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RALPH RAYMOND BESWICK, et
al. v. CITY OF PHILADELPHIA, et al.
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
185 F. Supp. 2d 418
December 6, 2001, Decided
MEMORANDUM
Giles,
C.J.
December 6, 2001
I. INTRODUCTION
Ralph Raymond Beswick, Jr. and Rose Wiegand, Co-Administrators of the
Estate of Ralph Richard Beswick, Sr., bring a constitutional claim pursuant to
42 U.S.C. § 1983 against the City of Philadelphia ("City") and its
former 911 call-taker, Julie Rodriguez, and, asserting pendent
jurisdiction, bring state law negligence claims against Julie Rodriguez, and
Father and Son Transport Leasing Inc., d/b/a CareStat Ambulance and Invalid Coach Transportation, Inc.
("CareStat"), a private ambulance service, its record owner, Slawomir
Cieloszcyk, a purported owner and manager, Gregory Sverdlev, and two CareStat
employees, Ruslan Ilehuk and Ivan Tkach (collectively "CareStat defendants").
Before the court are four Motions for
Summary Judgment filed by: (1) the City, for alleged failure to establish
requisite municipal liability under Section 1983; (2) the CareStat defendants, for
alleged failure to establish proximate cause; (3) the CareStat defendants, as
to the claims of Wiegand, for alleged failure to establish that a common law
marriage existed between her and the decedent; and (4) Sverdlev, Tkach, and
Ilehuk, on the grounds that (a) employees of a corporation, absent individual
negligence, cannot be held liable for the alleged negligence of that
corporation, and (b) there is no competent evidence supporting the claim of
Tkach and Ilehuk's employee negligence, and the claim of Sverdlev's ownership
and employee negligence.
For the reasons that follow, the City's
motion is granted, the CareStat defendants' motions are denied, and the motions
of Sverdlev, Tkach, and Ilehuk are denied.
[*421]
II. FACTUAL BACKGROUND
Plaintiffs' claims all arise from the death
of Ralph Richard Beswick, Sr. on February 11, 2000. The circumstances
surrounding Beswick's death are described in detail in Beswick v. City of
Philadelphia, 2001 U.S. Dist. Lexis 2162, Civ. A. No. 00-1304, 2001 WL 210292
(E.D. Pa. March 1, 2001), in which this court granted in part and denied in
part the City's Motion to Dismiss, pursuant to Federal Rule of Civil Procedure
12(b)(6).
Consistent with the review standards
applicable to motions for summary judgment, Fed. R. Civ. P. 56(c), the alleged
facts, viewed in the light most favorable to the plaintiffs, follow.
A.
The Events of February 11, 2000
On the evening of February 11, 2000, Ralph Richard Beswick, Sr. collapsed on the dining room floor of the South Kensington home that he and Wiegand had shared for 23 years. (Pl. Resp. to CareStat Ds' Mot. for Sum. J., Exh. J, Dep. of Ralph Raymond Beswick, at 12.) From the living room where she had been watching television, Wiegand heard the "thump" of Beswick falling and went to him. n1 Upon entering the kitchen and finding Beswick lying prone on the floor, Wiegand immediately dialed the City's medical emergency response number, 911, and told the answering call-taker, Julie Rodriguez, that Beswick had fallen and needed urgent assistance, and requested an ambulance. Rodriguez asked if Beswick was breathing. Wiegand responded that he was. Without obtaining any further information, Rodriguez told Wiegand that "somebody" was "on the way."
Fire Department regulations require 911 operators to
refer all emergency medical calls to the Fire Department, which then dispatches
Fire Rescue Units appropriately equipped and staffed to respond to medical
emergencies. The mechanical protocol of the job of 911 call-taker requires that
the call be transferred immediately to the dispatcher upon termination of the
emergency call. The last step of the mechanical protocol of the call-taker job
is to punch a sequential button on a console to connect the dispatcher and transmit
the acquired information from the caller. The dispatcher forwards the call to
the Rescue Unit closest to the response site.
Instead of following established procedure, which would have continued
the process to trigger the Rescue Unit's response, Rodriguez abandoned protocol
and used a telephone located next to her console to call a private ambulance
company, CareStat, to see if it could respond to the Wiegand call. Rodriguez,
without the knowledge of the City, had recently begun working for CareStat as a
dispatcher in her off hours, and had a secret deal with CareStat to refer to it
all calls received in her City 911 capacity that she believed CareStat could
handle. Under the City's protocol, Rodriguez was required to treat all 911
calls as emergencies requiring the City's Rescue Unit response. She had no
discretion to act otherwise.
Immediately after speaking with Wiegand, Rodriguez telephoned Slawomir
Cieloszcyk (also known as "Slavik"), the owner and dispatcher of CareStat. Upon telling
Cieloszcyk that Ralph Beswick, Sr. was age 65 and unconscious from a fall,
Rodriguez asked how long it would take
[*422] CareStat to get to the
Beswick home. (City Mot. for Sum. J., Exh. B.) Neither Rodriguez nor Cieloszcyk
knew that the 911 call was, in fact, a situation other than an emergency, such
as a heart attack or other serious medical event. (Id.) Cieloszcyk estimated a
response time of fifteen minutes. He ended the conversation by saying,
"We're on the way."
Arguably, corruptly, in violation of
Pennsylvania's statutory requirements applicable to private ambulances,
Cieloszcyk undertook a response to a medical situation to which CareStat was
not authorized to respond. All 911 calls are assumed to be medical emergencies unless and until actual
response and evaluation by the City Fire Department might determine otherwise.
CareStat had no permission from the City to use 911 call-taker Rodriguez to
refer calls to it and knew that the 911 call was being diverted from the City's
established response system. Under these circumstances, Cieloszcyk
nevertheless gave the Beswick response assignment to employees Ilehuk and
Tkach, neither of whom had completed
the requisite training to become a licensed EMT or paramedic. (Pl. Resp. to
CareStat Ds' Mot., Exh. A, Page Interrogatories, at 18.) Ilehuk and Tkach,
having the same knowledge as Cieloszcyk, including the deal with Rodriguez to
compromise her City 911 job responsibilities, accepted the call and set out for
the Beswick residence.
Ten minutes after the first 911 call had been made, because there was
yet no emergency vehicle at the Beswick home, Wiegand's sister placed another
911 call at 8:02 p.m. to make sure that the City's rescue services had already
been dispatched. This call also happened to have been received and handled by
Rodriguez. Despite this second urgent call, Rodriguez did not punch it over to
the City's emergency dispatch system. She called CareStat again, seeking
assurance that its ambulance dispatched would arrive soon. Cieloszcyk
assured Rodriguez that the CareStat
ambulance was on the way as he had promised her.
