826 F.2d 480 (7th Cir. 1987), 86-1783, Archie v. City of Racine

Docket Nº:86-1783.
Citation:826 F.2d 480
Party Name:Betty J. ARCHIE, as Special Administrator of the Estate of Rena M. DeLacy, Deceased, et al., Plaintiffs-Appellants, v. CITY OF RACINE, Ronald W. Chiapete, and George W. Giese, Defendants-Appellees.
Case Date:July 14, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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826 F.2d 480 (7th Cir. 1987)

Betty J. ARCHIE, as Special Administrator of the Estate of

Rena M. DeLacy, Deceased, et al., Plaintiffs-Appellants,


CITY OF RACINE, Ronald W. Chiapete, and George W. Giese,


No. 86-1783.

United States Court of Appeals, Seventh Circuit

July 14, 1987

Argued Oct. 27, 1986.

As Amended Aug. 10, 1987.

Rehearing En Banc Granted Sept. 8, 1987.[*]

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[Copyrighted Material Omitted]

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Curry First, Perry, First, Lerner & Quindel, S.C., Milwaukee, Wis., for plaintiffs-appellants.

Joseph E. Boyle, City Atty., Office of the City Atty., Racine, Wis., for defendants-appellees.

Before CUMMINGS and CUDAHY, Circuit Judges, and WILL, Senior District Judge. [*]

CUMMINGS, Circuit Judge.

In July 1984, Betty Archie, Special Administrator of the Estate of Rena M. DeLacy ("DeLacy"), and five other individuals 1 filed this complaint seeking $1,000,000 in compensatory and $1,000,000 in punitive damages from the City of Racine, Wisconsin, Ronald Chiapete, its Fire Chief, and George Giese, a Racine Fire Department dispatcher. 2 The complaint was brought under 42 U.S.C. Sec. 1983 and claimed that defendant Giese twice failed to send a rescue squad to take DeLacy to a hospital and twice rendered improper medical advice, thus causing DeLacy's death from respiratory failure and violating the Fourteenth Amendment.


The case was tried to the court in September 1985 and resulted in the dismissal of the action. The district court's findings of fact and conclusions of law are reported in 627 F.Supp. 766 (E.D.Wis.1986). The uncontested facts and the district court's findings of fact show as follows:

Rena DeLacy was a black female, age 43. She lived alone in her Racine apartment and was visited by a long-time friend, Les Hiles, early on May 27, 1984. He noticed that DeLacy was having difficulty breathing and called the rescue squad of the Racine Fire Department at 7:19 a.m. Defendant Giese, age 36, was the sole dispatcher on duty at the time and had been employed by the Racine Fire Department since 1972 and as a dispatcher since March 4, 1980. In that year, he received 30 hours of job training before becoming a full-time telephone dispatcher.

The two conversations between DeLacy, Hiles, and Giese are reported verbatim in 627 F.Supp. at 767-68. The transcript shows that after Hiles called Giese at the fire department, Hiles explained that DeLacy could "hardly breathe" and was "hyperventilating" and needed to go to "the emergency ward" but was unable to walk and therefore needed the rescue squad. Hiles gave the address of DeLacy's apartment twice and said "I'll meet you out in front." Id. at 767. Giese asked to talk to DeLacy. Rena DeLacy took the telephone, said she had "hyperthermia," and reiterated that she was having "a hard time breathing." The sounds of her "heavy labored breathing" came through on the tape. Id. at 768. Instead of sending the requested rescue squad to her apartment or advising her to go to a hospital, Giese told DeLacy to get a paper bag and breathe into it to slow her breathing down. Id. In fact, after he told her, "Why don't you slow down just a little

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bit and relax?" she asked whether this meant she should "stay in my own apartment?" and he said:

GIESE: Just relax and don't breath[e] like you're breathing.


GIESE: Do me a favor.


GIESE: Get, get a little paper bag.

DELACY: A little what?

GIESE: A paper bag.

DELACY: Paper bag.

GIESE: And put it over your mouth and breathe into that. That will slow your breathing down.

DELACY: Okay, thank you.


Hiles left DeLacy's apartment an hour later and returned at 3:00 p.m. Hiles telephoned the Racine Fire Department three minutes later to say that DeLacy was still hyperventilating and that he was "scare[d]." Dispatcher Giese again answered the call and Hiles told him that DeLacy had "tried the paper bag" and had "sat" in her apartment, yet still was having trouble breathing. Despite knowing that DeLacy's breathing troubles had continued for at least six hours--it was actually eight hours--and that his prior medical advice had proven ineffective, Giese repeated that DeLacy should breathe into a paper bag:

GIESE: Well, if she's hyperventilating, just, just have her do what I told you to do. She's going to have to breathe into that bag.

