Tiffany Applewhite,, et al., Respondents,v.Accuhealth, Inc., et al., Defendants, City of New York, Appellant.BriefN.Y.January 7, 2013COURT OF APPEALS STATE OF NEW YORK To be argued by Drake A. Colley TIFFANY APPLEWHITE, an infant under the age of 14 years, by her mother and natural guardian, SAMANTHA APPLEWHITE, and SAMANTHA APPLEWHITE, individually, Plaintiffs-Respondents, -against- ACCUHEALTH, INC. and LINDA RUSSO, R.N., Defendants, -and- EMERGENCY MEDICAL SERVICE and THE CITY OF NEW YORK, Defendants-Appellants. APPELLANTS' SUPPLEMENTAL BRIEF FAY LEOUSSIS, AMY G. LONDON, EDWARD F.X. HART, DIANA LAWLESS, DRAKE A. COLLEY, of Counsel. March 18, 2013 MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Defendants-Appellants 100 Church Street, 6-173 New York, New York 10007. (212) 788-1613 or 0835 BRONX COUNTY INDEX NO. 22234/1998 REPRODUCED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i i PRELIMINARY STATEMENT .......................................... 1 STATEMENT OF FACTS ............................................. 2 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 THE PROVISION OF ON-SCENE EMERGENCY MEDICAL SERVICES BY MUNICIPAL EMS PERSONNEL CONSTITUTES FUNCTION. A GOVERNMENTAL CONCLUSION .................................................... 25 i TABLE OF AUTHORITIES CASES Ayala v. City of Corpus Christi, 507 S.W.2d 324 (Tex. Civ. App. 1974) ......................... 5 Balsam v. Delma Engineering Corp., 90 NY2d 966 (1997) ...................................... 22, 23 Bonner v. City of New York, 73 NY2d 930 (1989) .......................................... 19 Clarke v. City of New York, 18 AD3d 796 (2d Dept. 2005) .................................. 8 Concepcion v. Walsh, 38 AD2d 317 (1st Dept. 2007) ................................ 19 Cuffy v. City of New York, 69 NY2d 255 (1987) .......................................... 14 Donohue v. Copiague Union Free School District, 4 7 NY2 d 4 4 0 ( 19 7 9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 Edwards v. City of Portsmouth, 375 S.E.2d 747 (Va. 1989) .................................... 6 Garrett v. Holiday Inns, Inc., 58 NY2d 253 (1983) .......................................... 24 Harland Enterprises, Inc., v. Commander Oil Corp., 6 4 NY 2 d 7 0 8 ( 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Helman v. County of Warren, 67 NY2d 799 (1986) .......................................... 24 Hines v. District of Columbia, 580 A.2d 133 (D.C. Ct. of App. 1990) .................... 16, 17 In the Matter of World Trade Center Bombing Litigation, 17 NY3d 428 (2011), mot. for rearg. den., 18 NY3d 898 (2012) ...................................................... 18 Johnson v. District of Columbia, 58 0 A . 2 d 14 0 ( D . c . Ct . 0 f App . 19 9 0 ) . . . . . . . . . . . . . . . . . . . . 15 I 16 ii Kenavan v. City of New York, 70 NY2d 558 (1987) .......................................... 22 King v. Williams, 5 Ohio St. 3d 137, 449 N.E.2d 452 (1983) ..................... 5 Kovit v. Hallums, 4 NY3d 499 (2005) ........................................... 23 Kupferstein v. City of New York, 101 AD3d 952 (2d Dept. 2012) ........................... 12, 13 Laratro v. City of New York, 8 NY 3d 7 9 ( 2 0 0 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I 3 I 6 I 2 0 Lauer v. City of New York, 95 NY2d 95 (2000) ........................................... 23 Mark G. v. Sabol, 9 3 NY2 d 710 ( 19 9 9 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 McCormack v. City of New York, 80 NY2d 808 (1992) ........................................... 8 McLean v. City of New York, 12 NY3d 194 (2009) .......................................... 23 ~on v. City of New York, 7 8 NY3 d 3 0 9 ( 19 91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 O'Connor v. City of New York, 58 NY2d 184 (1983) .......................................... 24 O'Neil & Hearne v. Bray's Administratix, 262 Ky. 377, 90 S.W.2d 353 (Ky. Ct. App. 1936) ............... 5 Pelaez v. Seide, 2 NY3d 186 (2004) ....................................... passim Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641 (1984) ......................... 5 Rottkamp v. Young, 15 NY2 d 8 31 ( 19 6 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 iii Sandra M. v. St. Luke's Roosevelt Hosp. Med. Ctr., 33 AD2d 75 (2d Dept. 2006) .................................. 19 Sherpa v. New York City Health and Hospitals Corporation, 90 AD3d 738 (2d Dep't 2011) .................................. 4 Smith v. City of Lexington, 307 S.W.2d 568 (Ky. Ct. App. 1957) ........................... 5 Steitz v. City of Beacon, 295 NY 51 (1945) ............................................ 22 Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000), cert. den. 531 U.S. 1077 (2001) ...................................................... 17 Thornton v. Shore, 2 3 3 Kan . 