Because an emergency equipped unit still had not arrived, Wiegand called
911 a third time. The third call came to a call-taker other than Rodriguez. He
followed all Fire Department procedures and within a very short time period a
City Fire Department Rescue Unit arrived at the Beswick home. Rodriguez became
aware of the third Wiegand call. She promptly called Cieloszcyk at CareStat and
told him that a City paramedic unit was responding to the Beswick home, and
requested that he hide her involvement in the misdirecting of the 911 calls. By
the time that the CareStat ambulance arrived, the Fire Rescue Unit had already
removed Beswick from the home. It was then that the Beswick family realized
that the 911 call-taker had caused a private ambulance to attempt to respond to
their emergency call, and that it was ill-equipped to have dealt with the
Beswick medical emergency had it arrived earlier.
B.
The Delay in Response to Beswick because of Defendants' Actions
The first emergency telephone call
concerning Beswick was received by Rodriguez at the Fire Command Center
("FCC") at 19:53:41. The second call, placed by Wiegand's sister, was
received by Rodriguez at 20:02:54. The third Wiegand call was received at the
FCC by dispatcher Jose Zayes at 20:04:57, and the City Fire Department response
was immediately dispatched.
Fire Battalion Chief William C. Schweizer
confirmed that at the time Rodriguez received the first call at 19:53:41, Medic Unit No. 2 would have been
available to respond from its base at Kensington and [*423] Castor, which
was within several minutes of the Beswick home. Medic Unit No. 2, like other
City Medic Units, was staffed with paramedics, who have more training than
EMTs. However, at 20:04:57, when Zayes received the third call, Medic Unit No.
2 was no longer available. Nor was the next closest Medic Unit, No. 8, based at
Boudinot and Hart Streets. In response to the 20:04:47 call, Medic Unit 31, the
third closest of the City's Medic Units, was dispatched from Second Street, and
Fire Department Engine No. 7 was dispatched from Kensington and Castor.
However, Engine No. 7 is staffed only with EMTs, and EMTs are not permitted to
administer epinephrine or atropine to patients. Medic unit 31 took 8 minutes
and 34 seconds to arrive at 959 East Schiller Street. Engine No. 7 took 3
minutes and 34 seconds to arrive. Engine No. 7 and Medic Unit No. 2 -- which
was available for the first call but was never contacted by Rodriguez -- were
both based at Kensington and Castor, and would have had to travel the same
distance to get to the Beswick residence. Based upon this information, the
total delay in getting a Medic Unit to respond to Beswick has been estimated by
Battalion Chief Schweizer to be 16 minutes and 16 seconds. (Pl. Resp. to
CareStat Mots. for Sum. Jud., Exh. D, Schweizer Dep., at 28.) n2
Plaintiffs have introduced evidence that this 16 minute, 16 second
delay caused or contributed to the cause of Beswick's death, through the
deposition testimony of Kale Etchberger and Joanne Przeworski, the two
Fire Department paramedics who arrived
on the scene as part of Medic Unit 31. Both testified that when they arrived,
Engine No. 7's EMTs were already tending to Beswick. However, those EMTs,
unlike paramedics, cannot administer medications. As indicated in these
paramedics' depositions, Engine No. 7's Lifepack 500 defibrillator machine
received a "shock advised" message at 20:07:48, which suggests
that at the time, Beswick was either in
a state of v-fib or v-tack; in other words, his heartbeat was not totally flat.
Additionally, upon the administration of medications by Etchberger and Przeworski,
Beswick's heart rate was temporarily restored. Both paramedics testified that
they believed he had a chance to be saved when they first came to the scene.
(Pl. Resp. to CareStat Mots. for Sum. Jud., Exh E, Etchberger Dep, at 13; Exh.
F, Przeworski Dep., at 12.) Plaintiffs' expert, Dr. Norman Makous, a
cardiologist, would opine to a reasonable degree of medical certainty that
based on established medical literature regarding observed cardiac arrests due
to ventricular fibrillation, and assuming that Beswick was still breathing at
the time of the first 911 call, that had Medic Unit No. 2 arrived after the
first call, Beswick's chance of survival would have equaled, if not exceeded,
thirty-four (34) percent. (CareStat Def. Mot. re Prox. Cause, Exh. C, Makous
letter, at 3.)
C.
The Fire Department's Custom of Permitting Employees to Refer 911 Calls to
Private Ambulance Companies
At the time of Beswick's death, the Fire Department's official policy
permitted Medic Unit personnel to refer
to private ambulance services persons to whom there had been a City
Rescue Unit response if assessment at the scene was that the medical condition
was not an emergency. Emergency Medical Services Bulletin 91-42 stated,
[*424] All personnel assigned to Medic Units are
reminded that it is not the Philadelphia Fire Department's policy to recommend
private ambulance companies by name for non-emergency basic life support
transportation. In instances where private ambulances are the appropriate mode
of patient transportation, the decision as to which ambulance company will be
contacted is to be left to the patient or the patient's family.
(Pl.
Resp. to City Mot. for Sum Jud., Exh. C (emphasis added).) All private
ambulance transports first had to be approved by a medical doctor at the basic
command position, whom the medic units would phone with a detailed description
of the patient's condition, as well as an estimated response time for a private
ambulance. (City Mot. for Sum. Jud., Exh. K, Dep. of Samuel Chen, at 10-11.)
This required medics -- EMTs and paramedics -- first to contact a private
ambulance company in order to obtain an estimated response time before calling
the basic command position. (Id.)
Chen, a City paramedic, testified at his deposition that it was a widespread
custom for paramedics following this procedure to refer non-emergency patients
to specific private ambulance companies, and that he was not aware of the
prohibition on recommending private ambulance companies by name, because he had
not read it. It was posted on a bulletin board and not distributed to
paramedics individually. He believed that paramedics were too busy responding
to emergencies to read the bulletin board. (Pl. Resp. to City Mot. for Sum.
Jud., Exh. H, Dep. of Samuel Chen, at 9.)
