Wicker v. City of Ord

• Decision Date: 03 November 1989
• Docket Number: No. 88-105,88-105
• Citation: 233 Neb. 705,447 N.W.2d 628
• Parties: Patricia J. WICKER, Individually and as Personal Representative of the Estate of Jack Calvin Wicker, Deceased, Appellant, v. CITY OF ORD, a Nebraska Political Subdivision, et al., Appellees.
• Court: Nebraska Supreme Court

Page 628

447 N.W.2d 628

233 Neb. 705

Patricia J. WICKER, Individually and as Personal Representative of the Estate of Jack Calvin Wicker, Deceased, Appellant, v. CITY OF ORD, a Nebraska Political Subdivision, et al., Appellees.

No. 88-105.

Supreme Court of Nebraska.

Nov. 3, 1989.

Syllabus by the Court

1. Actions: Torts: Negligence: Principal and Agent: Liability: Releases. The valid release of an agent in a tort action based exclusively on the alleged negligence of that agent also releases the principal from liability, even though the release specifically reserves all claims against the principal.

2. Principal and Agent: Liability: Immunity. The immunity Neb.Rev.Stat. § 71-5111 (Reissue 1986) grants to certified ambulance attendants shields their principals from liability to the same extent as it shields the agent-attendants.

3. Summary Judgment. Summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences which may be drawn from the material facts and the moving party is entitled to judgment as a matter of law.

4. Summary Judgment: Appeal and Error. In reviewing an order granting a summary judgment, the Nebraska Supreme Court must take the view of the evidence most favorable to the party against whom it operates and give that party the benefit of all favorable inferences which may be drawn from the evidence.

5. Negligence: Intent: Proof: Words and Phrases. In order for an action to be willful or wanton, the evidence must prove that a defendant had actual knowledge that a danger existed and that the defendant intentionally failed to act to prevent harm which was reasonably likely to result.

6. Negligence: Intent: Words and Phrases. To constitute willful negligence, the act done or omitted must be intended or must involve such reckless disregard of security and right as to imply bad faith.

7. Negligence: Intent: Words and Phrases. Wanton negligence is the doing of or failing to do an act with reckless indifference to the consequences and with consciousness that the act or omission would probably cause serious injury.

8. Negligence: Words and Phrases. Gross negligence means great and excessive negligence, that is, negligence in a very high degree. It indicates the absence of slight care in the performance of a duty.

9. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.

Peter B. Beekman of Weaver, Beekman & Merz, Falls City, for appellant.

John R. Brownell of Lauritsen, Baker, Brownell & Brostrom, Grand Island, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

CAPORALE, Justice.

Plaintiff-appellant, Patricia J. Wicker, individually and as the personal representative of the estate of her deceased husband, Jack Calvin Wicker, sued the defendants-appellees, City of Ord, Nebraska, and Rural Fire Protection District # 2 of Valley County, Nebraska, under the provisions of the Political Subdivisions Tort Claims Act for her husband's loss of his chance for survival. Plaintiff appeals from the trial court's sustainment of defendants' joint motion for summary judgment, assigning six errors, which merge to claim that the court below erroneously (1) determined that Neb.Rev.Stat. § 71-5111 (Reissue 1986) shields defendants from liability; (2) found that defendants' personnel did not act in a willful, wanton, or grossly negligent manner; and (3) failed to find, as a matter of law, that defendants' personnel did act in a willful, wanton, or grossly negligent manner. We affirm.

Before reviewing the facts, it is appropriate that we set forth the language of § 71-5111:

No certified ambulance attendant who provides public emergency care or rescue service shall be liable in any civil action to respond in damages as a result of his acts of commission or omission arising out of and in the course of his rendering in good faith any such service. Nothing in this section shall be deemed to grant any such immunity for liability arising out of the operation of any motor vehicle in connection with such service, nor shall immunity apply to any person causing damage or injury by his willful, wanton, or grossly negligent act of commission or omission.

For purposes of the foregoing section, Neb.Rev.Stat. § 71-5102(2) (Reissue 1986) defines "ambulance attendant" as one "trained or qualified to provide for, or any other individual who provides for, the care of patients while such patients are being transported in an ambulance."