7 3 7 , 6 6 6 P . 2 d 6 5 5 ( 19 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Valdez v. City of New York, 18 NY3 d 6 9 ( 2 0 11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I 8 I 2 2 Vitale v. City of New York, 60 NY2d 861 (1983) .......................................... 23 r v. District of Columbia, 580 A.2d 127 (D.C. 1990) .......................... 4 1 5, 15, 16 Weiss v. Fote, 7 NY2 d 57 9 ( 19 6 0) ] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Wesley v. Mercy Ambulance Corp of Greater Richmond, 37 Va. Cir. 354 ............................................. 17 OTHER AUTHORITIES 30 Fordham Urb. L.J. 1105, 1132 (2003) ........................ 22 New York City Charter, Ch. 19, § 487(f) ....................... 20 9 U. Pa. J. Canst. L. 797, 845 (2007) ......................... 21 6-231 Warren's Negligence in the New York Courts § 231. 08 [1] ................................................... 21 -iv- COURT OF APPEALS STATE OF NEW YORK TIFFANY APPLEWHITE, an infant under the age of 14 years, by her mother and natural guardian, SAMANTHA APPLEWHITE, and SAMANTHA APPLEWHITE, individually, Plaintiffs-Respondents, -against- ACCUHEALTH, INC. and LINDA RUSSO, R.N., Defendants, -and- EMERGENCY MEDICAL SERVICE and THE CITY OF NEW YORK, Defendants-Appellants. APPELLANT'S SUPPLEMENTAL BRIEF PRELIMINARY STATEMENT This supplemental brief is submitted in response to the Court's invitation, and in further support of the appeal of defendants-appellants the City of New York ("City"), also sued herein as "Emergency Medical Service," a non-suable entity, from a decision and order of the Appellate Division, First Department, dated and entered December 15, 2011 ("order"). STATEMENT OF FACTS For a full rendition of the facts, the Court is respectfully referred to the Statement of Facts appearing in Appellants' Brief, and to the Record on Appeal. ARGUMENT THE PROVISION EMERGENCY MEDICAL MUNICIPAL EMS CONSTITUTES FUNCTION. A OF ON-SCENE SERVICES BY PERSONNEL GOVERNMENTAL The issue on which this Court requested supplemental briefing is whether, once EMS personnel arrive on scene, their interactions with the individual in need of assistance constitute a governmental or a proprietary function. Plaintiffs posit that an "EMT-patient relationship" with a proprietary "duty of care 11 at taches once EMS arrives at a call location {respondents' brief at 33), while the City contends that the on- scene services provided by municipal emergency medical personnel are part of a single rescue-and-transport function, generally commenced via a 911 call, that is fundamentally governmental in nature. The starting point for analysis of this issue is Laratro v. City of New York, 8 NY3d 79, 81 {2006), in which this Court stated as follows: 2- Protecting health and safety is one of municipal government's most important duties. Since municipalities are run by human beings, they sometimes fail in that duty, with harmful, even catastrophic, consequences. When that happens, as a general rule, the municipality is not required to pay damages to the person injured. The rationale for this rule is that the cost to municipalities of allowing recovery would be excessive; the threat of liability might deter or paralyze useful activity; and thus the net result of allowing recovery would be to make municipal governments less, not more, effective in protecting their citizens. In granting summary judgment to the City where plaintiff had allegedly sustained brain damage as a result of the City's failure to provide an ambulance for 35 minutes following a 911 call, the Laratro court articulated the policy underpinnings for holding that the assignment and dispatch of ambulances through the 911 emergency communication system constitutes a governmental function. Accordingly, the Court applied "the well-established rule that a municipality is not liable to a person injured by the breach of a duty--like the duty to provide police protection, fire protection or ambulance service--that the municipality owes to the general public." Id. at 82-83. In the case at bar, plaintiffs do not challenge the core principle underlying the Laratro decision that a municipality's failure to timely send an ambulance is not actionable in the absence of a special duty because ambulance dispatch via the 911 system is a governmental function. (Respondents' Brief at p. 3.) Plaintiffs, thus, also do not challenge the proposition that the totality of an EMS dispatcher,s role including taking information from a 911 caller, designating a call type (which, in turn, determines the call priority as well as what type of ambulance crew and other first responders will be sent), and assigning responders to a particular call similarly qualifies as a governmental function. 