Editor’s Note: This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at spieper@lexipol.com.
Question: If we are dispatched to an emergency, such as a vehicle accident, and police cancel us because the victim says he is not injured, does that eliminate any special duty we may have to the patient in the event it turns out they were injured?
Answer: First of all, I LOVE the question. It shows you are familiar with the law related to special duty. The answer is, on one hand, rather simple. The facts you state do not create a scenario where a special duty would arise. However, to fully understand that simple, straightforward answer, we need to understand the public duty doctrine and the role that the special duty rule plays in fire department liability.
Let’s start with the concept of duty in our legal system. To be held liable for negligence, a defendant must owe a legal duty to a plaintiff, and as a result of the breach of that legal duty, the plaintiff is harmed. That begs the question: How is a legal duty created? There are essentially two ways. The first involves an affirmative act, the second involves an omission or failure to act.
When someone engages in an affirmative act, such as driving a car, cooking a meal or operating a chainsaw, they have a legal duty to exercise reasonable care to those who may foreseeably be injured. An omission, or the failure to act, can only give rise to a duty to exercise reasonable care when the person is under a legal duty to act.
Legal Duty to Act
In our legal system, the general rule is no one has a legal duty to act. But a legal duty to act can arise in a number of ways. One such way is by the enactment of a statute. For example, in most jurisdictions there is a state law that places a legal duty on the driver of a vehicle to render aid to someone injured in a collision involving that vehicle. Many states have statutes requiring certain people to report certain criminal offenses, such as child abuse. However, the most common way a legal duty to act is created is based upon the relationship between the parties.
A parent has a legal duty to a child, a doctor has a legal duty to a patient, and a lifeguard has a legal duty to a swimmer. The relationship-based duty requires the parent, doctor or lifeguard to act affirmatively to protect the child, patient or swimmer. That duty to act is analogous to the duty of someone who is acting affirmatively – such as someone who drives a car, cooks a meal or operates a chainsaw. Legal philosophers distinguish between the two types of negligence-related duty through use of the terms misfeasance (an affirmative act done negligently) and nonfeasance (negligently failing to act when under a legal duty to act).
The liability protections afforded by the public duty doctrine and/or the special duty rule should not be mistaken for good practice.
With this as a background, what is the responsibility of government toward the public? Does a firefighter have a legal duty to respond to an alarm such that the failure to respond could give rise to liability? At first glance, one might say, of course a firefighter and a fire department have a duty to respond in the same way an on-duty lifeguard has a duty to a swimmer.
But there’s a problem.
What if the firefighter is already at a fire at Mrs. Smith’s house, and Mrs. Jones calls 911? Did we breach a duty owed to Mrs. Jones by having a further away unit respond? And it gets worse: What if their apparatus is staffed with four firefighters, but six are needed to rescue a certain victim? What if the truck has a 100-foot aerial, but firefighters need a 110-foot aerial to effect a rescue? What if our water tank holds 750 gallons of water but we need 1,000 gallons? Is a duty breached? Welcome to the slippery slope of liability, where no matter how much you do, it may not be enough.
The Public Duty Doctrine
The public duty doctrine exists because taken to the extreme, government could become a de facto insurance provider to anyone who is injured. All someone would need to do would be to allege that the government had a legal duty to prevent some sort of harm and did not do enough to prevent the harm from occurring.
Maybe the speed limit on a certain road should have been 55 instead of 65, and that would have prevented a fatal crash. Maybe a red light instead of a stop sign would have prevented an accident. Maybe a fire department should have purchased a 110-foot aerial rather than a 100-foot aerial, and that would have saved someone’s life. Maybe a certain firehouse should have had an engine and an EMS unit instead of an engine and a ladder.
To ensure government does not become the ultimate insurer of every conceivable injury, the public duty doctrine evolved through judge-made law right around the time that government tort immunity was being eliminated through legislative action that abolished sovereign immunity. The public duty doctrine holds that government does not have a legal duty to act or render aid in the same way a parent, a doctor or a lifeguard would. Government does not have a legally enforceable duty to protect the general public from harm.
Under the public duty doctrine, government can only be held liable if a special relationship is created between a government actor and an injured party. The creation of that special relationship is limited to a precise circumstance: Government must make a specific promise to render aid to a specific person knowing the person will rely upon that promise, the injured party must reasonably rely upon the promise, and is injured as a result of that reliance. In the case of such a special relationship, government would have a legal duty to a given person. This duty is typically referred to as a special duty.
As if this topic were not complex enough, 50 different state supreme courts plus the federal court system have – with the best of intentions and while dealing with factually different cases – reached different conclusions about many of the finer points of the public duty doctrine and the special duty rule. Some courts limit the application of the public duty doctrine to an omission, or the failure to act (nonfeasance). They draw a distinction between doing something negligently (misfeasance – such driving a car at 65 mph in a 55-mph zone), where the public duty rule does not apply, and failing to do something (nonfeasance – such as failing to respond to an alarm), where the public duty rule would apply and liability would only arise if a special relationship existed.
Other states do not draw this distinction and apply the public duty doctrine to both misfeasance and nonfeasance. A few states have abolished the public duty doctrine entirely. There are also states that do not even refer to the public duty doctrine by name, but rather jump right to the special duty rule, concluding that in the absence of a special relationship, government cannot be held liable for negligence.
