Opinion
NO. 2019-CA-000183-MR
01-24-2020
John DOE, John Doe II, Richard Doe, and Richard Doe II, Appellants v. Marc LOGAN, Sterling Ward, and Sarah O'Laughlin, Appellees
BRIEFS FOR APPELLANTS: J. Dale Golden, Kellie M. Collins, Lexington, Kentucky. BRIEF FOR APPELLEE MARC LOGAN : Barbara A. Kriz, Lexington, Kentucky. BRIEF FOR APPELLEES STERLING WARD AND SARAH O'LAUGHLIN: Joshua M. Salsburey, Jessica R. Stigall, Lexington, Kentucky.
BRIEFS FOR APPELLANTS: J. Dale Golden, Kellie M. Collins, Lexington, Kentucky.
BRIEF FOR APPELLEE MARC LOGAN : Barbara A. Kriz, Lexington, Kentucky.
BRIEF FOR APPELLEES STERLING WARD AND SARAH O'LAUGHLIN: Joshua M. Salsburey, Jessica R. Stigall, Lexington, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES.
OPINION
GOODWINE, JUDGE:
Appellants challenge a Fayette Circuit Court order granting summary judgment in favor of Appellees. The trial court found: (1) Appellees were entitled to qualified official immunity; (2) Appellants had no private right of action under Kentucky's Constitution; and (3) Richard Doe II's claims were time-barred. After careful review, we affirm.
BACKGROUND
Appellants, John Doe ("John"), John Doe II ("John II"), Richard Doe ("Richard"), and Richard Doe II ("Richard II"), attended Leestown Middle School ("Leestown") between 2006 and 2013. During that time, Jason Thompson ("Thompson"), a former teacher at Leestown, sexually abused them. None of the Appellants told any of the Appellees about the abuse. Instead, Appellants aggregate Appellees’ alleged collective knowledge about self-described "inappropriate" behavior in arguing Appellees are individually liable.
Pseudonyms are used to protect the identity of juvenile victims of sexual abuse.
Thompson was indicted in October 2012, based on allegations of sexual misconduct against William Doe, John, John II, and Richard. Richard II's allegations were not included in the indictment. Thompson pled guilty to six counts of second-degree sexual abuse in February 2014, and served one year. Record ("R.") at 3405, 3440-41.
Thompson was originally hired by Fayette County Public Schools ("FCPS") in 2006 as a substitute teacher. In 2007, he was hired as a paraeducator at Booker T. Washington Elementary School. On June 6, 2007, Thompson transferred to Leestown to be a special education paraeducator. In 2010, Leestown implemented the Positive Approach to Student Success ("PASS") program, which encouraged the integration of special-education students with other students in a regular classroom. Thompson operated the PASS program from its inception until he left Leestown in June 2011. PASS personnel monitored students with emotional and behavioral disorders ("EBD") while they attended regular classes. Leestown teachers and administrators regarded Thompson as a mentor for students with behavioral disorders. Richard II was the only appellant who participated in the PASS program.
John attended Leestown from 2006 to 2009, initially meeting Thompson during the 2006-2007 school year. He got to know him the following school year when he was in seventh grade. When he got into trouble, teachers sent him to Thompson's classroom rather than the office, even though he was not a PASS program participant. Thompson became openly affectionate with John, hugging him and kissing him on the forehead. John never reported this behavior to anyone at the school. On April 23, 2009, Thompson sexually assaulted John in his vehicle in the parking lot of Leestown. He did not report this assault to anyone at Leestown.
John II attended Leestown from 2009 to 2011, meeting Thompson in 2009 when he was in the seventh grade. John II had behavioral issues and got in trouble at school. He had a troubled home life. His family moved a lot due to financial problems, and John II did not have a father figure in his life. His mentor introduced him to Thompson, hoping he could help him. Thompson and John II became close and spent time together outside of school.
In the spring of 2010, Thompson sought legal custody of John II through a limited guardianship, which teachers attempted to discourage because they thought it was inappropriate. John II's mother was receptive to the idea because she knew how much progress he was making with Thompson's mentoring. John II lived with Thompson from his seventh-grade year until the fall semester of his freshman year of high school. He testified that after Thompson became his legal guardian, Thompson sexually abused him. John II never told anyone at Leestown about the abuse. After he was removed from Thompson's care and placed at the Appalachian Children's Home, he reported Thompson's abuse.
