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 12-CI-00002
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND MOORE, JUDGES. ACREE, CHIEF JUDGE: We must decide whether the Bracken Circuit Court erroneously dismissed appellant Greg Cummins's complaint for failure to state a claim upon which relief may be granted under Kentucky Rule(s) of Civil Procedure (CR) 12.02(f). Finding no error, we affirm.
I. Facts and Procedure
When we, as we must, take the allegations in Cummins's complaint as true, the pertinent facts are as follows.
In December 2010, a citizen notified Cummins, who was then the Chief of Police for the City of Augusta, that an Augusta police officer was engaging in unethical, borderline-criminal, behavior. Cummins investigated.
Shortly thereafter, Cummins notified the Bracken County Commonwealth Attorney, via letter, that his preliminary investigation revealed that the officer was compromising criminal investigations and possibly engaging in official misconduct. The letter was copied to appellee John Laycock, Mayor of the City of Augusta. The Commonwealth Attorney declined to prosecute and Mayor Laycock refused to further investigate. He instructed Cummins to "cease and desist in any further investigative efforts."
Undeterred, Cummins submitted a letter to the Bracken Circuit Court requesting it convene a grand jury to investigate the officer. The circuit court forwarded the letter to the Kentucky Attorney General's Office. Representatives of that office declined to investigate on jurisdictional grounds.
On December 7, 2011, Mayor Laycock presented Cummins with a letter of termination. The letter cited just cause, but did not identify the factual basis for Cummins's termination.
Cummins filed suit against Mayor Laycock and the City of Augusta alleging breach of contract, negligent supervision, official misconduct, and violation of Kentucky's Whistleblower Act. The appellees filed a joint CR 12.02(f) motion to dismiss Cummins's complaint for failing to state a claim upon which relief may be granted. By orders entered August 21, 2012, and September 6, 2012, the circuit court granted the appellees' motion. Cummins promptly appealed. As additional facts become relevant, they will be discussed.
II. Standard of Review
We review dismissals under CR 12.02(f) de novo. Gall v. Scroggy, 725 S.W.2d 867, 868-69 (Ky. App. 1987). In so doing, we may only affirm the circuit court's grant of the motion to dismiss if:
it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. . . . [T]he question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002) (internal quotation and citation omitted). This limited review standard requires that this Court accept as true the plaintiff's factual allegations and to draw all reasonable inferences in the plaintiff's favor. Pike v. George, 434 S.W.2d 626, 627 (Ky. 1968) ("For the purpose of testing the sufficiency of the complaint the pleading must not be construed against the pleader and the allegations must be accepted as true.").
III. Discussion
Cummins appeals the circuit court's order only as it pertains to the dismissal of: (1) his breach-of-contract claim; and (2) his claim of negligent supervision by Mayor Laycock. We address the circuit court's dismissal of each claim in turn.
A. Breach of Contract
Cummins argues the circuit court erroneously concluded that he failed to present a cognizable breach-of-contract claim. Cummins concedes no express employment contract exists between him and the appellees. Instead, Cummins argues an ordinance, and the personnel policies adopted thereby, afforded him contractual rights. We disagree.
Nonelected city officials, including the chief of police, are "at will" employees "unless otherwise provided by statute or ordinance." Kentucky Revised Statute(s) (KRS) 83A.080(2), (3). In 2004, the Augusta City Council enacted Ordinance 2004-22, which updated the City of Augusta's personnel policies and procedures manual. That manual contains three provisions relevant to our review.
First, an employee may only be dismissed "for just cause." (R. at 90).
Second, any disciplinary action that could involve dismissal shall require that a pre-disciplinary hearing by the Mayor or his representative be offered to the employee.
Third, the "[i]nformation included in these policies and procedures . . . is not intended to represent a contract between the employee and the city, and may be changed by the City Council without notice." (R. at 81).
Cummins argues the personnel manual modified the "at will" employment standard contained in KRS 83A.080(3) to a "just cause" standard. Cummins further asserts the personnel manual represents a valid contract for employment between him and the appellees, which Mayor Laycock breached when he terminated Cummins without just cause and without offering a pre-disciplinary hearing.
In response, the appellees point out that the personnel policies contain an express disclaimer dispelling any notion that the personnel policies represent a contract for employment. Because no "contract" exists upon which to base his claim, appellees argue, dismissal of Cummins's breach-of-contract claim was proper. The appellees' position is well-taken.
An express personnel policy may, under certain circumstances, confer contractual rights on its employees and "become a binding contract[.]" Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 362 (Ky. 2005). A personnel manual does not confer contractual rights if it contains a specific provision refuting the creation of an employment contract. Thus, "[a]n express disclaimer in an employee manual stating that it [is] not a contract effectively preclude[s] deviation from the terminable at will doctrine." Noel v. Elk Brand Mfg. Co., 53 S.W.3d 95, 98 (Ky. App. 2000); Jackson v. JB Hunt Transport, Inc., 384 S.W.3d 177, 184 (Ky. App. 2012) (finding a "specific disclaimer" in an employment agreement defeated the employee's "argument that a[n employment] contract existed"); Wathen v. Gen. Elec. Co., 115 F.3d 400, 407-08 (6th Cir. 1997) ("Under Kentucky law, a clear disclaimer defeats an employee's breach of contract claim.")