1 Indeed, this Court 1 S categorization of governmental emergency medical services with police and fire protection services is consistent with the determinations of several other jurisdictions that have linked all three services. For example, in Wanzer v. District of Columbia, 580 A.2d 127 (D.C. 1990), the trial court had dismissed an action alleging that a 911 dispatcher was negligent because plaintiff failed, as a matter of law, to establish that the District owed a special duty to the decedent. The District of Columbia Court of Appeals 1 See Sherpa v. New York City Health and Hospitals Corporation, 90 AD3d 738 (2d Dep 1 t 2011). -4- affirmed the dismissal/ relying upon a series of cases from other states2 that also equated ambulance services with police and fire protection services . Id. Yet another jurisdiction, noting that the municipality "could not have established the emergency ambulance services here in dispute were it not exercising its police powerS 1 11 reasoned that "if collecting garbage is a governmental function, then providing ambulance services must be, because it is difficult to imagine anything 2 The court stated that "It is generally held that 'the institution of a [publicly operated] emergency ambulance service is. .a service kindred to the police or fire service. This type of service is incident to the police power of state: i.e., to protect the health, safety, and general welfare of its citizens. 11 Ayala v. City of Corpus Christi, 507 S.W.2d 324, 328 (Tex. Civ. App. 1974) (citations omitted); see Thornton v. Shore, 233 Kan. 737, 666 P.2d 655, 659 (1983); Smith V. City of Lexington, 307 S.W.2d 568 (Ky. Ct. App. 1957); Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641 1 676 (1984); King v. Williams, 5 Ohio St. 3d 137, 449 N.E.2d 452, 455 (1983); cf. O'Neil & Hearne v. Bray's Administratix, 262 Ky. 377, 90 S.W.2d 353, 355 (Ky. Ct. App. 1936) ... Id. at 130. "Where available," the Court went on to state, "the easily remembered 911 emergency number connects a caller with the fire department, the police department, and the ambulance service, thereby providing an efficient and effective means of summoning one or more of these vital and integrally related services to the scene of a calamity (citations and footnotes omitted)." Id. -5- more directly tied to the health, safety, and welfare of the citizens." Edwards v. City of Portsmouth, 375 S.E.2d 747, 749 (Va. 1989). In arguing that on-scene emergency medical services constitute a proprietary function, plaintiffs misconstrue the nature of EMS's mission. This Court, by analytically categorizing the provision of ambulance services with police and fire protection in Laratro, recognized that EMTs and paramedics fulfill a role fundamentally more similar to police officers and firefighters than to the physicians, nurses, lab technicians and other traditional medical providers with whom plaintiffs seeks to align them for purposes of determining legal duty. Like those other first responders, emergency medical personnel travel throughout the City at high speeds, after which they unload their equipment, determine how to access the emergency site, and work as quickly and efficiently as possible to provide the needed assistance. 3 In the case of emergency medical personnel, this means determining whether the assisted individual is stable enough to survive transport to the hospital, securing him or her on a stretcher or stair chair, maneuvering the individual from the call site to an ambulance 3 In the calendar year 2012, there were nearly 1.3 million calls for emergency medical services to which the FDNY dispatched ambulances. http://www.nyc.gov/html/fdny/pdf/vital stats 2012 cy.pdf -6 safely but expeditiously, and resuming their high-speed travel in order to arrive at the appropriate hospital as soon as possible. All of these actions, including the interventions necessary for stabilization, are properly characterized as governmental, just as are those of firefighters and police officers when they are fulfilling their respective fire- and police-protection functions. 4 Emergency medical personnel not only perform functions akin to, but also often work alongside, fire and police personnel. Where a car accident victim is pinned in his or her vehicle, fire department personnel will utilize "the jaws of life" or other equipment to extricate the individual, while emergency medical personnel will intervene as soon as practicably possible to begin the assessment, stabilization and transport process. Emergency medical personnel also respond to fires, preparing to stabilize and transport those rescued by the firefighters. Similarly, both police officers and emergency medical personnel routinely respond to calls involving emotionally-disturbed persons, the officers to restrain the 4 Valdez v. City of New York, 18 NY3d 69, 75 ("the provision of police protection ... is a classic governmental, rather than proprietary, function"}; Harland Enterprises, Inc., v. Commander Oil Corp., 64 NY2d 708, 709 ( 1984} ("[a] fire department is not chargeable with negligence for failure to exercise perfect judgment in discharging the governmental function of fighting fires."