Richard attended Leestown from 2007 to 2009, initially meeting Thompson while he was a student at Booker T. Washington. Richard testified Thompson began sexually abusing him when Thompson was his tutor, teacher, and dance choreographer at Booker T. Washington. Richard alleges that while he was at Leestown, Thompson had him sit in his lap, kissed him on the forehead, smacked his butt, and rubbed his thighs.
Thompson purchased pajamas for Richard, which he wore to school. He told other kids, as well as teachers, including Appellee, Sarah O'Laughlin ("O'Laughlin"), that Thompson purchased the pajamas for him. Thompson eventually befriended Richard's mother who gave him permission to stay overnight at Thompson's house. Richard spent the night at Thompson's house on several occasions. Thompson sexually abused Richard during at least one of the overnight visits. Richard never told anyone at Leestown about the abuse. After turning sixteen, Richard reported Thompson's abuse to a counselor. He testified he did not know any of the Appellees. Richard's mother also testified that she did not know the Appellees and had no information as to why they were being sued.
Richard II attended Leestown from 2009 to 2012, and became acquainted with Thompson during the 2010-2011 school year when he was in seventh grade. Richard II often got into trouble, prompting a school administrator to introduce him to Thompson in hopes Thompson could mentor him. Richard II had a troubled home life and an abusive father. Whenever he got into trouble, he would seek out Thompson.
One day, following an argument with his father, Richard II went to Thompson's classroom. No one else was present at the time. They sat across from each other in Thompson's classroom. Richard II cried and explained his situation and his desire for a better home life. They discussed the possibility of Thompson taking him to his house. Thompson hugged Richard II and allegedly pulled open his basketball shorts, reached his hand inside, and fondled him.
Richard II never told anyone at Leestown about what Thompson did to him. He first reported what happened to a Comp Care therapist after graduating from high school. Like Richard, Richard II did not know the Appellees or whether they witnessed Thompson's abuse. His mother, likewise, did not know the Appellees, had never heard of them, and had no knowledge about whether they knew anything about Thompson's involvement with her son.
Each Appellee worked at Leestown in different capacities. Marc Logan ("Logan") worked as a paraeducator from 2009 through 2012. Sterling Ward ("Ward") worked as a social worker from 1996 through 2015. O'Laughlin worked in different capacities from 2002 through 2012. She worked as a special education teacher from 2009 through the end of her tenure.
Each Appellee interacted differently with Thompson and with each of the Appellants. After Logan was hired in the fall of 2009, he was assigned to work with the PASS program. He worked alongside Thompson and Kim Hatfield. During the two years Logan worked with Thompson, he observed Thompson being openly affectionate with students. Logan observed Thompson holding a male student like a baby and told him to put the student down. Thompson complied and responded that if the student wanted to act like a baby, he was going to treat him like a baby.
On a few occasions, Logan observed Thompson alone with a student in his classroom but was not concerned. Thompson sometimes locked his classroom door which impeded Logan's access to the classroom, so he asked for, and received, a key to the classroom. Logan never encountered any situation in which Thompson was doing anything sexually inappropriate with a student in the locked classroom.
Logan described Thompson's personality as "touchy-touchy" and thought everyone knew it. R. at 3744. Logan and Hatfield discussed Thompson's behavior, but Logan never reported anything to the principal because he never saw anything of a sexual nature to report. Logan was never around when John alleges Thompson sexually abused him, although John believes Logan may have seen Thompson hug him or kiss him on the forehead. John never had any conversations with Logan about what Thompson did to him.
Logan observed Thompson hug John II, but he also knew that Thompson was John II's court-appointed legal guardian. He also saw John II hug Thompson. While Logan was uncomfortable with some of Thompson's behaviors, he testified that he never observed Thompson acting in a sexual manner toward a student. Although Logan observed Thompson putting his arm around students, he did not consider that to be sexual. Logan denies ever seeing Thompson sexually abuse a student.
Logan never heard any rumors that Thompson was sexually molesting students. He was never told, nor did he observe, Thompson engaging in sexual contact with any of the students. Logan did not learn of allegations that Thompson had engaged in sexual misconduct with students until after Thompson left Leestown. Logan was aware of his duty to report conduct he deemed sexually inappropriate and would have reported same if he had seen or suspected abuse of a child.
During his deposition, Logan was questioned at length about his affidavit, wherein he admitted he observed Thompson engage in inappropriate behavior with students. Notably, the affidavit was prepared by Appellants’ attorneys, which he signed at their office. Logan testified that no one defined the term "inappropriate" as it was used in the affidavit, nor did he define the term. More importantly, none of the attorneys informed Logan that he could be sued based on the affidavit they prepared and presented to him. Logan was unwavering in his deposition testimony that inappropriate behavior meant things he did not like. He did not intend the term to mean sexual behavior or that he observed Thompson sexually molesting students.
