Stracke v. Estate of Butler

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          Circuit Court for Baltimore City, Case No. 24-C-14-001249, Althea M. Handy, Judge.

         Argued by Andre M. Davis, City Solicitor (Elizabeth Ryan Martinez, Michael Redmond and Rachel Simmonsen, Asst. Solicitors, Baltimore City Department of Law, Baltimore, MD), on brief, for Petitioners/Cross-Respondents.

         Argued by Alan J. Belsky (Thomas X. Glancy, Jr., Belsky, Weinberg & Horowitz, L.L.C., Baltimore, MD), on brief, For Respondents/Cross-Petitioners.

         Amicus Counsel for Anne Arundel County, Maryland, Baltimore County, Maryland, Harford County, Maryland, Howard County, Maryland, Montgomery County, Maryland, and Prince George’s County, Maryland in Support of Petitioners: Gary W. Kuc, County Solicitor, Louis P. Ruzzi, Senior Assistant County Solicitor, Cynthia G. Peltzman, Senior Assistant County Solicitor, Melissa E. Goldmeier, Assistant County Solicitor, Howard County Office of Law, Gregory J. Swain, Esquire, Acting County Attorney, Michael E. Field, Esquire, County Attorney, Historic Courthouse, Melissa Lambert, Esquire, County Attorney, Rhonda L. Weaver, Acting County Attorney, Andrew J. Murray, Deputy County Attorney, Marc P. Hansen, Esquire, County Attorney.

         Argued before: Barbera, C.J.,^[*] Greene, McDonald, Hotten, Getty, Booth, Alan M. Wilner (Senior Judge, Specially Assigned) JJ.

          OPINION

         Hotten, J.

         [465 Md. 412] The Estate of Kerry Butler, Jr., Ms. Crystal Butler, the widow of Kerry Butler, Jr., Vera Ganey, parent and guardian of Kerry Butler, Jr.’s sole minor child, and Mr. Kerry Butler, Sr., the father of Kerry Butler, Jr. (collectively referred to as "Respondents"),^[1] filed a wrongful death and survival action in the Circuit Court for Baltimore City.^[2] Respondents alleged that

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Baltimore City Fire Department medics, Joseph Stracke and Stephanie Cisneros (collectively referred to as "Petitioners"),^[3] were grossly negligent in their treatment of Mr. Butler, and that their gross negligence caused his ultimate demise.

         [465 Md. 413] After a jury found that Petitioners were grossly negligent, the trial judge granted Petitioners’ Motion for Judgment Notwithstanding the Verdict ("JNOV"). Respondents appealed to the Court of Special Appeals, which reversed the trial court’s grant of JNOV on the basis that Petitioners were grossly negligent and not entitled to immunity under the Fire and Rescue Company Act, Maryland Code, Courts & Judicial Proceedings ("Cts. & Jud. Proc.") � 5-604(a). On appeal and cross-appeal, we are asked to consider the following issues:

1. Does willful or gross negligence by an omission defeat the immunity from liability granted to fire and rescue personnel by the Maryland Fire and Rescue Company Act, Md. Code, Courts & Judicial Proceedings � 5-604, or is the immunity lost only by a willful or grossly negligent affirmative act?

2. Did CSA err in finding sufficient evidence that Petitioners committed gross negligence that caused the death of a patient, when undisputed evidence established that Petitioners assessed the patient, including taking vital signs, and within seven minutes transported the patient to the hospital, where his condition suddenly worsened?

3. Does � 5-604 afford Petitioners, as employees of a fire department, limited immunity against claims for simple negligence?

         For the reasons outlined below, we conclude that Petitioners were not grossly negligent in their treatment of Mr. Butler, and were therefore afforded immunity under the Fire and Rescue Company Act, Cts. & Jud. Proc. � 5-604(a).^[4] Because we hold that Petitioners were not grossly negligent, we decline to address the first issue presented. We further hold that [465 Md. 414] Cts. & Jud. Proc. � 5-604(a) does, and continues to, grant immunity against simple negligence claims to employees of a fire department. Accordingly, we reverse the judgment of the Court of Special Appeals.

          FACTUAL AND PROCEDURAL BACKGROUND

          Factual Background

          Just after 1:00 a.m. on March 2, 2011, Mr. Butler woke his wife allegedly complaining of chest pains. Earlier that evening, Mr. Butler had eaten a spicy chicken sandwich and Oreo cookies, and drank a Hawaiian punch beverage prior to going to bed. Ms. Butler called 9-1-1 and reported that her husband was experiencing chest pain and having difficulty breathing and speaking. Ms. Butler helped dress Mr. Butler and assisted him down the steps to

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the first floor of their home to wait for the emergency medics.

