Applewhite v. Accuhealth, Inc.

995 N.E.2d 131, 21 N.Y.3d 420

Opinions

OPINION OF THE COURT

Graffeo, J.

When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a “special duty” to the injured party. Based on the specific allegations interposed in this case, plaintiffs have adequately established questions of fact on the applicability of the special duty doctrine, thereby precluding summary judgment for the municipal defendants.

I

In 1998, plaintiff Tiffany Applewhite suffered from uveitis, an eye condition, which required the intravenous administration of a prescribed medication. After a visiting nurse injected Tiffany with the drug at her home, the 12-year-old girl experienced an episode of anaphylactic shock. When Tiffany’s breathing difficulties worsened, her mother dialed 911 seeking assistance. While the nurse performed whatever emergency care that she could provide, Tiffany had a seizure followed by cardiac arrest.

Within minutes after the 911 call was placed, two emergency medical technicians (EMTs) employed by the New York City Fire Department arrived at the Applewhite apartment, having traveled in a basic life support ambulance. The EMTs had been dispatched because no advanced life support (ALS) ambulance transporting paramedics was available at the time. One EMT immediately began performing cardiopulmonary resuscitation (CPR) on Tiffany while the other called for an ALS ambulance and then retrieved equipment from the ambulance.

At some point, Tiffany’s mother allegedly requested that the EMTs transport Tiffany to nearby Montefiore Hospital. The EMT continued to conduct CPR on Tiffany until paramedics from a private hospital, who arrived in an ALS ambulance, appeared at the scene. The paramedics injected Tiffany with epinephrine to counter the effects of anaphylactic shock, intubated her, administered oxygen and then transported her to Montefiore Hospital. Tiffany survived the ordeal but tragically suffered serious brain damage.

Tiffany and her mother commenced this action against the nurse, her employer (Accuhealth, Inc.), and the City of New York and its emergency medical services (EMS). Accuhealth dissolved in bankruptcy and the lawsuit against the nurse was settled. Thus, the only claims that remain outstanding are those against the municipal defendants (referred to collectively as the City).

The City moved for summary judgment, primarily contending that it was immune from liability because it did not owe a special duty to plaintiffs. In the alternative, the City maintained that the actions of its personnel were not the proximate cause of Tiffany’s injuries; rather, Tiffany’s allergic reaction was the result of the drug administered to the child by the nurse. Supreme Court granted the City’s motion, concluding that plaintiffs could not prove that the City owed them a special duty or that the municipal defendants were the proximate cause of the harm.

The Appellate Division reversed and reinstated the claims against the City (90 AD3d 501 [1st Dept 2011]). It determined that the City’s emergency medical response was governmental in nature, but found that plaintiffs raised triable issues of fact as to whether the City had assumed a special duty to plaintiffs and whether it proximately caused their injuries. The Appellate Division certified a question to us asking if its decision was correct.

II

When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality’s actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 446-447 [2011], cert denied sub nom. Ruiz v Port Auth. of New York & New Jersey, 568 US —, 133 S Ct 133 [2012]). A government entity performs a purely proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises” (Sebastian v State of New York, 93 NY2d 790, 793 [1999] [internal quotation marks omitted]). In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers” (id. [internal quotation marks omitted]).

Because this dichotomy is easier to state than to apply in some factual scenarios, the determination categorizing the conduct of a municipality may present a close question for the courts to decide (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 446-447; Sebastian, 93 NY2d at 793-794). Police and fire protection are examples of long-recognized, quintessential governmental functions (see e.g. Valdez v City of New York, 18 NY3d 69, 75 [2011]; Harland Enters. v Commander Oil Corp., 64 NY2d 708, 709 [1984]). Additional examples include security operations at the World Trade Center (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 450); oversight of juvenile delinquents (see Sebastian, 93 NY2d at 796); issuance of building permits or certificates of occupancy (see Rottkamp v Young, 15 NY2d 831, 833 [1965], affg 21 AD2d 373 [2d Dept 1964]; Worth Distribs. v Latham, 59 NY2d 231, 237 [1983]); certifying compliance with fire safety codes (see Garrett v Holiday Inns, 58 NY2d 253, 261-262 [1983]); teacher supervision of a public school playground (see Bonner v City of New York, 73 NY2d 930, 932 [1989]); boat inspections (see Metz v State of New York, 20 NY3d 175, 179-180 [2012]); and garbage collection (see Nehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d 190, 194-195 [1957]). On the other hand, we have recognized that certain medical services delivered by the government in hospital-type settings are more akin to private, proprietary conduct (see e.g. Schrempf v State of New York, 66 NY2d 289 [1985]; Bryant v New York City Health & Hosps. Corp., 93 NY2d 592 [1999]; Matter of Murray v City of New York, 30 NY2d 113 [1972]). As a general rule, the distinction is that the government will be subject to ordinary tort liability if it negligently provides “services that traditionally have been supplied by the private sector” (Sebastian, 93 NY2d at 795).

