Allison Gas Turbine v. District of Columbia, 93-SP-1008.

• Decision Date: 02 June 1994
• Docket Number: No. 93-SP-1008.,93-SP-1008.
• Citation: 642 A.2d 841
• Parties: ALLISON GAS TURBINE DIVISION OF GENERAL MOTORS CORPORATION, Petitioner, v. DISTRICT OF COLUMBIA, Respondent.
• Court: D.C. Court of Appeals

642 A.2d 841

ALLISON GAS TURBINE DIVISION OF GENERAL MOTORS CORPORATION, Petitioner, v. DISTRICT OF COLUMBIA, Respondent.

No. 93-SP-1008.

District of Columbia Court of Appeals.

Argued March 9, 1994.

Decided June 2, 1994.

Mark A. Dombroff, with whom Dane B. Jaques and Mark E. McKinnon, Washington, DC, were on the brief, for petitioner.

Donna M. Murasky, Asst. Corp. Counsel, with whom John Payton, Corp. Counsel at time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, DC, were on the brief, for respondent.

Before TERRY, WAGNER, and KING, Associate Judges.

KING, Associate Judge:

This case is before the court on a question of law certified by the United States Court of Appeals for the District of Columbia Circuit, pursuant to D.C.Code § 11-723 (1989).¹ We have been asked to determine whether the District of Columbia ("the District") is shielded from tort liability under the public duty doctrine under circumstances where Metropolitan Police Department Harbor Patrol officers ("Harbor Patrol") would not allow private citizens, who volunteered their services on the scene, to assist in the rescue of three victims of a helicopter crash. For the reasons discussed below, we conclude that on these facts the public duty doctrine applies and, therefore, the District of Columbia is not liable.

I.²

On August 21, 1987, a helicopter containing a pilot and three passengers crashed into the Potomac River in the District of Columbia. The pilot freed himself from the wreckage and was rescued by civilian scuba divers, but the three passengers remained trapped inside the helicopter. In response to emergency calls by civilian witnesses, the Harbor Patrol arrived to assist the passengers; however, since the police did not have diving apparatus on board, officers were dispatched to obtain the necessary equipment. While the equipment was being obtained, several civilian scuba divers at the scene offered assistance. That offer was declined, and the would-be rescuers were ordered by the Harbor Patrol to stay out of the water. Eventually, the necessary equipment arrived, and the Harbor Patrol began rescue operations. Those efforts were unsuccessful, however, and all three passengers drowned.

The pilot and the passengers' survivors brought an action against Allison Gas Turbine Division of General Motors Corporation ("Allison"), which had manufactured the helicopter's engine, in the United States District Court for the District of Columbia. Allison filed a third party claim against the District of Columbia and a counterclaim against the pilot for contribution. The District moved for summary judgment on the ground that the public duty doctrine precluded liability.

Viewing the evidence in the light most favorable to Allison, the District Court accepted the following as being true: more than twenty minutes elapsed between the time of the crash and the time the Harbor Patrol was prepared to dive; based upon the deposition testimony of Allison's medical expert, all three of the passengers died as a result of being submerged in the river for an extended period of time, rather than as a result of the crash itself; expert testimony established that the passengers would have had a better than fifty percent chance of survival if they had been removed from the wreckage within the first ten minutes after the crash; and expert testimony established that if the passengers had been rescued within more than ten but less than fifteen minutes it was possible, though unlikely, that they would have survived.

The District Court granted the District's summary judgment motion on the ground that the public duty doctrine protects a municipality from "essentially a claim of professional malpractice arising from a discretionary act committed by a police officer during a rescue operation." Thereafter, a jury returned verdicts against Allison on the survivors' claims and in favor of the pilot on Allison's contribution claim. Allison appealed the judgments entered against it after the unfavorable jury verdicts and the grant of summary judgment in favor of the District. The United States Court of Appeals affirmed in all respects, except for the claim by Allison against the District, which the United States Court of Appeals did not decide.³ With respect to that claim, the court certified the following question to this court:

Does the public duty doctrine render the District of Columbia immune from tort liability in a case in which the District police officers interfere with the private rescue efforts of civilians at the scene of an accident, thereby worsening the condition of the victims?