HILES: Yeah, but.

GIESE: Over her nose and her mouth and then slow her breathing down.

HILES: Listen to me now. Is there anything [to] do with the heart?


Id. Hiles asked whether this would "beat the heart out" and Giese said "No." Hiles then said "maybe it'll wear her heart out," but Giese again responded "No" and did not send the rescue squad. Id.

Hiles left the apartment but returned later that night and found DeLacy dead. He then summoned the police, resulting in the 12:32 a.m. arrival of Sergeant Michael Ackley, who noted that a hospital was only five or six blocks away and then telephoned a fire department dispatcher who "very seriously doubt[ed] ... they would not respond to the call[s]" from Hiles because the rescue squad "will respond to almost all calls for service irregardless [sic ] of the frivolity of the alleged problem." Trial Tr. 14 and Exh. 1, at 3; 627 F.Supp. at 769. The trial court found that Sergeant Ackley "was immediately concerned that the situation had been handled inappropriately." 627 F.Supp. at 769.

An autopsy on May 28 revealed that DeLacy's death was from respiratory failure due to bilateral vesicular pulmonary emphysema with superimposed bronchopneumonia. Id. at 767. Hospitalization or administration of oxygen might have saved her life. Trial Tr. 56-57 (testimony of Dr. Baylon).

Giese admitted that this was the first time he had refused to send a rescue squad when requested. 627 F.Supp. at 770. He testified that this was also the first time he had instructed someone to breathe into a paper bag and that he did not normally tender medical advice. Giese Tr. 26, 29, 58-59, 60.

Defendant Fire Chief Chiapete testified that the policy of his department was always to send rescue squads in emergencies and that Giese should have done so here. A Racine ordinance gave the Fire Chief the responsibility to delineate calls to respond to and established, by custom and usage, rescue squad service in emergencies as a right bestowed upon Racine inhabitants. Trial Tr. 143-144 (testimony of Chiapete). His assistant testified too that the fire department policy was to send rescue units to all emergency calls. 627 F.Supp. at 769. After the tragic events of May 27, Fire Chief Chiapete conducted an official investigation into Giese's conduct and concluded that his decision not to send an ambulance was "an error of judgment" but was "honestly made." Id. A press release by Chiapete reconfirmed that it was the Racine Fire Department's policy to "never ... refuse to send our rescue units in known emergency situations." Id.

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The findings made by the district court show that Giese was aware of DeLacy's need for emergency services. The court found that Giese "acknowledged that Hiles was coherent and DeLacy's voice showed that she was in distress." 627 F.Supp. at 770. Giese testified that he knew Hiles' calls were a request for emergency services. Giese Tr. 36-37, 60. The trial court concluded:

It is clear from listening to the tape that Hiles was anxious to get help for DeLacy. It is also clear when DeLacy spoke that she was in distress. In his testimony Giese acknowledged that he recognized the difficulty she was having. The sounds of her heavy labored breathing are heard on the tape.

627 F.Supp. at 768.

The district court found that at trial Giese could not explain why he had not sent the rescue squad or why on both occasions he merely told DeLacy to breathe into a paper bag. Id. at 770. Judge Evans explicitly rejected one possible explanation by finding that Giese did not refuse to send a rescue squad because DeLacy was a black woman. The judge found that there was no pattern of discrimination against blacks and that Giese "sent rescue squads regularly into the black community." Id. at 770, 773.

The reason why Giese refused to send an ambulance is not clear. At trial, Giese's deposition was read wherein he testified that he had previously responded to requests for ambulance services made by Hiles and that the fact Hiles was the caller did not cause him to refuse to send an ambulance for DeLacy. Giese Tr. 24. Giese later changed his deposition answer by saying that in view of Hiles' reputation as a "nuisance," he did not send the rescue squad. Id. at 44-45. At trial he contradicted himself by first testifying that Hiles sounded "rational" and agreeing that DeLacy "talked in a manner which corroborated Mr. Hiles' statement she was having trouble breathing," id. at 24-25, and then, upon cross-examination by his own attorney, testifying that Hiles "sounded intoxicated" and the calls were "getting too casual," id. at 48, 54. Later, he admitted on redirect examination that he did not believe that DeLacy's breathing problem was a "casual situation" and that when questioned by the police about DeLacy's death he did not mention that the "conversation got out of hand" or was too "conversational." Id. at 61.

Not surprisingly, the district judge found "absurd" that Giese's refusal to send the rescue squad could be justified because Hiles was the caller. 627 F.Supp. at 770. As to Hiles, he added:

[O]n the tapes he is lucid; it is clear what he wants; his voice reflects the urgency of the situation. At trial he was articulate and perfectly capable, in my view, of...

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