         Stracke and Cisneros were dispatched to the Butlers’ home in response to the 9-1-1 call for a reported chest pain emergency. Stracke and Cisneros are both first responders, whose primary responsibilities involve the assessment and transportation of patients. Neither Stracke nor Cisneros are responsible for diagnosing medical conditions. Petitioners arrived on the Butlers’ street at approximately 1:18 a.m. Petitioners experienced some difficulty locating the residence because the relatively unlit street made it difficult to identify the house numbers, and there had been inconsistencies between the reported address and the actual location of the Butlers’ house.^[5] Due to the lack of lighting, Stracke promptly exited the ambulance and walked along the street in order to locate the correct house while Cisneros remained in the ambulance. When Stracke reached Ms. Butler at the correct address, around 1:20 a.m., he relayed his location to Cisneros, who remained in the ambulance.

         [465 Md. 415] By the time Stracke reached the Butlers’ residence, Ms. Butler was standing just outside the front door and Mr. Butler was sitting in a chair just inside the house. At the time, Mr. Butler was 28 years old, five feet and seven inches tall, and approximately 245 pounds. Without entering the house, Stracke asked in a loud voice "what seems to be the problem." Ms. Butler responded that Mr. Butler had told her that he thought he was having a heart attack. According to Ms. Butler, Mr. Butler had his hand on his chest. Stracke asked Mr. Butler "what’s going on my main man[ ]" and Mr. Butler responded that "[his] right side hurt." While standing in front of the Butlers’ residence, Stracke visually assessed Mr. Butler, in accordance with relevant medical protocols, observing that he was "a good shape gentleman[.]" Stracke expressed the desire and need to bring Mr. Butler to the ambulance for further evaluation and possible treatment.

          Ms. Butler then claimed that Mr. Butler stood up and staggered the short distance to the ambulance, approximately 30-40 feet, without the aid of Stracke or a stretcher. Stracke, however, claimed that he instructed Mr. Butler to wait while he retrieved a stretcher, but Mr. Butler declined, stating that he was "ready to go" and began walking to the ambulance on his own accord. Stracke quickly signaled to Cisneros prior to escorting Mr. Butler from his residence to the ambulance, and Cisneros promptly exited the ambulance with a medical bag and oxygen bottle in order to fully and properly assess Mr. Butler’s condition.

          Cisneros performed a visual assessment of Mr. Butler as he approached the ambulance. Ms. Butler stated that Mr. Butler was staggering as he walked to the ambulance, while Cisneros observed that Mr. Butler was taking "perfectly normal" steps and did not appear to be in need of any assistance. According to Petitioners, Mr. Butler entered the ambulance unassisted and without difficulty. When Cisneros asked Mr. Butler what was going on, Mr. Butler responded that his throat was burning (he was holding his hand to his throat) and that he had "[c]hest heartburn." Although Cisneros recorded this symptom as "chest hurt" in Mr. Butler’s chart, she explained [465 Md. 416] that this was primarily due to a lack of accurate options that were provided from a drop-down menu on the form.

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          Inside the ambulance, Stracke took Mr. Butler’s blood pressure, heart rate, and blood oxygen level, while Cisneros recorded these measurements in Mr. Butler’s chart. Cisneros also checked Mr. Butler for reproducible pain under his right arm (there was none), felt his pulse, checked his pupils, looked at his skin, and listened to his lungs, which were "perfectly clear." All of Mr. Butler’s vitals appeared to be baseline, indicating that he was in stable condition.

          Petitioners determined that Mr. Butler should be transported to the nearest hospital, Harbor Hospital, which was less than a mile away. Around 1:24 a.m., approximately seven minutes after first arriving on the Butlers’ street, Petitioners and Mr. Butler departed for the hospital, with Stracke driving the ambulance and Cisneros remaining with Mr. Butler in the rear of the ambulance. Stracke explained that at this time, it was Petitioners’ priority "to deliver a viable patient to appropriate definitive care, here Harbor Hospital, as soon as possible[.]" According to Cisneros, Mr. Butler was seated in a "position of comfort" and "very pleasant" and "very chatty" during the drive to the hospital. The ambulance arrived at Harbor Hospital approximately three minutes later, around 1:27 a.m. Stracke immediately retrieved a wheelchair for Mr. Butler, who exited the ambulance unassisted but without difficulty, and sat in the wheelchair. Stracke pushed Mr. Butler directly into the emergency room while Cisneros alerted hospital staff that Mr. Butler "had a burning in his throat."