With knowledge of the City, some Fire
Department EMTs and paramedics hold second jobs with private ambulance
companies. According to the City's answers to interrogatories, as of February
11, 2000, there were: (1) 276 paramedics
employed by the City Fire Department, 57 of whom had Fire Department
permission to engage in employment outside of the City Fire Department with a
private ambulance company; and (2) approximately 1,269 EMTs employed by the
City Fire Department, of whom approximately 141 had Fire Department permission
to engage in employment outside of the City Fire Department with a private ambulance company. In the results
of a reverse telephone lookup of numbers that had been obtained from telephone
records of two City Fire-Rescue personnel under suspicion of violating the City
prohibition, six private ambulance companies, including CareStat, were
identified as referred companies. (Pl. Resp. to City Mot. for Sum. Jud., Exh.
I.)
However, it is undisputed that none of the
51 call-taker/dispatchers employed by the City Fire Department had Fire
Department permission to engage in outside employment. Plaintiffs assert
Rodriguez could have been influenced by what she might have heard or known that
paramedics, like Chen, were able to do in referring medical conditions to
private ambulance services for response and must have reasonably believed that
her referral of the Beswick 911 medical event to CareStat would have been
condoned by the City. There is no evidence that Rodriguez was motivated by any
policy or lack of policy by the City. Nevertheless, plaintiffs would offer
expert opinion that it would have been easy for Rodriguez, a City Fire
Department employee, to become confused as to the boundaries or limitations of
her call-taker job.
City policymakers were aware, through patient complaint forms
submitted by 911 callers or their relatives, that the City's custom of
permitting employee referrals to private ambulance companies had resulted in
some instances where EMTs or paramedics had erroneously adjudged a patient's
[*425] condition as non-emergency and
refused to transport them. (Pl. Resp. to City's Mot for Sum. Jud., Exh.
K.)
Six weeks after Beswick's death, on March
31, 2000, the City Fire Commissioner issued Memorandum No. 00-25, which stated,
At
no time are Philadelphia Fire Department employees permitted to initiate
contact with a private ambulance service and/or refer or recommend a specific
private ambulance service to a patient. The private ambulance service to be
used must be chosen by the patient or the patient's representative.
(Pl.
Resp. to City's Mot for Sum. Jud., Exh. B.)
D.
Rose Wiegand's Relationship with Decedent Ralph Beswick
Plaintiffs aver, through the deposition
testimony of both Ralph Raymond Beswick, Jr. and Wiegand, that she and the decedent
were together for 23 years, from 1977 until Beswick's death, during which they
held themselves out as husband and wife. (Pl. Resp. to CareStat Mots., Exh. J. Dep. of Ralph Beswick, at 12.) n3
Wiegand's sister, Catherine Walerski, testified at her deposition that Wiegand
had been "going with" Beswick for "about 27, 28 years."
(CareStat Mot. re. Common Law Marriage, Exh. E, at 7.) Wiegand, who responds to
both Mrs. Wiegand and Mrs. Beswick, had been legally married to Frank Wiegand,
who passed away years before.
Rose Wiegand and Ralph Beswick did not
obtain a formal, licensed marriage because Wiegand was concerned that this
would have triggered a provision in her father's will necessitating the sale of
her home, which she had inherited from her father on the condition that she
never formally remarry, else it would have to be divided with her siblings.
(Pl. Resp. to CareStat Mots. for Sum. Jud., Exh. I, Wiegand Dep., at 22.)
Despite this prohibition, the two decided at some point to undertake the
relationship of husband and wife, and to hold themselves out to the public as
such. At his deposition, Ralph Raymond Beswick confirmed his father's intent to
be married to Rose Wiegand:
Q.
Did your father ever come to you at any point and say I got remarried?
A.
He brought it up. I wasn't really asking. I think his intention was that Rose
and him would be married. He didn't give a time, though.
. .
.
A.
... He said we're married, don't worry about it, kid, like that.
. .
.
A.
I think it was because of the fact my mother remarried. I mentioned that to
him. He then proceeded to tell me that he was, in fact, married to Rose.
(Pl.
Resp. to CareStat Mots., Exh. J,
Beswick Dep. at 29-31.)
Walerski, Wiegand's sister, testified at
her deposition that her sister and Beswick held themselves out to people as a
married couple:
Q.
How would she introduce herself?
A.
Rose Wiegand.
[*426] Q. Did she go by any other names?
A.
Not that I know of. Ralph's, I think. She was on his insurance.
Q.
Beswick?
A.
Beswick.
Q.
Okay. But for the most part, it was Rose Wiegand?
A.
Well, that's how I used to send her mail, like birthday cards and things like
that.
* *
*
Q. And
did you know if Ralph and Rose would tell people that they were married - -
A.
I believe everybody thought that because they lived together so long. Just like
the kids together.
Q.
But it was your understanding that they would tell people they were married and
act as if they were married?
A.
I'm sure they did.
Q.
And it was your understanding also that they did not formally get married
because Rose understood your father's will to mean if she ever got married - -
A.
I believe that.
(CareStat
Ds. Mot. re Common Law Marriage, Exh. E., at 10, 27.)
Wiegand similarly testified that she and
Beswick considered themselves to be married from the time he moved into her
house. (Pl. Resp. to CareStat Mots., Exh. I, Wiegand Dep., at 21.) They filed
joint tax returns as husband and wife, n4 and since that time she has used the
name Beswick, and they had held themselves out as husband and wife to friends
and neighbors. (Id. at 22-23, 53.) Though at times she used the
"Wiegand" surname, n5 Wiegand went by the name "Mrs.
Beswick" until Beswick's death. (Id. at 62.) Plaintiffs point to jointly
filed tax returns, as well as prescription medications and credit cards
obtained by Wiegand before Beswick's death, under the name "Rose Beswick."
(Pl. Resp. to CareStat Mots., Exh. K.) She was covered under Beswick's
insurance and pension as his wife, even though on his employee life insurance
form, Beswick checked the box indicating that he was "single."
(CareStat Def. Mot. re. Common Law Marriage, Exh. D.) In his retirement plan,
Wiegand is specifically described as his spouse and "common law
wife." (Pl. Resp. to CareStat Mots., Exh. K.)
III. Discussion
Summary judgment under Federal Rule of
Civil Procedure 56(c) is appropriate only if, drawing all inferences in favor
of the non-moving party, "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and the movant is entitled
to judgment as a matter of law." Taylor v. People's Natural Gas Co., 843
F. Supp. 51, 52 (W.D. Pa. 1994), aff'd, 49 F.3d 982 (3d Cir. 1995).
A.
City of Philadelphia -- Section 1983 Liability
The City argues that summary judgment should be granted because
plaintiffs [*427] are unable to
establish the causal link between the Fire Department's policy regarding EMT
and paramedic referrals of 911 patients who have been assessed to have non-emergency
conditions to private ambulance companies, and Rodriguez's culpable conduct on
the evening in question.
