Osler ex rel. Osler v. Huron Valley Ambulance Inc., Case No. 08-14272.

• Decision Date: 30 November 2009
• Docket Number: Case No. 08-14272.
• Citation: 671 F.Supp.2d 938
• Parties: Ethel M. OSLER, individually and as Personal Representative of Viritha M. OSLER, Plaintiff, v. HURON VALLEY AMBULANCE INCORPORATED, a Michigan corporation, Kyle Niziolek, David Renton, Dennis Fowler, and Dean Lloyd, individually and in their official capacities, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Page 938

671 F.Supp.2d 938

Ethel M. OSLER, individually and as Personal Representative of Viritha M. OSLER, Plaintiff, v. HURON VALLEY AMBULANCE INCORPORATED, a Michigan corporation, Kyle Niziolek, David Renton, Dennis Fowler, and Dean Lloyd, individually and in their official capacities, Defendants.

Case No. 08-14272.

United States District Court, E.D. Michigan, Southern Division.

November 30, 2009.

Theophilus E. Clemons, Robinson & Associates, Southfield, MI, for Plaintiff.

Derek S. Wilczynski, Orlando L. Blanco, Blanco Wilczynski, Troy, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

DAVID M. LAWSON, District Judge.

The defendants' motion for summary judgment raises the following issues: (1) whether a private ambulance company and its employees under exclusive contract to provide ambulance service to the county were engaged in state action when they injured the plaintiff's decedent during normal operations; (2) whether a judgement of dismissal in a prior state court lawsuit between the plaintiff and some but not all of the defendants in this case bars the present action; and (3) whether the individual defendants are immune from liability under the Michigan Emergency Medical Services Act. The Court believes that the first question should be answered "no," and the second "yes," obviating the need to answer the third. The defendants' motion for summary judgment, therefore, will be granted.

I.

The facts of the case are straightforward. On October 7, 2005, defendants Kyle Niziolek and David Renton were employed as ambulance drivers by defendant Huron Valley Ambulance, Inc. (HVA). They were on a low-priority run in Ypsilanti, Michigan at 10:03 p.m., when Niziolek noticed Viritha Osler "standing still" "just to the right of the hash marks in the curb lane" of Michigan Avenue. Response to Mot. for Sum. J., Ex. 1 (Niziolek dep.) at 174. Niziolek applied the brakes and swerved to the side, but he could not avoid a collision, and the ambulance struck the pedestrian, inflicting serious injuries. Hospital and autopsy records indicated that Ms. Osler was highly intoxicated at the time. When Niziolek approached Ms. Osler, she was unconscious and in critical condition.

Defendant Dean Lloyd, Niziolek's and Renton's supervisor, arrived at the scene shortly after the accident. They made a joint decision not to transport the injured Ms. Osler to the hospital. They called another ambulance, and they testified that they started to work on Ms. Osler, although some of the documentation that would have confirmed their activity apparently never was completed. After another ambulance finally arrived, Ms. Osler was taken to St. Joseph's Hospital where she was pronounced dead at 11:17 p.m.

HVA is a private corporation, which has an exclusive contract to provide ambulance service to Washtenaw County and perform the county's 911 emergency dispatch services. According to its president, Dale Berry, it also contracts with other public and private organizations such as nursing homes, hospitals, special events, Michigan International Speedway, the Compuware Arena, and managed care for health maintenance organizations. It performs all the Washtenaw County Medical Examiner's investigations, all ambulance discharge services in the county, and interfacility patient transport services under a contract with St. Joseph Mercy Health System. Several HVA employees are members or serve on boards of various governmental and quasi-governmental organizations that formulate policies and procedures governing emergency medical services. For instance, vice president Roger Simpson is a member of the Washtenaw-Livingston County Medical Control Authority Board, which drafts protocols and regulations governing emergency services for Washtenaw County (which, per its contract, would apply only to HVA) and Livingston County (where HVA performs no services). The Washtenaw County Board of Commissioners appointed Simpson and another HVA employee, Leslie Patterson, as county medical examiner investigators. Simpson and four other HVA employees also serve as members of other Washtenaw County advisory and oversight boards dealing with the provision of emergency medical services. Each of these boards, however, also is populated by individuals who are not affiliated with HVA.

On June 30, 2006, the personal representative of Viritha Osler's estate filed a lawsuit in the Washtenaw County, Michigan circuit court against HVA, Niziolek, and Renton alleging that the defendants were negligent in colliding with Ms. Osler and for delaying transporting her to the hospital. Following discovery, the defendants in state court filed a motion for summary judgment claiming, as they do here, that they were immune from liability under the Michigan Emergency Medical Services Act, and the undisputed facts demonstrated that the majority of fault for the accident must be ascribed to Ms. Osler. The state court judge foreshortened the plaintiff's time to respond to the motion (while plaintiff's counsel was out of the country on vacation), and plaintiff's counsel's motion to enlarge the time for filing his brief by one day was denied. The state judge ultimately struck the plaintiff's brief after it was filed four hours late. However, it appears that some consideration was given to the response, since the ensuing order dismissing the case "for the reasons articulated by the Defendants in their brief" noted that "even reviewing Plaintiff's late brief, Plaintiff fails to articulate any law in response to Defendant's November 23, 2009's assertion that Michigan's Emergency Medical Services Act (MCLA 333.20901 et seq.) bars Plaintiff's claims." Response to Mot. for Sum. J., Ex. 26.

The plaintiff appealed the dismissal, but the Michigan Court of Appeals dismissed the appeal because the "plaintiff failed to pursue her appeal in conformity with the court rules." Mot. for Sum. J., Ex. 12. It does not appear that the plaintiff pursued her state appellate remedies any further.

On October 7, 2008, the personal representative filed the present action in this Court against the state court defendants plus shift supervisor Dean Lloyd and dispatcher Dennis Fowler. In four counts, the plaintiff alleges liability under 42 U.S.C. § 1983 for a violation of the decedent's rights under the Fourth and Fourteenth Amendments (count I); supervisory liability under section 1983 against defendant Dean Lloyd (count II); violations of the Fourth and Fourteenth Amendments against Huron Valley Ambulance for failure to train and supervise its employees (count III); and ordinary and gross negligence under state law against all the defendants. After more discovery in this Court, the defendants filed a motion for summary judgment. The Court heard oral argument on November 24, 2009.

II.

A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotes omitted).

A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir.2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir.2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics and Space Admin., 14 F.3d 1143, 1148 (6th Cir.1994) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir.2000). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 534 (6th Cir.2002). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir.1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir.1999).

The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir.2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex...