Donna Hargens v. Joshua Roof
CourtCourt of Appeals of Kentucky
Date FiledNovember 6, 2026
Docket2026-CA-0242
JudgeThompson
StatusPublished
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Full Opinion
RENDERED: NOVEMBER 6, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2026-CA-0242-MR
DONNA HARGENS; BENJAMIN
GILES; CHRIS BRADY; DIANA
PORTER; DR. CHRIS KOLB; DR.
LISA WILLNER; LINDA G.
DUNCAN; AND STEPHANIE HORNE APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE JESSICA E. GREEN, JUDGE
ACTION NO. 23-CI-000790
JOSHUA ROOF APPELLEE
OPINION
AND ORDER DISMISSING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND ECKERLE, JUDGES.
THOMPSON, CHIEF JUDGE: Donna Hargens, Benjamin Giles, Chris Brady,
Diana Porter, Dr. Chris Kolb, Dr. Lisa Willner, Linda G. Duncan, and Stephanie
Horne (Appellants) appeal from an order of the Jefferson Circuit Court denying
their motion to dismiss the amended complaint of Joshua Roof (Appellee) pursuant
to Kentucky Rules of Civil Procedure (CR) 12.02(f). Appellants argue that the
circuit court erred in failing to conclude that they are shielded from liability by
governmental and qualified official immunity. After careful review, and for the
reasons stated below, we are without jurisdiction to consider this issue and dismiss
Appellants’ appeal.
FACTS AND PROCEDURAL HISTORY
On January 25, 2017, Appellee was a student at Stopher Elementary
School in Louisville, Kentucky, which is operated by the Jefferson County Board
of Education (JCBE).1 On that day, Appellee was riding a school bus operated by
the JCBE and driven by JCBE employee Paula Melhorn (Ms. Melhorn). Appellee
would later allege that, while he was a passenger on the bus, it struck a curb
causing him to be thrown from his seat. Appellee later alleged that his head struck
the rear emergency door with enough force to break the door’s tempered glass
window, resulting in Appellee suffering a permanent brain injury.
On February 6, 2023, Appellee’s mother, April Roof (Ms. Roof), filed
the instant action in Jefferson Circuit Court on behalf of Appellee against the JCBE
1
Jefferson County Board of Education d/b/a Jefferson County Public Schools (JCPS).
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and Ms. Melhorn.2 The complaint set out claims of negligence and vicarious
liability, as well as claims related to JCBE’s alleged negligent hiring and
supervision.
It was determined through discovery that the day before the accident,
former JCPS Transportation Manager of Operation Tonya Crenshaw composed a
letter to Ms. Melhorn stating that Ms. Melhorn’s twelve prior accidents were a
concern which could result in disciplinary action or termination. Subsequent
discovery revealed that the JCPS evaluated Ms. Melhorn as an incompetent and
substandard driver.
On August 14, 2025, Appellee filed an amended complaint against
Appellants in both their official and individual capacities. The amended complaint
alleged that Appellants negligently performed their ministerial duties, and alleged
Appellants acted with gross negligence, recklessness, flagrant indifference, and/or
willful conduct warranting punitive damages.
The following month, and in lieu of an answer, Appellants filed a CR
12.02(f) motion to dismiss the amended complaint for failure to state a claim upon
which relief can be granted. In support of the motion, Appellants tendered a
supportive memorandum in which they argued that the claims asserted against
2
At the time of filing, Appellee was a minor. When he reached the age of majority, he was
substituted as plaintiff.
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them arise exclusively from discretionary governmental functions which insulated
them from all liability for the claims made against them in their official capacities.
In addition, they maintained that they were entitled to qualified official immunity
which shielded them from liability on the individual capacity claims.
Appellee responded by arguing that he should be permitted limited
discovery as to the scope of Appellants’ job duties, responsibilities, and/or scope of
authority; whether those duties constitute discretionary or ministerial functions;
whether Appellants performed their discretionary duties in good faith; and,
whether Appellants negligently performed any ministerial acts. The focus of
Appellee’s response was that Appellants’ motion to dismiss was premature
because salient facts on the underlying issues affecting immunity were yet to be
discovered.
On February 20, 2026, the Jefferson Circuit Court entered an order
summarily denying Appellants’ CR 12.02(f) motion to dismiss. The order did not
reveal the court’s basis for the denial, nor did it address governmental or qualified
official immunity. This appeal followed.3
3
An order denying a claim of immunity is immediately appealable even in the absence of a final
judgment. See Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009).
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STANDARDS OF REVIEW
A motion to dismiss for failure to state a claim under CR 12.02
presents a question of law which is reviewed de novo. RAZ, Inc. v. Mercer County
Fiscal Court, 706 S.W.3d 17, 21 (Ky. 2024), reh’g denied (Dec. 19, 2024).
Further, once the material facts are resolved whether a defendant is protected by
official immunity is a question of law which we also review de novo. Rowan Cnty.
v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006), as corrected (Sep. 26, 2006) (citations
omitted).
