Opinion
03-7302.
Decided March 27, 2006.
Anthony F. Endieveri, Esq., Camillus, NY, Attorney for Plaintiff.
Donald S. DiBenedetto, Esq., Costello, Cooney Fearon, PLLC Syracuse, NY, Attorneys for Defendant.
This action arises from the death of Charles Mann on September 3, 2002. The complaint alleges that on the day of his death, he began to experience pain and symptoms of a heart attack. His wife placed a call to a 911 operator requesting emergency medical assistance. An ambulance operated by Defendant Western Area Volunteer Emergency Services, Inc. (hereinafter "WAVES") was dispatched to the Mann residence. Plaintiff contends that the WAVES ambulance which responded to the call did not have a heart defibrillator and further that the pain, suffering and eventual death of Charles Mann was caused by the negligence and gross negligence of WAVES.
This Court previously dismissed the second, third and fifth causes of action which had been asserted against the Town of Camillus and/or the County of Onondaga. The first cause of action asserts a claim against WAVES for wrongful death as well as for pain and suffering of Charles Mann. The fourth cause of action asserts an individual claim against WAVES by Mrs. Mann for emotional distress damages.
WAVES has moved for summary judgment. WAVES claims plaintiff cannot establish that WAVES personnel acted with gross negligence as required by Public Health Law § 3013. Further, WAVES maintains that Mrs. Mann does not have a personal cause of action for emotional distress damages because at no time after the arrival of the ambulance did Mr. Mann suffer any conscious pain and suffering as a result of anything that WAVES did or did not do. WAVES contends that upon arrival at the scene, Mr. Mann was already unconscious and unresponsive with no pulse or respiration and a bystander was in the process of performing CPR. Mr. Mann was pronounced dead upon his arrival at the hospital.
In order for a volunteer ambulance service to be held liable in providing emergency medical services, a plaintiff must allege and prove gross negligence. See Public Health Law § 3013(1). In this case, Plaintiff alleges that WAVES was grossly negligent because the ambulance which responded to the call was not equipped with a heart defibrillator. Additionally, Plaintiff argues that the statute does not apply because WAVES issued a bill for the ambulance call.
WAVES is a not-for-profit corporation. The volunteers who responded to the call received no compensation. The issuance of a bill by an ambulance service does not render the immunities of the Public Health Law inapplicable. Accordingly, plaintiff must establish gross negligence in order to proceed with this action. O'Leary v. Greenport Fire Dept., 276 AD2d 539 (2nd Dept. 2000).
As to the substantive motion regarding gross negligence, Plaintiff has submitted affidavits from her experts which create a question of fact as to whether WAVES was grossly negligent under the facts of this case. Therefore, that portion of WAVES' motion for summary judgment dismissing the first cause of action for wrongful death is denied.
The court, however, grants WAVES' motion to dismiss that portion of the first cause of action that seeks damages for conscious pain and suffering. There is no proof in the record that by the time that WAVES appeared to treat Mr. Mann, he was conscious or that he endured any pain and suffering.
The claims of Mrs. Mann for infliction of emotional distress must also be dismissed. A claim for negligent infliction of emotional distress requires that the plaintiff sustain physical injury or be placed in imminent risk of physical harm. Shaw v. QC-Medi New York, Inc., 10 AD3d 120 (4th Dept. 2004). Plaintiff neither sustained physical injury nor was placed in imminent risk of physical harm. Therefore, the fourth cause of action is dismissed.
Plaintiff is to submit an order on notice.