Abruzzo v. City of Park Ridge

• Decision Date: 19 December 2013
• Docket Number: Docket No. 1–12–2360.
• Citation: 3 N.E.3d 824,2013 IL App (1st) 122360,378 Ill.Dec. 259
• Parties: Jo Ann ABRUZZO, Independent Administrator of the Estate of Joseph Furio, Deceased, Plaintiff–Appellee, v. The CITY OF PARK RIDGE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 122360

3 N.E.3d 824

378 Ill.Dec. 259

Jo Ann ABRUZZO, Independent Administrator of the Estate of Joseph Furio, Deceased, Plaintiff–Appellee,

v.The CITY OF PARK RIDGE, Defendant–Appellant.

Docket No. 1–12–2360.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 19, 2013.

Richard A. Devine, Scott M. Seaman, and Jason R. Schulze, all of Meckler Bulger Tilson Marick & Pearson LLP, of Chicago, and Jay S. Judge and Michael E. Kujawa, both of Judge, James & Kujawa, LLC, of Park Ridge, for appellant.

Lisa A. Jensen, of Jensen Law Office, LLC, of Rockford, and Frank DiFranco, of DiFranco & Associates, P.C., of Park Ridge, for appellee.

Edward F. Dutton, of Park District Risk Management Agency, of Lisle, for amicus curiae Illinois Governmental Association of Pools.

OPINION

Presiding Justice HOWSE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Jo Ann Abruzzo, as independent administrator of the estate of Joseph Furio, deceased, filed a complaint and first amended complaint for wrongful death, survival, and family expenses against defendant, the City of Park Ridge (Park Ridge or the City). The complaint arose from the City's response to a request for emergency services (9–1–1 call) by decedent's father, Larry Furio, for his son Joseph. The City's paramedics responded to a call at Larry Furio's home at approximately 1 a.m. and left without taking Joseph to the hospital. Joseph had been conscious during the first call. Larry Furio called a second time later that same morning and different paramedics responded. Joseph was unconscious. The paramedics transported Joseph to the hospital. Joseph never regained consciousness, was later pronounced brain dead, and was removed from respirators.

¶ 2 Plaintiff's first amended complaint alleged, in part, that in response to the first 9–1–1 call the paramedics failed to evaluate or assess Joseph and as a proximate result, Joseph sustained injuries resulting in death, and the paramedics behaved with wilful and wanton conduct in failing to transport Joseph, a nonresponsive patient. On April 14, 2006, defendant filed a motion to dismiss. Plaintiff filed a response, and on June 9, 2006, defendant filed its reply brief. The trial court granted the motion and on appeal this court held that the City was immune pursuant to sections 6–105 and 6–106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/6–105, 6–106 (West 2004)). Abruzzo v. City of Park Ridge, 374 Ill.App.3d 743, 759, 312 Ill.Dec. 568, 870 N.E.2d 1012 (2007)( Abruzzo I ).

¶ 3 Sections 6–105 and 6–106 provide absolute immunity from liability to a local public entity for failure to evaluate, diagnose, or prescribe treatment for an illness or physical condition. Abruzzo v. City of Park Ridge, 231 Ill.2d 324, 329, 325 Ill.Dec. 584, 898 N.E.2d 631 (2008)( Abruzzo II ). Our supreme court reversed this court's judgment that absolute immunity under the Tort Immunity Act applies, holding that the limited immunity provision in the Emergency Medical Services (EMS) System Act (EMS Act) (210 ILCS 50/1 et seq. (West 2008)) governs over sections 6–105 and 6–106 of the Tort Immunity Act. Abruzzo, 231 Ill.2d at 348, 325 Ill.Dec. 584, 898 N.E.2d 631. Our supreme court found that the EMS Act controlled because it was the more specific and more recent statute. Id. The court interpreted the provision of emergency medical services to include preparatory actions integral to providing emergency treatment and found that assessment and evaluation are integral to providing emergency medical services. Id. at 345, 325 Ill.Dec. 584, 898 N.E.2d 631. The court held that the immunity provision of the EMS Act applied to the allegations in plaintiff's complaint because “[t]he failure to assess or examine is an ‘omission’ in providing emergency medical services under our interpretation of the immunity provision [in the EMS Act].” Id. at 345, 325 Ill.Dec. 584, 898 N.E.2d 631. The court remanded the case to the trial court. Abruzzo, 231 Ill.2d at 348, 325 Ill.Dec. 584, 898 N.E.2d 631.

¶ 4 This appeal arises from the trial of the matter following remand by our supreme court. Following trial, the jury returned a verdict in favor of plaintiff and awarded damages totaling $5,187,500. For the reasons set forth below, we affirm the verdict and judgment.

