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Emergency! Kentucky Court of Appeals offers guidance concerning qualified immunity for emergency services personnel 

8/8/24

By: LaShay L. Byrd and Tia J. Combs

In many states, the law recognizes the challenges that emergency services personnel face when it comes to making split-second decisions in high-stakes situations and grant qualified immunity protection for first responders for acts or omissions done in good faith and in the course and scope of performing their duties. The parameters and limits of this protection varies from state to state.  

In Kentucky, qualified immunity applies to a negligent act or omission by a public officer or employee for his or her (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 the officer or employee’s authority. Qualified immunity does not extend to the negligent performance of ministerial acts.  

Kentucky courts have recognized that the distinction between what constitutes a discretionary and ministerial act is often difficult to discern. In a recent to-be-published Kentucky Court of Appeals opinion, Wilson v. England, this very issue was taken up as the Court provided guidance regarding the application of qualified immunity for emergency services personnel.¹ 

In Wilson v. England, the Court held that Wilson, a volunteer firefighter who drove an ambulance so paramedics and/or emergency medical technicians could attend to a critically ill patient en route to a hospital, was entitled to qualified immunity for injuries stemming from his driving of the ambulance. The decision turned on whether the nature of ambulance driving is ministerial or discretionary. The Court noted that discretionary acts involve “personal deliberation, decisions and judgment,” while a ministerial act is “absolute, certain, and imperative, involving the mere execution of a specific act based on fixed and designated facts.”  

While the Court could find no previous decisions involving ambulance driving, it noted that several cases had analyzed police pursuits. Generally, these cases hold that the decision to begin, continue, or terminate a pursuit is discretionary, while the act of driving during a pursuit is ministerial. A police pursuit involves following another vehicle and the officer typically has discretion to begin, continue, or terminate and does not decide which turns to take or at what speed.  

The Court distinguished these police pursuit cases and held that, conversely, an ambulance taking an ill or injured patient to a hospital must obviously chart its own course, not follow another vehicle, and the ambulance driver must make his/her own decisions about route, speed, and any stops or pauses. While Wilson’s driving left much to be desired–there was evidence that he had failed to pause at a stop sign and had taken a circuitous route–the Court held that this was immaterial as Wilson’s driving was discretionary and he was entitled to qualified official immunity. In so holding, the Court really emphasized the fact that Wilson was a volunteer firefighter, who had never driven an ambulance before, and was driving in a high stress emergency involving an infant who was not breathing. 

Overall, this opinion demonstrates that the distinction between discretionary and ministerial acts remains a very fine line. Given the Court’s rationale in Wilson, it’s not hard to imagine other circumstances where the act of driving could be discretionary rather than ministerial. For example, situations where a police officer in pursuit might decide, instead of following a suspect, to take an alternate route in an attempt to get ahead of the suspect or cut the suspect off would certainly seem discretionary given the Court’s rationale. The Court’s willingness here to acknowledge that the act of driving may indeed be discretionary given the right set of circumstances certainly opens the door for other driving situations to similarly be afforded immunity.  

For more information, please contact LaShay L. Byrd at lashay.byrd@fmglaw.com, Tia J. Combs at tcombs@fmglaw.com, or your local FMG attorney.

1. Wilson v. England, No. 2023-CA-0223-MR, 2024 WL 3380981, at *1 (Ky. Ct. App. July 12, 2024). ↩︎