} . -7- person, if necessary, and the emergency medical personnel to check vital signs and otherwise evaluate the individual's condition. The manner in which municipal emergency medical personnel elect to handle a call once they have arrived at a scene is no different, for legal purposes 1 from the choices firefighters make when engaging in rescue attempts during a fire or those of police officers when confronting emotionally- disturbed individuals/ both of which have been defined as governmental functions. See 1 respectively, Clarke v. City of New York, 18 AD3d 796 (2d Dep't 2005); McCormack v. City of New York, 80 NY2d 808 (1992). All of the policy concerns advanced by designating police and fire protection as governmental functions are, likewise, advanced by designating emergency medical personnel's on-scene acts as governmental first, because on-scene acts are inextricably intertwined with the entire governmental rescue function, and second 1 because it "'reflects a value judgment that the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions/ unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. 111 Valdez v. City of New York, 18 NY3d 69 1 76 (2011) (citation omitted). -8- The proffered construct that EMTs and paramedics/ function becomes wholly proprietary just as they cross the threshold into a private home or arrive at an accident scene 1 triggering a duty of care 1 ignores the fact that the on-scene provision of emergency medical services involves tasks that fundamentally and seamlessly intertwine with the ambulance assignment and dispatch functions plaintiffs concede to be governmental. Indeed, the acts at the heart of plaintiffs 1 challenge to the EMTS 1 conduct after they entered the Applewhite home - their decision to await advanced life support (ALS) back- up and their purported delay in calling for such back-up are functionally indistinguishable from the acts of the EMS dispatcher (also a certified EMT) in designating the call type and 1 when the preferred ALS ambulance initially proved unavailable/ assigning a basic life support (BLS) crew. Just as the EMS dispatcher 1 S acts implicate a governmental function 1 so do the responding EMTs 1 acts in requesting an ALS crew and awaiting its arrival rather than immediately transporting Tiffany to the hospital. And just as the 911 system will best operate by narrowly limiting the ability to bring lawsuits for allegedly negligent ambulance dispatch, EMS and other emergency medical personnel in this state will be in the best position to provide optimal on-scene services if governmental entities are 9- not routinely and continually the target of lawsuits claiming negligence in providing such services. The fallacious nature of positing that the City assumed a duty upon first encountering Tiffany is similarly evident with respect to plaintiffs' other claim, that the EMTs did not bring oxygen to the Applewhite apartment when they arrived. At the moment the EMTs left their ambulance without oxygen, they did not yet owe any duty to plaintiffs. Moreover, it is patently illogical to posit that, while a failure of EMS to arrive at all cannot result in liability in the absence of a special duty because dispatching ambulances is a governmental function, the arrival of a crew without full equipment triggers a proprietary duty. Similarly, under plaintiffs' construct, a crew that takes too long to get to a call site due to alleged negligence in accessing the building would be judged under a governmental function analysis, while the same crew's alleged negligence in transporting the assisted individual out of the building would be assessed as a proprietary function. As an alternative framework, plaintiffs suggest that the allegedly negligent on-scene actions of emergency medical personnel in a given lawsuit should be positioned on one end or the other of the proprietary-governmental continuum, depending upon the nature of the specific allegation. (Respondents' Brief at p. 30.) Such analysis, as demonstrated above, would not -10- change the result in this action, as the specific acts challenged herein the failure to bring oxygen as well as the EMTs' decision to call for ALS back-up and purported delay in doing so spectrum. undoubtedly fall on the governmental end of the Nor can it logically be argued that, where discrete emergency medical interventions are at issue - such as a claim that emergency medical personnel were negligent in performing an intubation, administering medication or conducting CPR