qualified privilege in Kentucky

2025“Qualified immunity applies only to the negligent performance of duties that are discretionary in nature.” Id.

2021“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or -8- those who knowingly violate the law.” Stanton v. Sims, 571 U.S. 3, 6 , 134 S.Ct. 3, 5 , 187 L.Ed.2d 341 (2013) (per curiam) (citations and internal quotation marks omitted). “[W]hen sued in their individual capacities, public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment.” Yanero, 65 S.W.3d at 522 (citation

2005Qualified immunity protects state and local officials who carry out executive and administrative functions from personal liability so long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982).

2005Qualified immunity protects state and local officials who carry out executive and administrative functions from personal liability so long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982).

2024Id. at 469-71 .3 Similarly, in Toler v. Süd-Chemie, Inc., 458 S.W.3d 276 (Ky. 2014), the Kentucky Supreme Court recognized a qualified privilege for certain communications.

2024Furthermore, Toler, supra, recognized that the party seeking to defeat a qualified privilege cannot merely assert that the information was false or misleading; doing so alone should lead to a directed verdict.

2014Corp. v. Hay, 627 S.W.2d 270, 275 (Ky.App.1981) (noting that the qualified privilege is "qualified by the proviso that it not be abused, i.e., that whatever defamation may have been spoken related solely to the investigation, that the remarks not be over-publicized, and that they not be published with malice.”); Baker v. Clark, 186 Ky. 816 , 218 S.W. 280, 285 (1920) ("That a defendant would lose his right of qualified privilege if he acted malicious or in excess of the privilege, or with knowledge of the falsity of the communication, is well settled.”). .

2014Corp. v. Hay, 627 S.W.2d 270, 275 (Ky.App.1981) (noting that the qualified privilege is "qualified by the proviso that it not be abused, i.e., that whatever defamation may have been spoken related solely to the investigation, that the remarks not be over-publicized, and that they not be published with malice.”); Baker v. Clark, 186 Ky. 816 , 218 S.W. 280, 285 (1920) ("That a defendant would lose his right of qualified privilege if he acted malicious or in excess of the privilege, or with knowledge of the falsity of the communication, is well settled.”). .

2013As noted in Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 796 (Ky.2004), a qualified privilege applies only if the communication was “made in good faith and without actual malice.” Such a determination is a question for the jury.

2011Because Harstad failed to adduce evidence sufficient to create a genuine issue that the qualified privilege was abused or waived, i.e., not “exercised in a reasonable manner and for a proper purpose [,] ” Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 797 (Ky.2004), summary judgment was properly entered.

2014Corp. v. Hay, 627 S.W.2d 270, 275 (Ky.App.1981) (noting that the qualified privilege is "qualified by the proviso that it not be abused, i.e., that whatever defamation may have been spoken related solely to the investigation, that the remarks not be over-publicized, and that they not be published with malice.”); Baker v. Clark, 186 Ky. 816 , 218 S.W. 280, 285 (1920) ("That a defendant would lose his right of qualified privilege if he acted malicious or in excess of the privilege, or with knowledge of the falsity of the communication, is well settled.”). .

2004Reports of this nature are protected by a qualified privilege because they are necessary communications within the employing company.”); Columbia Sussex, 627 S.W.2d at 275 (recognizing qualified privilege in connection with investigation of crime in employment context); Caslin v. General Electric Co., Ky.App., 608 S.W.2d 69, 70-71 (1980) (characterizing work performance appraisals as "communications within the employing company which are necessary to its functioning and, therefore ... qualifiedly privileged.”); Louisville & N.R.

2013“Reports of this nature are protected by a qualified privilege because they are necessary communications within the employing company.” Wyant v. SCM Corp., 692 S.W.2d 814, 816 (Ky.App.1985) (citing Caslin v. General Electric Co., 608 S.W.2d 69 (Ky.App.1980)).

2004JUR.)); Wyant v. SCM Corp., Ky.App., 692 S.W.2d 814, 816 (1985) ("[T]he statement was part of an internal memoranda detailing an audit of appellant’s branch.

2013“Reports of this nature are protected by a qualified privilege because they are necessary communications within the employing company.” Wyant v. SCM Corp., 692 S.W.2d 814, 816 (Ky.App.1985) (citing Caslin v. General Electric Co., 608 S.W.2d 69 (Ky.App.1980)).

2004Reports of this nature are protected by a qualified privilege because they are necessary communications within the employing company.”); Columbia Sussex, 627 S.W.2d at 275 (recognizing qualified privilege in connection with investigation of crime in employment context); Caslin v. General Electric Co., Ky.App., 608 S.W.2d 69, 70-71 (1980) (characterizing work performance appraisals as "communications within the employing company which are necessary to its functioning and, therefore ... qualifiedly privileged.”); Louisville & N.R.

2025Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

2025Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

2022See Martin, 507 S.W.3d at 5 ; see also Yanero v. Davis, 65 S.W.3d 510, 523 (Ky. 2001) (explaining it is the plaintiff’s burden, for purposes of defeating a claim of qualified immunity, to adduce evidence that good faith was lacking); see also Furlow v. Sturgeon, 436 S.W.2d 485, 486 (Ky. 1968) (citation omitted) (explaining “effect must be given to that which is unavoidably and necessarily implied in a judgment, as well as that which is expressed in the most appropriate language,” and that where claims in an action are mutually exclusive, “adjudicating in favor of one is negating the other”).

2022Martin v. O’Daniel, 507 S.W.3d 1, 5-6 (Ky. 2016).

