Opinion
No. 4D10-142.
November 9, 2011.
Consolidated appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John B. Bowman, Judge; L.T. Case Nos. 03-10097 (02) and 03-18036 (05).
Michael Winer of The Law Office of Michael Winer, P.A., Fort Lauderdale, for appellants.
Mark A. Emanuele and Craig S. Dawson of Panza, Maurer Maynard, P.A., Fort Lauderdale, for appellees Karl Froling and Kenneth Loukinnen.
David M. DeMaio and Christopher C. Wike of Ogletree, Deakins, Nash, Smoak Stewart, P.C., Miami, for appellee Hayes Bowen.
Chris Kleppin of Glasser, Boreth Kleppin, Plantation, for appellee Ken Swan.
Michael R. Piper and Christopher J. Stearns of Johnson, Anselmo, Murdoch, Burke, Piper Hochman, P.A., Fort Lauderdale, for appellees Leonard Smith, Todd Chase, Willie Dowe, Kenneth Autenrieb, and Eli Thomasevich.
Alverna Brown, as Personal Representative of the Estate of Oral George Brown (the "decedent"), appeals from final summary judgments granted in favor of nine different defendants. The two issues on appeal are: (1) whether the circuit court erred in granting summary judgment to these nine defendants, which includes five Broward Sheriff's Office ("BSO") deputies and four Broward County Fire Rescue ("BCFR") personnel, on the grounds of qualified immunity where these nine defendants believed that the decedent needed medical care following an automobile rollover crash, the decedent began to walk away from the scene and was nonresponsive to orders to stop walking, the decedent was aggressively brought to the ground, and eventually hogtied and placed face down on a stretcher before being placed into an ambulance; and (2) whether the circuit court erred in granting summary judgment as to two paramedics on the grounds of qualified immunity where the testimony of the two paramedics concerning what transpired in the ambulance substantially differed as to material facts. For the reasons expressed below, we affirm.
This case stems from the death of the decedent which occurred after he was involved in a one-car rollover crash. After the crash, BCFR personnel were required to utilize the "Jaws of Life" to help extricate the decedent from the car and lower him to the ground. Both police and fire rescue on the scene felt that the decedent was dazed; he was unable to talk, was incoherent, was unresponsive to police commands, and began to walk away. They were concerned for his health and safety. He was not suspected of any criminal activity.
Independent eyewitnesses described the decedent, after being extricated from the car, as appearing to be in shock, having difficulty breathing, being incoherent, moaning, staggering and leaning against a car as he kept walking around, as officers tried to talk to him to find out what was wrong with him. After five minutes of getting nowhere with him, several officers threw the decedent to the ground; one had his hand on the decedent's head while two other officers were on the decedent's back. They pulled his arms behind him to handcuff him and ultimately hogtied him. Th e officers on the decedent's back were telling the decedent to stop flailing his arms, but it did not appear that he understood. The decedent at no time acted aggressively towards the officers or the paramedics.
BCFR paramedics Bowen and Froling accompanied and attended to the decedent in the ambulance on the way to the hospital. They administered a blood glucose test on the decedent before placing him in the ambulance. The decedent was placed, still hogtied and face down, on the stretcher and then the paramedics put straps across the back of his knees and waist. Their reasoning for leaving him face-down (not hogtied) was the difficulty moving him due to his size and weight and, if he vomited, his airway would drain and he would not choke. He already was having trouble breathing, but he was not given oxygen en route to the hospital. While it may be true that neither the oxygen mask nor the adjunct would have stayed on while the decedent kept thrashing his head from side to side, such was not attempted even when the decedent ceased such behavior.
Bowen testified that they did not attempt to use the pulse oxymeter on the decedent or take his blood pressure because the decedent was being too violent; however, they recorded the decedent's pulse and performed a two-lead EKG for over eight minutes. A few blocks from the hospital, the decedent had a grand mal seizure, with the violent activity typical of such, that lasted approximately one minute. Bowen testified that, ideally, they would start an IV and give the patient medication to stop the seizure. Further, in this case, they also had a device that allows them to administer Valium in a way other than an IV. None of this was attempted herein. Other measures include protecting the airway, rolling the patient over on his side so he would not aspirate if he throws up, and trying to administer oxygen if they can, which they frequently could not do with a seizure patient. They testified that they could do none of these other measures and explained why they could not do those other measures in this case.
After the seizure ended, the decedent was typically unconscious, breathing deeply, and drooling in a postical state. The paramedics left the decedent face down and did not then administer oxygen. They were close to the hospital at that time.
Froling testified that he was able to check vital signs, take the decedent's pulse, and listen to lung sounds throughout the ride. The only difficulty Froling had with the decedent was his constant pulling of his arm away every time Froling tried to place the blood pressure cuff on his arm. He conceded that the paramedics' report reflected that the decedent was not given oxygen and a pulse oxymeter was not used. With respect to the seizure, Froling testified that they just tried to hold onto the decedent to keep him from hurting himself as they were pulling up to the hospital as the seizure stopped.
The medical examiner found that the decedent died due to positional asphyxia which led to respiratory and cardiac failure, shortly after arriving at the hospital. As the medical examiner explained:
Well, there are multiple factors in the position that he's in. He's on his stomach. He's an obese man. He is in a hogtied position which puts more pressure on the trunk of his body. Not only that, he's also cinched down tightly, as described in the record, to the gurney which is also compromising his chest. He's not able to move. He's not able to expand his chest fully to breathe.