and, thus, failed to make the assisted individual better - emergency medical personnel's functions slide towards the proprietary end of the spectrum. Identifying these functions as proprietary is both practically unworkable and fundamentally misguided, as it ignores the underlying goal of such interventions as well the environment and context in which they are performed. Indeed, public policy is far better served by treating all municipal on- scene actions as governmental, for any other approach will penalize, and thus disincentive, governmental entities from engaging in the more complex interventions in favor of what some call a "scoop and run" - that is, doing nothing on scene other than packaging an individual for transport and rushing him or her down to the ambulance and into an emergency room. Such a result would, undoubtedly, lead to more serious outcomes for the -11- New York State residents who require emergency medical attention. Any attempt to separate out discrete "medical" interventions and label them as proprietary ignores the fact that emergency medical interventions are performed essentially to facilitate the transport of individuals to the hospital. In its recent decision in Kupferstein v. City of New York, 101 A.D.3d 952 (2d Dep't 2012), 5 the Appellate Division, Second Department, so recognized when it characterized all of plaintiff's allegations therein as implicating governmental functions, including the administration of a sedative. The decedent in Kupferstein, an asthmatic, was alone in his apartment when he called 911 because he was having an asthma attack. He collapsed in front of his door before EMS arrived. The first-responding unit, a BLS crew, had to push in the door and move decedent's dog to another room before it could begin rendering assistance. The EMTs then called for ALS back-up, a decision which plaintiff challenged, asserting that the EMTs should have immediately transported decedent to the hospital. Upon their arrival, the paramedics intubated decedent, who was unresponsive, put in an intravenous line and administered medication after which they placed him, on a stretcher, into 5 Plaintiff's motion to reargue or for leave to appeal to this Court is pending. -12 the building's small elevator, another decision which plaintiff challenged. Once in the elevator, the medication began to take effect; decedent became minimally responsive and agitated, wedging himself into the elevator. He also dislodged his IV line and endotracheal tube. The EMS personnel, covered with decedent's blood and feces, contacted EMS's on-call physician and got permission to administer a sedative. The sedative calmed decedent enough to remove him from the elevator, though he died later that day. (Kupferstein Appellant's Brief at pp. 3, 6-8.) The Kupferstein court held that the allegedly negligent acts including waiting for ALS back up and administering a sedative - all were directly related to EMS's transport function and, thus, governmental in nature. The decision is informative in several respects. Its facts highlight the range of access and movement challenges EMS faces on a regular basis, as well as the frequent need for quick decision-making as to whether to wait for additional support. While the administration of the sedative in Kupferstein was linked directly to EMS's ability to transport decedent, the governmental nature of what emergency medical personnel do on scene is no different where medication is given in an individual's living room or in an ambulance, as the purpose of providing such medication is ultimately not to make the -13- individual more comfortable or to begin a course of treatment but rather to keep him or her alive so that the appropriate treatment can be provided in a hospital setting. Characterizing on-scene municipal emergency medical services as governmental will not immunize governmental providers of emergency medical services from all liability for negligence in providing such services. A special duty may arise where plaintiff can plead and prove all four prongs set forth in Cuffy v. City of New York 1 69 NY2d 255 (1987). Moreover/ and as extensively discussed in the City's reply brief, in certain circumstances where EMTs or paramedics perform affirmative acts that directly place the assisted individual in a worse position than if EMS had not responded at all, the emergency medical providers may have assumed "positive direction and control in the face of a known, blatant and dangerous safety violation," thus establishing a special duty. Pelaez v. Seide, 2 NY3d 186 1 203 (2004). Such a duty may 1 accordingly/ attach where an EMS crew drops an individual from a stretcher 1 resulting in a fracture; causes an intravenous line to infiltrate/ injuring the surrounding skin; or administers a contraindicated medication