¶ 5 BACKGROUND

¶ 6 Following remand by our supreme court, the matter proceeded to a trial before a jury on plaintiff's first amended complaint.

¶ 7 Larry Furio, Joseph's father, testified that he picked his son up from his mother's house and took him home at approximately 11:15 p.m. on October 30, 2004. Two weeks earlier, Joseph had finished an inpatient drug rehabilitation program. Sometime after Joseph went to bed, Larry heard a gasping sound from Joseph's room. Larry went to Joseph's room to find Joseph “like blue” and “gasping for breath.” He was purple around the mouth and clammy. Joseph made a few more gasping noises and then no sound. Joseph was not breathing. Larry could not wake him so he attempted cardiopulmonary resuscitation (CPR). Joseph still did not waken so Larry dialed 9–1–1 while continuing to attempt CPR. At some point, Joseph was able to say some words but his speech was slurred, he appeared groggy, and his eyes were glassy. Before paramedics arrived, Larry was able to ask Joseph if he had used any drugs and Joseph responded he had not. Paramedics arrived while Larry was still on the phone with the 9–1–1 operator. Larry Furio testified he told paramedics he thought the problem could be asthma and he believes that he told them he had been attempting CPR.

¶ 8 Larry testified that when he entered Joseph's room after paramedics arrived, he shook Joseph and Joseph sat up and asked what those people were doing here. Larry testified he told Joseph he (Larry) had come into his room and Joseph was purple, could not breathe, and Larry could not wake him up. Joseph then said to his father, “dad, it's these pills that I'm taking, they make me tired.” Larry testified that one of the paramedics was in the room when Joseph made the statement about the pills. Larry testified that in response, “the paramedic kind of rolled his eyes like with an attitude, like why would you bother calling us, like he was put out.” Larry stated someone said words to the effect of “He looks alright I guess.” and left. Larry testified that as the paramedics left he made a sarcastic comment that “gosh, I'm sorry I bothered you.”

¶ 9 William Peterson was a paramedic employed by defendant on October 31, 2004, and is still so employed. He and paramedic Franzen were dispatched to Larry Furio's home at approximately 1:06 a.m. on the morning of October 31, 2004. Paramedic Peterson testified that he was required to follow the standard operating procedures (SOPs) of the Saint Francis EMS system. Those SOPs include a general patient assessment. Peterson testified that according to the general assessment SOP, as part of the primary survey he was required to assess circulation by comparing pulses and checking capillary refill. Peterson did not check Joseph's pulses or his capillary refill. Plaintiff impeached Peterson with his deposition testimony in which Peterson stated that if Joseph's father indicated Joseph was having difficulty breathing and had a history of asthma, he would be required to follow the SOP for asthma. Peterson testified that Joseph's father never stated that his son was having trouble breathing. But he did testify that when the call was dispatched, the call was for a 15–year–old with difficulty breathing.

¶ 10 Peterson denied that Joseph's father told the paramedics that his son was unconscious and not breathing, and he denied later telling his battalion chief that was what Joseph's father said. At trial, Peterson testified that Joseph's father told them it was a false alarm and that their services were not needed. Peterson testified at trial that he entered the home and walked down a hallway toward Joseph's bedroom without having any conversation with his father on the way, and he never entered the bedroom. Joseph's father entered the bedroom with Franzen and a police officer. Peterson could see Joseph in the bedroom sitting up on his arms in the bed. Joseph said something similar to “Why are these people here?” and “I just want to go back to sleep.” Peterson stayed approximately 10 seconds before leaving to meet a fire engine that also responded to the call. He never returned.

¶ 11 Peterson testified that under the SOP a primary survey of airway, breathing, and circulation (ABCs) is made and, based on those, he is to determine how much further to go within his assessment of the patient. Peterson testified he did a visual assessment while looking at Joseph, but did not do a hands-on assessment. Peterson could determine that Joseph had a patent airway and was breathing from the fact that he was sitting up and talking and based on the color of his skin, which is an indication that oxygen is perfusing through his body. Peterson has seen people's skin that was discolored from a lack of oxygen. The lips start to turn blue, the skin will become pale and, depending on the severity, the skin may take on an ashen, grayish-blue color. Peterson could see that Joseph's skin appeared to be a normal color. Peterson also testified that circulation can be checked visually without checking the subject's capillary refill. A capillary refill test involves squeezing the nail bed of a finger and counting the time required for color to return to the nail bed. Peterson testified he did not believe it was necessary to do a capillary refill test on Joseph because he was breathing and had the proper skin color. Peterson testified that he would only compare pulses to check circulation if he were working farther down into the secondary survey, but it is not something that is done if on visual examination circulation appears normal. The next...