By DAVID C. COMSTOCK JR.
Scenario: Christopher WilliS was driving his pickup truck eastbound on Interstate 94 in Michigan when he lost control of the vehicle, crossed the median, and became airborne. The pickup truck then collided with a semi-truck and flew over the top of another vehicle traveling in the westbound lane of the highway. As a result of the crash, the cab of Willis’ pickup was separated from its frame; the semi-truck jack-knifed into the median, and the third vehicle was sent to the shoulder of the highway.
Coming to the Victim’s Aid
Michael Reed, a civilian, stopped to help those involved in the accident. He approached the cab of the pickup-which had landed upside down-and saw Willis’ arm dangling through the window. Although he could not find a pulse on Willis’ arm, Reed crawled halfway into the cab and noticed that Willis was still breathing. Logan Bishop, an Emmet (MI) Fire Department (EFD) firefighter and Emmet police officer, was one of the first officials to respond to the accident.
According to Bishop, when he approached the pickup, he was quickly advised by two bystanders that Willis had no pulse. Reed claimed that he told Bishop that Willis was still alive and breathing, but Bishop denied this. Bishop concluded that Willis had not survived the accident based on his understanding that Willis did not have a pulse in his arm and the extent of the damage to the pickup truck. Accordingly, Bishop focused his attention on the other accident victims; he also told another police officer, Lance Barbre, that Willis was dead. Relying on this information, Barbre called the dispatch center and stated that there was a fatality at the accident. Subsequent responders heard the report of a fatality while en route to the accident scene. When paramedics arrived, Barbre instructed them not to go to the pickup because the driver was dead. Instead, he instructed them to treat the other victims.
When EFD Firefighter Scott Counts approached Willis’ pickup, two bystanders informed him that a pulse could not be found on Willis’ arms. Counts tried to locate a radial pulse, but he was unsuccessful. Counts could not access the body through the window of the cab, but he saw that Willis’ lower body was badly mangled. Counts informed two paramedics and another firefighter that he was unable to find a pulse. Counts claims that he never expressly told the paramedics that Willis was dead and that neither Reed nor anyone else at the scene ever informed him that Willis was still breathing. The paramedics moved on to assist the injured occupants of the automobile.
Based on statements of varying individuals, everyone subsequently arriving at the scene assumed that Willis was dead. Paramedics placed a white sheet over the pickup truck and called an emergency room physician who pronounced Willis dead over the phone at approximately 7:00 a.m. Willis was left alone in the pickup cab for more than two hours as investigators photographed the scene and gathered evidence.
At approximately 8:46 a.m., the sheet was removed and the cab was secured to a tow truck so that responders could extricate the body from the wreckage. Before the process was complete, someone from the medical examiner’s office was able to enter the cab and discovered that Willis was still breathing. An emergency helicopter was called to the scene to transport Willis to the hospital. Willis was pronounced dead at the hospital at 9:52 a.m.
Parents File Suit
Willis’ parents filed a complaint against Bishop, Counts, and the Township of Emmett alleging violation of their son’s Fourth and Fourteenth Amendment rights under 42 U.S.C. Section 1983, alleging that the Township and its emergency responders violated Willis’ Fourteenth Amendment rights by failing to provide him with medical care and spreading false information that he was dead, causing other emergency responders to not treat him. After review by the trial court, the parents’ claims were dismissed. The parents appealed the dismissal to the United States Court of Appeals. Willis v. Charter Township of Emmet, 2010 U.S. Appeal Lexis 194, 2010 Federal Appeal 005N (6th Circuit).
The appellate court noted that the issue on appeal was whether Bishop and Counts violated Willis’ Fourteenth Amendment rights by failing to provide him with medical care and spreading false information that he was dead, causing other emergency responders not to treat him. The appellate court noted that the Due Process Clause generally does not impose affirmative duties on the state to protect or aid individuals. [DeShaney v. Winnegago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196-197 (1989).] However, the Sixth Circuit had previously recognized two exceptions to this rule: (1) the “custody” or “special-relationship” exception, and (2) the “state-created danger” exception.
