FRANKFORT, Ky. (Legal Newsline) - A Kentucky city can’t be sued over the death of a toddler who got his hands on an off-duty policeman’s gun and shot himself, an appeals court ruled, rejecting plaintiff arguments the city failed to properly train and supervise the officer.
Falmouth police officer Kenneth “Kenny” Brockman drove home to the family farm in his personal vehicle in March 2017 after ending his shift. Still wearing his uniform, he placed his city-issued Glock pistol on the center console and got out to talk to his father. Unbeknownst to the two of them, Brockman’s four-year-old nephew Jacob climbed into the truck, found the gun and fatally shot himself with it.
The child’s parents sued Falmouth for negligence in 2018, claiming the city breached its duty of care. A district court dismissed the case in September 2010, finding the city couldn’t be held liable for Jacob’s death because Brockman was off duty and not operating within the scope of employment when the accident occurred.
The Kentucky Court of Appeals, in a Nov. 12 decision, agreed.
Municipalities enjoy broad immunity from lawsuits under Kentucky law but can be held liable for the actions of their employees under the doctrine of respondeat superior if they are acting in the interest of their employer.
“Kenny was at his family’s farm, off duty, and talking to his father when Jacob entered his unlocked personal vehicle,” the appeals court ruled. “While it is true that Kenny was still wearing his police uniform, and the weapon that discharged the deadly shot was issued to him by the City, these factors do not overcome the reality that Kenny was not on duty and was not engaged in city business when Jacob gained access to Kenny’s vehicle.
The plaintiffs argued Falmouth owed a duty to the child and breached it, causing his death. Duty arises when the city has a “special relationship” with the plaintiff, such as when police take someone into custody, the court ruled. If there’s no duty, then there can be no breach and no liability.
The plaintiffs also cited a 1973 decision, Marusa v. District of Columbia, in which D.C. was held liable for the training and supervision of an officer who got drunk and intentionally shot someone. But in that case, the officer was required to carry his weapon at all times, the appeals court noted, and the officer himself shot the gun.
The court also rejected a plaintiff argument the city could be found liable for suspending the “home fleet program,” under which police officers could drive city-owned cars while off duty. Kentucky law protects municipalities from liability over the exercise of executive authority or the adoption or suspension of ordinances and regulations, the court said.