Allen v. Dist. of Columbia, No. 10–CV–1425.

• Docket Nº: No. 10–CV–1425.
• Citation: 100 A.3d 63
• Case Date: September 25, 2014
• Court: Court of Appeals of Columbia District

100 A.3d 63

Sherry ALLEN and Wayne Allen, Appellants
v.
DISTRICT OF COLUMBIA, Appellee.

No. 10–CV–1425.

District of Columbia Court of Appeals.

Argued May 23, 2012.
Decided Sept. 25, 2014.

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Stephen D. Annand, with whom David E. Haynes, Washington, DC, was on the brief, for appellant.

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Carl J. Schifferle, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee.

Before THOMPSON and EASTERLY, Associate Judges, and NEBEKER, Senior Judge.

Opinion

NEBEKER, Senior Judge:

In this matter, appellants, Sherry Allen and Wayne Allen, filed a wrongful death and survival action against the District of Columbia, after their son Eric Allen (“Allen,”) aka Eric Roberson, a prospective firefighter, participated in a required Physical Ability Test (“PAT”), became ill, and died. Appellants allege “gross negligence of the EMT [emergency medical technician] in charge of evaluating the firefighter candidates at the PAT.” The issues we address on appeal are (1) whether the public duty doctrine applies and bars the action or, instead, (2) whether the action may proceed, either because the doctrine is not implicated on the facts of this case, or because an exception to the doctrine applies, on the ground that the District owed a special duty to Allen. The trial court granted summary judgment in favor of the District, applying the public duty doctrine and holding that the District owed no special duty to Allen. We affirm.¹

I.

The record reveals that in March of 2006, Eric Allen began the lengthy process of qualifying to be a firefighter with the District of Columbia Fire and Emergency Medical Services Department (FEMS).² On October 14, 2007, the District invited Allen and approximately two dozen others to participate in its Physical Ability Test (PAT) in order to determine if he was physically qualified to be a firefighter.³ Prior to beginning the test, FEMS Captain Sylvester Robinson directed the candidates to have their vital signs (blood pressure, pulse rate, and oxygen saturation) taken by the on-scene paramedic, and all were permitted to participate in the PAT thereafter. Paramedic EMT Lee Mason and EMT Veronica Johnson (aka Veronica Baskerville), who were staffing a unit known as “Medic 33” and who had been

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“assigned to the [DC Fire/EMS] training academy” as the “stand-by unit” “for the purpose of the test[,]” had set up a station for vital-sign screening (Robinson referred to it as a “first aid station”) in Room 2 at the test site. After the candidates' vital signs had been taken, several FEMS monitors escorted the prospective firefighters through each of the components of the PAT. The candidates, monitors, and escorts were told that if they experienced any problems on the course at any point, they should ask for Captain Robinson, who was the classroom facilitator for the PAT, or for Battalion Fire Chief Milton Douglas, who would “respond to their location.” The FEMS Physical Ability Test Administration Guide instructed monitors that they must “watch candidates for signs that they are in physical distress” and that “[i]f these signs are seen, it is important that the candidate be stopped and monitored by the on-scene paramedic.”

Upon completion of the PAT, Allen became ill and complained of “pain in his entire body.” Allen informed Battalion Fire Chief Douglas that he did not have any long-term medical problems. Douglas notified Captain Robinson, to “have the Medic Unit that was assigned to the training academy for the purpose of the test to report to the [PAT] apparatus floor to evaluate [Allen].” Robinson, who was at the finish line when Allen completed the course to escort him back to Room 2 to have his vital signs taken, observed that Allen “showed signs of rapid breathing that was not normal[.]” Robinson “ran” to the room where paramedic Mason and EMT Johnson were stationed and told them that a candidate was having trouble breathing and that their assistance was needed.⁴ Robinson told them that “they were going to need their oxygen,” “[a]t which time they informed [him that] they had to go to [their ambulance, which was parked beside the test-site building] unit to get it.”⁵ Mason and Johnson evaluated Allen, took his vital signs and performed an EKG.⁶ They placed Allen on oxygen, but did not administer IV fluids. Mason told Douglas that Allen required transport to a hospital. Douglas notified Robinson to dispatch an ALS Medic Unit for patient transport. When Robinson asked Mason and Johnson “if they were going to transport[,]” Mason informed Douglas and Robinson that Allen's “vital signs were normal and that a basic unit was all that was required.” Robinson therefore called for a basic life support unit, and one was dispatched, arriving in about six to ten minutes. EMT Thomas Williams, a member of the responding basic life support unit, recalled that “no engine company (first responder) was being dispatched because a paramedic [presumably, Mason] was already on the scene.” Williams asked Mason what code Allen should be, and Mason classified Allen as a “Priority 3 (stable, nonemergency),” the lowest emergency priority. EMT Williams and EMT John T. Davis, transported Allen to the Greater Southeast Community Hospital where he was immediately placed in the waiting

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room because, at least in part, Greater Southeast Community Hospital saw no reason to change his classification to a higher priority. Allen waited approximately one hour, his condition worsened, and he was eventually flown by helicopter to Washington Hospital Center, where he died of “acute exertional rhabdomyolysis ” (Rhabdo) the morning of October 15th.

Appellants brought survival and wrongful death actions sounding in negligence against the District, Greater Southeast Community Hospital, and the doctors who attended Allen at the hospital for an alleged failure to exercise reasonable care in attending to Allen. The District moved to dismiss the action. Because both parties had submitted a variety of depositions and exhibits and stated to the court that “the record [was] now complete,” the trial court, without objection, treated the motion as one for summary judgment, and found for the District by concluding there was no “special relationship” that excepted this case from the public duty doctrine and that the doctrine applied to bar the action. The other parties settled with appellants, and this appeal followed.⁷ After oral argument, we stayed the appeal pending a determination as to whether this court would sit en banc to review the application of the public duty doctrine in another case. The petition for rehearing en banc in that case was denied on February 7, 2014, and we now proceed to resolve this appeal.

II.

A. Standard of Review

“Summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Turner v. District of Columbia, 532 A.2d 662, 666 (D.C.1987) (quoting Super. Ct. Civ. R. 56(c) ). “On appeal this court must view the record in the light most favorable to the party opposing the motion, and must resolve any doubt as to the existence of a factual dispute against the moving party.” Taylor v. District of Columbia, 776 A.2d 1208, 1213–14 (D.C.2001). “In short, what we seek is evidence from which, were it accepted as true, a trier of fact might find for the appellant.” Truitt v. Miller, 407 A.2d 1073, 1077 (D.C.1979).

B. Public Duty Doctrine

The public duty doctrine “operates to shield the District and its employees from liability arising out of their actions in the course of providing public services.” Hines v. District of Columbia, 580 A.2d 133, 136 (D.C.1990). In essence, appellants claim that Allen's circumstances made him excepted from the public duty doctrine through his establishment of a

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special relationship (or “special duty”) with the District because, at least in part, Allen's emergency was not a typical “911 emergency.” As such, appellants acknowledge that this court has applied the public duty doctrine in cases involving the provision of emergency services.

1. Whether the Public Duty Doctrine Applies

At the commencement of this action, the public duty doctrine was assumed to apply; thus, what was litigated in the trial court, and originally briefed here, was that the doctrine applied save for the exception.⁸ On appeal, it was not until appellants' Reply Brief that they argued that the “public duty doctrine does not apply to the situation presented here.” “Normally, we do not consider arguments raised for the first time in a reply brief.” Williams v. United States, 52 A.3d 25, 50 n. 104 (D.C.2012). However, we will make...