Stracke v. Estate of Butler, 081619 MDCA, 64-2018

Docket Nº:64-2018
Opinion Judge:HOTTEN, J.
Party Name:JOSEPH STRACKE, et al. v. ESTATE OF KERRY BUTLER, JR., et al.
Judge Panel:Barbera, C.J., Greene, McDonald, Hotten, Getty, Booth, Wilner, Alan M. (Senior Judge, Specially Assigned) JJ. Wilner, J., which Barbera, C.J., and McDonald, J., join.
Case Date:August 16, 2019
Court:Court of Appeals of Maryland




No. 64-2018

Court of Appeals of Maryland

August 16, 2019

Argued: June 7, 2019

Circuit Court for Baltimore City Case No. 24-C-14-001249

Barbera, C.J., [*] Greene, McDonald, Hotten, Getty, Booth, Wilner, Alan M. (Senior Judge, Specially Assigned) JJ.



The Estate of Kerry Butler, Jr., Ms. Crystal Butler, the widow of Kerry Butler, Jr., Vera Ganey, parent and guardian of Kerry Butler, Jr.'s sole minor child, and Mr. Kerry Butler, Sr., the father of Kerry Butler, Jr. (collectively referred to as "Respondents"), 1 filed a wrongful death and survival action in the Circuit Court for Baltimore City. 2 Respondents alleged that Baltimore City Fire Department medics, Joseph Stracke and Stephanie Cisneros (collectively referred to as "Petitioners"), [3] were grossly negligent in their treatment of Mr. Butler, and that their gross negligence caused his ultimate demise.

After a jury found that Petitioners were grossly negligent, the trial judge granted Petitioners' Motion for Judgment Notwithstanding the Verdict ("JNOV"). Respondents appealed to the Court of Special Appeals, which reversed the trial court's grant of JNOV on the basis that Petitioners were grossly negligent and not entitled to immunity under the Fire and Rescue Company Act, Maryland Code, Courts & Judicial Proceedings ("Cts. & Jud. Proc.") § 5-604(a). On appeal and cross-appeal, we are asked to consider the following issues: 1. Does willful or gross negligence by an omission defeat the immunity from liability granted to fire and rescue personnel by the Maryland Fire and Rescue Company Act, Md. Code, Courts & Judicial Proceedings § 5-604, or is the immunity lost only by a willful or grossly negligent affirmative act?

2. Did CSA err in finding sufficient evidence that Petitioners committed gross negligence that caused the death of a patient, when undisputed evidence established that Petitioners assessed the patient, including taking vital signs, and within seven minutes transported the patient to the hospital, where his condition suddenly worsened?

3. Does § 5-604 afford Petitioners, as employees of a fire department, limited immunity against claims for simple negligence?

For the reasons outlined below, we conclude that Petitioners were not grossly negligent in their treatment of Mr. Butler, and were therefore afforded immunity under the Fire and Rescue Company Act, Cts. & Jud. Proc. § 5-604(a).[4] Because we hold that Petitioners were not grossly negligent, we decline to address the first issue presented. We further hold that Cts. & Jud. Proc. § 5-604(a) does, and continues to, grant immunity against simple negligence claims to employees of a fire department. Accordingly, we reverse the judgment of the Court of Special Appeals.


Factual Background

Just after 1:00 a.m. on March 2, 2011, Mr. Butler woke his wife allegedly complaining of chest pains. Earlier that evening, Mr. Butler had eaten a spicy chicken sandwich and Oreo cookies, and drank a Hawaiian punch beverage prior to going to bed. Ms. Butler called 9-1-1 and reported that her husband was experiencing chest pain and having difficulty breathing and speaking. Ms. Butler helped dress Mr. Butler and assisted him down the steps to the first floor of their home to wait for the emergency medics.

Stracke and Cisneros were dispatched to the Butlers' home in response to the 9-1-1 call for a reported chest pain emergency. Stracke and Cisneros are both first responders, whose primary responsibilities involve the assessment and transportation of patients. Neither Stracke nor Cisneros are responsible for diagnosing medical conditions. Petitioners arrived on the Butlers' street at approximately 1:18 a.m. Petitioners experienced some difficulty locating the residence because the relatively unlit street made it difficult to identify the house numbers, and there had been inconsistencies between the reported address and the actual location of the Butlers' house.5 Due to the lack of lighting, Stracke promptly exited the ambulance and walked along the street in order to locate the correct house while Cisneros remained in the ambulance. When Stracke reached Ms. Butler at the correct address, around 1:20 a.m., he relayed his location to Cisneros, who remained in the ambulance.