that leads to death 1 where the assisted individual would likely have survived had EMS not arrived and given the medication. In the case at bar, however 1 plaintiffs advance no such argument, -14 instead contending that the EMTS 1 failures/ not their acts/ contributed to Tiffany 1 s injuries. At least one other jurisdiction/ the District of Columbia 1 has considered the characterization of suits claiming negligent on-scene municipal emergency medical services and has adopted the analytical framework suggested by the City. On the same day that the District 1 s Court of Appeals released its decision in Wanz v. District of Columbia/ supra/ applying the District 1 S "public duty doctrine11 to a 911 dispatcher 1 the court ruled on two other cases in which it held on-scene emergency medical services likewise to constitute a public duty. In Johnson v. District of Columbia 1 580 A2d 140 (D.C. 1990) 1 a woman collapsed from an apparent heart attack. In response to a 911 call made on her behalf 1 firefighters from the District Is Emergency Ambulance Division arrived on scene and administered but the woman later died/ allegedly because the firefighters were negligent with respect to the timing and adequacy of their response. In rejecting the plaintiff 1 S argument that a duty had attached upon the firefighters/ arrival 1 the court held that liability could arise only if plaintiff could show "that some act of the firefighters in administering emergency medical assistance to [decedent] actually made [her] condition worse than it would have been had the firefighters failed to show up at all or done nothing after -15- their arrival." Johnson v. District of Columbia, 580 A2d at 142. Issued along with Wanzer and Johnson was Hines v. District of Columbia, 580 A2d 133 (D.C. 1990), which presented facts remarkably similar to those at bar. In Hines, a municipal BLS unit had responded to a 911 call for an unconscious individual. While one EMT began CPR, the other went to get a stretcher and call for ALS back-up. Although an ALS unit eventually arrived and transported the individual to a hospital, she died three hours later. Among plaintiff's claims was that the EMTs should have transported decedent as soon as they realized, through a follow-up call to the dispatcher, that the ALS unit was delayed. In affirming the lower court's grant of summary judgment in the District's favor, the court observed that [a]ppellant 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 .... The same is true of the fire department. Furthermore, [Emergency Ambulance Division] crews frequently respond to 16- accidents that occur places ... along with re personnel. citizens may call for services by dialing emergency telephone 911 .... in public police and Individual all three the same number, 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 .... All of us may be temporary members of one or more of these 'classes' at some time. (Internal citations omitted.) Hines v. District of Columbia, 580 A2d at 136, 138. 6 It is equally true that virtually every citizen of the City of New York may also, at some point in his or her life, need the assistance of the City's Emergency Medical Service. Accordingly, the policy considerations underlying this state's public duty doctrine are equally well-served by designating all 6 Accord, Taylor v. Adams, 221 F3d 1254 (11th Cir. 2000), cert. den., 531 U.S. 1077 (2001) (federal court, applying Alabama law, held that firemedics who allegedly provided inadequate emergency medical care were entitled to discretionary function immunity) ; Wesley v. Mercy Ambulance Corp of Greater Richmond, 37 Va. Cir. 354 (Cir. Ct. Richmond 1995) {municipal ambulance crew's allegedly-negligent examination and treatment deemed entitled to discretionary-function sovereign immunity). -17- on-scene municipal emergency medical services as a governmental function. In their brief, plaintiffs contend that the City's position that on scene municipal emergency medical services qualify as a governmental function will result in "disparate treatment," inasmuch as negligent care by municipal ambulance crews would be nonactionable in the absence of a special relationship, while no such relationship is required to sue private ambulance crews that participate in the 911 system. (Respondents' brief at 32.) Assuming that, in fact, private ambulance companies owe a legal duty of care upon interacting with an individual, plaintiffs' assertion is based upon a flawed assumption that municipal and private entities are positioned identically with respect to our tort system. As the City pointed out in its original brief, this Court has observed that the government's relinquishment of sovereign immunity did not place it "on a parity with private corporations or individuals in respect of all of its