"While Jones' right to medical care after being injured by the police officers was clearly established, Plaintiffs have failed to guide this Court to precedent that clearly establishes an individual's constitutional right to have firefighters remain on the scene during the course of an arrest. At the time Jones' medical need arose, the firefighters were simply not present. Neither did Jones have a constitutional right to medical care before he was detained by the police. Thus, that the firefighters did not initially treat Jones when they arrived at the White Castle restaurant did not state a claim under Sec. 1983. Accordingly, Defendant's Motion to Dismiss is GRANTED as to the Plaintiffs' Sec. 1983 claim against the firefighters for isolation of Jones' Fourteenth Amendment rights in grounds of qualified immunity."
Duty to Stage Nearby
Judge Dlott, however, denied the firefighters' motion to be dismissed from the "wrongful death" claim. They returned to the fire station "with knowledge of the risk and foreseeable injury" to Jones. Significantly, Judge Dlott referred to comments one of the firefighters made during a post-incident investigation about why they returned to the station:
"I knew that when the police get on the scene with someone, it's how...Mr. Jones [was] acting? If something was going to come up, I didn't want to see it. I didn't want to be privy to it."
The plaintiffs may now proceed with pre-trial discovery in the lawsuit, including taking the depositions of the three firefighters and and possibly submitting reports / affidavits of expert witnesses. Judge Dlott noted that the plaintiffs may have a difficult time proving their "wrongful death" claim. Under Ohio law they must prove that the firefighters' decision to return to the station constituted "wanton misconduct." The Ohio Supreme Court has defined "wanton misconduct" as the failure to exercise "any care whatsoever" and "mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor."
Hopefully, after pre-trial discovery, Judge Delott will then grant summary judgment for the firefighters and they will never need to stand trail. Alternatively, the City of Cincinnati may decide to enter into a settlement with the plaintiffs.
LARRY BENNETT, a Firehouse.com Contributing Editor, is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, that is used by the National Fire Academy (NFA) in its distant learning course, Political and Legal Foundations of Fire Protection. The NFA appointed Larry as their Subject Matter Expert to update the curriculum in this course. and he serves on the NFPA 1500 Fire Service Occupational Safety and Health Committee. Larry writes a free Fire & EMS and Safety Law newsletter which you can sign up online to receive free. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page To read Larry's complete biography and view his archived articles, click here. You can reach Larry by e-mail at firstname.lastname@example.org.