FDNY Ambulance Delay and NY Special Duty Rule

A lawsuit brought by the husband of a woman who died when an FDNY ambulance responding to her apartment was flagged down by police officers for another incident, has survived its first challenge, courtesy of the special duty rule. The case dates back to April 11, 2014, when Michael Mannino called 911 for Carmen Mannino.

As explained in the decision:

  • Mr. and Mrs. Mannino reside across the street from New York Presbyterian Downtown Beekman Hospital.
  • On April 11, 2014, Carmen Mannino collapsed in her home. At approximately 3:16 P.M., Michael Mannino called 911 and informed the operator that his wife collapsed.
  • He was told that by the operator/dispatcher that they would take care of it.
  • The call was transferred to an EMT at or around 3:18 P.M.
  • According to … FDNY EMT Stanley Ko, the call received a level 6 priority and a Basic Life Support Unit was assigned to report to the Mannino home.
  • At around 3:29 P.M., BLS began to make their way to plaintiffs’ apartment.
  • While in route, the BLS unit was stopped by New York Police Department officers to tend to an emotionally disturbed person.
  • EMT Ko testified that if they are flagged down, they are required to stop and notify dispatch that they were flagged down.
  • EMT Ko further stated that failure to stop and render assistance constitutes patient abandonment.
  • In the meanwhile, Carmen Mannino collapsed again, and Michael Mannino again called 911 seeking assistance.
  • He was told by the dispatcher that it would be taken care of.
  • Plaintiff’s priority level changed from level 6 to level 5 and at or around 3:38 P.M., the BLS Unit continued toward plaintiff’s home.
  • A few minutes later, at approximately 3:42 P.M., plaintiff placed a third call to 911 requesting medical assistance.
  • He testified that he was again told that it would be taken care of.
  • Plaintiff further testified that during each call he was asked to describe his wife’s condition and that each time he told the dispatcher that his wife was conscious and breathing but needed help.
  • During the third call, however, EMT Ko testified that plaintiff stated that his wife was unable to breathe and thus, her priority level changed from level 5 to level 2 at which point an Advanced Life Support Unit was dispatched.
  • Soon thereafter, Mr. Mannino decided he would go across the street himself to seek help.
  • On his way out of the building, at the elevator, he was met by an EMT and other fire department personnel.
  • When asked why he did not go across the street sooner, Mr. Mannino stated that his wife was immobile and unable to travel across the street.
  • BLS arrived at approximately 3:49 P.M. and performed cardiopulmonary resuscitation until the ALS unit arrived.
  • According to ALS EMT Adil Khalid, ALS continued to perform CPR on Carmen Mannino who was in cardiac arrest.

Mr. Mannino sued the city for wrongful death for failure “to timely provide an ambulance and medical treatment” for Carmen. The city moved for summary judgment based upon New York case law which holds that government providers are only liable for the failure to deliver a service when there is a special duty. [Note: many states refer to this as the public duty doctrine, but the NY cases cited do not refer to it as such].

The city argued that because Mannino’s lawsuit failed to plead that a special duty existed, the city should be granted summary judgment. In denying the city’s motion, Supreme Court Judge Verna L. Saunders ruled as follows:

  • Plaintiff is charged with proving that the government owed a special duty of care to the injured party and if plaintiff fails to meet its burden, liability cannot be imputed to the municipality acting in a governmental capacity.
  • The case at bar is nearly identical to the facts in the Canty matter where the Appellate Division held that a special duty existed where plaintiff made several calls to 911, detailed his wife’s deteriorating condition and was told that help was arriving, resulting in him not seeking assistance on his own.
  • Here, upon affording the complaint and Bill of Particulars a liberal construction, a special duty was plead, and defendants were sufficiently noticed of plaintiff’s intent to pursue said claim.
  • Further, the defendants have not established entitlement to summary judgment inasmuch questions of fact remain as to whether the statements made by the dispatcher to plaintiff constitute assurances/promises establishing a special duty.
  • Until a determination is made in this regard, the assertion of the City’s immunity cannot be determined.
  • Moreover, it is clear from the facts presented that reasonable minds may differ as to whether the dispatcher made the appropriate inquires in order to dispatch the most suitable unit to plaintiff’s home; whether the thirty-seven minutes that elapsed between Mr. Mannino’s first 911 call and FDNY’s ultimate arrival to his home constitutes a breach of duty where Mr. Mannino called 911 three times and was never informed that there was a delay due to the initial ambulance being stopped by NYPD; and finally, whether plaintiff’s reliance on the statements of the dispatcher was reasonable where on three separate occasions he informed the 911 of dispatch of his wife’s condition and each time was told that “they will take care of it.”
  • The City’s assertion in reply, that plaintiff did not report to the dispatcher his wife’s “deteriorating” condition is without merit as it is the dispatcher who elicits relevant information through questioning.
  • Furthermore, the information provided to the dispatcher over the course of the multiple 911 calls resulted in plaintiff’s priority increasing with each call, with the final call being given top priority and an ALS unit assignment.

It is important to understand, the court did not find the city liable, nor conclude that a special duty exists. Rather the court refused to decide the case in the city’s favor at this point.

Here is a copy of the decision.

Here is another special duty case from earlier this year where FDNY prevailed.

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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