Ward worked at Leestown from 1996 to 2015 as a social worker. He also coached both the track and football teams. Appellants contend Ward saw Thompson touch and rub the backs of students in the PASS homeroom during the 2010-2011 school year and that he allegedly received second-hand information about Thompson's behavior toward students from Logan, who stated he talked with Ward about "inappropriate behavior."
Specifically, Logan told Ward he observed Thompson: (1) putting his arms around students and letting them sit on his lap; (2) hugging and holding students; (3) picking up a student and holding him like a baby; and (4) causing students’ behavior to escalate rather than calm down. Logan testified Ward responded, "Oh, he's doing that again?" R. at 1926, 1931-32. Ward did not talk to the principal about Logan's concerns because Ward himself put his arm around students to talk with them and, importantly, Logan never indicated a student had been harmed by Thompson putting his arm around him.
Ward was John's football coach at Leestown. Yet, despite John's assurance that Ward saw Thompson hug and kiss him on the forehead, and once touch him in the crotch area from across the school gym, he could not explain the basis for his assurance in his deposition testimony. John admitted he does not know if Ward saw Thompson touch other students, further admitting he never told school staff about Thompson's alleged sexual abuse. R. at 1856, 1908.
Ward was John II's track coach at Leestown. According to John II, after the guardianship, Ward saw Thompson hug him, kiss him on the cheek and forehead, and rub his legs. R. at 1870, 1885-86. John II also believes Ward saw Thompson try to calm a student down by rubbing his back. R. at 1886. Yet John II never talked to Ward about the touching and never heard Ward talk with anyone about Thompson touching students.
Richard testified he knows nothing about Ward and has no knowledge of what he might know. R. at 1809. Further, Richard's mother testified she has no knowledge about whether Ward did anything to cause what allegedly happened between Thompson and Richard.
Richard II testified he has no personal knowledge of what Ward did to cause or know about sexually inappropriate acts by Thompson toward students. Richard II's mother also testified she does not know of any failure to act on Ward's part that could have prevented what Thompson allegedly did to Richard II.
O'Laughlin saw Thompson scratch a student's back while she was visiting another teacher's classroom on one or two occasions in 2006. The students had EBD and were sometimes "skirmy." R. at 3535. Thompson would use the scratching technique to calm them down. O'Laughlin found the scratching inappropriate because the special education students were easily distracted and the scratching drew attention—not, as Appellants contend, because she found anything sexually inappropriate about it. Nevertheless, O'Laughlin mentioned the distraction to another school employee and the scratching stopped.
John alleged O'Laughlin definitely knew Thompson hugged and kissed him on the forehead but offered no explanation during his deposition testimony as to the basis for his belief. In fact, at his second deposition in 2018, John did not recall who O'Laughlin was. Thompson testified O'Laughlin never saw him be physically affectionate with John.
John II testified he has no specific knowledge as to what O'Laughlin knew regarding Thompson's alleged conduct. He does not remember O'Laughlin. Richard likewise testified he knows nothing about O'Laughlin, having no knowledge of what she might know. Further, Richard's mother testified she has no knowledge about whether O'Laughlin did anything to cause what happened between Thompson and Richard.
O'Laughlin acknowledged Thompson bought Richard a pair of pajama bottoms. O'Laughlin, however, did not discern there was anything sexual about the act because she understood Thompson to be a friend of Richard's family. She also understood Leestown students generally were from lower income families; thus, teachers were known to help with students’ material needs from time to time.
Richard II testified he has no personal knowledge of what O'Laughlin did to cause or know about sexually inappropriate acts by Thompson toward students. Richard II's mother likewise testified she does not know of any failure to act on O'Laughlin's part that could have prevented what Thompson did to Richard II.
Appellants filed or joined in the underlying suit at different times. John filed suit on October 15, 2014, against FCPS Superintendent Stu Silberman ("Silberman"), Leestown Principal Jennifer Kendall ("Kendall"), Director of Middle Schools Michael Ernst ("Ernst"), and Thompson. On October 27, 2014, William Doe joined the lawsuit, filing a complaint against Silberman, Ernst, Kendall, and Thompson.
