David VestalGeneral Counsel

ISAC(515) 244-7181

dvestal@iowacounties.org

Legal Issues in 911

IENA Spring Conference

Des Moines, IA

March 30, 2005

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.

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.

Lesson:

There is no liability for negligence in emergency response situations.

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.

“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.”

Kulish v. Ellsworth cont.

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’.”

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.

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.”

Lesson:  

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

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.

Lesson: 

Emergency responders can still be liable for recklessness.

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.

Lesson:

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

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.

Kershner v. City of Burington cont. 

“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.”

Lesson: 

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

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.

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.”

Lesson: 

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

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.

Lessons:

1) Immunity applies regardless of who is injured;

2) immunity statute “sweeps broadly”;

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

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.