On a cold night, a woman called 911 to report that she had observed two women pull a snoring man, who was not fully dressed, out of a car, drag the man, and dump the man into a leaf pile on the street near the curb.
The call taker received the woman’s 911 call. The call taker coded the incident as a priority 2 assignment, “trouble – unknown cause.” A priority 2 assignment is one that has the potential for serious physical harm or serious property damage or involves a crime that has just occurred. The call taker entered comments in the event chronology, a time stamped, audit trail of the incident, indicating that the woman had seen two females drag a male across the street and put the man into the trash on the west side of the street and that the woman could hear the man snoring as she walked by. The computer generated an assignment.
Based on the location of the incident, the assignment appeared in the pending assignments queue on the computer screen of the dispatchers assigned to the district.
At the time of the incident, the city had a written policy and procedures for dispatching assignments. With respect to priority 2 assignments, the policy stated:
Priority 2: Requires a minimum delay response to incidents that have the potential for serious physical harm, serious property damage, or a crime that has just occurred.
1. Target dispatch time for priority 2 assignments shall be fifteen (15) minutes or less.
2. Dispatchers may assign concurrent multiple priority 2 assignments to the same unit.
3. “Life” incidents shall take precedence over “property” incidents.
The policy required that either one two-officer zone car or two one-officer zone cars be dispatched to a priority 2 incident. If no open units were available for a priority 2 assignment, the dispatcher was to broadcast the incident location and other relevant details over the district channel assignment. If a dispatcher was having difficulty dispatching a priority 2 assignment, the dispatcher was to request assistance from a supervisor. When experiencing a large backlog of assignments, the dispatcher was required to advise a supervisor and the caller of potential delays.
Two dispatchers, sitting side-by-side, were responsible for the district where the incident took place. Both dispatchers saw the assignment in their pending assignments queue and reviewed the assignment. Neither dispatcher notified a supervisor of difficulty in dispatching the priority 2 assignment.
Approximately two hours after the 911 call, one of the dispatchers dispatched a zone car to the scene. Officers arrived at the scene a few minutes later. Emergency medical service (EMS) assistance was requested immediately. The man was pronounced dead immediately upon arrival at a hospital.
The man’s heirs filed a survivorship claim and a wrongful death claim against the city and the dispatchers. The complaint alleged that the dispatchers and city ignored the woman’s 911 call for two hours and that their delay in sending a police officer to investigate the call caused the man to develop hypothermia and die or at least caused the man the loss of chance of a cure for the man’s condition.
The dispatchers and city filed answers, denying any wrongdoing and asserting various affirmative defenses, including that the claims were barred by statutory immunity.
During discovery, both dispatchers testified that they were familiar with the dispatching assignment policy and acknowledged that their inaction violated that policy. During their depositions, both dispatchers admitted that they violated the dispatching assignments policy by: (1) failing to dispatch a unit to the priority 2 assignment for nearly two hours; (2) making no attempt to reassign a unit from a lower priority assignment to the assignment for nearly two hours; (3) failing to broadcast the incident location and other details over the district channel if there was no available unit to dispatch to the assignment; (4) failing to contact a supervisor for guidance if they were having difficulty dispatching the priority 2 assignment; and (5) failing to document any actions taken with respect to the assignment.
Following the completion of discovery, the city and dispatchers filed separate motions for summary judgment. The dispatchers argued that they were entitled to summary judgment because they were immune from suit. In support of their motion, the dispatchers attached affidavits discussing their backgrounds, duties, and responsibilities as city dispatchers, as well as their recollections of the incident. The dispatchers also attached an affidavit from one of the homicide detectives assigned to investigate the man’s death, which included portions of a report summarizing interviews the homicide detectives conducted with the two women who dragged the man.
The city argued that it was entitled to summary judgment because it was immune from liability. In support of the city’s motion, it submitted the 911 caller’s deposition and the chief dispatcher’s affidavit, which addressed the training provided to, and duties and responsibilities of, call takers and dispatchers. Copies of the event chronology for the incident and the city’s dispatching assignments policy were authenticated by the chief dispatcher and attached to his affidavit.