The custody exception to the DeShaney rule “triggers a constitutional duty to provide adequate medical care to those individuals under a restraint of personal liberty.” Examples would include incarcerated prisoners, those individuals voluntarily committed to mental institutions, foster children, and pretrial detainees. Historically, the court had held that when the State takes a person into custody and holds him against his will, the Constitution imposes upon the State a corresponding duty to assume some responsibility for his safety and general well-being. The court noted that when its inquiry involved the alleged custody of an unconsciousness victim, a person seeking damages must show “some state action that applies force (or the threat of force) and the showing of authority made with the intent of acquiring physical control.”
An example of this situation would be an unconscious and intoxicated person who the police handcuff and take to jail. Where such a showing is not made, the custody exception is not applicable.
The Court’s Views
Turning to the parents’ claims, the court noted that the custody exception did not apply because Willis was restrained by the circumstances of the car accident, not by any actions of the Township officials. Neither Bishop nor Counts used force or the threat of force when they informed others that Willis did not survive the accident, nor did they demonstrate any attempt to exercise control over him as is required to satisfy the custody exception to DeShaney. More importantly, the court noted that none of the defendants’ actions restrained Willis’ personal liberty; he was restrained by the unfortunate circumstances of the car accident.
The parents argued that the custody exception applied because the defendants knew of their son’s predicament. The court found this argument to be misguided. First, there was no indication that either Bishop or Counts knew that Willis was still alive. Instead, they erroneously assumed that he was dead and redirected their efforts to the other victims because they thought the decedent was beyond assistance. Moreover, even if they had known that Willis was still alive, the court held that the custody exception would not apply because the officers did nothing to restrain him. As stated in DeShaney, “the affirmative duty to protect arises not from the state’s knowledge of the individual’s predicament or from expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.”
The parents also argued that the state-created danger exception applied. This exception exists when the state exposes an individual to private acts of violence by either creating danger or causing an individual to be more vulnerable to danger. Under this exception, a public official can be held responsible for an injury committed by a private person if (1) the state actor firmly acted to create or increase the risk of injury, (2) the victim or small class including the victim was especially endangered, and (3) the state actor had the requisite degree of culpability. The court, again, found this exception to be inapplicable because neither Bishop nor Counts affirmatively acted to expose Willis to private acts of violence nor did they have the requisite degree of culpability; neither acted affirmatively to deny Willis care because their actions did not expose him to private acts of violence. The Sixth Circuit has repeatedly held that a failure to act cannot be considered an affirmative act under the state-created danger theory.
However, the court also wrote that it has had difficulty in the past distinguishing between an affirmative act and a failure to act. Accordingly, “[rather] than focusing on the often metaphysical question of whether officer behavior amounts to affirmative conduct or not, we have focused on whether [the victim] was safer before the state action than he was after.” (Citations omitted.) In this case, the conduct of Bishop and Counts fit into the “failure to act” category; they failed to discover that Willis was still alive and thus did not provide him with the medical care he needed. Even assuming that the conduct of the two officers blurred the line between an affirmative act and a failure to act, the parents’ claims still failed because neither Bishop nor Counts made Willis less safe by increasing the risk that he would be exposed to private acts of violence.
The parents argued that the extended period of time during which Willis was left untreated as well as the jostling of the pickup truck cab when it was secured for towing satisfied the private acts of violence requirement. However, the court found that neither of these circumstances amounted to private acts of violence. Willis’ injuries were caused by the car accident that occurred prior to the officials’ arrival. Although it was almost certain that his condition deteriorated during the two hours he was left untreated, Bishop and Counts did not carry out any affirmative acts that increased the risk that Willis would be exposed to private acts of violence.
Even if the plaintiffs could meet the state-created danger exception, the claim would still fail because the government act or conduct must be so egregious that it is arbitrary in the constitutional sense. Initially, Bishop and Counts were in an emergency situation where the ability to reflect and conduct reasoned deliberation was not present. However, as time passed, Bishop and Counts had time to reflect on their decisions. The court therefore reasoned that based on the time to reflect, the standard of “deliberate-indifference” would be appropriate in determining the reasonableness of the defendants’ actions. Reasonable indifference means that the official must be aware of facts from which the inference could be drawn that a substantial risk of serious harm to a citizen exists and that the defendants failed to act. The courts have previously equated deliberate indifference with the subjective standard of “recklessness.”