By the time Stracke reached the Butlers' residence, Ms. Butler was standing just outside the front door and Mr. Butler was sitting in a chair just inside the house. At the time, Mr. Butler was 28 years old, five feet and seven inches tall, and approximately 245 pounds. Without entering the house, Stracke asked in a loud voice "what seems to be the problem." Ms. Butler responded that Mr. Butler had told her that he thought he was having a heart attack. According to Ms. Butler, Mr. Butler had his hand on his chest. Stracke asked Mr. Butler "what's going on my main man[]" and Mr. Butler responded that "[his] right side hurt." While standing in front of the Butlers' residence, Stracke visually assessed Mr. Butler, in accordance with relevant medical protocols, observing that he was "a good shape gentleman[.]" Stracke expressed the desire and need to bring Mr. Butler to the ambulance for further evaluation and possible treatment.

Ms. Butler then claimed that Mr. Butler stood up and staggered the short distance to the ambulance, approximately 30-40 feet, without the aid of Stracke or a stretcher. Stracke, however, claimed that he instructed Mr. Butler to wait while he retrieved a stretcher, but Mr. Butler declined, stating that he was "ready to go" and began walking to the ambulance on his own accord. Stracke quickly signaled to Cisneros prior to escorting Mr. Butler from his residence to the ambulance, and Cisneros promptly exited the ambulance with a medical bag and oxygen bottle in order to fully and properly assess Mr. Butler's condition.

Cisneros performed a visual assessment of Mr. Butler as he approached the ambulance. Ms. Butler stated that Mr. Butler was staggering as he walked to the ambulance, while Cisneros observed that Mr. Butler was taking "perfectly normal" steps and did not appear to be in need of any assistance. According to Petitioners, Mr. Butler entered the ambulance unassisted and without difficulty. When Cisneros asked Mr. Butler what was going on, Mr. Butler responded that his throat was burning (he was holding his hand to his throat) and that he had "[c]hest heartburn." Although Cisneros recorded this symptom as "chest hurt" in Mr. Butler's chart, she explained that this was primarily due to a lack of accurate options that were provided from a drop-down menu on the form.

Inside the ambulance, Stracke took Mr. Butler's blood pressure, heart rate, and blood oxygen level, while Cisneros recorded these measurements in Mr. Butler's chart. Cisneros also checked Mr. Butler for reproducible pain under his right arm (there was none), felt his pulse, checked his pupils, looked at his skin, and listened to his lungs, which were "perfectly clear." All of Mr. Butler's vitals appeared to be baseline, indicating that he was in stable condition.

Petitioners determined that Mr. Butler should be transported to the nearest hospital, Harbor Hospital, which was less than a mile away. Around 1:24 a.m., approximately seven minutes after first arriving on the Butlers' street, Petitioners and Mr. Butler departed for the hospital, with Stracke driving the ambulance and Cisneros remaining with Mr. Butler in the rear of the ambulance. Stracke explained that at this time, it was Petitioners' priority "to deliver a viable patient to appropriate definitive care, here Harbor Hospital, as soon as possible[.]" According to Cisneros, Mr. Butler was seated in a "position of comfort" and "very pleasant" and "very chatty" during the drive to the hospital. The ambulance arrived at Harbor Hospital approximately three minutes later, around 1:27 a.m. Stracke immediately retrieved a wheelchair for Mr. Butler, who exited the ambulance unassisted but without difficulty, and sat in the wheelchair. Stracke pushed Mr. Butler directly into the emergency room while Cisneros alerted hospital staff that Mr. Butler "had a burning in his throat."

Stracke waited with Mr. Butler in the emergency room for hospital staff to triage Mr. Butler. While waiting in the emergency room, a hospital technician observed Mr. Butler holding his chest and complaining that his chest hurt. The hospital technician observed this happening for another five to ten minutes, with Mr. Butler's voice growing louder as the time passed. After waiting in the emergency room for approximately ten minutes, Mr. Butler became unconscious and began to slide out of his wheelchair. Stracke prevented Mr. Butler's head from striking the floor as...

To continue reading