Misfeasance or Nonfeasance?
A challenging aspect of the public duty doctrine that comes up in states that draw a distinction between misfeasance and nonfeasance is a philosophical question about whether a given injury is the result of misfeasance (an act done negligently) or nonfeasance (the negligent failure to do something).
Consider an accident involving an engine company at an intersection controlled by a traffic light. The engine company failed to stop at the right light, striking the plaintiff’s vehicle and causing damage. Was the accident the result of an affirmative act (driving an engine) done negligently, or was it the result of an omission – a failure to act (failure to stop) that was negligent? In states that draw the distinction a between misfeasance and nonfeasance in the public duty doctrine, a judge could dismiss a lawsuit to the extent the accident was caused by a failure to act.
Does a firefighter have a legal duty to respond to an alarm such that the failure to respond could give rise to liability?
My sense is that judges love this type of analysis because it allows them the latitude to characterize cases they view as meritorious as misfeasance (and thus no liability protection for the fire department) while characterizing non-meritorious cases as a failure to act (and thus subject to the special duty rule).
That (believe it or not) brings us back to your question about the cancellation of a response. In jurisdictions that draw a distinction between misfeasance and nonfeasance, a question arises: Is the act of cancelling a response an affirmative act (responding to an alarm) done negligently (making it misfeasance) or is it an omission (as in failing to respond to the scene) done negligently (nonfeasance)?
Flip a coin. It is one reason why evaluating cases like this can be so difficult, particularly in states that draw the misfeasance-nonfeasance distinction.
Emergency Response and the Special Duty Rule
With all this as a background, let me explain why the factual scenario you describe is not a special duty situation. A special duty requires a promise by a governmental actor to provide a service to a specific “victim”; an understanding by the governmental official making the promise that the victim would be relying upon the promise; the victim reasonably relies on the promise; and the victim is harmed as a result of the reliance. None of that was present in your scenario.
As a general rule, the mere response to an emergency scene does not constitute a promise sufficient to create a special duty. Something more in terms of a specific promise is necessary. The best fire service case I am aware of that explains this distinction is Odie v. City of Gary (638 N.E.2d 1326 (1994)).
In the Odie case, Mrs. Odie called the Gary Fire Department for an ambulance for Mr. Odie, who was having trouble breathing. When the ambulance failed to arrive and Mr. Odie’s condition worsened, Mrs. Odie and later her son called dispatch three additional times. Each time the dispatcher assured them an EMS unit was enroute and would be there momentarily. These assurances were made at a point in time when the dispatcher was fully aware that the EMS unit could not be located. It took over 40 minutes for the ambulance to arrive, and Mr. Odie coded just prior to their arrival.
Central to the creation of a special duty was the fact the Odies lived near a hospital and family members could have driven Mr. Odie to the emergency room in five minutes had the dispatcher told them, “We cannot locate the EMS unit.” The Odies were relying upon the assurances from the dispatcher in refraining from transporting Mr. Odie, and harm resulted. I would point out that the first call for an ambulance that Mrs. Odie made, and perhaps the second call, would not have been enough to create a special duty. However, at some point thereafter, given the repeated assurances of the dispatcher, a special duty was created.
Compare that to the scenario you describe where an EMS unit was cancelled by police because the patient declined aid. There was no assurance given by the EMS unit that help would be provided. There was no detrimental reliance upon the assurance by the victim. Thus, there was no special duty.
Liability vs. Best Practice
Finally, there is an underlying question within your question, one that is also worth discussing: Should the fire and EMS personnel accept a radio-based cancellation from the police, or should they have continued on to the scene? Often this question is raised in the context of a concern about liability: “Chief Varone, doesn’t this open us up to liability?”
Relying on liability as a measure of best practices can lead to paradoxical results. The liability protections afforded by the public duty doctrine and/or the special duty rule should not be mistaken for good practice. In other words, just because in many jurisdictions the absence of a special duty would protect the firefighters, medics and fire department from liability, does not mean accepting cancellations under these circumstances is a wise thing to do. That is best left up to the local authorities to assess through their policy-making process.
By establishing the best practice by policy, the organization can ensure personnel are acting in a manner consistent with the standard of care for providers in the area. It also avoids inconsistent decision-making that arises when that kind of decision is left up to different officers and/or medics. Policy also allows for local conditions to be considered. In a major city with relatively short response times and available additional resources, perhaps requiring a responding unit to continue in would be advisable. However, in a rural area where the responding unit is the only one available for a large geographic area, and is 30 minutes from the scene, requiring the responding unit to continue in may not be advisable.
Managing issues such as this through policy also provides an additional layer of liability protection because the policy development process is typically considered to be a discretionary act, triggering tort immunity in many jurisdictions. An individual medic making the same decision in the absence of a policy is often considered to be making a functionary or ministerial decision. Functionary decisions are less likely to be protected by immunity protection. Policy setting is universally considered to be discretionary.
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So there you have it. While the answer to your question is simple, the underlying issues it brings up are inherently complex. Applying the special duty rule to emergency response will depend highly on the facts of the case as well as state-specific legislation and case law.
