Washington Supreme Court Permits Suit Against 9-1-1 Dispatch

Result could affect dispatch communications & coding

 

The miscoding of an emergency call in Skagit County, Wash., resulted in a lawsuit that may change the way in which courts look at immunity for 9-1-1 dispatch centers.

 

After seven years of litigation, the Washington Supreme Court ruled in November 2012 that a wrongful death lawsuit filed by the family of a man alleging mishandling of a 9-1-1 call that resulted in the death of William R. Munich, a well driller from Orcas Island, may proceed to trial. The trial court refused to dismiss the case and the county appealed. The Court of Appeals similarly declined to dismiss, and the Supreme Court has now affirmed that decision in an 8—1 holding.

 

According to the Associated Press, Munich, age 63, was on his Lake Campbell property in October 2005, when he asked a neighbor, Marvin Ballsmider, to stop driving a recreational vehicle across his property. Munich had lived in the San Juan Islands for 32 years and had hoped to build a home on his property. Ballsmider, who had been drinking, became upset and shot at Munich.

 

Munich called 9-1-1 and hid in a float plane hangar on his property, where there were three cars inside. The 9-1-1 operator told Munich that a deputy was on the way and confirmed that Munich would wait, rather than take one of the cars and attempt to escape.

 

Munich called 9-1-1 a second time, seven minutes later, when Ballsmider came into the hangar. (It was not clear in the information provided by the court why the initial call was terminated.) Munich escaped, running out of the hangar and along U.S. Highway 20. Ballsmider pursued him in a vehicle, firing out the window. Munich was on the phone with 9-1-1 when the call ended with the sound of him being fatally shot.

 

Unfortunately, rather than coding the call as a Priority One emergency, dispatcher Norma Smith coded it as a “Priority Two weapons call.” As a result, it took 18 minutes for Deputy Dan Luvera to arrive, since, per protocol, he didn’t activate his emergency lights and siren. After Munich’s second call, Luvera activated his emergency equipment and increased his speed, arriving within two minutes of the second call. Munich had been running in the direction of Luvera when Luvera arrived. The family alleged that had the call been properly coded as an emergency, the deputy would have arrived before Munich was killed.

 

Skagit County attempted to have the suit dismissed on immunity grounds, arguing that the “public duty doctrine” protected it from litigation because it didn’t owe any special duty to protect Munich any more than other members of the public.

 

In general, the public duty doctrine provides that a governmental entity can be held liable only when the duty breached was owed to the injured person as an individual, and not merely the breach of a duty owed to the public at large. Essentially, the doctrine is that “a duty to all is a duty to no one.”

 

Over time, Washington courts have eroded the protection offered by this doctrine by moving away from the original application of it. Several exceptions, such as the failure to enforce, the “rescue doctrine,” and the existence of a “special relationship,” recognized by law, have come into play.

 

The reasoning articulated by the Supreme Court was that the 9-1-1 operator had created a “special relationship” with Munich, and as a result, the county had a duty to fulfill its promise to get a law enforcement officer to the scene quickly. A special relationship can be found in situations where there is a preexisting relationship between the parties, such as a common carrier has with a passenger or an innkeeper with a guest.

 

In this case, the Supreme Court stated that, “One of the elements necessary to satisfy the “˜special relationship’ exception requires an express assurance by the defendant.” Further, the court concluded that when an express assurance of action is present, there’s no requirement that false or misleading information be provided. Courts seem to be moving in the direction of finding such a special relationship creating a duty to aid or to protect in any relationship where there’s some level of dependence. It’s unclear whether the court would find such a special relationship any time a member of the public summoned 9-1-1 and is assured that help is on the way.

 

Munich’s family, however, will still have to prove that Munich relied on the dispatcher’s promise when he remained in the hangar. It will also still have to prove that the county acted negligently. The one dissenting judge, Justice James Johnson, noted that the 9-1-1 operator didn’t say how soon the deputy would arrive. He wrote: “I am concerned that the majority’s decision will put unwarranted pressure on every statement made by 9-1-1 operators, straining communications that depend upon the free flow of information.”

 

The bottom line: The outcome of this case could have a significant impact on fire and EMS administrators. Should the Munichs win their case, fear of litigation could cause dispatchers to become more likely to code everything as an emergency out of fear that any assurances will result in increased exposure to litigation.

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