On November 10, 2014, Richard joined the lawsuit, filing a complaint against Silberman, Ernst, Kendall, and Thompson, as well as Booker T. Washington's principal, Peggy Petrilli. John II joined the lawsuit, filing his complaint on April 13, 2015, also asserting claims against Silberman, Ernst, Kendall, and Thompson. On July 27, 2017, John, John II, and Richard filed an amended complaint adding Logan, Ward, O'Laughlin, and their colleagues, Millicent Higgs and Kim Hatfield, as defendants. In November 2017, Richard II joined the lawsuit. After extensive discovery, Logan, Ward, O'Laughlin, Higgs, and Hatfield moved for summary judgment. In response to said motions, Appellants raised new arguments based on school policies and the United States Constitution, despite not requesting leave to do so. On December 19, 2018, at oral argument, Appellants abandoned their federal constitution claims on threat of removal to federal court. The trial court heard all of Appellants’ remaining claims, including Appellants’ claims that Appellees violated statutory mandates and specific school policies.
On appeal, "Appellants are not arguing that Appellees violated the reporting requirement under [Kentucky Revised Statutes ("KRS") ] 620.030." Appellants’ Reply Brief at p. 1.
On January 7, 2019, the trial court entered its order granting summary judgment for Logan, Ward, O'Laughlin, Higgs, and Hatfield. The trial court found that: (1) Appellees were entitled to qualified official immunity because their actions or inactions were discretionary, within the scope of their authority, and undertaken in good faith; (2) Richard II's claims were time-barred; and (3) Appellants had no private right of action under Kentucky's Constitution. This appeal followed.
William Doe did not appeal. John, John II, Richard, and Richard II appealed, but only as to Logan, Ward, and O'Laughlin. All plaintiffs have claims pending before the trial court against Defendants Silberman, Ernst, and Kendall.
STANDARD OF REVIEW
Summary judgment is appropriate when the record reflects there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56.03. Summary judgment expedites the disposition of cases presenting solely issues of law. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc. , 807 S.W.2d 476, 480 (Ky. 1991).
Kentucky Rules of Civil Procedure.
For those seeking summary judgment based on a qualified official immunity defense, "[s]ummary judgments play an especially important role" as the defense renders one immune not just from liability, but also from suit itself. Rowan Cty. v. Sloas , 201 S.W.3d 469, 474 (Ky. 2006) (citing Mitchell v. Forsyth , 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ). The issue of school officials’ entitlement to qualified official immunity is a matter of law which we review de novo. Patton v. Bickford , 529 S.W.3d 717, 723 (Ky. 2016).
Ritchie v. Turner , 559 S.W.3d 822, 830 (Ky. 2018).
ANALYSIS
Appellants argue: (1) the Fayette County Board of Education maintains specific policies regarding the prevention and reporting of sexual harassment/discrimination; (2) such policies remove any element of discretion in ascertaining whether harassment/discrimination occurred; (3) Appellees witnessed firsthand behavior that required them to report abuse and they failed to do so; and (4) Appellees are, therefore, not protected by qualified immunity.
In Ritchie , our Supreme Court noted that FCPS and the students compelled to attend school within the district share a "special relationship," which requires "an affirmative duty on the district, its faculty, and its administrators to take all reasonable steps to prevent foreseeable harm to its students." Id. (quoting Williams v. Kentucky Department of Education , 113 S.W.3d 145, 148 (Ky. 2003) ). In response to the school officials’ contention that they are entitled to qualified official immunity because their alleged negligent conduct was discretionary in nature, Appellants argue the challenged conduct was ministerial in nature and not subject to the discretionary function exception. We disagree.
" ‘Official immunity’ is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions. It rests not on the status or title of the officer or employee, but on the function performed." Yanero v. Davis , 65 S.W.3d 510, 521 (Ky. 2001) (citation omitted). When an officer is sued in his representative capacity, the officer's "actions are afforded the same immunity, if any, to which the agency, itself, would be entitled[.]" Id. at 522. However, when sued in their individual capacities, "public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment." Id. (citation omitted).
A public official sued in his individual capacity is entitled to qualified immunity for his negligent acts when he performs: "(1) discretionary acts or functions, i.e. , those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment ...; (2) in good faith; and (3) within the scope of [his] authority." Id. (citations omitted). However, "an officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act, i.e. , one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Id. (citation omitted).