If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a “special duty” to the injured party. The core principle is that to “ ‘sustain liability against a municipality, the duty breached must be more than that owed the public generally’ ” (Valdez, 18 NY3d at 75, quoting Lauer v City of New York, 95 NY2d 95, 100 [2000]). We have recognized that a special duty dan arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition (see e.g. Metz, 20 NY3d at 180). It is the plaintiff’s obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself (see Lauer, 95 NY2d at 100; see also Valdez, 18 NY3d at 75). In situations where the plaintiff fails to meet this burden, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity.¹

III

In this case, the parties dispute whether the City exercised a governmental or proprietary function when the EMTs initiated emergency care. The City asserts that the provision of 911 referrals and emergency medical service responses are within the traditional responsibilities of municipal government, similar in nature to emergency fire protection services. Plaintiffs, however, maintain that the governmental function terminated with the arrival of the EMTs at Tiffany’s home and a proprietary function arose once emergency medical care was undertaken since treatment of this nature is generally offered by private parties (e.g., doctors and hospital personnel) and the City charges fees for its ambulance services. Consistent with their respective arguments, the City asserts that plaintiffs failed, as a matter of law, to establish triable issues of fact pertaining to the creation of a special relationship,² and plaintiffs urge that summary judgment was inappropriate because there are factual disputes to be resolved before the issue of special duty can be determined.

In Laratro v City of New York (8 NY3d 79 [2006]), the plaintiff sued the City for responding too slowly to a 911 call (the ambulance took 35 minutes to arrive, as opposed to the several-minute response time in this case). Our analysis began with the recognition that “[protecting health and safety is one of municipal government’s most important duties” (id. at 81) and this responsibility extends to “the duty to provide police protection, fire protection or ambulance service” to the general public (id. at 82-83 [emphasis added]). We proceeded to determine whether the plaintiff had sufficiently established the existence of a special duty—an inquiry that would have been unnecessary had we viewed the City’s response to the 911 call as a proprietary function. Hence, we have previously viewed municipal emergency systems and responses to 911 calls to be within the sphere of governmental functions.

Our concurring colleagues contend that the EMTs acted in a proprietary capacity when they began to render aid, equating their conduct with medical services such as mental health care (see Schrempf v State of New York, 66 NY2d 289 [1985]), obstetrics (see Bryant v New York City Health & Hosps. Corp., 93 NY2d 592 [1999]) and surgery (see Matter of Murray v City of New York, 30 NY2d 113 [1972]). In those situations, however, the “governmental activities . . . displaced or supplemented traditionally private enterprises” (Riss v City of New York, 22 NY2d 579, 581 [1968]). Emergency medical services, in contrast, have widely been considered one of government’s critical duties (see e.g. 1982 Ops St Comp No. 82-182; Edwards v City of Portsmouth, 237 Va 167, 171, 375 SE2d 747, 750 [1989]; Ross v Consumers Power Co., 420 Mich 567, 654, 363 NW2d 641, 677 [1984]; King v Williams, 5 Ohio St 3d 137, 140, 449 NE2d 452, 455 [1983]; Thornton v Shore, 233 Kan 737, 742, 666 P2d 655, 659 [1983]; McIver v Smith, 134 NC App 583, 587, 518 SE2d 522, 525 [1999]; Wanzer v District of Columbia, 580 A2d 127, 131 [DC Ct App 1990]; Ayala v City of Corpus Christi, 507 SW2d 324, 328 [Tx Civ App 1974]; Smith v City of Lexington, 307 SW2d 568, 569-570 [Ky Ct App 1957]).

