Summary
holding that the EMT's employer cannot invoke Section 9.59 with respect to a negligent hiring claim as opposed to a claim premised on vicarious liability
Summary of this case from Schoolcraft v. City of N.Y.Opinion
August 5, 1999.
Appeal from the Supreme Court, New York County (Stanley Sklar, J.).
Defendant EMT is immune from liability for ordinary negligence under Mental Hygiene Law § 9.59, which applies here since the decedent was being involuntarily transported from an emergency room to a psychiatric hospital. As such, defendant EMT can be held liable only if the driver's acts in transporting the decedent amounted to gross negligence, i.e., evinced a "reckless disregard" for the decedent's rights or "intentional wrongdoing" ( Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 N.Y.2d 821, 823, 824). Plaintiff fails to demonstrate any indicia of such gross negligence. The statute, however, does not avail defendant ambulance service where the claim of negligence against it is based not on its transport of the, decedent but rather on its failure to provide qualified, competent personnel. Nor does the statute, which in terms applies only to ambulance services and EMTs, avail defendant ambulance driver, whose negligence, as the motion court found, is an issue of fact.
Concur — Sullivan, J. P., Nardelli, Mazzarelli, Rubin and Andrias, JJ.