To prevail against the City under Section
1983, plaintiffs must prove that the rights of Beswick were "violated as a
result of a municipal policy or custom of deliberate indifference" to the
rights of its citizens. Simmons v. City
of Philadelphia, 947 F.2d 1046, 1064 (3d Cir. 1991). In order for a Section
1983 claim to survive a motion for summary judgment, evidence must demonstrate
(1) that a violation of a right secured by the Constitution and laws of the
United States occurred and (2) that the alleged deprivation was committed by a
person acting under color of state law.
City of Oklahoma City v. Tuttle, 471 U.S. 808, 817, 85 L. Ed. 2d 791,
105 S. Ct. 2427 (1985); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.
1995). This latter prong can only be established when the municipality itself
causes the violation. See Monell v.
Dep't of Social Svcs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
"To establish municipal liability under Monell, a plaintiff must 'identify
the challenged policy, [practice, or
custom,] attribute it to the city itself, and show a causal link between the
execution of the policy, [practice, or custom,] and the injury suffered."
Martin v. City of Philadelphia, 2000 WL 1052150 (E.D. Pa. 2000) (quoting
Fullman v. Philadelphia Int'l Airport, 49 F. Supp. 2d 434, 445 (E.D. Pa. 1999))
(additional citations omitted). In addition, plaintiffs must "present
scienter-like evidence of indifference on the part of a particular policymaker
or policymakers." Simmons, 947 F.2d at 1060-61. The requirement of
producing scienter-like evidence on the part of an official with policymaking
authority is consistent with the conclusion that "absent the conscious
decision or deliberate indifference of some natural person, a municipality, as
an abstract entity, cannot be deemed to have engaged in a constitutional
violation by virtue of a policy, a custom or failure to train." Id. at
1063. "In the absence of any unconstitutional statute or rule, it is
plaintiffs' burden to articulate a factual basis that demonstrates considerably
more proof than a single incident." House v. New Castle County, 824 F.
Supp. 477, 486 (D. Del. 1993) (citing
Tuttle, 471 U.S. at 823-24).
Plaintiffs contend that they have established that the City had a
two-fold custom that was the proximate cause of Beswick's death: (1) to permit
City Fire Department employees to moonlight for private ambulance companies;
and (2) to condone the referring of 911 patients, deemed by EMTs or paramedics
at the scene not to constitute a medical emergency, to private ambulance
companies for transport. Plaintiffs assert that these customs, working in
tandem, served to create an environment where City Fire Department employees
would feel authorized to believe that
they had discretion in certain areas when they had none. Plaintiffs
submit the following conclusions of their expert witness, James Page, on the
administration and deployment of emergency medical services:
The Fire Department either had no clear
prohibition against the referral of patients to private ambulance companies (a
prohibition which they clearly did institute after the Beswick incident), or
did not enforce any policy which might have been in effect at the time of the
Beswick incident. This is a violation of [Section 1983] as follows: the
Philadelphia Fire Department (PFD),
through its policymakers and administrators, had a custom and practice of
allowing its [*428] employees, such as Julie Rodriguez, to
"moonlight" for private ambulance companies. This custom established
a conflict of interest and created the very environment in which Ralph Beswick
died while waiting for a private ambulance ill equipped to handle his
situation. But for the City's custom and practice of permitting close
association and working relationships between its employees and private
ambulance companies, Ralph Beswick would have been treated promptly by City
personnel with the requisite skill and equipment, and would have lived (as per
the testimony of cardiologist Norman Makous, M.D.).
(Ps'
Resp. to City Mot. for Sum. Jud., Exh. L, Pls. Answers to Expert Interrogs.
Submitted on Behalf of James Page, at 19.)
However, plaintiffs have introduced no evidence that the particular
"custom" relied upon by Page existed. While for summary judgment
purposes plaintiffs have demonstrated that EMTs and paramedics had permission
to moonlight for private ambulance companies, nothing in the record shows that
call-takers like Rodriguez had such permission. The conflict of interest
theory of liability falls because
Rodriguez had no City authorization to work for CareStat. Page would then rely
on the "custom" of permitting private ambulance EMTs and paramedics,
for conditions not deemed emergencies, and after physical evaluations, to refer
such to private ambulance companies, and offers that simply because she was a
Fire Department employee, although not a part of a Rescue Response Unit, she
could have felt that if paramedics and EMTs could make referrals to private
insurance companies with impunity, she could also. This theory fails factually
and as a matter of law. n6
Plaintiffs have introduced no evidence that
could establish a genuine issue of material fact as to Rodriguez's motives for
agreeing to forward calls to CareStat. Although Rodriguez was training to
become a paramedic, and associated with some City Fire Department paramedics,
(Pls. Resp. to City Mots., Exh. M.,
Rodriguez Investigation Report, at 4), there is no evidence that she was
aware of the City's referral policy or custom with respect to EMTs and
paramedics or that she did not know and understand fully that her job required
her to refer all 911 calls through to the City's Fire Department dispatcher
without exception. If she knew about the alleged custom, she necessarily knew
the limited circumstances under which paramedics and EMTs, and only paramedics
and EMT's, could make such referrals. It is undisputed that she was not a
paramedic or EMT certified by the City. Rodriguez had to know that when she was
cooperating with CareStat she was not doing her job for the City.
As a matter of law, the theory fails
because it could not have been reasonably foreseeable that call-takers, who
have no discretion in the forwarding of calls to the dispatcher for emergency
response, would divert an emergency
call to a private ambulance company. There is no evidence that any 911
call-taker previously had diverted a call to a private ambulance company for
response. Nor is there evidence that the City knew that any 911 call-taker [*429]
worked for a private ambulance company as a second job. Hence, there is
no factual basis for jury consideration of City knowledge of a dangerous
condition among 911 call-takers that connects to private ambulance
companies.
The record evidence demonstrates unequivocally that Fire Department
policy specifically foreclosed 911 call-takers and dispatchers from exercising
any discretion with respect to forwarding all 911 calls through to Fire
Department Rescue Units for response. (City Mot. for Sum. Jud., Exh. F,
Moore Dep. (Chief Fire Dispatcher for FCC), at 44.) Even the mechanics of the
call-taker job eliminated discretion. Rodriguez was required to enter
information from the 911 caller into fields on a computer screen, and then to
press a button as the final sequence which sent essential information onto the
Fire Department dispatcher for ambulance and/or fire engine dispatch to the
nearest available unit.