Consistent with this view and our reasoning in Laratro (8 NY3d 79), we believe that publicly-employed, front-line EMTs and other first responders, who routinely place their own safety and lives in peril in order to rescue others, surely fulfill a government function—certainly no less so than municipal garbage collectors and school playground supervisors (see Nehrbas, 2 NY2d at 194-195; Bonner, 73 NY2d at 932; see also Edwards v City of Portsmouth, 237 Va at 171, 375 SE2d at 750)— because they exist “for the protection and safety of the public” and not as a “substitute for . . . private enterprises” (Sebastian, 93 NY2d at 793 [internal quotation marks omitted]). The facts of this case reinforce this view since the purportedly negligent EMTs were employees of the City’s fire department using City resources in an effort to fulfill the City’s obligation to answer an emergency 911 dispatch and attempt to save Tiffany Applewhite’s life. And contrary to the belief expressed in the concurring opinions, the fact that private entities operate ambulance services in New York City is not determinative because those companies provide supplemental support for a critical governmental duty rather than vice versa (see Edwards v City of Portsmouth, 237 Va at 171-172, 375 SE2d at 750 [“the test cannot be whether the same thing is done by private entities, but rather whether, in providing such services, the governmental entity is exercising the powers and duties of government conferred by law for the general benefit and well-being of its citizens”]).³ Nor does the City’s policy of charging a fee for its ambulance service (see 3 RCNY 4900-02 [b]) alter the analysis because it is designed to defray the cost of maintaining this essential component of the City’s emergency response system, not to create a profit for the taxpayers (see General Municipal Law § 122-b [2]; 2005 Ops St Comp No. 05-8; see also Wanzer, 580 A2d at 131; Edwards, 237 Va at 172, 375 SE2d at 750; Smyser v City of Peoria, 215 Ariz 428, 435-436, 160 P3d 1186, 1193-1194 [Ct App 2007]; McIver v Smith, 134 NC App at 587, 518 SE2d at 526).

Moreover, and unlike the types of medical providers identified by the concurrences, the EMTs employed by the New York City Fire Department (FDNY) and deployed via the 911 system receive training in basic life support techniques and their range of approved emergency services is limited by law (see Public Health Law § 3001 [6] [defining the term “emergency medical technician”]; 10 NYCRR 800.6 [c] [listing eight types of emergency medical services personnel]; 10 NYCRR 800.20 [c] [5] [i] [describing the required curricula for various classes of first responders]). Basic EMTs function in a “pre-hospital setting” and their activities are generally restricted to “CPR, oxygen administration, bleeding control, foreign body airway obstruction removal, and spinal immobilization.”⁴ Most EMTs (who are not specially certified as paramedics) are not authorized by law to administer medication, such as epinephrine, or perform invasive procedures, and do not have access to advanced diagnostic and medical treatment equipment or physician assistance (see generally 10 NYCRR 800.20 [c] [5] [i] [a]-[c]), all of which are common in public and private hospital facilities. EMTs cannot be realistically compared to the proprietary medical professionals whose licensure requires extensive educational and training credentials, and who typically provide services at hospital or medical facilities rather than in the unpredictable community-at-large.

Public policy considerations support this analysis. The rationale underlying the government-function doctrine rests on several critical concerns: that the costs of tort recoveries would be excessively burdensome for taxpayers; the threat of liability could dissuade municipalities from maintaining emergency medical and ambulance services; and extensive exposure to liability could consequently render municipal governments less, not more, effective in protecting their citizens (see Laratro, 8 NY3d at 82). This, in turn, would place the public at greater risk of danger, particularly in locales that are a considerable distance from private medical or hospital emergency care. Even a metropolis like New York City could feel a chilling effect when it considers the prospect of unknown liability exposure from the thousands of EMS runs its performs on a daily basis.⁵ It would be an unfortunate consequence if municipal emergency response systems were limited to mere transport service rather than emergency medical stabilization measures. We therefore decline to adopt a rule that has the potential to undermine this significant aspect of the government’s 911 emergency response system.

Hence, we hold that a municipal emergency response system— including the ambulance assistance rendered by first responders such as the FDNY EMTs in this case—should be viewed as “a classic governmental, rather than proprietary, function” (Valdez, 18 NY3d at 75).