          Stracke waited with Mr. Butler in the emergency room for hospital staff to triage Mr. Butler. While waiting in the emergency room, a hospital technician observed Mr. Butler holding his chest and complaining that his chest hurt. The hospital technician observed this happening for another five to ten minutes, with Mr. Butler’s voice growing louder as the time passed. After waiting in the emergency room for approximately ten minutes, Mr. Butler became unconscious and began to slide out of his wheelchair. Stracke prevented Mr. Butler’s [465 Md. 417] head from striking the floor as he slid out of the wheelchair. Cisneros observed Mr. Butler’s condition and called for a nurse and doctor, who took Mr. Butler to a code room with the assistance of Stracke. After Mr. Butler was taken to the code room, and while he was receiving treatment from hospital staff, Petitioners left the hospital and went back on service to prepare for the next potential dispatch call.

         Despite the hospital staff’s efforts, Mr. Butler could not be resuscitated and ultimately died. At the time of his death, doctors were unable to identify Mr. Butler’s cause of death. Following an autopsy, the medical examiner concluded that Mr. Butler died of a myocardial infarction, more commonly known as a heart attack.

          Procedural Background

          Trial in the Circuit Court for Baltimore City

         Respondents filed a wrongful death and survival action against Petitioners, and the Mayor and City Council of Baltimore ("the City") in the Circuit Court for Baltimore City.^[6] Before commencement of trial, the City moved that the circuit court determine whether it was immune from suit under the doctrine of governmental immunity, and Petitioners moved that the circuit court determine whether the Fire and Rescue Company Act, Md. Code, Cts. & Jud. Proc. � 5-604(a) granted them civil immunity in the absence of any willful or grossly negligent act. The circuit court

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answered both questions in the affirmative, entering judgment in favor of the City due to its governmental immunity.^[7] The suit against Petitioners proceeded to trial to determine whether Petitioners acted in a willful or grossly negligent manner.

          At the close of Respondents’ case, Petitioners moved for judgment on the ground that Respondents "ha[d] not proved that either [Petitioner], Stracke or Cisneros, was grossly [465 Md. 418] negligent by a preponderance of the evidence[.]" The circuit court denied Petitioners’ motion. Petitioners renewed their motion, on the same ground, at the close of all of the evidence, which the circuit court reserved ruling on until after the jury returned its verdict. Following deliberations, the jury found Petitioners were grossly negligent in the treatment of Mr. Butler, that this gross negligence caused Mr. Butler’s death, and accordingly, awarded Respondents $3,707,000. Following the announcement of the jury’s verdict, Petitioners moved for a JNOV on the same grounds advanced in their earlier motions for judgment. The circuit court granted Petitioners’ motion, concluding that Respondents’ evidence of gross negligence was insufficient. Judgment in favor of Petitioners was entered by the circuit court on March 21, 2016.

          Appeal to the Court of Special Appeals

         Respondents filed a timely appeal to the Court of Special Appeals, and Petitioners filed a timely cross-appeal.^[8] Estate of Kerry Butler, Jr., et al. v. Joseph Stracke, et al., No. 238, 2018 WL 4761044 (Md. Ct. Spec. App. Oct. 1, 2018). The Court first determined that the circuit court erred in granting Petitioners’ JNOV because "significant evidence existed to show that [Petitioners] acted grossly negligent." Id. at *4. Because there was sufficient evidence of gross negligence, the Court reversed the circuit court’s grant of Petitioners’ JNOV, and ordered the circuit court to reinstate the jury’s verdict in favor of Respondents. Next the Court explained that, because it was [465 Md. 419] bound by Court of Appeals’ precedent in Mayor & City of Baltimore v. Chase, 360 Md. 121, 756 A.2d 987 (2000), the Fire and Rescue Company Act affords immunity in simple negligence cases to municipalities and their employees, not just volunteers. Id. at *6-7.