Plaintiff's theory against the City boils down to this. The City failed
to make clear to all Fire Department employees, whether they be janitors,
clerical workers, or call-takers, that they are not permitted to initiate
contact with private ambulance services on behalf of a patient or 911 caller.
In the absence of some prior specific related event that would create such a
duty, plaintiffs' theory amounts at best to a claim of mere negligence --
that the captain, the
City, could have run a better ship, and not that the captain knew or ought to
have known that the ship was sinking and did nothing. Mere negligence does not
suffice to establish liability under Section 1983. Estate of Bailey by Oare v. York County, 768
F.2d 503, 508 (3d Cir. 1985); LARA, Inc. v. South Whitehall Twnshp., 729 F.
Supp. 415 (E.D. Pa. 1989); Agresta v. City of Philadelphia, 694 F. Supp. 117
(E.D. Pa. 1988). The alleged EMT/paramedic custom requires City Rescue Units to
respond to the scene, to evaluate the patient in person. The attempted
connection between that alleged custom and a lone call-taker's decision to
circumvent the Fire Department's computer entry system and forward 911 calls to
private ambulance companies amounts to
impermissible speculation.
Since there is no evidence that any City call-taker or dispatcher had
previously forwarded 911 calls to private ambulance companies or even worked
second jobs with private ambulance companies, it is impossible to prove that
the City knew or reasonably should have known that its EMT/paramedic referral policy
would lead to the forwarding of a 911 by a call-taker/dispatcher to a private
ambulance company. See House, 824 F.
Supp. at 486; Tuttle, 471 U.S. at
823-24 (finding that proof of more than a single incident is necessary to
fulfill plaintiffs' burden to establish deliberate indifference).
For these reasons, this court grants the City's motion for summary
judgment.
B.
Wiegand's Relationship with Mr.Beswick
CareStat defendants contend that, under
Pennsylvania law, Wiegand's relationship with Beswick did not meet the
requirements of a common law marriage. CareStat defendants argue that Wiegand's
deposition testimony, in which she estimates that she had been living with
Beswick only since 1989, should be given controlling weight by this court.
Further, there is no indication in the record that Wiegand and Beswick ever exchanged specific, formal words to
formulate a marriage. Rather, CareStat defendants proffer, the fact that
Wiegand stood to lose the house that she inherited from her father if she
remarried indicates that her intent was not to form a marriage with Beswick.
This, coupled [*430] with the fact that Beswick checked the
"single" box on his life insurance form, as well as Wiegand's
references to herself and Beswick on the 911 transcript, and the deposition
testimony of Wiegand's sister, CareStat defendants argue, suffices to
establish, as a matter of law, that no common law marriage existed between
Beswick and Wiegand. If Wiegand, as a matter of law, cannot establish a common
law marriage, then plaintiffs' claim for negligent infliction of emotional
distress (Count VII) must be dismissed. See
Blanyar v. Tagnotti Enterprises, Inc., 451 Pa. Super. 269, 679 A.2d 790,
791 (Pa. Super. 1996) (finding that in order to maintain a claim for negligent
infliction of emotional distress, inter alia, plaintiff must have been located
near the scene of the accident and be a close relative of the victim). Further,
if Wiegand is not found to be Beswick's common
law wife, plaintiffs' survival claim (Count VI) must also be dismissed,
because, if she were not his spouse, she would not be able to receive the
social security benefits for the estate in a survival action. n7
The determination of whether plaintiff Rose
Wiegand was the common law wife of Beswick is a mixed question of law and
fact. Brandywine Paperboard Mills v.
W.C.A.B. (Zittle), 751 A.2d 1205 (Pa. Cmwlth. App. 2000); Duggan v. Workmen's
Compensation Appeal Board (Litchfield Township), 131 Pa. Commw. 184, 569 A.2d
1022 (Pa. Cmwlth. 1990). Whether a valid common law marriage existed is a jury
question. Knecht v. Knecht, 261 Pa.
410, 104 A. 676, 677 (Pa. 1918). In the presence of sufficient facts to support a claim of common law marriage,
the question becomes one for a jury to decide.
State Farm Fire & Casualty Co. v. Platt, 4 F. Supp. 2d 399, 405
(E.D. Pa. 1998).
Under Pennsylvania law, marriage is a civil
contract made between parties with the capacity to so contract. See Platt, 4 F. Supp. 2d at 404 (citing In re
Garges, 474 Pa. 237, 378 A.2d 307, 308-09 (Pa. 1977)). Pennsylvania recognizes
the validity of common law marriages, and the burden of proving such a marriage is on the purported spouse.
See Platt, 4 F. Supp. 2d at 404
(citing In re Gavula, 490 Pa. 535, 417 A.2d 168, 171 (Pa. 1980)). The court in
Platt went on to describe what is required in Pennsylvania to establish a
common law marriage:
Given
that proving the existence of a marriage contract is difficult absent the
standard ceremonial formalities, Pennsylvania law has set forth certain rules
and presumptions to aid courts in determining whether a common law marriage has
been formed. See [Garges, 378 A.2d] at 309. In general, a common law marriage
requires verba de praesenti, or words in the present tense uttered for the purpose of establishing the
relationship of husband and wife. The words need not be formalized. Word (sic)
of taking or explicit performative utterances, such as "I take you to be
my wife" or "I hereby marry you" are unnecessary. All that is
essential is proof of an agreement to enter into the legal relationship of
marriage at the present time. See
Garges, 378 A.2d at 309.
In
light of the difficulties in proving a common law marriage, the law has created
a rebuttable presumption of marriage where two absolutely essential elements
co-exist, namely: 1) constant cohabitation between a man and a woman, both of
whom have the capacity to be married; and 2) general, as distinguished [*431] from partial or divided, reputation as
husband and wife in their community. See
In re Gavula, 417 A.2d at 171 n.7; Garges, 378 A.2d at 309; see
also McKenzie v. Harris, 679 F.2d 8,
10-11 (3d Cir. 1982) (no verba de praesenti, but evidence of intention to be
married and reputation and cohabitation evidence sufficient to support finding
of common law marriage); Commonwealth v. McLean, 387 Pa. Super. 354, 564 A.2d
216, 220-221 (1989) (finding that a
common law marriage is evidenced from verba de praesenti or, that cohabitation
and reputation are circumstances from which the existence of a contract of
marriage can be inferred, but that the requirements are not conjunctive).
