David Vestal General Counsel ISAC (515) 244-7181 dvestal@iowacounties

1. Legal Issues in 911 IENA Spring Conference Des Moines, IA March 30, 2005 David Vestal General Counsel ISAC (515) 244-7181 dvestal@iowacounties.org

2. 670.4 Claims exempted A municipality shall be immune from liability for… A claim based upon or arising out of an act or omission in connection with an emergency response communication services.

3. Cerro Gordo Hotel v. City of Mason City  505 N.W.2d 509; 1993 Overview City officials ordered the demolition of two adjacent buildings owned by plaintiff after the roof of one of the buildings partially collapsed. Plaintiff sued the City of Mason City and city officials for damages associated with the demolition of the buildings. Court held that he emergency response statute provided a complete defense to the plaintiff’s liability theories.

4. Lesson: There is no liability for negligence in emergency response situations.

5. Kulish v. Ellsworth  566 N.W.2d 885;  July 23, 1997 Overview Summary judgment in a medical malpractice based upon governmental immunity was proper because the claims arose from alleged negligent acts of county emergency personnel that responded to the scene of a serious accident.

6. Kulish v. Ellsworth cont. “A local government has a strong interest in providing rescue services for citizens involved in accidents and who--day or night--need immediate response. The statutory exemption from tort liability allows municipal providers of emergency care to render necessary medical aid in dire situations free from distractions or concerns over potential lawsuits.”

7. Kulish v. Ellsworth cont. “The assertion by plaintiff that this case is not based on an emergency response cannot be taken seriously. The suit centers on defendants’ response to a two-car collision that required the dispatch of two ambulances, extraction of Kulish from his overturned van in a ditch, transport to the nearest hospital for emergency care to stabilize patient, and then immediate transport to the Mayo Clinic for critical care not available in Cresco, Iowa. We cannot fathom these events as anything other than an ‘emergency response’.”

8. 670.12 provides: All officers and employees of municipalities are not personally liable for claims which are exempted under section 670.4, except claims for punitive damages…an officer or employee of a municipality is not liable for punitive damages as a result of acts in the performance of a duty, unless actual malice or willful, wanton and reckless misconduct is proven.

9. Recklessness: “A plaintiff must show that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.”

10. Lesson: No individual liability for emergency response decisions where municipality has immunity.

11. Hoffert v. Luze  578 N.W.2d 681;  May 28, 1998 Overview A finding against an ambulance driver was improper where the threshold for recovery for violation of the duty was recklessness, not negligence.

12. Lesson: Emergency responders can still be liable for recklessness.

13. Keystone Elec. Mfg. Co. v. City of Des Moines  586 N.W.2d 340;  November 25, 1998 Overview A city’s decision not to close a railroad opening in a levee was made prior to the emergency, so the city was not entitled to emergency response immunity.

14. Lesson: Immunity does not apply if the wrongful action took place prior to the actual emergency.

15. Kershner v. City of Burington  618 N.W.2d 340;  October 11, 2000 Overview In property owner’s suit against city alleging negligence by fire department in responding to fire, summary judgment was proper. Claim was barred by immunity statute’s emergency response exemption.

16. Kershner v. City of Buringtoncont. “Clearly, the decision concerning the type of equipment and number of personnel to dispatch to a fire qualifies as an act or omission in connection with an emergency response. Iowa Code § 670.4 (11). Consequently, the city has met its burden of showing that the emergency response exemption applies in this case.”

17. Lesson: Immunity applies even if the emergency responder fails to follow written policies.

18. Adams v. City of Des Moines  629 N.W.2d 367;  July 5, 2001 Overview City was immune under statue from liability for injuries to electrocution victim because firefighter’s actions in telling victim to move his truck were a continuation of the firefighter’s emergency response.

19. Adams v. City of Des Moines cont. “So, while there may be factual question as to whether an emergency--as that term is commonly understood--still existed at the time Adams moved his truck, the real issue here is whether the firefighter’s action was done ‘in connection with an emergency response.’ See Iowa Code §670.4 (11). Like the district court, we are convinced that it was.”

20. Lesson: Immunity applies to any action arising from an emergency response, even if the emergency is over.

21. Cubit v. Mahaska County  677 N.W.2d 777;  April 7, 2004 Overview State trooper's negligent supervision claim against county, based on a dispatcher trainee's failure to relay a report that a driver intended to commit suicide by crashing into law enforcement, was subject to the emergency response immunity provision.

22. Lessons: 1) Immunity applies regardless of who is injured; 2) immunity statute “sweeps broadly”;

23. If the municipality is entitled to immunity under 670.4, so are you.

24. If you get sued over something “arising out of an act within the scope employment,” the municipality has a duty to indemnify and defend you.