Man trampled by Lexington police horse appeals dismissal of lawsuit

jkegley@herald-leader.comMarch 10, 2013 

No one is disputing that David Prater was knocked down and trampled by a Lexington Division of Police horse while waiting in line for the bathroom at a 2009 University of Kentucky football game.

What was disputed during the resulting lawsuit was whether the horse's rider, former Officer Heather Catt, used her discretion to decide when, how and where she patrolled the crowded Commonwealth Stadium parking lot, or whether she was following specific orders, policies and procedures.

That seemingly minor detail, more so than Catt's training and qualifications as a mounted officer or events leading up to the trampling, has been at issue in the ongoing legal case. Prater and his attorney are preparing to appeal a judge's recent decision to dismiss the lawsuit.

In 2010, Prater sued Catt and her supervisor, former Sgt. Ellen Sam, for an undetermined amount of money due to injuries Prater sustained after Catt's mount, Panzer, got spooked by the UK marching band. The agitated horse reared up, knocked Prater down and "stepped on him," according to court documents.

"He suffered a fractured scapula and (coracoid) requiring multiple surgeries and neck injuries that ultimately required cervical disc fusion surgery," according to a motion filed in the case. "He has not returned to work since the day of his injury."

Under a legal concept called qualified immunity, officers acting under their own discretion when carrying out their duties cannot be held liable for damages. No such protection exists for officers performing "ministerial duties" — duties governed by set rules, policies and procedures.

Prater's attorney, Rob Shelton of Louisville, argued Catt was performing ministerial duties because she was acting under orders as she patrolled the stadium and because mounted officers should be uniformly trained on how to calm agitated horses, but a judge disagreed.

Fayette Circuit Judge James Ishmael Jr. found last month that Catt could have acted "in one or two or more ways, all of which would be lawful" when Prater was injured. He ruled that Catt was acting under her own discretion and not liable for Prater's injuries on the basis of qualified immunity.

That was not the end of the dispute. Prater and Shelton said last week that they would appeal, a process that probably will add years to a case that has been in litigation since 2010.

"The plan is, hopefully, for the Court of Appeals to reverse the trial judge's opinion and allow us to proceed ..." Shelton said. "Unfortunately, in all likelihood, it will be a couple more years before the appeals are finished."

Prater, 43, of Kodak, Tenn., was waiting in line for a portable toilet in the parking lot of Commonwealth Stadium before the Wildcats' last home game of the season against Tennessee in November 2009, according to court documents.

At the same time, two Lexington mounted officers, Catt and Officer Joe Warren, were returning to their truck after escorting the Tennessee cheerleaders into the stadium. They were blocked by the UK marching band and surrounded by a crowd as the band started to play.

The sudden music and spinning flags apparently spooked the horses, Panzer and Ranger. Catt began calling for bystanders to move out of the way as her mount, Panzer, spun and reared, striking Prater's neck and shoulder.

Prater, a former recreational director for a resort company in Pigeon Forge, Tenn., who earned more than $40,000 a year, said in a phone interview that he has amassed about $200,000 in medical bills. He does not have medical insurance, his attorney said.

Prater said he has been unable to work due to pain and limited use of one of his arms caused by the shattered coracoid, a bone in the shoulder assembly.

"Accidents do happen around the world daily, and I realize that," Prater said. "But the old-fashioned approach would be to help me out and get me out from under these medical bills. I'm having a really tough time and I would like to see Lexington take a stand on that."

City spokeswoman Susan Straub said she could not comment on pending litigation. Sam also said she could not comment while the case was ongoing. Catt could not be reached.

Prater initially sued the Division of Police and the former officers, but Ishmael dismissed the police department as a defendant. City-hired attorneys continued to represent Catt and Sam, who both have since retired.

Straub would not say whether Panzer as still active in the Division of Police's mounted unit.

Court documents filed by Shelton criticized the mounted unit's training procedures. The lawsuit accused Sam of failing to train the officers and horses properly.

The documents said Panzer "had not undergone extensive sensory stimuli training with Officer Catt (or any other officer)" and that Catt testified she did not know what a "cool-down cue" was in respect to calming an agitated horse.

The documents also noted that Catt and Panzer already had worked an eight-hour day and were working overtime at the football game past the time Panzer normally would have been put to pasture.

Josh Kegley: (859) 231-3197. Twitter: @HLpublicsafety.

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