UPDATED Asiana Wrongful Death Suit Finally Filed in San Francisco

UPDATED 8/16/2014 WITH COMPLAINT: The long anticipated civil suit has been filed against the San Francisco Fire Department by the parents of a 16-year-old Chinese girl who died following the crash of an Asiana Airlines 777 in July 2013.

Gan Ye and Xiao Yun Zheng, the parents of Ye Meng Yuan, filed suit in San Mateo County Superior Court yesterday. Yuan was allegedly written off as dead as the department began foam operations, and her body was struck by two San Francisco Fire Department vehicles. A coroner later reported she was alive when struck, although SFFD denies that allegation.

The complaint names the City and County of San Francisco, Fire Chief Joanne Hayes-White, fifteen named personnel, and 100 unnamed “Does”. The fifteen named employees are:

1. Anterior Molloy, EMS Captain, San Francisco Fire Department (Airport Division)
2. Anthony Robinson, Captain, San Francisco Fire Department (Airport Division)
3. Tom Siragusa, Assistant Chief, San Francisco Fire Department
4. Mark Gonzales, Deputy Chief of Operations, San Francisco Fire Department
5. John Littlefield, Deputy Director of Operations, San Francisco Airport
6. Tryg McCoy, Chief Operating Officer, San Francisco Airport
7. John L Martin, Airport Director, San Francisco Airport
8. Denise Schinitt, Deputy Chief, San Francisco Police Department ( Airport Bureau)
9. Christine Emmons, Lieutenant, San Francisco Fire Department
10. Roger Phillips, Firefighter, San Francisco Fire Department (Airport Division)
11. Jimmy Yee, Firefighter, San Francisco Fire Department (Airport Division)
12. Michelle Grindstaff, Firefighter, San Francisco Fire Department (Airport Division)
13. Michael Kirk, Firefighter/Paramedic, San Francisco Fire Department (Airport Division)
14. Henry Choy, Airport Safety Officer, San Francisco International Airport (Operations Division)
15. Derrick Lee, Police Officer, San Francisco Police Department (Airport Bureau)

The complaint makes the following factual allegations:

• [T]he Rescue Worker Defendants failed to assess Ye Meng Yuan, communicate her location to command, and failed to mark her location.
• They did not take her pulse.
• They did not check her breathing.
• They failed to conduct any triage on her.
• They failed to move her to a safe location and abandoned her in a hazardous position that subjected her to grave risk of harm.
• According to witness statements, SFFD firefighter Phillips, riding on “ARFF Unit 10”, observed Ye Meng Yuan while approaching the Aircraft Phillips left the vehicle to help the driver, Jimmy Yee, maneuver “ARFF Unit 10” around Ye Meng Yuan. Phillips alerted Emmons that a passenger was lying in the field, but Emmons responded that they should move on.
• Approximately 15 minutes after Ye Meng Yuan was seen lying helpless on the ground in the fetal position by Phillips and the other Rescue Worker Defendants and after Emmons had been informed that she was lying on the ground, “ARFF Unit 10” ran her over. At the time of impact, Ye Meng Yuan was in the same location where the Rescue Worker Defendants had initially observed her. When “ARFF Unit 10” ran over Ye Meng Yuan, the impact caused devastating blunt force traumatic injuries that resulted in her untimely death.
• Elyse Duckett is an SFFD firefighter assigned to the Airport Division. Duckett maneuvered “ARFF Unit 37” into the area where Ye Meng Yuan was located shortly after “ARFF Unit 10” had run over and killed Ye Meng Yuan At the time, Ye Meng Yuan’s remains were still unmarked and obscured by foam put down by “ARFF Unit 10.” Duckett then ran over Ye Meng Yuan in “ARFF Unit 37” while departing the scene of the Crash. On information and belief, at the time Ye Meng Yuan was struck by “ARFF Unit 37,” she was already deceased as a result of having been run over by “ARFF Unit 10”
• The Rescue Worker Defendants created a danger to Ye Meng Yuan, and/or rendered her more vulnerable to existing danger. They knew Ye Meng Yuan was in a location close to the Aircraft where she lay non-ambulatory and unable to protect herself.
• In deliberate indifference to known and obvious dangers, the Rescue Worker Defendants failed to examine Ye Meng Yuan, failed to ensure she was placed or moved to a safe location, failed to mark her location, failed to protect her from moving vehicles in the vicinity of the Aircraft where it was known that vehicles would be traveling, failed to alert commanders at the scene, failed to properly assess and triage Ye Meng Yuan, failed to properly treat Ye Meng Yuan; and abandoned Ye Meng Yuan in a perilous location.
• Personnel with supervisory and command duties and/or policymakers, who were employees or independent contractors of the City and County, recklessly, and with deliberate indifference to known and obvious dangers, failed to ensure that both they and the rank and file responders received proper training, failed to implement appropriate procedures, and violated legally required mandates designed to prevent injury and death during aircraft emergencies.

The complaint contains 6 counts:

• Count 1 – Wrongful Death – negligence and gross negligence
• Count 2 – Wrong Death – breach of mandatory duty imposed by enactment
• Count 3 – Survival Claim – negligence and gross negligence
• Count 4 – Survival Claim – breach of mandatory duty imposed by enactment
• Count 5 – Violation of Constitutional and Federally Protected Rights and Wrongful Death, as Authorized Under 42 U.S.C. § 1983
• Count 6 – Violation of Constitutional and Federally Protected Rights and Wrongful Death, as Authorized Under 42 U.S.C. § 1983, For a Policy, Custom, or Practice, Failing to Train and Supervise

Counts 5 and 6 are essentially federal claims that Ye Meng Yuan’s life was taken without due process of law, in violation of the 14^th Amendment to the US Constitution and actionable under §1983.