ARGUMENTS AND ANALYSIS
Appellants first argue that this Court has jurisdiction to adjudicate
their interlocutory appeal. They direct our attention to case law holding that an
order denying a claim of immunity is immediately appealable even in the absence
of a final judgment. This is true, they argue, because immunity frees a defendant
from the burdens of defending the action, not merely from liability. Appellants
assert that they squarely raised governmental and qualified official immunity in
their CR 12.02(f) motion, and that the order denying their motion is immediately
appealable because it rejected their claim of immunity. On this basis, they argue
that this Court has jurisdiction to hear their appeal.
In response, Appellee argues that we are without jurisdiction to
consider the order on appeal because the circuit court did not state its basis for
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denying Appellants’ motion to dismiss, nor whether it even considered the issues
of governmental or qualified official immunity. In support of this argument,
Appellee cites two opinions—Upper Pond Creek Volunteer Fire Department, Inc.
v. Kinser, 617 S.W.3d 328 (Ky. 2020), and Chen v. Lowe, 521 S.W.3d 587 (Ky.
App. 2017). In each of these cases, the appellate court determined that it could not
consider the interlocutory appeal on the issues of governmental and qualified
official immunity because the respective trial courts held that additional findings of
fact were required to make a final determination on these issues.
Here, and in contrast to Upper Pond Creek and Chen, the Jefferson
Circuit Court did not hold that additional findings of fact were required to resolve
the questions of whether Appellants were shielded by governmental or qualified
official immunity. Rather, the Jefferson Circuit Court summarily denied
Appellants’ motion without explanation.
We find guidance on this issue in the unpublished opinion in Kentucky
Community & Tech. College System v. Kehoe, No. 2024-CA-1074-MR, 2025 WL
2679741 (Ky. App. Sep. 19, 2025). In Kehoe, employees of the Kentucky
Community and Technical College System brought an interlocutory appeal
asserting that the Hopkins Circuit Court erred by denying their motion to dismiss
the complaint on the grounds of governmental and qualified official immunity.
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In considering whether it had jurisdiction to adjudicate the appeal, the
panel of this Court in Kehoe noted that the Hopkins Circuit Court summarily
denied the appellants’ motion to dismiss without revealing the basis for the denial.
The panel in Kehoe stated that,
We cannot decipher whether the Circuit Court even ruled
on the issues of immunity because it provided no basis,
analysis, reasoning, or authority in its summary denial.
And we cannot supplant our own reasoning where there
is none.
There are numerous, weighty, and complex issues
in contest here. The Circuit Court failed to address them
or to rule definitively on the issue of immunity. This
Court is unable to determine if the Circuit Court denied
the motion to dismiss because it: 1) determined that none
of the defendants below was entitled to any form of
immunity; 2) agreed with Kehoe that discovery was
necessary before it could rule on the issue of immunity;
or 3) believed other grounds were meritorious that did
not involve immunity[.]
Kehoe, 2025 WL 2679741, at *2. The panel concluded that because the order on
appeal did not reveal the basis for the denial of the motion, nor even whether the
issue of immunity was considered, it lacked jurisdiction to adjudicate the
interlocutory appeal.
The order now before us mirrors the order in Kehoe. Here, the
Jefferson Circuit Court summarily denied Appellants’ motion to dismiss without
explanation. Just as in Kehoe, we are unable to ascertain if the circuit court
determined that none of the Appellants were entitled to any form of immunity, it
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agreed with Appellee that discovery was necessary before it could rule on the issue
of immunity, or it believed that other grounds were meritorious not involving
immunity. Further, and again as in Kehoe, while the Jefferson Circuit Court could
have revealed the basis for its order, Appellants herein could also have attempted
to remedy the situation by filing a motion to alter, amend, or vacate pursuant to CR
52.02. They did not do so.
CONCLUSION
We have jurisdiction to consider an interlocutory order denying a
substantial claim of absolute immunity. Prater, 292 S.W.3d at 887. In the matter
before us, however, though the order on appeal denied Appellants’ motion to
dismiss, it did not reveal the basis for the ruling. It is just as plausible that the
circuit court denied the motion because it believed additional findings of fact were
required to settle the issue, as it is that Appellants are not entitled to governmental
or qualified official immunity. We will not speculate as to the circuit court’s
reasoning.
As we cannot discern from the order or the record whether the circuit
court denied Appellants’ claim of absolute immunity, and based on the reasoning
set out in Kehoe, we are without jurisdiction to consider this appeal. Such
jurisdiction would be found, if at all, from an absolute grant or denial of
governmental or qualified official immunity. Id. No such grant or denial is
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present in the order on appeal. For these reasons, it is hereby ORDERED that this
appeal be, and is hereby, DISMISSED.
ALL CONCUR.
ENTERED: _11/06/2026____ _______________________________
CHIEF JUDGE, COURT OF APPEALS
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
Daniel P. Reed Darryl L. Isaacs
Isaac K. Keller T. Andrew Howell
Louisville, Kentucky Heather McCollum-Harvey
Kristin M. Lomond
Louisville, Kentucky
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