The record establishes that the city contracted to provide emergency rescue services to the aforenamed fire protection district through the city's volunteer fire department, known as Ord 99. Plaintiff pled, and defendants admitted, that Ord 99 acted throughout the event we are about to describe as the agent of the city. The deposition testimony and other exhibits received in evidence fail to establish that the rural fire protection district was negligent in entering into the contract with the city or that the district did anything other than receive the services for which it contracted. Thus, the record fails to establish any basis for imposing liability on the fire protection district, see Dabelstein v. City of Omaha, 132 Neb. 710, 273 N.W. 43 (1937), and, thus, the judgment of the trial court as to that defendant must be, and is hereby, affirmed.

The remainder of this opinion concerns itself with the issues plaintiff's summarized assignments of error raise with respect to the City of Ord. In that regard, the record shows that the decedent was working as a concrete form carpenter at a construction site in rural Valley County, apparently within the jurisdiction of the fire protection district, when, at approximately 4 p.m., he collapsed from an unknown cause. After falling to the ground, the stricken victim began convulsing, vomited, and apparently voided himself. As his coworkers gathered around him, one of them, Steve Anderson, began to administer cardiopulmonary resuscitation and was later joined by Joseph Ambrose. While those two continued resuscitation efforts, a foreman at the construction site summoned an ambulance to the scene.

The Ord Police Department dispatcher's log shows that the alarm summoning volunteer rescue workers from Ord 99 was sounded at 4:20 p.m. It was necessary for the ambulance to travel over rough terrain in order to reach the construction site, which was located approximately 10.5 miles from Ord, and, as a result, the Ord 99 rescue workers arrived at the scene approximately 20 to 25 minutes after the alarm was sounded. The record further shows that a total of 14 volunteers responded to the alarm, 8 of whom were volunteer emergency medical technicians who had received only the most basic level of training.

When the rescue workers arrived, they found members of the construction crew gathered around the stricken victim, with one crewmember, Anderson, administering resuscitation. Frank Smedra was apparently the first volunteer to reach the victim. Smedra asked Anderson to discontinue resuscitation efforts so that he (Smedra) could check the stricken victim's vital signs. After Smedra and at least one other volunteer had examined the victim, the volunteers concluded that death had occurred, and did not resume resuscitation efforts. A deputy sheriff was then called to the scene to pronounce the victim dead, after which decedent was transported to a mortuary.

The record includes evidence that the volunteers acted improperly by failing to continue or resume resuscitation efforts upon the stricken victim. According to applicable standards promulgated by the American Heart Association and the American Medical Association, such efforts should have been resumed immediately after Smedra had checked the vital signs, and the decedent should have been transported to a hospital, with resuscitation efforts continued during transportation.

The deposition of Stephen W. Carveth, M.D., a cardiovascular and thoracic surgeon, provides evidence that a stricken person's chance of survival is "up to ... 50 percent" if cardiopulmonary resuscitation is administered within 3 minutes. However, the deposition of Dale L. Kemmerer, M.D., provides evidence that decedent's chance of survival may have been considerably less than 50 percent even if such efforts had been continued in this case.

Eight of the responding volunteers, including Smedra and Wayne D. Brown, the two deposed by plaintiff, had received their initial emergency medical technician training, consisting of approximately 82 hours of instruction, 12 to 14 years prior to the subject incident. Both Brown and Smedra have had some limited additional followup training.

When deposed, Smedra was asked if he recalled the procedure for terminating resuscitation efforts after they had been initiated. He replied, "It would be--one-man would be until somebody qualified who would come up and take over or if somebody would take over for you or a physician to take over for you, or if you would just be exhausted to the point that you couldn't." The record does not indicate whether Smedra was aware of or remembered the proper guidelines for terminating resuscitation efforts at the time he went to decedent's aid.

In giving his deposition, Brown indicated that Ord 99 had no procedure for discontinuing resuscitation efforts after they had been initiated. Brown did not recall what had been taught in his emergency medical technician training course with respect to the proper termination of such efforts.

In view of the errors assigned and the resolution we reach, we assume, as the trial court apparently did, but do not decide, that plaintiff has pled a theory on which she might, under appropriate circumstances, recover under our law.

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