2014Instead of expanding the privilege, it balanced the interest of the creditor and those of the landowner to be free from defamation and recourse when her property has been disparaged by the “unfounded and malicious publication of another.” Id. at 238-39 (quoting Warren v. Bank of Marion, 618 F.Supp. 317, 325 (W.D.Va.1985)).

2013We disagree with the preceding and, following the reasoning in Warren v. Bank of Marion, 618 F.Supp. 317, 325 (W.D.Va.1985), we conclude that the filing of a Us pendens is protected by a qualified privilege.

2025Rowan Cnty. v. Sloas, 201 S.W.3d 469, 487 (Ky. 2006).

2018Qualified immunity is provided for a coroner under KRS 72.470 which states as follows: "Any coroner, deputy coroner or designee thereof, acting in good faith within the scope of his official duties, shall have immunity from any civil liability that might otherwise be incurred or imposed." The Court in Yanero v. Davis , 65 S.W.3d 510 , 522 (Ky. 2001) (internal citation omitted), defined qualified immunity as follows: "Qualified official immunity applies to the negligent performance by a public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise of disc

2025Kentucky Rule of Appellate Procedure 41. -9- Willow Council of Co-Owners, Inc., 430 S.W.3d 229, 238 (Ky. 2013) (concluding “that the filing of a lis pendens is protected [only] by a qualified privilege[,]” as opposed to the typical absolute privilege afforded to pleadings).

2014Instead of expanding the privilege, it balanced the interest of the creditor and those of the landowner to be free from defamation and recourse when her property has been disparaged by the “unfounded and malicious publication of another.” Id. at 238-39 (quoting Warren v. Bank of Marion, 618 F.Supp. 317, 325 (W.D.Va.1985)).

2023Qualified immunity “is more than just a defense; it alleviates the employee’s or officer’s need to even defend the suit, which is to be dismissed.” Marson, 438 S.W.3d at 298 . “[D]iscretionary acts or functions are those that necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued.” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010).

2022Determining whether an act is ministerial or discretionary is a difficult, oft recurring issue which “has long plagued litigants and the courts.” Marson v. Thomason, 438 S.W.3d 292, 296 (Ky. 2014).

2015They countered that the alleged defamatory statements were protected by a qualified privilege. 2 Unflattering language made within the scope of the employment relationship — and particularly “[i]n matters involving communications between employees in the chain of command[,j” Landrum v. Braun, 978 S.W.2d 756, 757 (Ky.App.1998)—are qualifledly privileged, and “no recovery [for defamation] can be had.” Baskett v. Crossfield, 190 Ky. 751 , 228 S.W. 673, 675 (1920).

2011Citing Landrum v. Braun, 978 S.W.2d 756 (Ky.App.1998), the circuit court determined that the “statements that Harstad alleges are defamatory were made within the context of the employment relationship and are qualifiedly privileged.” We agree.

2015This is insufficient to-overcome the qualified privilege.- She “Was required to do more than assert that these' statements were false; people are sometimes wrong without even suspecting it.” Harstad, 338 S.W.3d at 813 .

2015And, “not every erroneous statement is expressed with malice.” Id.

2011As our highest court plainly stated, once a qualified privilege attaches, even “false and defamatory statements will not give rise to a cause of action unless maliciously uttered.” Stewart v. Williams, 309 Ky. 706, 708 , 218 S.W.2d 948, 950 (1949) (emphasis supplied).

2011As our highest court plainly stated, once a qualified privilege attaches, even “false and defamatory statements will not give rise to a cause of action unless maliciously uttered.” Stewart v. Williams, 309 Ky. 706, 708 , 218 S.W.2d 948, 950 (1949) (emphasis supplied).

2011However, it concluded the Kentucky General Assembly intended to protect inferior legislative bodies by its enactment of KRS 84.050(5). “[T]he general assembly has effectively granted to members of city legislative bodies an absolute privilege under which they cannot be liable for statements made during a debate before a formal meeting of the assembly.” Jacobs v. Underwood, 484 S.W.2d at 857 .

1978In Jacobs v. Underwood, Ky., 484 S.W.2d 855, 857 (1972), the court recognized that, at common law, members of quasi legislative bodies enjoyed only a qualified privilege.

2025City & Cty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 617 (2015).

2024Smith v. Martin, 331 S.W.3d 637, 640 (Ky. App. 2011).

2023Qualified immunity “is more than just a defense; it alleviates the employee’s or officer’s need to even defend the suit, which is to be dismissed.” Marson, 438 S.W.3d at 298 . “[D]iscretionary acts or functions are those that necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued.” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010).

2023Such discretion exists “when the act may be performed in one or two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed.” Id. (citing Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky. 1959)).

2023Such discretion exists “when the act may be performed in one or two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed.” Id. (citing Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky. 1959)).

2022See Martin, 507 S.W.3d at 5 ; see also Yanero v. Davis, 65 S.W.3d 510, 523 (Ky. 2001) (explaining it is the plaintiff’s burden, for purposes of defeating a claim of qualified immunity, to adduce evidence that good faith was lacking); see also Furlow v. Sturgeon, 436 S.W.2d 485, 486 (Ky. 1968) (citation omitted) (explaining “effect must be given to that which is unavoidably and necessarily implied in a judgment, as well as that which is expressed in the most appropriate language,” and that where claims in an action are mutually exclusive, “adjudicating in favor of one is negating the other”).

2022Instead, the qualified immunity dispute revolves around whether Prewitt’s shining the spotlight was a ministerial or discretionary act, which is key because “[a] government official is not afforded immunity from tort liability for the negligent performance of a ministerial act.” Patton v. Bickford, 529 S.W.3d 717, 724 (Ky. 2016).