In this case, the parents were not able to produce any evidence that either Bishop or Counts actually drew the inference that their son was still alive and in need of immediate medical attention. Nor was the risk that Willis was still living “so obvious” that Bishop and Counts “had to have known about it.” With the benefit of hindsight, it was clear that Bishop and Counts should have more thoroughly evaluated Willis’ condition, but they did not act with deliberate indifference in not doing so.
Finally, the parents argued that even if their due process claim failed under the DeShaney exceptions, it should not be dismissed because Bishop and Counts arbitrarily thwarted potential attempts by private parties to rescue their son. The plaintiffs relied on the case of Beck v. Haik, 234 F. 3d 1267 (6th C.A., 2000), in which local officials prohibited a qualified, private dive team from trying to rescue a man who jumped or fell into a river and instead waited 35 minutes for the county’s dive team to arrive. In Beck, when the county dive team found the man, he was already dead. Resuscitation attempts failed, but there were indications that had his body been recovered sooner, the attempts may have been successful. In Beck, the appellate court reversed the district court’s dismissal on the basis that the decedent’s due process rights were violated when the state arbitrarily prohibited private rescue attempts without providing a meaningful alternative. In Beck, the case was sent back to the district court for a jury trial.
However, with respect to claims made on behalf of Christopher Willis, the court found that the essence of the claim was that Bishop and Counts should be liable for not rescuing Willis sooner. However, the parents provided no evidence to show that either defendant arbitrarily prevented any private individual from attempting to help Willis. In fact, because everyone at the scene was under the impression that Willis was dead, no private or rescue attempts were made. Accordingly, the court ruled that the plaintiffs did not have a due process claim based on the Beck exception. Despite the best efforts and intentions of Bishop and Counts, they were sued for their failure to provide treatment to Christopher Willis. Ultimately, the case had a favorable outcome for the public officials.
The Aftermath
Although this case reminds first responders that it is unlikely that they will be held liable under a constitutional claim for the failure to treat an accident victim, it also reminds public safety officials that several exceptions may exist. First, police, fire, and emergency medical personnel must make reasonable efforts to treat all individuals within their “custody or control.” Although this is not usually an issue when the patient is unconsciousness, it may occur when the patient is restrained because of an alleged mental illness. Second, officials must take precautions to not make the individual more vulnerable to danger. This may occur where actions increase the vulnerability of citizens to danger or otherwise place them in harm’s way. An example may occur where a restrained patient is placed in a position exposing him to chemicals, traffic collisions, or other external adverse conditions.
Finally, this case exposes the unique circumstance when public officials may be held liable where they prevent the rescue of an individual without providing an alternative rescue plan. Based on this exception, rescuers must be aware of those individuals properly trained within or near their jurisdiction and should not refuse, prohibit, or hesitate to permit qualified individuals or organizations from initiating rescue efforts when the public officials could not do so otherwise.
Ultimately, the Willis decision is one of many recent federal court decisions where federal jurisdiction has been declined in a negligent-type (failure to act or improperly act) lawsuit. Federal courts are not so willing to find constitutional or federal case questions and are instead dismissing cases, leaving the injured parties to pursue only their state law claims against political subdivisions. Many states have strict immunity laws, and absent willful, wanton, or reckless behavior by an employee, no action will be left against the first responder or his political subdivision. Although some states are limiting government immunity under their own state’s laws, it is certainly nice to know that in the federal court system, tort-related claims against firefighters and their employers are not so easily won.
DAVID C. COMSTOCK JR. is a 32-year fire service veteran and chief of the Western Reserve Joint Fire District in Poland, Ohio. He is a chief fire officer designee and lectures and writes on fire service topics relating to chief and company officer operations, liability, and personnel issues. Comstock is also an attorney in the firm of Comstock, Springer & Wilson Co., L.P.A. in Youngstown, Ohio.