         Senior Judge Lawrence F. Rodowsky, sitting specially assigned, dissented from the panel’s majority opinion, citing "the breadth of the grant of immunity to members of the fire and rescue companies as recognized by [the Courts’] cases and, ultimately, as conferred by [the Fire and Rescue Company Act]." Id. at *10 (Rodowsky, J., dissenting). After assessing the evidence that was submitted at trial, Judge Rodowsky determined that the "evidence may or may not be sufficient to support a finding of negligence, but it is not evidence of gross negligence." Id. at *11. Judge Rodowsky also observed that even "if there is willful or gross negligence by an

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omission, the immunity [provided by Md. Code, Cts. & Jud. Proc. � 5-604(a)] is not lost." Id. at *13. Section 5-604(a) of Cts. & Jud. Proc., first introduced as Senate Bill 731 in the 1983 General Assembly session, originally read: "A volunteer fire company is immune from liability in the same manner as a local government agency for any act or omission in the course of performing its duties if ... [t]he act or omission is not one of gross negligence." However, according to Judge Rodowsky, the General Assembly’s removal of "omission" evidenced its intent to only withhold immunity for grossly negligent acts, not grossly negligent omissions. Id. at *13 (citing Chapter 546 of the Acts of 1983). Because Petitioners’ gross negligence was based on their failure to properly question and examine Mr. Butler - i.e., a failure to act - Judge Rodowsky concluded that Petitioners’ immunity under the Act was not defeated by their alleged grossly negligent omissions from action. Id.

         Petitioners filed a timely petition for certiorari before this Court, and Respondents’ filed a timely cross-petition. We granted certiorari on both Petitioners’ petition and Respondents’ cross-petition. Stracke, et al. v. Estate of Butler, Jr., et al., 462 Md. 556, 201 A.3d 1228 (2019).

         [465 Md. 420] STANDARD OF REVIEW

          We review a grant or denial of a motion for JNOV for legal correctness, by "viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the non-moving party, and determining whether the facts and circumstances only permit one inference with regard to the issue presented." Cooper v. Rodriguez, 443 Md. 680, 706, 118 A.3d 829, 844 (2015) (quoting Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503, 16 A.3d 159, 163 (2011)). Gross negligence is a question of law "when reasonable [people] could not differ as to the rational conclusion to be reached." Romanesk v. Rose, 248 Md. 420, 423, 237 A.2d 12, 14 (1968). "[I]f there is no rational ground under the law governing the case for upholding the jury’s verdict, [JNOV] must be granted." Bell v. Chance, 460 Md. 28, 52, 188 A.3d 930, 944 (2018). In this context, if the non-moving party has offered sufficient evidence, so as reasonable minds might differ, that the moving party engaged in a grossly negligent manner, the motion for JNOV should be denied. See Barnes v. Greater Balt. Med. Ctr., Inc., 210 Md.App. 457, 480, 63 A.3d 620, 634 (2013).

          DISCUSSION

          Petitioners were not grossly negligent in their treatment of Mr. Butler.

          "Issues involving gross negligence are often more troublesome than those involving malice because a fine line exists between allegations of negligence and gross negligence." Barbre v. Pope, 402 Md. 157, 187, 935 A.2d 699, 717 (2007). Ordinary, simple negligence is "any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm." Id. On the other hand, this Court has explained that "gross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid [465 Md. 421] them." Id. We have made clear that a claim for gross negligence "sets the evidentiary hurdle at a higher elevation[.]" Beall v. Holloway-Johnson, 446 Md. 48, 64, 130 A.3d 406, 415 (2016).

          "[A] wrongdoer is guilty of gross negligence or acts wantonly and willfully

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only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist." Barbre, 402 Md. at 187, 935 A.2d at 717.

Gross negligence is not just big negligence. For these purposes, gross negligence "must be sufficient ... to establish that the defendant ... had a wanton or reckless disregard for human life .... Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind."

Thomas v. State, 237 Md.App. 527, 537, 186 A.3d 857, 863 (2018), rev’d, State v. Thomas, 464 Md. 133, 211 A.3d 254 (2019) (quoting State v. Kramer, 318 Md. 576, 590, 569 A.2d 674, 681 (1990)) (emphasis added).

         In Beall, we considered, inter alia, whether there was sufficient evidence to support a finding of gross negligence against a police officer whose cruiser collided with a fleeing motorcyclist during a high-speed chase, and which resulted in the death of the motorist. 446 Md. at 57-62, 130 A.3d at 411-14. We reiterated that a claim of gross negligence must be supported by sufficient evidence that the defendant "acted with ‘wanton or reckless disregard for the safety of others[.]’ " Id. at 64-65, 130 A.3d at 415 (quoting Boyer v. State, 323 Md. 558, 580-81, 594 A.2d 121, 132 (1991)). Even given this objectively higher threshold assigned to proving gross negligence, our opinion in Beall morphed the distinctions between simple and gross negligence by holding that "a legally sufficient case of ordinary negligence will frequently be enough to create a jury question of whether such negligence was or was not gross." Id. at 64, 130 A.3d at 415.