4
F. Supp. 2d at 404.
In the instant case, while there is no
indication that Wiegand and Beswick ever exchanged formal words to this effect,
there is a great deal of documentary support for the proposition that they both
lived together and held themselves out to the community as husband and wife for
an uninterrupted period of years. Defendants cite to no case indicating
Wiegand's [erroneous, according to plaintiffs] testimony that she and Beswick
had lived together for only 11, not 23, years is relevant to their establishing
a common law marriage, cf. Rager v.
Johnstown Traction Co., 184 Pa. Super. 474, 134 A.2d 918, 920-21 (Pa. Super.
1957) (finding evidence as to cohabitation and reputation as husband and wife
for approximately 11 years until death of husband was sufficient to establish a
presumption of a valid common-law marriage contract), and even if they had, an
issue of material fact would still
exist as to the length of their relationship. Deposition testimony of Beswick's
son and Wiegand's sister clearly indicate that, while the couple did not want
to be married in a legal ceremony, they considered themselves to be married,
and were treated by their friends and relatives as such. Wiegand's concern
about losing her house if she participated in a legal marriage ceremony could
very likely convince a jury that she and Beswick considered themselves to be
married, because they never indicated any intent to hold an official wedding
ceremony. Defendants point out that Wiegand's sister still addressed birthday
cards and letters to her under the "Wiegand" name, and that, while
under the extreme stress immediately following Beswick's collapse, she referred
to herself as "Mrs. Wiegand" when she called 911. Whether these instances are material to
how Wiegand and Beswick held themselves out to the community is for a jury to
decide, because the court finds that plaintiffs have established a genuine
issue of material fact regarding their alleged common law marriage.
C.
Loss of a Chance Theory of Proximate Cause
CareStat defendants argue that on its face,
a statistical survival rate of 34
percent, which plaintiffs' medical expert concludes is the chance for survival
Beswick would have had if a City ambulance had been appropriately dispatched,
is insufficient as a matter of law to establish proximate cause. In the
alternative, CareStat defendants argue that additional factors unique to
Beswick, such as preexisting heart and stroke conditions, as well as chronic
obstructive pulmonary disease, necessarily served to reduce his chances of
survival well below 34 percent; further, they contend that Wiegand's deposition
testimony indicates that she waited "five or ten minutes" before
responding to Beswick's collapse, therefore Dr. Makous' conclusions, which are
based on observed cardiac arrests, are inadmissible. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 [*432]
(1993) (holding that when expert testimony's factual basis, data,
principles, methods or their application are called sufficiently into question,
the trial court must determine whether the testimony has a reliable basis in
the knowledge and experience of the relevant discipline).
1. For Purposes of Summary Judgment,
Beswick's Chance of Survival, Absent
Defendants' Negligence, was 34 Percent.
Addressing defendants' alternative argument
first, for summary judgment purposes, this court must accept plaintiffs'
allegation that Wiegand heard Beswick collapse and responded immediately, as
she stated in the police report taken eleven days after Beswick's death.
Further, Dr. Makous' conclusions are predicated upon an article from the New
England Journal of Medicine, which states that "the rate of survival to
hospital discharge for patients with a witnessed collapse who are found to be
in ventricular fibrillation is 34 percent." Mickey S. Eisenberg, M.D.,
Ph.D., & Terry J. Mengert, M.D., "Cardiac Resuscitation," N. Eng.
J. Med., vol. 344, no. 17, at 1304 (April 26, 2001). The article further states
that "when cardiopulmonary resuscitation is started within four minutes
after collapse, the likelihood of survival to hospital discharge doubles."
Id. at 1305. Viewing all facts of record in the light most favorable to
plaintiffs, this court must assume that Wiegand called 911 immediately after
Beswick's collapse, and that at that time, Medic Unit No. 2, with licensed
paramedics, was available for dispatch and 3 minutes and 34 seconds from the Beswick residence. n8 Thus, a jury
could conclude that Beswick's chances for survival were at least 34 percent, if
not more, had the 911 call not been diverted to CareStat. Moreover, the 34
percent survival rate noted in the article and in Dr. Makous' conclusions does
not assume only patients who are experiencing their first cardiac arrest, or
patients without other pre-existing conditions. Thus, for the purposes of
summary judgment, the court must assume that the factors surrounding the
cardiac arrest of an individual with Beswick's medical history were taken into
account by both the article and Dr. Makous.
Federal Rule of Evidence 702 states,
"If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case." The Court in
Daubert listed four factors courts should consider in determining reliability
under Rule 702: (1) whether the theory or technique can be tested; (2) whether
it has been subjected to peer review; (3) whether the technique has a high
known or potential rate of error; and (4) whether the theory has attained
general acceptance within the scientific community. 509 U.S. at 593-94. The proponent of the testimony does not have
the burden of proving that it is scientifically correct, but that by a
preponderance of the evidence, it is reliable.
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994).
The court finds Dr. Makous, a licensed
physician who has spent more than fifty years practicing cardiology, is basing
his [*433] opinions upon established modern medicine, stated, inter loci,
in the New England Journal of Medicine,
and thus is scientifically reliable for the purposes of Daubert. The 34 percent
probability that Dr. Makous cites should not be confused with the degree of his
medical certainty as to the accuracy of that opinion.
2.
Loss of a Chance
Pennsylvania tort law follows the
Restatement Second of Torts, § 323, which provides:
s
323. Negligent Performance of Undertaking to Render Services One who
undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other's person
or things, is subject to liability to the other for physical harm resulting
from his failure to exercise reasonable care to perform his undertaking, if (a)
his failure to exercise such care increases the risk of such harm, or (b) the
harm is suffered because of the other's reliance upon the undertaking.
(emphasis
added). See Hamil v. Bashline, 481 Pa.
256, 392 A.2d 1280, 1286 (Pa. 1978). In Hamil, plaintiff's husband, who was
suffering from severe chest pains, was brought to the defendant hospital. Due
to a faulty electrical outlet, the EKG machine failed to function. A second EKG machine could not be found and, upon
receiving no further aid or treatment, Hamil transported her husband to a
private doctor's office, where he died of cardiac arrest while an EKG was being
taken. Plaintiff's expert witness estimated that the decedent would have had a
75 percent chance of surviving the attack had he been appropriately treated
upon his arrival at the hospital. Following the introduction of all evidence,
the trial court determined that plaintiff's medical expert had failed to
establish, with the required degree of medical certainty, that the alleged
negligence of the defendant was the proximate
cause of plaintiff's harm, and directed a verdict for the defendant. The
Supreme Court reversed, finding that cases such as this "by their very
nature elude the degree of certainty one would prefer and upon which the law
normally insists before a person may be held liable." Id. at 1287. The
court interpreted the effect of § 323(a) of the Restatement as to address these
situations, and relaxed the degree of evidentiary proof normally required for
plaintiff to make a case for the jury as to whether a defendant may be held
liable for the plaintiff's injuries.