defenses" (emphasis in original). In the Matter of World Trade Center Bombing Litigation, 17 NY3d 428, 443 ( 2011) , motion for rearg. den. , 18 NY 3d 898 (2012) [citing Weiss v. Fote, 7 NY2d 579 (1960)]. Indeed, courts have held specific functions to be governmental which, when performed by private actors, trigger a proprietary duty. Mon v. City of New York, 78 NY2d 309 (1991) 18- (City's hiring of probationary police officer protected by discretionary governmental immunity), compare with Sandra M. v. St. Luke's Roosevelt Hospital Medical Center, 33 AD3d 75 (2d Dep' t 2006) (private employer liable for negligent hiring if employer knew of employee's propensity for alleged behavior) ; Pelaez v. Seide, 2 NY3d 186 (2004) (county-employed nurse not liable, in absence of a spec duty, for allegedly-negligent recommendations concerning follow-up testing for child's lead poisoning), compare with Concepcion v. Walsh, 38 AD3d 317 (1st Dep't 2007) (allegations against physician for negligent screening of child for lead poisoning assessed under medical malpractice standard of care). See also Bonner v. City of New York, 73 NY2d 930, 932 (1989) ("providing security to public school teachers against criminal acts by third parties is a governmental function") . What plaintiffs describe as "illogic" (respondents' brief at 31) is, thus, already woven into the fabric of New York's municipal jurisprudence. 7 7 Given that emergency medical personnel, as discussed supra, often respond to the same calls and work alongside fire and police personnel in performing their respective rescue functions, it would be no less "disparate" to hold, as plaintiffs urge, that responding emergency medical personnel assume a proprietary duty when assisting an individual, while their police and fire department cohorts owe no duty to the very same individual absent a special relationship, because their function is governmental. -19 Moreover, in supplying ambulances, a governmental entity is the provider of last resort. In the City of New York, for example, the private ambulances that participate in the 911 system are stationed at their respective hospitals and, hence, operate primarily in the vicinity of the hospital. When a hospital closes, as St. Vincent's Hospital in Manhattan recently did, or opts out of the 911 system, as any hospital is free to do (and may elect to, based upon a cost-benefit analysis), the City must fill in the resulting gap, often with its own EMS crews, to assure that the particular affected locale continues to have adequate ambulance coverage. 8 Therefore, the use of private ambulances in the 911 system does not, as plaintiffs suggest, weigh in favor of deeming all on-scene emergency medical care proprietary. Rather, it is evident that the City, through EMS, is fulfilling a general (and, therefore, governmental) duty to provide the public with ambulance services (see Laratro), a duty that the City elects to discharge part by permitting the participation of private hospital ambulances in the 911 system. 8 The New York City Charter authorizes the Department to supply and oversee the provision of emergency medical services. "The Department shall have the power and authority to provide general ambulance services, emergency medical services and other response services necessary to preserve public health, safety and welfare, and to perform any functions relating to the provision of such services." NYC Charter, Ch. 19, §487{f). -20- The amount of protection that can be provided is limited by the community's resources and by executive and legislative decisions as to how those resources should be deployed. See 6-231 Warren's Negligence in the New York Courts § 231.08[1] One commentator observed that "Because government resources are limited and because some commitments of those resources cannot be reduced due to contract or other obligations, the impact of a court's decision ls on a relatively few budget i terns. The court is in fact allocating the budget away from those items, probably without even knowing what they are. The court's allocation decision is simply that every element of the court decree take precedence over every other competing element in the budget, whatever they may be. The legislature retains no say at all about the comparative value of the item lost to the i tern required by the court. Thus the value of legislative decisionmaking on budget allocation is undermined, to a greater or lesser degree, depending on the size of the court's demands and the amount of money available." 