         We decline to further muddy this already unclear area of law. If in almost all instances where a plaintiff can prove [465 Md. 422] negligence, and the case is submitted to the jury to consider gross negligence, then many first responders will be stripped of the protective shield that the immunity was intended to provide, forcing them to go through the entire litigation process when there is only evidence of simple negligence. This result runs contrary to the heightened threshold of gross negligence we have articulated, and in many cases, gross negligence will be treated as "just big negligence." See Thomas, 237 Md.App. at 537, 186 A.3d at 863.

          The evidence submitted at trial of Petitioners’ actions, or failures to act, while potentially sufficient to establish simple negligence, was not sufficient to establish gross negligence, even when taken in the light most favorable to Respondents as the non-moving party. See Cooper v. Rodriguez, 443 Md. 680, 706, 118 A.3d 829, 844 (2015). Respondents point out that "if a trier of fact disbelieves part or all of a witness’ testimony, that discredited testimony is assigned no weight and plays no role in the consideration of the ultimate issue." Grimm v. State, 447 Md. 482, 506, 135 A.3d 844, 858 (2016). However, "disbelief is not evidence in and of itself." Id. Even given this principle, there is not sufficient evidence to conclude that Petitioners made a deliberate and conscious choice to not help Mr. Butler survive. Assuming the facts as they were presented by Respondents, as the non-moving party, Petitioners still responded to Mr. Butler’s 9-1-1 call, provided him with immediate attention and treatment, and transported him to the nearest hospital in under ten minutes.

         In Tatum v. Gigliotti, the Court of Special Appeals concluded that a paramedic who failed to properly diagnose a medical condition and administer proper treatment, eventually leading to the patient’s death, did not perform his duties in a grossly negligent manner. 80 Md.App. 559, 569, 565 A.2d 354, 358-59 (1989).

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There, the medic attempted to put a paper bag over the patient’s face, believing that he was suffering from hyperventilation. Id. at 562, 565 A.2d at 355. However, the patient was actually suffering from a severe asthma attack. Id. The medics escorted the patient to the ambulance, but did not [465 Md. 423] transport him on a stretcher. Id. While in the ambulance and en route to the hospital, the patient slid from his seat and fell onto the floor of the vehicle. Id. An emergency room nurse testified that when the patient arrived at the hospital, he was in cardiac arrest. Id. at 563, 565 A.2d at 355. The patient ultimately died from a lack of oxygen. Id. The Court of Special Appeals reasoned that, even considering these facts in the light most favorable to the plaintiff, "[t]he evidence in [the] case indicated that although the actions of [the medic] may have amounted to negligence, they [did] not satisfy the threshold of gross negligence." Id. at 569, 565 A.2d at 358.

         Similarly, in McCoy v. Hatmaker, the Court of Special Appeals concluded that a paramedic’s failure to follow medical protocol and subsequent erroneous medical judgment was not sufficient to establish gross negligence. 135 Md.App. 693, 707-08, 763 A.2d 1233, 1241 (2000). There, paramedic Billie Hatmaker diagnosed the patient, William McCoy, as dead after observing him unconscious, having unresponsive eyes, a significantly lowered body temperature, and having already released bodily fluids. Id. at 699-702, 763 A.2d at 1236-38. Instead of performing advanced life support procedures, Hatmaker proceeded to fill out a Maryland Ambulance Information Sheet and called the police and medical examiner. Id. at 702, 763 A.2d at 1237-38. McCoy alleged that Hatmaker breached his duty of care to McCoy by failing to provide appropriate resuscitative medical treatment and by violating relevant Maryland State Protocol and Emergency Medical Technician/Paramedic Guidelines. Id. at 701-02, 763 A.2d at 1238. The Court of Special Appeals disagreed, reasoning,

we cannot equate a well-intended error in medical judgment - even if it costs the patient’s life - with wanton and reckless disregard for the life of that patient. Medical protocols seek to establish best practices for successfully treating certain conditions. Failure to follow such protocols might sometimes be deliberate, but more often than not, we believe, such failure to heed them during an emergency would be purely accidental and, therefore, at most simple negligence. Even resolving all inferences in [McCoy’s] favor, [465 Md. 424] the undisputed facts here simply do not show that Hatmaker’s failure falls into the former category. [McCoy] cannot point to any facts that show he made a delibera ...