Wanzer v. District of Columbia

• Decision Date: 28 September 1990
• Docket Number: No. 88-386.,88-386.
• Citation: 580 A.2d 127
• Parties: Irene L. WANZER, Individually and as Personal Representative of the Estate of James R. Lee, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

580 A.2d 127

Irene L. WANZER, Individually and as Personal Representative of the Estate of James R. Lee, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 88-386.

District of Columbia Court of Appeals.

Argued March 21, 1989.

Decided September 28, 1990.

Edward S. Horowitz, Greenbelt, Md., for appellant.

Donna M. Murasky, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellee.

Before BELSON, TERRY, and STEADMAN, Associate Judges.

TERRY, Associate Judge:

Although there are privately owned ambulance companies which do business in the District of Columbia, most ambulance service is provided by the District of Columbia Fire Department through its Emergency Medical Service (EMS). To request an EMS ambulance, a person typically dials the emergency "911" telephone number. At about 3:30 a.m. on December 27, 1986, James Lee did just that. The conversation between Mr. Lee and the dispatcher went as follows:

DISPATCHER: Ambulance.

LEE: Yes, could you send an ambulance to 2930 10th Street, N.E., please?

DISPATCHER: Is it a house or apartment, sir?

LEE: I have a terrific headache.

DISPATCHER: Is it a house or apartment, sir?

LEE: House.

DISPATCHER: What is the problem now?

LEE: I have terrific headaches. I never had headaches in my life.

DISPATCHER: Have you taken anything for them?

LEE: No.

DISPATCHER: How long have you had these headaches?

LEE: About an hour.

DISPATCHER: Then you need an ambulance and you haven't tried to take an aspirin?

LEE: No, I haven't.

DISPATCHER: Don't you think you should go take—you know, wouldn't that be logical?

LEE: Okay, all right. END OF CALL

No ambulance was dispatched. Instead, about nine hours later, Annie Agee, Mr. Lee's neighbor, called 911 and requested that an ambulance be sent to Lee's address because he still had terrible headaches and was experiencing difficulty breathing. Within a minute, an ambulance was on its way. It took Mr. Lee to Washington Hospital Center, where he was diagnosed as having suffered a stroke. He died two days later.

Appellant Irene Wanzer, who is Mr. Lee's daughter, filed suit against the District of Columbia on her own behalf under the wrongful death statute, D.C.Code § 16-2701 (1989), and as personal representative of her father's estate under the District's survival statute, D.C.Code § 12-101 (1989). In her complaint she alleged that the District government breached its duty to provide ambulance service to her father by negligently failing to train or supervise the EMS dispatcher who talked to her father on the night he called 911. She alleged further that as a direct and proximate cause of that breach her father endured pain, suffering, and emotional distress, and ultimately died. She also claimed personal pecuniary and non-pecuniary losses. In her complaint she asked for both compensatory and punitive damages.

The District moved to dismiss the complaint under Super.Ct.Civ.R. 12(b)(6) for failure to state a claim on which relief could be granted. The crux of its argument was that a breach of the duty owed to Lee by the EMS was not actionable in tort. After a hearing, the trial court granted the District's motion on the ground that the facts alleged in the complaint were insufficient as a matter of law to state a cause of action. On appeal, appellant asks the court to establish a legal basis on which she can proceed in her suit against the District.

I

It is well settled that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Moreover, in considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must view the complaint in the light most favorable to the plaintiff and must accept as true each of the allegations made in the complaint. Vicki Bagley Realty, Inc. v. Laufer, 482 A.2d 359, 364 (D.C.1984); McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C. 1979); see also Super Ct.Civ.R. 8(f) ("All pleadings shall be so construed as to do substantial justice"). In the case at bar, therefore, we accept as true appellant's allegations that the EMS dispatcher negligently failed to dispatch an ambulance when Mr. Lee called; that this failure was a departure from accepted EMS protocols and procedures;¹ and that Mr. Lee would have survived his stroke if an ambulance had been sent when first summoned. See Haymon v. Wilkerson, 535 A.2d 880, 882 (D.C.1987). Consequently, for Rule 12(b)(6) purposes appellant has established proximate cause and damages. Her complaint was dismissed, however, because she failed as a matter of law to establish that the District owed a special duty to Mr. Lee. See Turner v. District of Columbia, 532 A.2d 662 (D.C.1987); Morgan v. District of Columbia, 468 A.2d 1306 (D.C.1983) (en banc); Platt v. District of Columbia, 467 A.2d 149 (D.C.1983); Warren v. District of Columbia, 444 A.2d 1 (D.C.1981) (en banc). Whether a special relationship existed between the EMS and Mr. Lee, giving rise to a special duty, is the question we must answer. However, since this case and its two companions² are the first cases involving the ambulance service to come before us on this question, we must first decide whether the special duty analysis even applies to claims involving the EMS.

