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09/28/90 WILLIE L. HINES v. DISTRICT COLUMBIA

September 28, 1990

WILLIE L. HINES, ET AL., APPELLANTS
v.
DISTRICT OF COLUMBIA, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Frederick H. Weisberg, Trial Judge

Belson, Terry, and Steadman, Associate Judges.

The opinion of the court was delivered by: Belson

This is an appeal from a grant of summary judgment in a wrongful death and survival action. Appellant Willie L. Hines, decedent's personal representative, sued the District of Columbia for damages arising from the alleged negligence of the District in relation to the dispatch of emergency medical care and transportation to Faith Z. Gary, now deceased. Appellant contends that the emergency services provided were neither timely nor adequate to the situation. Concluding that the public duty doctrine shields the District from liability, we affirm the trial court's grant of summary judgment in favor of the District of Columbia.

When Faith Gary lost consciousness at her home early one morning, appellant Hines called the District's emergency number, 911, to request assistance. In response to the dispatcher's questions, Hines said that Gary was unconscious but breathing, stated her age, and said that she had been taking some kind of medication. Seven minutes later, a basic life support unit arrived at the home. There was evidence that an advanced life support unit and an engine company were available to respond from the same station house at the time the basic unit was dispatched. *fn1 The first ambulance crew, consisting of two emergency medical technicians. (EMTs), arrived at the scene, assessed Gary's condition, and began cardiopulmonary resuscitation (CPR). Subsequently, one of the two EMTs went out to the ambulance to get a stretcher and to radio a request for an advanced life support unit and an engine company. The dispatcher replied "Okay 16." *fn2 Ten minutes later, as one EMT continued to administer CPR at the home, the other telephoned 911 to find out how soon the advanced unit would arrive; upon receipt of that call, an advanced life support unit and an engine company were dispatched from the station house closest to Ms. Gary's home. Within three minutes of dispatch, both had arrived at the scene. Personnel from the advanced unit immediately administered advanced life support, and transported Ms. Gary to D.C. General Hospital within three minutes. She was pronounced dead less than two hours after her arrival at the hospital.

Appellant seeks to hold the District liable for Ms. Gary's death because its agents, he contends, responded negligently to his request for help. He argues that the District owed Ms. Gary a duty of professional care by virtue of its employees' undertaking to treat her. He further argues that the level of emergency services initially provided was inadequate to the situation as described to the dispatcher, and that the first set of technicians should have transported Ms. Gary to the hospital for more advanced services when they realized that the advanced life support ambulance unit was delayed. These deficiencies, he argues, establish a breach of the duty the District owed Ms. Gary, and, because that negligence proximately caused Ms. Gary's death, the District must respond in damages. In affirming, we observe that appellant's claims are, in essence, challenges to the adequacy and timeliness of the dispatch of emergency equipment.

In order to survive the District's summary judgment motion, appellant had to show that the District was not shielded from liability by the public duty doctrine. Under that doctrine, a government and its agents owe no duty to provide public services to particular citizens as individuals. Instead, absent some "special relationship" between the government and the individual, the District's duty is to provide public services to the public at large. See, e.g., Turner v. District of Columbia, 532 A.2d 662 (D.C. 1987); Morgan v. District of Columbia, 468 A.2d 1306 (D.C. 1983) (en banc); Platt v. District of Columbia, 467 A.2d 149 (D.C. 1983); Warren v. District of Columbia, 444 A.2d 1 (D.C. 1981) (en banc). The doctrine operates to shield the District and its employees from liability arising out of their actions in the course of providing public services. Appellant acknowledges that the public duty doctrine applies in the case of such services as police and fire protection, but advances several arguments why it should not apply to the Emergency Ambulance Division (EAD).

Appellant would distinguish ambulance service from police and fire protection on the basis that emergency medical attention is summoned for and focuses on a particular individual, whereas the duty to prevent crime and protect against fires is owed to the public at large. We disagree. Citizens frequently call the police to their homes to respond to emergencies that involve a particular individual. See, e.g., Warren, supra. The same is true of the fire department. Furthermore, EAD crews frequently respond to accidents that occur in public places, see, e.g., Weeda v. District of Columbia, 521 A.2d 1156 (D.C. 1987), along with police and fire personnel. Individual citizens may call for all three services by dialing the same emergency telephone number, 911.

Our case law makes it clear that the mere fact that an individual has emerged from the general public and become an object of the special attention of public employees does not create a relationship which imposes a special legal duty. We have held that actions that are a "necessary part of the on-scene responsibility" of government agents subject to the public duty doctrine "add[] nothing to the general duty owed the public and fail[] to create a relationship which imposes a special legal duty." Warren, supra 444 A.2d at 3. *fn3 This point is driven home by the distressing facts set forth in our opinion in Warren v. District of Columbia rejecting a claim of special relationship.