In Marson v. Thomason , 438 S.W.3d 292 (Ky. 2014), our Supreme Court provided further guidance on whether an act is ministerial or discretionary in nature. There, a middle school student was injured when he fell from bleachers in a gymnasium that had not been fully extended by the custodian. Id. at 295. The Court opined that the duty of extending the bleachers was routine and "regularly performed by the custodian on duty, and is thus ministerial in nature to the person charged with that job." Id. at 298. Whether the custodian was liable or immune from suit was not before the Court. Id. at 299. Instead, the question was whether the principals of the school were entitled to qualified immunity. Id.
As discussed above, government officials, sued in their individual capacities, are entitled to qualified immunity when they perform a discretionary act. "[A] discretionary act is usually described as one calling for a ‘good faith judgment call [ ] made in a legally uncertain environment.’ " Id. at 297 (quoting Yanero , 65 S.W.3d at 522 ). The discretionary category encompasses "the kind of discretion exercised at the operational level rather than exclusively at the policy-making or planning level." Id. (quoting 63C Am.Jur.2d Public Officers and Employees § 318 (updated through Feb. 2014) ). The Court held the principals were entitled to qualified immunity based on the following reasoning:
[O]versight and direction of the morning bus routine was a matter of her discretionary decision-making, not a specific directive from the school board. As such, she had to evaluate and exercise discretion in determining how that job was to be done. She assigned the specific duty of preparing the gym to the custodians, and the duty of coordinating the children's movement from the buses into the school and ultimately to the gym to the teachers on duty. Her general responsibility for students’ safety was discretionary. She is therefore entitled to qualified official immunity.
Id. at 300 (footnote omitted).
Our Supreme Court recently confirmed in Ritchie that Turner v. Nelson , 342 S.W.3d 866 (Ky. 2011), is still the standard that governs cases involving a teacher's alleged failure to prevent or report alleged sexual abuse of a student. Ritchie , 559 S.W.3d at 837-38. To circumvent Ritchie , Appellants argue its analysis does not apply here because they no longer argue a violation under KRS 620.030.
Appellants further argue that Ritchie did not determine whether violations of any internal school policies relating to the reporting of abuse was discretionary because the Supreme Court found the issue was not properly preserved for appeal. Consequently, Appellants argue this case closely aligns with Patton because this case has clearly defined school policies that govern reporting sexual harassment and discrimination, and the Appellees failed to comply with said policies. We disagree.
In Ritchie , the Kentucky Supreme Court distinguished Patton , and that distinction equally applies here.
In [ Patton ], this Court recently compared a teacher's duty to report bullying (where teasing, mocking and certain physical conduct such as pinching, twisting body parts, punching and grabbing were specifically identified in the school policy as bullying) with the teacher's duty in Turner to report suspected sexual abuse. We recognized that there are both ministerial and discretionary components to the duty to report. 529 S.W.3d at 728. In Patton , we described the duty to report suspected abuse in Turner as a "ministerial duty of making a binary decision to report the incident or not," but determined that the exercise of discretion to assess whether the alleged actions of the five-year old student could even qualify as sexual abuse was dominant over the ministerial duty to report. Id. By contrast, the alleged actions of the middle schoolers in Patton included conduct specifically identified in the school policy as "bullying." Under those circumstances, "no discretion or judgment was required to determine if specific conduct qualified as bullying" and the teacher's duty to report was ministerial. Id.
Ritchie , 559 S.W.3d at 837-38.
Moreover, in Patton , the Supreme Court acknowledged the "unique circumstances presented by a school environment" and "recognized ‘that teachers maintain the discretion to teach, supervise, and appropriately discipline children in the classroom.’ " 529 S.W.3d at 727 (citing Turner , 342 S.W.3d at 876 ).
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 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.
Id. at 727-28. The Supreme Court held "[t]he duty of the Teachers to report bullying was ministerial and so they lack the protection of qualified immunity." Id. at 728.
Appellants rely on the Patton analysis to argue that FCPS officials’ claims are ministerial, rather than discretionary, because their actions violated specific school policies with enumerated mandates. We disagree because the polices relied on by Appellants require discretionary determinations before the reporting requirement is triggered. The specific provision of the FCPS Employee Handbook relied on by Appellants provides:
Any employee who believes that he or she, or any other employee, student, or visitor to the school or District, is being or has been subjected to harassment or discrimination shall bring the matter to the attention of his/her Principal/immediate supervisor or the District's Title IX/Equity Coordinator as required by Board policy.
R. at 2329-52, Fayette County Schools Employee Handbook, 2012-13 ed. A definition for "Harassment/Discrimination" is contained in the Employee Handbook.