BCFR also reviewed the incident and issued a memorandum identifying the following nine issues that cumulatively led to the decedent's death:
1. The use of handcuffs, flex cuffs, and stretcher restraints on the individual to subdue and control him;
2. Positioning him on his stomach to transport him to the hospital;
3. Failure to electronically monitor the decedent during his transport to the emergency room;
4. Failure to place a pulse oxymeter on the decedent during transport;
5. Failure to monitor breath sounds during transport;
6. Failure to have a law enforcement officer in the patient treatment area, with a handcuffed patient;
7. Non-fire rescue person at the patient's head;
8. Failure of paramedic personnel to recognize that the patient was in respiratory and/or cardiac arrest; and
9. Failure to remove restraints by BCFR personnel when the decedent was having a seizure in the rescue unit.
Orders granting summary judgment are reviewed de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So. 3d 1205, 1206 (Fla. 4th DCA 2010). A summary judgment can be affirmed only where there are no genuine issues of material fact and the movant is entitled to a judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). When a defendant moves for summary judgment, the trial court's function is to determine whether the moving party proved the nonexistence of a genuine issue of material fact. Le v. Lighthouse Assocs., Inc., 57 So. 3d 283, 285 (Fla. 4th DCA 2011). If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party. Lindsey, 50 So. 3d at 1206. Summary judgment is proper only where the facts are "so crystallized" that nothing remains but questions of law. Tolan v. Coviello, 50 So. 3d 73, 74 (Fla. 4th DCA 2010).
Qualified immunity shields government officials from liability for civil damages for torts committed while performing discretionary duties unless their conduct violates a clearly established statutory or constitutional right. Furtado v. Law, 51 So. 3d 1269, 1274 (Fla. 4th DCA 2011). "`[Q]ualified immunity for government officials is the rule, liability and trials for liability the exception.'" Fernader v. Bonis, 947 So. 2d 584, 588 (Fla. 4th DCA 2007) (quoting Alexander v. Univ. of N. Fla., 39 F.3d 290, 291 (11th Cir. 1994)).
The government official has the initial burden of showing that he acted within his discretionary authority. If the official meets that burden, the burden shifts to the plaintiff to show the lack of good faith on the official's part by demonstrating that his conduct violated "clearly established" constitutional rights, of which a reasonable person would have known. Vaughan v. Fla. Dep't of Agric. Consumer Servs., 920 So. 2d 650, 651-52 (Fla. 4th DCA 2005). In other words, (1) viewing the evidence in the light most favorable to the plaintiff, the plaintiff must show that the government officials violated a constitutional right; and (2) if such a violation occurred, it must be determined if that right was clearly established at the time of the incident. Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005)
In Peete v. Metropolitan Government of Nashville Davidson County, 486 F.3d 217 (6th Cir. 2007), the plaintiff brought an action against five firefighter/paramedics, claiming that they used excessive force in restraining the decedent, who was having an epileptic seizure, by applying weight and pressure to his body and tying his hands and ankles behind his back. There, the decedent's grandmother summoned emergency personnel to the scene. Noting that the result must turn on the specific purpose and the particular nature of the conduct alleged in the complaint, the Sixth Circuit explained as follows:
[W]here the purpose is to render solicited aid in an emergency rather than to enforce the law, punish, deter, or incarcerate, there is no federal case authority creating a constitutional liability for the negligence, deliberate indifference, and incompetence alleged in the instant case.
Id. at 221. See also Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901-02 (6th Cir. 2004), and Davidson v. City of Jacksonville, Fla., 359 F. Supp. 2d 1291, 1292-93 (M.D. Fla. 2005), regarding distinctions between restraining a person for the purpose of providing medical treatment and for the purpose of effectuating a law enforcement activity.
Also well addressed in Davidson is when a claim of Fourth Amendment seizure is inapplicable due to lack of refusal of medical treatment:
Here, while the evidence shows that Mr. Davidson physically resisted Defendants' efforts to diagnose and treat him, there is no evidence that Mr. Davidson was aware of, or was mentally present in, the situation. Instead, it seems that any "resistance" was merely a result of the diabetic episode of which Mr. Davidson was experiencing, and of which the emergency medical personnel was attempting to treat. The evidence before the Court establishes that Mr. Davidson was unable to communicate with or take direction from the medical personnel on scene. Had Mr. Davidson been lucid and able to communicate a refusal of treatment, including the type of restraint used, and had in fact refused treatment such actions might properly fall under th e Fourth Amendment. But under the facts of this case, the Fourth Amendment is inapplicable given the lack of refusal on Mr. Davidson's part.
Id. at 1295.
The BSO deputies and the BCFR personnel in the case at bar acted for the purpose of rendering medical assistance to the decedent, who was uncommunicative after being involved in a rollover car accident. Like the men in both Peete and Davidson, the decedent herein did not cooperate with efforts to provide him medical treatment, but at the same time, there was no attempt to arrest or detain the decedent for any law enforcement purpose. Thus, no Fourth Amendment seizure occurred.
As to the Fourteenth Amendment deliberate indifference claim, Mann v. Taser International, Inc., 588 F.3d 1291 (11th Cir. 2009) is distinguishable as the defendant therein was detained pursuant to the Fourth Amendment and thus entitled to due process under the Fourteenth Amendment cruel and unusual punishment clause. There must first be a Fourth Amendment seizure before the deliberate indifference claim can be made.
As to the BCFR personnel in the ambulance, while their actions/inactions appear to fit the parameters of deliberate indifference and gross negligence as delineated in Mann and Peete, there is no clearly established constitutional right that they violated.
As there is no Fourth Amendment violation and thus, no clearly established constitutional right which was violated, qualified immunity from suit is appropriate. Although the facts herein raise concerns for the Court, the summary judgments as to the Sheriff, the BSO deputies, Broward County Fire Rescue and the BCFR personnel were properly granted.
Affirmed.
WARNER and POLEN, JJ., concur.
Not final until disposition of timely filed motion for rehearing.