Autry v. Western Kentucky University3/4/2005
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
BEFORE: COMBS, CHIEF JUDGE; JOHNSON, JUDGE; AND MILLER, SENIOR JUDGE.
Donnie Autry and Virginia White, Co-Administrators of the Estate of Melissa Kay Autry (hereinafter Autry), have appealed orders of dismissal of the Warren Circuit Court entered on November 26, 2003, January 7, 2004, and January 26, 2004, dismissing Western Kentucky University (hereinafter WKU), WKU Student Life Foundation, Inc. (hereinafter SLF), and WKU employees, Sandra Hess, Aubrey Livingston, Lynne Allison Todd, Alex Kuehne, and Aja Hendrix (hereinafter WKU employees), in their official capacities only, from the wrongful death action filed by Autry alleging negligence by these appellees in failing to provide safe campus housing to their decedent. Having concluded that the trial court did not err by dismissing WKU from the suit, as it is entitled to governmental immunity, we affirm that portion of the trial court's orders of dismissal. Having concluded that the WKU employees are entitled to immunity, in their official capacities, based on the governmental immunity granted to WKU, we further affirm that portion of the trial court's orders of dismissal. But having concluded that the trial court erred in dismissing the claims against SLF, we reverse that portion of the trial court's orders of dismissal and remand for further proceedings consistent with this Opinion.
Melissa Kaye "Katie" Autry was a freshman student at WKU, a public university in Bowling Green, Kentucky, during the 2002-2003 school year and she was a resident of Poland Hall, a dormitory owned by SLF and managed by WKU. During the early hours of May 4, 2003, Katie returned to her dorm room, alone, after leaving a fraternity party. It is alleged that later that morning Stephen Soules and Lucas Goodrum entered Katie's dorm room, assaulted and raped her, and set her on fire. Katie suffered third-degree burns and died three days later. Soules has pled guilty to the assault, rape, and murder of Katie, but Goodrum was acquitted of the same criminal charges by a jury on March 21, 2005. Neither Soules nor Goodrum was a resident of Poland Hall or a student of WKU at the time of the attack on Katie.
Poland Hall is owned by SLF, which is a non-stock, non-profit Kentucky corporation incorporated on May 29, 1999, having no employees. SLF's purpose, according to its Articles of Incorporation, is to acquire, finance, and own residential dormitories at WKU; and it was formed to provide a vehicle to finance WKU's renovation of its residence halls. WKU manages and operates the dorms according to an Amended and Restated Management Agreement between SLF and WKU dated November 20, 2000. WKU is responsible for all operations of the dorms and WKU, not SLF, enters into housing agreements with students.
WKU was responsible under the management agreement for hiring employees to work at Poland Hall. At the time Katie was attacked, the WKU employees working in Poland Hall, who have been sued in this action and their respective positions, are as follows: Hess, the hall director; Livingston, assistant hall director; Kuehne and Hendrix, resident assistants; and Todd, desk clerk. WKU had established safety regulations for the dorms it managed, including that outside doors were to be locked and all non-resident guests were required to check-in with the desk clerk, leave identification with the desk clerk, and be escorted by a resident to their dorm room.
On September 18, 2003, Autry filed a wrongful death action against the appellees alleging that their negligence in failing to provide adequate security caused Katie's death. Claims were asserted against the WKU employees in their
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