In Warren, a woman called the police to request emergency assistance because a burglary was in progress on a lower floor of her rooming house. The dispatcher assured the caller that help was on the way. The resulting broadcast included an erroneous code and did not identify the call as a crime in progress. Although four squad cars responded, and the caller and another woman saw a police car drive by their residence, the police did no more than knock on the door of the house. When no one answered, the officers left. A second request for emergency help led to a second assurance that help was on the way. However, the dispatcher recorded the call as "investigate the trouble" and did not dispatch it to any officers. The two women believed that police might be in the house as a result of their second call for help. They therefore shouted downstairs to their neighbor, thereby alerting the intruders to their presence in the house. The two women were then held captive along with their neighbor for fourteen hours during which time they were the victims of a series of violent sexual assaults. Their action against the police department for negligent failure to provide police services ended in a dismissal for failure to state a claim because there was no "special relationship out of which a duty to specific persons arises." Warren, supra, 444 A.2d at 4. In the case before us, Faith Gary had not entered into a relationship with District employees in the emergency care context that was significantly different from the relationship entered into by the unfortunate plaintiffs in Warren.

Appellant also argues that the public duty doctrine does not apply because, unlike police and fire personnel, EAD personnel do not exercise discretion in carrying out their duties. While this court has frequently applied the distinction between discretionary and ministerial functions to cases involving potential civil liability of the District of Columbia for the results of administrative decisions, see, e.g., Chandler v. District of Columbia, 404 A.2d 964 (D.C. 1979) (District owes no duty of care for administrative decision to close certain fire stations), we have not applied it to the public duty doctrine. The court in Chandler considered the distinction between discretionary and ministerial functions as it related to the special form of sovereign immunity accorded the District as a municipality. *fn4 See also District of Columbia v. Owens-Corning Fiberglas Corp., 572 A.2d 394 (D.C. 1989). We decline to make that distinction a factor in cases involving hands-on delivery of emergency services to citizens by District agents. *fn5 We conclude that the public duty doctrine insulates the EAD in essentially the same manner as the police or fire departments. See Wanzer v. District of Columbia, 580 A.2d 127, slip op. at 9, decided this day.

Our analysis cannot end here, however. Courts have recognized several exceptions to the public duty doctrine, and we must determine whether appellant falls within any of those exceptions. For example, this court and many others have held that the doctrine does not operate to shield the official actions of the police when there is "'active use' of a private citizen in the investigation, arrest, or prosecution of a criminal." Morgan, supra, 468 A.2d at 1312-13 (citing cases). In such instances, the actions of the police expose a citizen to a risk he or she would otherwise not face. Appellant contends that in undertaking to help Ms. Gary, the District "significantly increased the risk of harm to her over other members of the community if it failed to act reasonably." But the deployment of emergency services to Gary is different in nature from situations in which a citizen is persuaded to be of "active use" in police work. See, e.g., Christy v. City of Baton Rouge, 282 So. 2d 724 (La. App. 1973) (liability found for police failure to protect citizen who assisted in arrest). The exception for increased risks to citizens has so far been confined to instances of enlistment of citizens in law enforcement. See, e.g., MCQUILLIN, MUNICIPAL CORPORATIONS § 53.81b (1984). Appellant has not persuaded us that this exception should be extended to emergency assistance cases like the one before us.

We are also unpersuaded by appellant's argument that decedent is excepted from application of the public duty doctrine because she was a member of a special class of persons to whom a legal duty is owed. This court has noted that "there are at least two ways to demonstrate the existence of a 'special relationship' between the and the injured party. . . ." Turner v. District of Columbia, 532 A.2d 662, 667 (D.C. 1987). These are direct or continuing contact between the victim and the governmental agency or official, a theory we have already discussed, and "a statute that prescribes 'mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole.'" Turner, supra, 532 A.2d at 667 (quoting Morgan, supra, 468 A.2d at 1314).

Appellant argues that the regulations, Mayor's order, and protocols applicable to the District's Emergency Ambulance Division create such a class of individuals -- "persons who are seriously ill or injured and who receive emergency medical care and transportation by the Emergency Ambulance Division." Appellant supports this argument by analogy to the source of the duty in Turner, that is, the Child Abuse Prevention Act, D.C. Code § § 6-2101-2127 (1989 Repl.). We find the analogy unpersuasive. Virtually every citizen of the District could find himself or herself in need of assistance from the EAD at one time or another; if there is a particular "class" of citizens who benefit, its members are distinguished from the general public only in that they are temporarily in need of emergency services. In this, they do not differ from citizens who find themselves in need of emergency police or fire services. See Wanzer v. District of Columbia, supra, slip op. at 12-13. All of us may be temporary members of one or more of these "classes" at some time. There exists no "class" in the sense that would justify invoking the special relationship exception to the public duty doctrine.

Courts have also recognized an exception to the public duty doctrine where there is justifiable reliance on a specific undertaking to render aid. Appellant argues that there was a special relationship between the District and Gary by virtue of Hines' telephone call as well as the arrival and efforts of the basic life support unit. His main authority for this contention is a New York holding, Florence v. Goldberg, 44 N.Y.2d 189, 375 N.E.2d 763, 404 N.Y.S.2d 583 (1978). This court has read Florence to state that an exception to the public duty doctrine arises from the combination of (1) a specific undertaking by a government agent to provide help or protection to a specific individual or group ...


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