LUCY BURCHETT, LARRY CALHOUN, JR., A MINOR v. FLOYD COUNTY BOARD OF EDUCATION THOMAS TACKETT; ELIZABETH FRAZIER; AND LINDA WRIGHT
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RENDERED: December 29, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000313-MR
LUCY BURCHETT,
AS NEXT FRIEND OF
LARRY CALHOUN, JR.,
A MINOR
v.
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
ACTION NO. 99-CI-00349
FLOYD COUNTY BOARD OF EDUCATION
THOMAS TACKETT;
ELIZABETH FRAZIER; AND
LINDA WRIGHT;
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND JOHNSON, JUDGES.
GUIDUGLI, JUDGE.
Lucy Burchett (Burchett) appeals the judgment
entered by the Floyd Circuit Court which dismissed her claim
against the Floyd County Board of Education, and individuals,
Thomas Tackett, Elizabeth Frazier, and Linda Wright
(collectively, the Appellees), for failing to enforce Kentucky
Revised Statute (KRS) 159.140, the compulsory attendance law.
The trial court ruled that the Appellees were protected from suit
by the doctrine of sovereign immunity.
We agree and, therefore,
affirm the judgment.
Burchett filed her complaint on April 6, 1999, as next
friend of Larry Calhoun, Jr. (Larry), a minor, claiming that her
son had been allowed to miss 78 (seventy-eight) days of school.
As a result, he failed school that year.
Burchett alleged that
Floyd County Board of Education, its superintendent, Michael C.
King, and the individuals, Thomas Tackett as principal of
Prestonsburg High School, and Elizabeth Frazier and Linda Wright
as teachers at Prestonsburg High School, failed to notify her of
Larry’s absenteeism, failed to properly supervise Larry, and
failed to properly monitor Larry’s absenteeism.
Burchett further
claimed that as a result of Larry’s absenteeism, he failed school
that year and that both she and Larry suffered past, present and
future physical pain, suffering and anguish, future lost wages,
medical and hospital bills, and other expenses and costs.
In response to the complaint, Appellees, jointly, filed
a motion to dismiss on May 12, 1999, stating that the complaint
failed to state a cause of action against them as a matter of
law.
Specifically, the motion claimed the Appellees were
protected by the doctrines of sovereign immunity, official
immunity, and that educational malpractice is not a recognized
cause of action in Kentucky.
Attached to the motion was a
memorandum in support of the motion citing numerous cases
pertaining to the doctrines of sovereign immunity, official
immunity, and education negligence or malpractice.
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No further pleadings were filed with the trial court.
Subsequently, on January 4, 2000, the Floyd Circuit Court entered
judgment dismissing the complaint based upon the following
rationale:
The claims asserted by the
plaintiff in the complaint against the
individual defendants, as well as the school
district, are barred inasmuch as the Kentucky
appellate courts have refused to recognize
negligence claims against either a school
district or school teachers arising out of a
claimed failure to properly educate or
supervise the education of a student. Rich
v. Kentucky Country Day, Inc., Ky. App., 793
S.W.2d 832 (1990). In addition, the claims
against the defendants are barred by
operation of the doctrine of sovereign
immunity which applies not only to the school
district, but to the individual defendants in
this action who were, as alleged, acting
within the course and scope of their
employment and official duties with the
school district. Clevinger v. Pike County
Board of Education, Ky., 789 S.W.2d 5 (1990);
Rose v. The Council for Better Education,
Inc., Ky., 790 S.W.2d 186 (1989); Withers v.
University of Kentucky, Ky., 939 S.W.2d 340
(1997); Franklin County v. Malone, Ky., 957
S.W.2d 195 (1998).
This appeal followed.
It should be noted from the outset that Burchett
concedes in her appeal that “[w]ith regard to sovereign immunity,
the law is clear in Kentucky that at this time the Floyd County
Board of Education has sovereign immunity[.]” However, Burchett
continues to pursue her appeal as to Tackett, Frazier and Wright
based upon her contention “that sovereign immunity has not been
extended to its agents.”
We disagree.
We believe the trial
court correctly followed the applicable statutory and case law
relative to the issue of sovereign immunity as applied to
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individuals acting within their scope of employment and official
duties with the school district.
The cases cited by the trial
court (see above), as well as the more recently released cases of
Collins v. Com. Of Ky. Nat. Resources, Ky., 10 S.W.3d 122 (1999)
and Angel v. Harlan County Bd. Of Ed., Ky. App., 14 S.W.3d 559
(2000), more than adequately addresses this issue, and we believe
it pointless to further belabor this issue.
However, we also note that despite the school
district’s and individual’s protection from civil liability, we
do express our concerns over the Appellees’ failure to adequately
follow the mandates of KRS 159.140.
KRS 159.140 provides:
The director of pupil personnel shall:
(1)
Devote his entire time to the
duties of his office;
(2)
Enforce the compulsory attendance
and census laws in the attendance
district he serves;
(3)
Acquaint the school with the home
conditions of the student, and the
home with the work and advantages
of the school;
(4)
Ascertain the causes of irregular
attendance and truancy, and seek
the elimination of these causes;
(5)
Secure the enrollment in school of
all students who should be enrolled
and keep all enrolled students in
reasonably regular attendance;
(6)
Visit the homes of students who are
absent from school or who are
reported to be in need of books,
clothing, or parental care;
(7)
Provide for the interviewing of
students and the parents of those
students who quit school to
determine the reasons for the
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decision. The interviews shall be
conducted in a location that is
nonthreatening for the students and
parents and according to procedures
and interview questions established
by an administrative regulation
promulgated by the Kentucky Board
of Education. The questions shall
be designed to provide data that
can be used for local district and
statewide research and decisionmaking. Data shall be reported
annually to the local board of
education and the Department of
Education.
(8)
Report to the superintendent of
schools in the district in which
the student resides the number and
cost of books and school supplies
needed by any student whose parent,
guardian, or custodian does not
have sufficient income to furnish
the child with the necessary books
and school supplies.
(9)
Keep the records and make the
reports that are required by law,
by regulation of the Kentucky Board
of Education, and by the
superintendent and board of
education.
Each child within the school district is entitled to an
education.
All three branches of government in the Commonwealth
have made significant decisions to make education a priority
within this state.
However, it is the duty and responsibility of
the local school boards and individual administrators, teachers,
and school personnel to effectuate these mandates.
The local
authorities must follow the law and provide the guidance,
supervision, attention, and discipline necessary to help each
child attend school so as to receive an education.
Without a
proper education, the child, his family, the school district, the
local community and, ultimately, the Commonwealth all suffer.
-5-
However, we would also be remiss if we did not include that the
child’s parent or parents also must take an active role in his or
her child’s education.
Without the cooperation of the parents, a
vital element is missing.
The parent is the primary educator and
must actively participate and encourage the child to achieve his
or her educational goals.
Though we do find fault with Appellees’ failure to
insure that Larry attended school, we believe the trial court
properly dismissed Burchett’s complaint pursuant to Kentucky
Rules of Civil Procedure 12.02(f).
Therefore, the judgment of
the Floyd Circuit Court dismissing Burchett’s complaint is
affirmed.
EMBERTON, JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jerry A. Patton
Prestonsburg, KY
Jonathan C. Shaw
Michael J. Schmitt
Paintsville, KY
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