Case Against FDNY Coffee Break EMTs Dismissed

The lawsuit filed by the family of a pregnant woman who died in 2009 after two FDNY EMTs allegedly refused to help her because they were on a coffee break, has been dismissed.

Eutisha Rennix suffered an asthma attack on December 9, 2009 while at work in a New York City Au Bon Pain. The media widely reported that the two EMTs who were in the coffee shop at the time callously refused to render aid to her because they were on a coffee break. These reports led to widespread outrage across the country over EMTs’ apathy for a dying woman. Melisa Jackson and Jason Green were suspended from work and thereafter placed on administrative duty. Criminal charges were filed at one point but later dismissed. Rennix’s family filed a wrongful death suit.

The Au Bon Pain case has been subject to so much misinformation and biased reporting that the truth has now become a mere footnote to the sensational headlines. However the facts will help put the court ruling into perspective.

Jackson and Green were actually dispatchers who were on a coffee break from the dispatch center located across the street at fire department heaquarters. They were regular customers of the Au Bon Pain and were recognized as dispatchers by store employees.

When Rennix became ill, the cashier who was waiting on the EMTs mentioned Euthisha by name, said she was not feeling well, and asked if they could possibly summons her an ambulance. Jackson immediately called dispatch on her cellphone and ambulance was promptly dispatched. The cashier never told them Rennix was gravely ill nor were they ever requested to examine or treat her. The pair returned to the dispatch center without giving the matter another thought.

Unfortunately a BLS vehicle was dispatched on the run. When they arrived, Rennix was in severe respiratory distress. By the time an ALS unit arrived, Rennix’s condition had worsened dramatically and she and her baby died at the hospital.

The family’s wrongful death suit claimed among other things that the EMTs were “grossly negligent” for not personally checking on Rennix. No doubt, the EMTs in the case could have and should have done more than what they did. Perhaps it would have made a difference, perhaps it would not have. However, the truth is not nearly as bad as the sensational headlines initially proclaimed.

Incidentally, Rennix’s family was the source of much of the misinformation about the case, with most of it going unchallenged by the media – who likely were enamored by the sensational headlines they we able to publish. Rennix’s mother Cynthia in particular went on television claiming that the two EMTs sat in the restaurant eating coffee and bagels while Rennix was dying in the back room refusing to help, telling employees to “call it in… call 911”. Cynthia also was the lead plaintiff in the civil suit.

Brooklyn Supreme Court Justice Carolyn Demarest dismissed the suit, concluding that neither the FDNY nor the two EMTs breached a duty owed to Rennix. Judge Demarest concluded that a simple request to summons an ambulance was insufficient as a matter of law to create a “special duty”, upon which liability could have rested.

I spent several hours searching for a copy of the ruling, but as of yet have been unable to find one. The media coverage of the ruling is yet again tending to sensational what otherwise appears to be a sound legal ruling – whether based on sovereign immunity, statutory immunity, or the public duty doctrine.

Here are a few quotes:

She based her ruling on a state law that says gross negligence can only be claimed if a “special duty” is owed to a stricken person — which can only be established if the victim or an immediate family member makes the request for help themselves.”

Rennix’s mother was quoted as saying “How could my daughter have called 911 if she was unconscious? It’s crazy. And it’s unfair.

Rennix’s attorney, Sanford Rubenstein, was quoted as saying “This technicality, which clearly is not in the interest of New Yorkers, particularly those whose wrongful death might have been prevented, must be addressed by either the appellate courts or the governor and the state Legislature.”

Of course Mr. Rubenstein would say taking millions of dollars from the taxpayers of New York and giving it to Mrs. Rennix (and himself of course) is somehow in the interest of New Yorkers… too bad the media won’t ask those kinds of hardball questions. They have no problem asking a firefighter who gets in trouble a hardball question…. but I digress…

Under the special duty doctrine, when a public employee is otherwise entitled to civil immunity protection, the immunity can be lost if a special duty exists between the employee and a victim. The creation of a special duty requires a special relationship between the parties – but that relationship simply does not exist on these facts. In fact there was no relationship between Green, Jackson and Rennix. That is not a technicality… if anything asking a judge to find a special relationship on these facts would require the creation of what could be termed a manufactured technicality… that dispatchers who are also EMTs are legally bound to do what field medics would have been expected to do… and can be held liable if they fail to do so. As my Dad always told me – hard cases make bad law. Right now – thanks to Judge Demarest, this hard case did not make bad law.

I am looking forward to reading the decision and will update this posting once I get it. More on the story.

Updated: 4/9/14 at 10:45 pm: Courtesy of my good friend, Brad Pinsky, I was able to review the court’s ruling. Here are the key provisions relative to special duty in Judge Demarest’s own words (citations omitted):

[W]here a municipality exercises a governmental function, the threshold inquiry focuses on the extent to which the municipality owed a “special duty” to the injured party

Assistance rendered by FDNY EMTs is viewed as “a classic governmental” function, which requires the existence of a special duty

Without a [special] duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm”

“The core principle” underlying this special duty requirement “is that to “sustain liability against a municipality, the duty breached must be more than that owed the public generally”‘

It is the plaintiff’s obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself

[I]t is well established that in order for a special duty to derive from the City voluntarily assuming a “special relationship” with Rennix beyond the duty that is owed to the public, the presence of four elements must be shown: ” (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking’

Here, plaintiffs cannot satisfy the first, third, and fourth elements. It cannot be disputed that neither Jackson nor Green made any promises or assurances to act on behalf of Rennix. Indeed, neither Jackson, nor Green, ever spoke to or saw Rennix, thus foreclosing the possibility of any statement by them being construed as a promise or assurance.

Since there was no direct contact between Jackson or Green and Rennix, there could not be justifiable reliance by Rennix on anything Jackson or Green did or said

Consequently, plaintiffs have failed to establish the existence of a special duty running from the City to Rennix, through its agents, Jackson and Green

Accordingly, the City’s motion for summary judgment dismissing plaintiffs’ amended complaint and any and all cross claims as against it is granted

Thus – as indicated above – the judge properly applied settled law relative to the special duty rule. The creation of a special relationship requires more than a simple request for assistance. It is not a mere technicality – but rather a necessary part of our system of jurisprudence.

Consider the consequences if a fire department were to owe a legal duty to every homeowner in a community to respond immediately if there is a fire. It sounds doable, right? But think about it.

What if 2 minutes after crews were dispatched to A’s house, B’s house catches fire. Could B sue the fire department because it failed to respond to his house as quickly as it responded to A’s house? And what about a third fire at C’s house… and a fourth fire at D’s… and a fifth at E’s? What if the closest apparatus was out of service for repairs, or training? What if the first in engine had a 500 gallon tank when a 750 gallon tank was needed? What if an aerial ladder was 100 feet when a 110 would have saved someone’s life?

The compromise that courts have reached is to draw a distinction between a public duty and special duty. A fire department owes a duty to respond to everyone in the community, known as a public duty. However, a breach of the public duty is NOT a basis upon which a governmental entity can be held liable. There must be some additional basis upon which an injured party must base a claim… namely a special duty. Some call that a technicality. To rule otherwise would open the floodgates of people claiming government somehow failed to meet their needs.

Each state has its own formula for the creation of a special duty – and Judge Damarest sets forth the four criteria that New York requires.

The next step: will Ms. Rennix appeal?

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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