II

It is generally held that "the institution of a publicly operated emergency ambulance service is ... a service kindred to the police or fire service. This type of service is incident to the police power of state: i.e., to protect the health, safety, and general welfare of its citizens." Ayala v. City of Corpus Christi, 507 S.W.2d 324, 328 (Tex.Civ.App.1974) (citations omitted); see Thornton v. Shore, 233 Kan. 737, 741, 666 P.2d 655, 659 (1983); Smith v. City of Lexington, 307 S.W.2d 568 (Ky.Ct.App. 1957); Ross v. Consumers Power Co., 420 Mich. 567, 651, 363 N.W.2d 641, 676 (1984);³ King v. Williams, 5 Ohio St.3d 137, 449 N.E.2d 452, 455 (1983); cf. O'Neil & Hearne v. Bray's Administratix, 262 Ky. 377, 379, 90 S.W.2d 353, 355 (Ky.Ct. App.1936) (municipally owned ambulances, like police and fire vehicles, are exempt by statute from speed limits, but privately owned ambulances are not). There are at least three reasons for the almost universal acceptance of this principle.⁴ Several state statutes link government-operated ambulance services to police or fire protection, or both, as services which safeguard the life and health of the citizenry. See, e.g., Alaska Stat. § 29.35.130(d)(1) (1986) ("`emergency services' means services provided by law enforcement agencies, fire departments, and ambulance services"); Ark. Stat.Ann. § 14-14-708(c)(1) (1987) (emergency services include ambulance, fire prevention, and fire protection services); Cal. Health & Safety Code § 13801 (Deering 1989 Supp.) ("local provision of fire protection services, rescue services, emergency medical services, and ambulance services... is critical to the public peace, health, and safety of the state"); Md.Ann.Code art. 38A, § 45B(a)(1)-(2) (1986) (state fund established to promote the "delivery of effective and high quality fire protection, rescue, and ambulance services to the citizens of this State"); Minn.Stat.Ann. § 403.03 (West 1989 Supp.) (911 emergency number to be used primarily for "police, firefighting and emergency medical and ambulance services"). Where available, the easily remembered 911 emergency number connects a caller with the fire department, the police department, and the ambulance service, thereby providing an efficient and effective means of summoning one or more of these vital and integrally related services to the scene of a calamity. See, e.g., Benedict v. State, 494 So.2d 865, 866 (Ala.Crim.App. 1986); People v. Amato, 193 Colo. 57, 58, 562 P.2d 422, 423 (1977); State v. Vincik, 398 N.W.2d 788, 790 (Iowa 1987); Ross v. Consumers Power Co., supra, 420 Mich. at 651, 363 N.W.2d at 676; Maple v. City of Omaha, 222 Neb. 293, 300-304, 384 N.W.2d 254, 260-261 (1986). Lastly, these three emergency services are so interconnected and so vital to a community's health and safety that they are typically considered in tandem when assessing the effects of municipal land annexations on governmental services. See, e.g., In re City of Lenexa, 232 Kan. 568, 584, 657 P.2d 47, 62 (1983); City of Louisville v. Fiscal Court of Jefferson County, 623 S.W.2d 219, 221 (Ky.1981); City of Town and Country v. St. Louis County, 657 S.W.2d 598, 601 (Mo.1983).

Appellant contends, however, that the District's ambulance service is distinguishable from its police and fire service because a user fee is charged for ambulance service, D.C.Code § 4-316 (1988), whereas no such fee is charged for police or fire protection. From this fact appellant draws the conclusion that the District's ambulance service should be subject to the same tort liability as privately owned ambulance companies. We disagree.

For many years emergency ambulance service was provided free of charge to anyone who needed it. In 1976, however, a fee arrangement was recommended by the Mayor as a means of obtaining reimbursement from Medicare, Medicaid, and private insurance plans, when available, for part of the cost of ambulance runs. See Council of the District of Columbia, Memorandum Re Amendments to Revenue Act: User Charges, Attachment D-3 (November 18, 1976) hereafter "Memo Re Revenue Act Amendments". The Council accepted the recommendation and authorized the Mayor to set a reasonable fee to cover the cost of providing emergency medical services, with two restrictions: that no one be denied such services because of inability to pay, and that no one be asked about ability to pay at the time the services are requested.⁵ D.C.Code § 4-316 (1988). The...