IV

Our conclusion does not necessarily immunize the City from liability because plaintiffs may yet establish that a special duty was owed to them. Of the three ways that a plaintiff may prove the existence of a special duty, only the second is at issue in this appeal—whether the City voluntarily assumed a “special relationship” with the plaintiffs beyond the duty that is owed to the public generally. The response to that question requires the presence of four elements:

“ ‘(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking’ ” (Laratro, 8 NY3d at 83, quoting Cuffy v City of New York, 69 NY2d 255, 260 [1987]).

A plaintiff must satisfy each of these factors in order to establish a special relationship. Here, the parties’ dispute centers on the first and fourth elements. We agree with the Appellate Division that plaintiffs have adequately presented questions of fact on both of these factors.

Tiffany’s mother recalled that once she realized the treatment provided by the EMTs would be limited to CPU, she “asked them to please take Tiffany to Montefiore Hospital right away, because it was only a few minutes away from our house at that time.” The EMT apparently continued performing CPR and allegedly indicated that he was awaiting the arrival of ALS ambulance personnel. This poses a question of fact as to whether the EMTs, through their actions or promises, assumed an affirmative duty in deciding to have ALS paramedics undertake more sophisticated medical treatment rather than transporting the child to a hospital.

A factual resolution by a jury is also necessary to resolve the justifiable reliance element. It is possible that a fact finder could conclude that it was reasonable for Tiffany’s mother to rely on the EMTs’ alleged assurances rather than seek an alternative method for transporting Tiffany to the nearby hospital since the child’s mother claims that she was not informed that it would take about 20 minutes for the ALS ambulance to arrive. Although it is true, as the City contends, that plaintiffs have not specifically identified any “ ‘other available avenues of protection’ ” to which the mother could have resorted (Dinardo v City of New York, 13 NY3d 872, 874 [2009], quoting Cuffy, 69 NY2d at 261), the allegations raise the question of whether the EMTs may have “lulled” plaintiffs “into a false sense of security” (Dinardo, 13 NY3d at 874 [internal quotation marks omitted]). Plaintiffs are therefore entitled to show how the EMTs’ statements or “conduct deprived [plaintiffs] of assistance that reasonably could have been expected from another source” (Merced v City of New York, 75 NY2d 798, 800 [1990]). In this regard, plaintiffs have the ultimate burden of establishing that some other reasonable alternative was available (see Valdez, 18 NY3d at 75).

In sum, because there are issues of fact associated with the eventual determination as to whether the City owed a special duty to plaintiffs, the City is not entitled to summary judgment dismissing the complaint against it.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

1 . Contrary to the parties’ arguments, our precedent does not differentiate between misfeasance and nonfeasance, and such a distinction is irrelevant to the special duty analysis (see generally McLean v City of New York, 12 NY3d 194, 202 [2009]; Schuster v City of New York, 5 NY2d 75, 82 [1958]).

(n. cont’d)

2 . Although the City claims that plaintiffs were required to specifically plead the existence of a special duty in their complaint, we decline to address this issue because it was not properly raised in Supreme Court. Additionally, the City does not challenge the Appellate Division’s determination that the EMTs were “acting in a ministerial capacity” (90 AD3d at 503).

3 . In fact, as Judge Abdus-Salaam’s concurrence observes (see concurring op at 437), government-operated ambulances handle approximately two thirds of EMS tours in New York City (see 2012/2013 Ann Rep of Fire Dept of City of New York at 27, available at http://www.nyc.gov/html/fdny/pdf/publications/ annual_reports/2012_annual_report.pdf [accessed June 19, 2013]).

4 . See Fire Dept of City of New York, http://www.nyc.gov/html/fdny/html/ community/emt_medic_faq.shtml (accessed June 19, 2013).

5 . During the 2012 fiscal year alone, there were approximately 1.4 million EMS apparatus responses in New York City—an average of approximately 3,800 per day—most of which were performed by municipal employees (see 2012/2013 Ann Rep of Fire Dept of City of New York at 26-27, available at http://www.nyc.gov/html/fdny/pdf/publications/annual_reports/2012_annual _report.pdf [accessed June 19, 2013]).