The man’s heirs filed a combined opposition to the dispatchers’ and city’s summary judgment motions. The opposition argued that a genuine issue of material fact existed as to whether the dispatchers acted recklessly or wantonly, depriving them of immunity. The opposition also argued that the dispatchers’ wanton misconduct imposed liability on the city and that the public duty rule was not applicable to the claims. In support of the opposition, the man’s heirs submitted excerpts from the depositions of the two women who dragged the man, the 911 caller, and both dispatchers; the affidavit of one of the homicide detectives assigned to investigate the man’s death; the event chronology; a recording of the 911 call, as well as other dispatch and radio transmissions; an affidavit from a doctor in which the doctor opined that if EMS had promptly responded after the 911 call, the man’s hypothermia could have been corrected, the man’s overdose symptoms could have been reversed, and the man would have survived; the coroner’s report of the man’s autopsy; the defendants’ responses to the heirs’ requests for production of documents; and various versions of the dispatching assignment policy.
The Cuyahoga County Court of Common Pleas granted summary judgment in favor of the dispatchers and the city on the survivorship and punitive damages claims. The trial court reasoned that because the complaint alleged that the man was unconscious during the incident, the heirs could not establish that the man suffered any conscious pain and suffering prior to the man’s death, as is required to prove a survivorship claim.
Regarding the wrongful death claim, the trial court denied the dispatchers’ and city’s motions for summary judgment. The trial court concluded that the evidence presented regarding the dispatchers’ failure to dispatch any units to the scene or to take any other steps with respect to the assignment at issue for nearly two hours was sufficient to establish a jury question regarding whether the dispatchers were reckless and created a genuine issue of material fact as to whether an exception to the city’s statutory immunity applied based on the dispatchers’ negligent performance of their duties as employees.
The Court of Appeals of Ohio, Eighth District, Cuyahoga County, affirmed the trial court’s denial of summary judgment as to the emergency dispatchers, reversed the trial court’s denial of summary judgment as to the city, and remanded. The court held that the trial court did not err in denying the dispatchers’ motion for summary judgment on the basis of statutory immunity, but the trial court erred in denying the city’s motion for summary judgment on the basis of statutory immunity.
The trial court did not err in denying the dispatchers’ motion for summary judgment on the basis of statutory immunity. There is no requirement that an employee specifically intend to cause harm in order to be exempt from immunity. The court concluded that a reasonable fact finder could find that the dispatchers acted wantonly, in other words, that they failed to exercise any care towards those to whom a duty of care is owed under circumstances in which there is great probability that harm will result, or recklessly, in other words, with conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances. The court found that evidence existed from which reasonable minds could conclude that the dispatchers acted, or rather failed to act, both with knowledge that they were violating the dispatch assigning policy and that the violations would in all probability result in injury. The court noted that both dispatchers testified that they saw and reviewed the assignment when it came in and knew it was an assignment that had the potential for serious physical harm or serious property damage, or involved a crime that just occurred for which the target dispatch time was 15 minutes or less. Both dispatchers further acknowledged that they knew, based on the description of the incident in the assignment—a snoring man who had been placed in a leaf pile in or near the road on a cold evening—that this particular assignment involved the potential for serious physical injury, rather than property damage. Other than to state that they were busy and could not recall what happened to the assignment, the dispatchers could not explain why no units were dispatched for nearly 2 hours. Further, the dispatchers could not explain why, if no units were available for dispatch or they were otherwise having dispatching difficulties, they did not broadcast the incident location and other relevant details over the district channel assignment or notify a supervisor of these difficulties as required by the dispatching assignment policy to allow a decision to be made as to whether a zone car should be pulled off another assignment or other steps taken to obtain a prompt response to the call. The court concluded that, because genuine issues of fact existed as to whether the dispatchers acted wantonly or recklessly, the dispatchers were not entitled to immunity.
The trial court erred in denying the city’s motion for summary judgment on the basis of statutory immunity. The provision or nonprovision of police, fire, emergency medical, ambulance, and rescue services or protection is specifically identified by statute as a “governmental function,” not a proprietary function. Because the dispatchers were engaged in a governmental function, no exception to the city’s statutory immunity existed. The wrongful death claim arose out of the dispatchers’ failure to timely dispatch a zone car. The court found no evidence in the record that the dispatchers gave or issued emergency instructions through a 911 system. Because no exception to immunity applied, the trial court erred in denying the city’s motion for summary judgment on immunity grounds.
The Court of Appeals of Ohio, Eighth District, Cuyahoga County affirmed the trial court’s denial of summary judgment as to the emergency dispatchers, reversed the trial court’s denial of summary judgment as to the city, and remanded.
See: Chavalia v. City of Cleveland, 2017 WL 1090991 (Ohio App. 8 Dist., 2017) (not designated for publication).
See also Medical Law Perspectives, February 2013 Report: Emergency Medical Services: Liability and Immunity for Medical Rescue