9 The doctrine of governmental function is essentially based upon separation of powers principles. A writer has noted that " [t] he legislative and executive branches of government, rather than the judiciary, have the unique responsibility to 9 __ A __ T_h_e_o_r~yL-._ __ o_f __ G_o_v_e_r_n_m_e_n_t_a_l _ D_...c...a_m_a~g"-e~sm Liability: Constitutional Torts, and Takings, Lawrence Rosenthal, J. Const. L. 797, 845 (2007). -21- Torts 1 9 u. Pa. allocate scarce public resources. " 10 Indeed, this Court, too, has recognized that "the allocation of finite [government] resources [] are 'better left to the discretion of the policy makers.'" Balsam v. Delma Engineering Corp., 90 NY2d 966, 968 (1997). As the City noted during oral argument, the decision to include private ambulances in the 911 system is a discretionary decision resulting out of necessity due to scarce municipal resources. Such a decision is clearly indicative of a governmental function. A review of this Court's cases designating specific functions as governmental evinces the broad range of municipal employees' activities that the Court has so characterized. These activities include the provision of pol protection11 as well as fire protection, 12 safety inspection in non-municipal buildings, 13 water supply, 14 issuance of building permits, 15 10 Recent New York Appellate Decisions Will Impact Municipal Litigation, John M. Shields, 30 Fordham Urb. L.J. 1105, (2003). 11 Valdez v. City of New York, 18 NY3d 69 (2011). 12 Kenavan v. City of New York, 70 NY2d 558 (1987). 13 Pelaez v. Seide, 2 NY3d 186 (2004). Tort 1132 14 Steitz v. City of Beacon, 295 NY 51 (1945) (inadequate water pressure to extinguish fire) . 15 Rottkamp v. Young, 15 NY2d 831 {1965). -22- traffic direction and regulation 1 16 security and educational operations in schools 1 17 performance of autopsies 1 18 provision of social services and children/ s services 1 19 and public health. 20 Just as a municipality is engaging in a governmental function when it chooses a foster home for a child or supplies public- health information to parents of lead-poisoned children/ or provides any of these other services/ so was the City performing a governmental function when EMTs responded to plaintiff 1 s call. That the Court should be wary of expanding the City 1 S liability for negligence is apparent from this Court 1 S language in Pelaez v. Seide 1 2 NY3d 186 1 204 (2004). In refusing to expand governmental liability/ the Court observed: Most of this Court's special relationship cases have in common that the government is potentially open to liability even though it did not directly cause the plaintiff • s injuries. For example 1 in the police cases (which all but occupy the special relationship field) the police were not 16 Kovit v. Hallums 1 4 NY3d 499 (2005) vehic ) and Balsam v. Delma Eng' g (traffic regulation on icy roadway) . (police directive to move Corp. 1 90 NY2d 966 ( 1997 l 17 Vitale v. City of New York 1 60 NY2d 861 (1983}; Donohue v. Copiague Union Free School District 1 47 NY2d 440 (1979). 18 Lauer v. City of New York 1 95 NY2d 95 (2000). 19 McLean v. City of New York/ 12 NY3d 194 (2009} and Mark G. v. Sabol 1 93 NY2d 710 (1999) (placement of children in foster homes) . 20 Pelaez v. Seide 1 supra (county nurse 1 S lead-paint-testing advice) . -23 directly responsible for the plaintiffs' injuries. Similarly, the fire department in Helman (67 NY2d 799, 492 NE2d 398, 501 NYS2d 325 [1986]) did not cause the fire, much as the inspectors in Garrett (58 NY2d 253, 447 NE2d 717, 460 NYS2d 774 [1983]) and O'Connor (58 NY2d 184, 447 NE2d 33, 460 NYS2d 485 [1983]) did not cause the conflagrations. In this sense municipal responsibility is different from--and a less obvious basis for liability than--instances in which the government employee directly causes the injury, as where a police officer negligently shoots or otherwise injures someone. The same reasoning, we respectfully submit, applies in this case, where plaintiff's medical emergency during the administration of medication by a private nurse was the direct cause of her injury. To permit this case to proceed would inappropriately expand the City's tort liability, something which this Court declined to do in Pelaez. 24- CONCLUSION THE ORDER APPEALED FROM SHOULD BE REVERSED, AND THE COMPLAINT DISMISSED, WITH COSTS. FAY LEOUSSIS, AMY G. LONDON, EDWARD F.X. HART, DIANA LAWLESS, DRAKE A. COLLEY, of Counsel. Respectfully submitted, MICHAEL A. CARDOZO, Corporation Counsel of The City of New York, Attorney for Defendants-Appellants By: DRAKE A. COLLEY -25- CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 N.Y.C.R.R. § 670.10.3(f) that this brief was prepared on a computer, using Courier New 12, double-spaced. The entire brief, including portions that may be excluded from the word count pursuant to 22 N.Y.C.R.R. § 670.10.3(a) (3), contains 5,870 words. ·Dated: New York, New York March 18, 2013 MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Defendants-Appellants By: Drake A. Colley Assistant Corporation Counsel 100 Church Street, 6 173 New York, New York 10007