Accordingly, the court adopted the following standard:
Once
a plaintiff has introduced evidence that a defendant's negligent act or
omission increased the risk of harm to a person in plaintiff's position, and
that the harm was in fact sustained, it becomes a question for the jury as to
whether or not that increased risk was a substantial factor in producing the
harm. Such a conclusion follows from an analysis of the function of Section
323(a).
Id.
See also Jones v. Montefiore Hospital,
494 Pa. 410, 431 A.2d 920 (Pa. 1981); Mitzelfelt v. Kamrin, 526 Pa. 54, 584
A.2d 888 (Pa. 1990).
In determining the burden of proof required
ultimately to warrant a jury verdict for the plaintiff, the Hamil court again
relied on the Restatement Second of Torts, which reflected the state of the law
at the time of its adoption in 1965; namely that the quantum of proof, or
"substantial factor," necessary is a preponderance of the
evidence. 392 A.2d at 1288 n.9 (citing
Restatement (Second) of Torts § 433B, comment (a)). n9 Accordingly, this court
will [*434] permit Dr. Makous' testimony regarding the increased risk of
harm to Beswick of 34 percent, and will
allow the jury to determine, by a preponderance of the evidence, whether this
increased risk brought about Beswick's death.
Since Hamil was decided, several states
have altered their standards for establishing liability in medical malpractice
cases. Part (f) of § 4 Restatement (Third) of Torts (1999 Main Vol.) (Proof of
Plaintiff's Negligence and Legal Causation) addresses these theories of lost
chance as they have been adopted by those states:
f.
Lost chance. In some jurisdictions a plaintiff can recover for a lost chance of recovery from a disease or medical
condition (or for other increased risk of harm). Where the harm for which the
plaintiff seeks to recover is the lost chance itself, the plaintiff's
negligence in causing the loss of chance reduces the plaintiff's recovery under
§§ 7. Such a rule is not a burden-shifting rule on the issue of causation, but
a rule about what constitutes the plaintiff's compensable injury. In some
jurisdictions, the lost chance doctrine allows a plaintiff to recover damages
for the entire injury on a showing that the defendant substantially increased
the risk of that injury. In those jurisdictions, if the plaintiff uses the
doctrine of lost chance to prove that the injury was caused by the defendant's
negligence, the defendant may use the doctrine of lost chance to prove that the
injury was caused by the plaintiff's negligence. Otherwise, the defendant may not use the doctrine of lost chance
to prove that the plaintiff's injury was caused by the plaintiff's negligence.
The rule stated in this Comment does not affect the ability of a plaintiff or
defendant to prove causation by a preponderance of the evidence -- i.e., more
likely than not -- by use of statistical evidence.
The doctrine of loss of chance has two
versions. Under one, the plaintiff can recover only for the value of the lost
chance. See, e.g., Thompson v. Sun City Community Hosp., 141 Ariz. 597, 688
P.2d 605, 616 (Ariz. 1984); Blackmon v. Langley, 293 Ark. 286, 737 S.W.2d 455
(Ark. 1987); DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986); Roberson v.
Counselman, 235 Kan. 1006, 686 P.2d 149 (Kan. 1984); Hastings v. Baton Rouge
Gen. Hosp., 498 So. 2d 713 (La. 1986). Under this theory, the burden of proof
for causation is not changed; rather, the injury is defined as the loss of a
chance in itself, as opposed to the resultant harm to the plaintiff. With the
injury thus defined, a plaintiff is able to prove causation for that injury
under the traditional preponderance
test. Recovery is generally the percentage of the damages defendant was
found to have caused.
Under the other version of the lost chance
doctrine, the nature of plaintiff's injury remains unchanged; rather, the court
permits a lower burden of proof, allowing plaintiff to prove that the defendant
caused the injury, even though plaintiff cannot prove more likely than not, but
for the defendant's negligence, the injury
[*435] would not have occurred.
See, e.g., Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (Mich. 1990),
superceded by statute, Mich. Comp. Laws Ann. § 600.2912a(2) (1994); Herskovits
v. Group Health Cooperative of Puget Sound, 99 Wn.2d 609, 664 P.2d 474 (Wash.
1983); Alberts v. Schultz, 1999 NMSC 15, 975 P.2d 1279, 126 N.M. 807 (N.M. 1999).
Pennsylvania law has not adopted either of
these approaches.
D.
Negligence of Ilehuk and Tkach
The CareStat defendants seek dismissal of
Tkach and Ilehuk on the grounds that any negligence on their part could not
have been a proximate cause of the death of Beswick because they arrived after
the Fire Department, and thus never participated in the care of Beswick.
Plaintiffs argue that it is not the lack of qualifications of these defendants
that caused the delay in Beswick's treatment. Rather, they claim that these
defendants should have turned down the assignment because of their lack of
qualifications, which contributed to the delay in medical attention. Plaintiffs
assert, and defendants do not dispute, that Ilehuk and Tkach had not yet completed
their training as paramedics. Thus, plaintiffs contend, those defendants'
acceptance of the 911 call was improper as a matter of Pennsylvania statutory
law. (Pl. Resp. to CareStat Mots., Exh.
A. Page Interrogs., at 18.) Because of the breach of their duty to refuse a
call for a residential transport, plaintiffs caused a delay which allegedly was
the proximate cause of Beswick losing all chance of survival.
E.
Liability of Sverdlev
CareStat defendants seek the dismissal of
Sverdlev because they claim he was only an employee, not an owner, of CareStat.
Sverdlev is not alleged to have engaged in any negligent acts directly. In
support of their argument of lack of ownership, CareStat defendants submit a
copy of CareStat's Certificate of Incorporation, which lists only Cieloszcyk,
not Sverdlev, on CareStat's board of
directors. (CareStat Ds. Mot. re employee liability, Exh. B.)