Count 5 is primarily directed at the rescue workers, and alleges:

• As a result of the acts set forth herein, Plaintiffs and Ye Meng Yuan were subjected to deprivation of rights by the Rescue Worker Defendants, which rights include, but are not limited to, privileges and immunities secured to Plaintiffs and Ye Meng Yuan by the Constitution and laws of the United States.
• By reason of such acts, the Rescue Worker Defendants have violated the constitutional rights and liberty interests of Plaintiffs and Ye Meng Yuan, which are protected under, among other things, the 14th Amendment’s prohibition against depriving a person of life and family relationships without due process of law.
• The Rescue Worker Defendants and each of them breached their duty of care to Ye Meng Yuan and Plaintiffs and acted recklessly and/or in callous or deliberate indifference to known and obvious dangers, with a lack of due or proper care and/or with an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others
• [T]he Rescue Worker Defendants knew, or should have known, of Ye Meng Yuan’s injuries and perilous condition and location; were deliberately indifferent to them, ignored them, and failed to provide access to and delivery of medical care, assessment, triage, and attention to Ye Meng Yuan
• The conduct of the Rescue Workers was so egregious and outrageous and contrary to the right to life implicit in ordered liberty and common decency so as to shock the conscious of the community

Count 6 is primarily directed at city and county policy-makers (customs and practices) and alleges:

• At all relevant tunes, the City and County Defendants knew or should have known that the Rescue Workers, including the Rescue Worker Defendants, would be faced with situations similar to the circumstances and facts heretofore alleged, wherein the Rescue Workers would be required to respond to emergencies, such as aircraft incidents and accidents involving the large passenger carrying aircrafts, and absent appropriate training, supervision, and procedures, injury and death would be likely to occur.
• The City and County Defendants failed to provide, under the color of State law, adequate training to the Recue Workers, including the Rescue Worker Defendants, and to implement necessary procedures and methods to avoid injury and death to an injured passenger in a large aircraft accident
• [T]he City and County Defendants had a policy of not requiring strict adherence to compliance with appropriate training procedures or with its own Emergency Plan
• The death of Ye Meng Yuan was caused pursuant to a policy and custom of the City and County Defendants of inadequate training and supervision of the Rescue Workers, including the Rescue Worker Defendants, their failure to provide adequate protocols, and their failure to follow existing protocols
• The City and County Defendants’ policy or custom of grossly inadequate training and supervision of the Rescue Workers and failures relating to protocols demonstrated gross negligence and/or recklessness amounting to deliberate indifference to the clearly established constitutional rights of others, including Ye Meng Yuan, to be free from the deprivation of her life without due process of law
• The City and County Defendants, who include policymakers, knew that the Rescue Workers, including the Rescue Worker Defendants, would be likely to encounter a large passenger aircraft incident, requiring medical and rescue operations
• The inadequacies of its protocols and the training and supervision provided by the City and County Defendants were so obvious and likely or probable to result in the violation of constitutional rights that the City and County Defendants acted with deliberate indifference to the need to protect citizens

Counts 5 and 6 were most likely included in the suit as a fall-back position against the possibility/probability that the Defendants will be found to have tort immunity under state law. It is reasonable to expect that the Defendants will have some level of immunity protection either through statutory/sovereign immunity and/or the public duty doctrine.

Normal tort immunity does not apply to §1983 actions so adding these counts may keep the Plaintiffs’ claims in play in the event that Counts 1-4 get dismissed from the case in the early goings.

The challenge for the Plaintiffs’ §1983 claims will be that to constitute a deprivation of life without due process, they have to establish that the Defendants acted either with an intent to cause harm or deliberate indifference toward that harm. It is indeed a higher standard than negligence or even gross negligence – one that we rarely see used against fire service defendants in operational cases – and even more rarely is it successful. In fact I have not found a successful case against a fire department involving a due process deprivation of life case under §1983 for an operational failure.

However – §1983 actions are routinely filed against police agencies and fairly often are successful as a way around the normal tort immunity protection when departments lack proper policies, fail to train personnel on those policies, or fail to enforce those policies. Because fire chiefs are rarely confronted with this type of §1983 deliberate indifference theory, it is worth carefully considering the key language:

• [The City and County of San Francisco] knew or should have known… Rescue Workers… would be faced with situations similar to [what occurred]
• [The City and County of San Francisco] failed to provide… adequate training… and … implement necessary procedures
• The inadequacies of its protocols and the training and supervision … were so obvious and likely or probable to result in [a death that local officials] acted with deliberate indifference to the need to protect citizens…

Again, this pleading is very similar to what we see in police cases where someone is killed either by a use of force, high-speed pursuit, or officer involved shooting. It is another reason why strategic planning, sound up-to-date policies, training, and documentation is so critical.

One final point: by adding Counts 5 and 6 to the complaint, Plaintiffs run the risk that the attorneys for the defendants will have the case removed to federal court. Removal is a commonly used defense tactic that – in theory allows a court with greater expertise in federal issues to deal with the federal claims. In reality, removal serves as the trial lawyer’s equivalent to calling a “time-out” in a football game just as a kicker is ready to try for an important field goal. It hopefully will have an unsettling effect on the opponent’s game plan.

Here is the complaint. Zheng v City and County of San Francisco

Here is some of the media coverage.