The question certified assumes, without deciding, that Allison can establish that the civilian scuba divers would have successfully reached the passengers earlier than the Harbor Patrol did and would, therefore, possibly have prevented the passengers from drowning. If the public duty doctrine applies, however, then the District would not be liable even if Allison were successful in making that showing.

II.

Under the public duty doctrine, the District has no duty to provide public services to any particular citizen. Hines v. District of Columbia, 580 A.2d 133, 136 (D.C.1990); Warren v. District of Columbia, 444 A.2d 1, 3 (D.C.1981) (en banc); W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 131, at 1049 (5th ed. 1984). Rather, "the duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no specific legal duty exists." Warren, 444 A.2d at 3. A "special relationship" may give rise to a "special duty" if there is: "(1) a direct contact or continuing contact between the victim and the governmental agency or official; and (2) a justifiable reliance on the part of the victim." Platt v. District of Columbia, 467 A.2d 149, 151 (D.C.1983) (citing Warren, supra, 444 A.2d at 11 (Kelly, J., concurring in part and dissenting in part)).

Allison contends that a special duty arose after the Harbor Patrol arrived and began rescue operations, when the officers barred the civilian rescuers from participating in the rescue operation. In support, Allison relies principally on Johnson v. District of Columbia, 580 A.2d 140 (D.C.1990), which involved the alleged negligent delivery of emergency ambulance services. In Johnson, there calls to the District's 911 number, over a span of twenty to thirty minutes, were made on behalf of a heart attack victim. Id. at 141. Emergency Ambulance Division firefighters arrived some thirty minutes after the first call. Id. The firefighters were ill-equipped for the particular emergency, and they allegedly administered cardiopulmonary resuscitation ("CPR") in a negligent manner. Id. at 143. Certified medical technicians of the trauma unit (ostensibly specialists for this type of emergency) arrived shortly after the arrival of the firefighters, and the victim was rushed to the hospital, where she later died. Id. at 141.

In reversing the entry of summary judgment in favor of the District, we held that "the issue remains whether ... the plaintiff fairly asserted any affirmative actions by the firefighters which might create some liability." Id. at 143. The court reasoned that there is a distinction between (1) "the adequacy and timeliness of the dispatch" of emergency services, and (2) "the quality of services physically rendered to the victim." Id. at 142. With respect to the first of these considerations, the court held that a special duty does not arise simply because an individual requests emergency assistance. See id. at 142-43; see also Wanzer v. District of Columbia, 580 A.2d 127, 131-32 (D.C.1990) (holding that one-time call for ambulance does not establish a special relationship); Hines, supra, 580 A.2d at 136 (observing that "the mere fact that an individual has emerged from the general public and become an object of the special attention of public employees does not create a relationship which imposes a special legal duty"). Thus, defects in the timeliness of dispatch or inadequacies in the would-be rescuers' ability to provide necessary services are not sufficient to create a special relationship. See Johnson, supra, 580 A.2d at 142 (citing Hines, supra, 580 A.2d at 136-37, and Warren, supra, 444 A.2d at 6-7).

Regarding the second consideration, however, the Johnson court observed that the real issue was whether the firefighters breached a duty of reasonable care to the victim in the actual administering of emergency services. Id. The court held that liability would lie if "some act of the rescuers in administering emergency services... actually made the victim's condition worse than it would have been had the rescuers failed to show up at all or done nothing after their arrival. We have adumbrated this minimum requirement in the rescue context in discussing municipal liability for acts of `affirmative negligence.'" Id. (citing Warren, supra, 444 A.2d at 7-8, and Weeda v. District of Columbia, 521 A.2d 1156 (D.C.1987)) (footnote omitted).<sup>4</sup> The court reasoned that acts of affirmative negligence relate to the special relationship requirement that a victim must justifiably rely on the acts of the government, since a "victim may arguably `rely' on an emergency crew not to worsen the victim's condition, whereas no such reliance can fairly be based on the inaction or futile action" of the would-be rescuers. Id. at 143 (footnote omitted). Thus, Johnson stands for the principle that the protection from liability accorded by the public duty doctrine evaporates if, while delivering emergency services, members of the crew commit an act of affirmative negligence worsening a victim's condition. We cautioned in Johnson, however, "that is not to say that even acts worsening the victim's condition are always sufficient to form a basis of liability." Id. at 143 n. 4 (discussing Nichol v. District of Columbia Metro. Police Dept, 444 A.2d 1 (D...