Plaintiffs offer that the evidence
submitted shows that Sverdlev is an actual owner of the business. Allegedly, he
was precluded from operating an ambulance company such as CareStat because he
was arrested in New Jersey for theft by deception and Medicare Fraud with
regard to a prior ambulance company, and has masked his ownership of CareStat
in Pennsylvania. Although his name is not on any CareStat corporate
documentation, plaintiffs allege they can establish that he was the true owner
of CareStat. Plaintiffs have submitted an affidavit from Philadelphia Police
Detective Robert Burke, stating that when he interviewed George Stolle, a
former CareStat employee, he stated that Sverdlev was the owner of CareStat.
(Pls. Resp. to CareStat Mots., Exh. L, Aff. of Prob. Cause., at 5.) Plaintiffs
also submit affidavits from Stolle and other former CareStat employees, Aleksey
Lomov, Olga Lamova, and Gary Dubin, all of which concluded that Sverdlev is an
owner of CareStat. (Pls. Resp. to CareStat Mots., Exhs N, O, P, & R.)
Further, in his police statement, Tkach also stated that he believed that
Sverdlev is only a half-owner of CareStat.
(Id., Exh. Q.) For purposes of summary judgment, the court finds that these
submissions create a genuine issue of material fact as to whether Sverdlev is
an owner of CareStat. The court also notes that plaintiffs have established,
for summary judgment purposes, that Sverdlev managed the day-to-day operations
at CareStat and thus knew or could have known of Rodriguez's improper agreement
with CareStat to forward 911 calls to the private ambulance company.
[*436]
In the alternative, Sverdlev argues that even if he is found to be an
owner, plaintiffs would not be able to recover from him personally because
there is no allegation that CareStat was abusing the corporate form such that
piercing the corporate veil would be warranted. Pearson v. Component Tech. Corp., 247 F.3d 471 (3d Cir. 2001).
The court disagrees. "The corporate entity may not be used to defeat
public convenience, justify wrong, protect fraud or defend crime, and the form
will be disregarded whenever justice or public policy demand." Parker v.
Bell Asbestos Mines, Ltd., 607 F. Supp. 1397, 1402 (E.D. Pa. 1985) (citing
Ashley v. Ashley, 482 Pa. 228, 393 A.2d 637, 641 (Pa. 1978); Sams v. Redevelopment Auth., 431 Pa. 240,
244 A.2d 779, 781 (Pa. 1968)). Although limitation of liability is a legitimate
benefit of incorporation, that benefit is lost where the corporate form is
resorted to "'deliberately, with specific intent to escape liability for a
specific tort or class of torts.'" Parker, 607 F. Supp. at 1403 (quoting
Zubik v. Zubik, 384 F.2d 267, 273 (3d Cir. 1967), cert. denied, 390 U.S. 988,
19 L. Ed. 2d 1291, 88 S. Ct. 1183 (1968)).
IV. CONCLUSION
For the foregoing reasons, the City's
Motion for Summary Judgment is granted, the CareStat defendants' Motions are
denied, and Sverdlev, Tkach, and Ilehuk's Motion is denied.
An appropriate order follows.
ORDER
Giles,
C. J.
AND NOW, this 6th day of December 2001,
upon consideration of Defendants' Motions for Summary Judgment, and the
arguments of the parties, for the reasons outlined in the attached memorandum,
it is hereby ORDERED that the City of Philadelphia's motion (Docket # 64) is
GRANTED, and CareStat Defendants' three motions (Docket ## 61, 62, & 63)
are DENIED.
BY THE COURT:
JAMES T. GILES C.J.
FOOTNOTES:
n1 There is some discrepancy in the record
as to whether Wiegand went to Beswick immediately after he had fallen, or if
some minutes had passed before she realized he had fallen. For the purposes of
summary judgment, this court must assume that Wiegand went to him straightaway,
as she indicated in her police statement taken eleven days after Beswick's
death. (Pl. Resp. to CareStat's Mot. for Sum. J., Exh. G.)
n2 It is undisputed that Beswick died of a
heart attack upon his arrival at the hospital. He was cremated two days later
without an autopsy, so the exact magnitude of his heart attack can never be
known.
n3 At her deposition in August 2001,
Wiegand testified that she and Beswick had only been together since
approximately 1989, plaintiffs aver that this was a misrecollection due to a
temporary lapse of her memory, as is supported by Wiegand's failure to remember
other important dates at that time, such as the year of her youngest daughter's
wedding, the year in which all of her children had left the house, and Beswick,
who had been sleeping on the couch in her house up until that point, moved into
the bedroom. (CareStat's Motion Re: Common Law Marriage, Exh. C, at 10-13.) For
summary judgment purposes, this court will assume that Wiegand and Beswick had
been living together 23 years.
n4 Plaintiffs have submitted copies of
joint tax returns filed in 1996 and 1997, as well as a notice from the IRS,
dated November 9, 1984, addressed to "Ralph and Rose Beswick," that
Government had not received their income tax return for the tax period ending
on December 31, 1982. (Pl. Resp. to CareStat Mots., Exh. K.)
n5 CareStat defendants point out that, as
indicated on the transcript of the first 911 call she made, Wiegand referred to
herself as "Mrs. Wiegand," and to her alleged common law husband as
"a fellow here." (CareStat D. Mot. re Common Law Marriage, Exh. A.)
n6 Although the theory is not fully established
in plaintiffs' submissions, the court assumes that plaintiff is arguing a
connection between EMT and paramedic moonlighting and their ability to assess
accurately patients conditions viz. forwarding calls to private ambulance
companies. In other words, plaintiffs' theory assumes an inherent conflict of
interest, and that the complaints of 911 patients who claim they were forced by
Fire Department employees to use a private ambulance in an emergency situation
reflect that impermissible bias.
n7
Social security benefits would be the only damages to which Wiegand would be
entitled in a survival action, since Beswick had retired three years prior to
his death and thus had no lost wages, and plaintiffs have not alleged, nor is
their evidence of, pain and suffering.
n8 The article does not specify whether
the start of CPR within four minutes after cardiac arrest doubles the 34
percent chance of survival, or if it refers to some other statistic. Id.
n9 Comment (a) of Section 433B states:
a.
Subsection (1) states the general rule as to the burden of proof on the issue
of causation. As on other issues in civil cases, the plaintiff is required to
produce evidence that the conduct of the defendant has been a substantial
factor in bringing about the harm he has suffered, and to sustain his burden of
proof by a preponderance of the evidence. This means that he must make it
appear that it is more likely than not that the conduct of the defendant was a
substantial factor in bringing about the harm. A mere possibility of such
causation is not enough; and when the matter remains one of pure speculation
and conjecture, or the probabilities are at best evenly balanced, it becomes
the duty of the court to direct a verdict for the defendant.