Definition – Harassment/Discrimination is intimidation by threats of or actual physical violence; the creation, by whatever means, of a climate of hostility or intimidation; or the use of language, conduct, or symbols in such manner as to be commonly understood to convey hatred, contempt, or prejudice or to have the effect of insulting or stigmatizing an individual.
R. at 2331-33, relevant pages from Employee Handbook.
Employees who believe that they or any other employee, student, or visitor is being or has been subjected to harassment discrimination shall, as soon as reasonably practicable, report it to their immediate supervisor.
R. at 2334-35, Fayette County Board of Education Policy 3.162. The prohibited conduct covered by the policy includes unwanted touching, sexual advances, requests for sexual favors, and spreading sexual rumors. Id. What is unwanted and sexual requires a discretionary judgment call and is not analogous to the specific conduct defined as bullying under Patton .
The introductory language of the Board policy—"Any employee who believes"—mirrors the introductory language of KRS 620.030(1) —"Any person who knows or has reasonable cause to believe[.]" By its express terms, the Board policy's reporting requirement is triggered only when an employee has formed a subjective belief that harassment/discrimination has occurred.
In Ritchie , our Supreme Court reaffirmed its holding in Turner v. Nelson . Ritchie arose out of allegations against a teacher who was convicted of multiple counts of sexual misconduct involving middle school and high school students. In addressing whether the school defendants were entitled to qualified immunity for failing to report the teacher under KRS 620.030, the Court stated that the statute included elements of both ministerial and discretionary conduct. Where there is no actual or personal knowledge of sexual abuse, the Court reasoned that the ultimate determination of whether reasonable cause existed "involves reasonable inquiry into the facts, weighing credibility of witnesses, and then using judgment and experience to reach a decision." Ritchie , 559 S.W.3d at 837 (citing Turner , 342 S.W.3d at 877-78 ).
Each of the Appellees testified that they had no knowledge or belief of any of the conduct specified in the policies. Specifically, Logan testified that although he observed what he believed to be inappropriate behavior, at no time did he believe what he observed was sexual in nature. Deciding whether holding, hugging, or putting arms around students by a special education teacher rises to the level of sexual abuse or constitutes harassment requires judgment based on the specific facts and circumstances. As Ritchie noted, disagreement as to whether a school official made the right determination does not expose the school official to personal liability. Thus, the trial court correctly held that Appellees’ actions or inactions were discretionary in nature. The trial court also found Appellees acted within the scope of their authority and acted in good faith. The record is devoid of any evidence to suggest otherwise.
Next, Appellants argue that allowing public school employees to be protected by immunity against suit for sexual assault, while private school employees must face litigation, violates the Equal Protection Clauses of the United States and Kentucky Constitutions. As stated earlier, Appellants abandoned their U.S. constitutional claims at oral argument before the trial court. As to their state constitutional claims, Appellants contend we should follow Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and create a new tort cause of action in Kentucky to provide damages for constitutional violations. Our Supreme Court declined to do so in St. Luke Hospital, Inc. v. Straub , 354 S.W.3d 529 (Ky. 2011). We follow that established precedent. The trial court correctly held that Appellants have no private right of action for their state constitutional claims.
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (recognizing the right to recover damages for the violation of a constitutional right in an action against federal narcotics agents who had arrested the party without a warrant or probable cause, resulting in humiliation, embarrassment, and mental anguish).
Finally, Richard II argues the trial court erred in finding his claim was time-barred because it was not filed within one year of his eighteenth birthday. KRS 413.140. First, he argues the five-year statute of limitations applies in this matter to recover for emotional distress under Craft v. Rice , 671 S.W.2d 247 (Ky. 1984) and, second, that KRS 413.249 allows an action relating to childhood sexual abuse or childhood sexual assault to be brought within ten (10) years after the victim attains the age of eighteen (18) years. Both arguments fail.
Richard II's claim is an action based on personal injury and, thus, is subject to the one-year statute of limitations provided in KRS 413.140(1)(a). Roman Catholic Diocese of Covington v. Secter , 966 S.W.2d 286 (Ky. App. 1998). The extended ten-year limitations period under KRS 413.249 does not apply to claims against non-perpetrator third parties. B.L. v. Schuhmann , 380 F.Supp.3d 614 (W.D. Ky. 2019). Thus, the trial court did not err in finding Richard II's claims were time-barred.
KRS 413.170(1) provides that the limitations period for any action mentioned in KRS 413.090 to 413.160 begins to run when the minor reaches the age of majority.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Fayette Circuit Court.
ALL CONCUR.