Senate Bill S4862

                                 BILL NUMBER:  S4862

 TITLE OF BILL :  An act to amend the general municipal law, in
relation to the liability of a municipality for the negligence of
their employees in certain circumstances

 PURPOSE :

Establishes liability for damages caused as a result of negligence,
misconduct including any unnecessary delay in the provision of
emergency medical services.

 SUMMARY OF PROVISIONS :

Section 1. Establishes Ariel's Law

Section 2. Amends the general municipal law by adding a new section
50-0. Establishes liability for emergency services employees for
damages caused as a result of negligence, misconduct including any
unnecessary delay in the provision of emergency medical services.

Section 3. Effective date

 EXISTING LAW :

None
              

 JUSTIFICATION :

On June 4, 2013, Ariel Russo was walking to school with her
grandmother, Katia Gutierrez, when they were hit by a car on W. 97th
St. near Amsterdam Ave. The unlicensed driver of the vehicle that
subsequently killed Ariel and critically injured her grandmother was
involved in a highspeed police chase.

According to court documents, Ariel was treated at the scene and then
transported by ambulance to St. Luke's-Roosevelt Hospital. Also
according to court documents, a New York City Department of
Investigation (DOI) Report indicated that there was a four minute
delay by the New York City Fire Department's Emergency Medical
Dispatch Center personnel in processing the request for assistance and
dispatching an ambulance to the scene of the accident. A footnote ( 2)
in the Court Decision and Order also indicates that according to the
DOI report, human error was to blame for the four minute delay.

Ariel's grandmother and mother, Sofia Russo, filed a $40 million
negligence lawsuit in September, 2013, against New York City, the
driver of the car and the car's owner. The driver of the car has since
pleaded guilty to manslaughter in Ariel's death.

The Court largely dismissed the lawsuit, only awarding the family
$150,000. The court dismissed most of the claim because there was no
direct contact between Ariel or her grandmother and emergency
services, and there was no indication that the City promised to send
an ambulance and that the victims relied on that promise.

This bill establishes liability for emergency services employees for
any damages that result from such employee's negligence or misconduct
including any unnecessary delay in the provision of such emergency
services.

In the Applewhite decision, the Court ratified a stringent and
inflexible standard where governmental immunity will not apply. A
claimant must establish that he/she had a special relationship which
establishes a special duty owed to him/her by the municipality. The
Judiciary, rather than the Legislature, has imposed upon our citizens
the requirement that they meet four rigorous elements to establish a
special relationship with the municipality which would take them out
from under the overly broad realm of immunity. As defined by the Court
of Appeals, in order to establish a special relationship giving rise
to a special duty, there must be (1) an assumption by the
municipality, through promises or actions, of an affirmative duty to
act on behalf of the party who was injured; (2) knowledge on the part
of the municipality's agents that inaction could lead to harm; (3)
some form of direct contact between the municipality's agents and the
injured party; and (4) that party's justifiable reliance on the
municipality's affirmative undertaking." All four elements are
required.

Applewhite provides an inflexible approach that allows no
consideration of the compelling circumstances that might be involved
or the nature of the municipality's acts, or lack thereof. For
instance, as the Courts have determined, if the person in need of
assistance is unconscious at the time that the call is placed, or when
EMS finally arrives, all four elements cannot be established.
Depending on the circumstance the element of reliance, direct contact,
and an assumption by the municipality, through promises or actions,
may be lacking, (The only very limited exception is if the 911 call is
placed by a close relation, such as a mother or father).

In situations where there is an inexcusable delay in the dispatching
of an ambulance, or in its arrival at the scene, or in the failure of
the ambulance to be equipped with functional life support equipment,
and as a result of such failures, the patient's injuries are
exacerbated or his/her condition deteriorates to the point of
unconsciousness or death, it is more likely than not, that at least
one of the four elements will be lacking, notwithstanding that the
municipality's action or inaction is responsible for that deficiency.
The illogical result is that the misconduct or inaction of the
municipality which prohibits or interferes with the establishing the
necessary elements has the untoward effect of rewarding the
municipality with immunity from liability.

The Legislature must address the scope of immunity, and the situations
in which it will be applied, as well as what must be shown to
establish a special relationship giving rise to a special duty that
will defeat a claim of immunity. Additionally, the Legislature should
enact a provision that prohibits a municipality from asserting
immunity when its conduct is the cause of one of the four elements to
be lacking. Finally, it should make no difference who places the call
for assistance; the failure of the municipality to respond timely
and/or to act with due care in and of itself, should be enough. Once a
call is placed the duty to act arises; it is irrational to condition a
right to recovery upon who makes the call or requests assistance.

The legislature should redefine the judiciary's inflexible concept and
harsh determination as to what elements a claimant must establish to
overcome a municipality's entitlement to immunity from liability for
causing injury or death arising from its failure to provide good,
proper and timely emergency medical care.

 LEGISLATIVE HISTORY :

2016: S.4715- REFERRED TO LOCAL GOVERNMENT:/ A.7828-referred to local
governments
2015: S.4715- REFERRED TO LOCAL GOVERNMENT:/ A.7828-referred to local
governments

 FISCAL IMPLICATIONS :

None to State

 LOCAL FISCAL IMPLICATIONS :

To be determined

 EFFECTIVE DATE :
Immediately