Here, the personnel manual Cummins believes creates an employment contract expressly disclaims such a relationship. The personnel manual contains a clear and unambiguous disclaimer explaining the policies contained therein were "not intended to represent a contract between the employee and the city." In light of this disclaimer, we find the personnel manual afforded Cummins no contractual rights to continued employment and no implied contract existed. He was simply an "at will" employee, terminable at the whim of the executive authority. KRS 83A.080(3). Cummins failed to plead a viable cause of action for breach of contract; dismissal of this claim was proper. On this issue, we find no error.
B. Negligent Supervision
Cummins also challenges the circuit court's conclusion that he failed to articulate a cognizable claim of negligent supervision. The basis of Cummins's negligent-supervision claim was that Mayor Laycock, despite receiving notice that a police officer was engaging in unethical and possibly criminal acts, took no supervisory steps to thwart that officer's actions.
In dismissing Cummins's negligent supervision claim, the circuit court opined that any claim by an employee against an employer alleging negligence, including negligent supervision, is precluded by the exclusive liability provision of the Kentucky Workers' Compensation Act, as set forth in KRS 342.690. This Court previously noted that, excepting intentional injuries caused by the employer, "the workers' compensation system is the exclusive remedy for any injuries falling within its purview." Edwards v. Ladder, 957 S.W.2d 920, 292 (Ky. App. 1997).
That statute states: "If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee." KRS 342.690(1).
Cummins argues dismissal on this basis was erroneous because he has not suffered an injury falling within the purview of the Act, and therefore his negligent-supervision claim is not preempted by the Act. The appellees counter that KRS 342.690 precludes any and all theories of liability grounded in negligence, including negligent supervision.
This Court finds that it need not resolve this issue. There is a more perfunctory reason to affirm the circuit court's dismissal of Cummins's negligent-supervision claim. And "it is well-settled that an appellate court may affirm a lower court for any reason supported by the record." McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009).
Kentucky law recognizes that liability may be imposed on an employer who negligently supervises its employees. See Smith v. Isaacs, 777 S.W.2d 912, 914-15 (Ky. 1989); McDonald's Corp. v. Ogborn, 309 S.W.3d 274, 291 (Ky. App. 2009). To define the parameters of the tort of negligent supervision, Kentucky adopted the Restatement (Second) of Agency § 213 (1958), which provides: "A person conducting an activity through . . . agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: . . . (c) in the supervision of the activity[.]" Id. § 213(c).
To succeed in a negligent-supervision cause of action, a claimant must plead and prove the traditional common-law elements of negligence, including duty, breach, an injury, and legal causation linking the defendant's breach to the plaintiff's injury. Id. § 213 cmt. a ("Liability exists only if all the requirements of an action of tort for negligence exist."); Hugenberg v. West Am. Ins. Company/Ohio Cas. Group, 249 S.W.3d 174, 181 (Ky. App. 2006).
Here, a careful review of Cummins's complaint reveals it insufficiently states a cause of action for negligent supervision. White v. Brock, 487 S.W.2d 908, 909 (Ky. 1972) ("A motion to dismiss for failure to state a claim . . . [tests] the sufficiency of the pleading.") With respect to duty, negligent supervision liability will adhere where the employer "knew or had reason to know of the risk that the employment created." Booker v. GTE.net LLC, 350 F.3d 515, 517 (6th Cir. 2003). Cummins's complaint describes the duty of care that was owed as being grounded in Mayor Laycock's statutory power to supervise the City of Augusta police department, and that he knew or should have known of the risk that the officer's continued employment created because Cummins had so informed him. Cummins's complaint also avers that Mayor Laycock breached his duty to supervise the alleged unethical officer and the police department as a whole.
Duty and breach, however, are only the first steps to establishing an actionable negligent-supervision claim. A plaintiff must also plead injury or harm, and establish a causal connection between his injury and the employer's violation of its duty to supervise its employees. See Restatement (Second) of Agency § 213 (1958) (reiterating that an employer may only be liable "for harm resulting from his conduct" if the employer is negligent in its supervision of its employees (emphasis added)). Stated differently, the injured party must demonstrate that his injury or harm was the product of the employer's negligent supervision.
Here, Cummins's termination is the only harm alleged in the complaint. Noticeably absent is any allegation whatsoever that Mayor Laycock's failure to supervise the suspected unethical officer resulted in Cummins's termination. Instead, the complaint states that Cummins "was terminated for reporting [the officer's] alleged misconduct to [Mayor] Laycock." Cummins's complaint fails to allege a causal relationship between Mayor Laycock's alleged failure to supervise and Cummins's termination. Absent such a causal connection, Mayor Laycock cannot be held liable for negligent supervision.
Cummins has failed to state a negligent-supervision claim upon which relief can be granted. Albeit on different grounds, we affirm the circuit court's dismissal of Cummins's negligent-supervision claim pursuant to CR 12.02(f).
IV. Conclusion
The Bracken Circuit Court's August 21, 2012 and September 6, 2012 BRIEFS FOR APPELLANT: Stephen D. Wolnitzek
Shane C. Sidebottom
Covington, Kentucky
BRIEF FOR APPELLEE, CITY OF AUGUSTA, KENTUCKY: Cynthia C. Thompson
Augusta, Kentucky
BRIEF FOR APPELLEE, JOHN
LAYCOCK:
Charles D. Cole
Derrick T. Wright
Lexington Kentucky
orders are affirmed. ALL CONCUR.