Taken from Public Safety Communications Magazine, December 2001
Written by Jennifer Hagstrom, APCO Publications Manager
Taken from a presentation by Paul Johnson, City Attorney, Orem, Utah
Dispatcher liability is a growing concern in any public safety agency. Although it often seems to be a management concern, the seemingly small actions or inactions of telecommunicators can put everyone - from themselves to the agency head - in court. Most of them are avoidable.
In preparing his presentation, Paul Johnson, city attorney for Orem, Utah, evaluated 35 dispatcher-liability cases that made it to the appellate-court level. He isolated five areas that result in the most claims. They are listed below, along with some scenarios that resulted in public safety agencies defending themselves in court.
Scenario One
It was 3 a.m. A semi stalled in the right-hand lane of a freeway in Florida. It had no lights, flashers or markers of any kind. A citizen driving in the lane only avoided hitting it by slamming on his brakes and swerving into the left lane.
He called 911. He told the calltaker about the truck and his near-collision. He said he'd wait for a trooper to respond. The dispatcher said somebody would be sent. Incidentally, the department policy mandated a trooper be dispatched to all stalled vehicles.
The dispatcher should have:
(a) dispatched a trooper to the stalled vehicle.
(b) not sent anybody because the trooper had more important things to do and the likelihoood of someone hitting the truck was remote.
(c) not dispatched anybody and taken bets with the other dispatchers on how long it would take for someone to hit the truck.
The dispatcher chose (b).
The caller waited 25 minutes for a trooper, during which time many people nearly hit the truck. Finally, the caller left. Shortly thereafter, a vehicle occupied by two women hit the truck. Both were killed.
The state of Florida was sued because the dispatcher didn't send anyone. The state won because of the public-duty doctrine, which Johnson said he "likes when he's defending his city, but hates when he's thinking rationally."
The Public-Duty Doctrine
The public-duty doctrine says the plaintiff has to prove negligence, unless the plaintiff can prove the dispatcher intentionally caused harm to someone or violated someone's civil rights. To prove negligence, the plaintiff must show four things: the defendant's duty to the individual who was harmed; the defendant's duty to act in accordance with standards, protocols, education and training; the defendant's breach of those duties; and that the breach caused the damages.
In dispatch-liability lawsuits, plaintiffs often can't get past the first one, the duty to an individual, because some states subscribe to the public-duty doctrine, which says the duty is owed to the general public, not to specific individuals. Telecommunicators only have a duty to a specific person if it can be established they have some special relationship with that person and thereby assume a responsibility to act.
Failure One: Failure to Send
According to Johnson, the single biggest cause of dispatcher-liability lawsuits is failure to send anyone. Of the 35 cases he reviewed, 11 stemmed from failure to send, as was clearly the case in the incident above, as in several other examples that follow.
Scenario Two
At 3:30 a.m. in Washington D.C., a caller requested EMS because of a severe headache. He had no history of headache.
The telecommunicator should have:
(a) sent an ambulance immediately.
(b) told him to take aspirin and not sent anyone.
The telecommunicator took option (b). The man suffered a stroke and died. The dispatcher was found liable. The case was overturned because of the public-duty doctrine.
Scenario Three
The boyfriend of a woman in Wisconsin called 911 and said, "My girlfriend is having trouble breathing." The dispatcher asked to speak to her, and told the woman, who was audibly having trouble breathing, to breathe into a brown paper bag. No responders were sent. A few minutes later, the boyfriend called again and asked if his girlfriend's trouble could be heart-related. The telecommunicator responded, "No, just tell her to breathe into the bag like I told her." By the third call, she was dead. The result was a lawsuit.
(Although this was clearly a failure to send, Johnson reminded his audience dispatchers are not doctors and should not diagnose or treat.)
Scenario Four
At 10:30 p.m. in Scottsdale, Ariz., a citizen called 911 with information someone's life might be in danger. She refused to give her name or the source of her information. She didn't know who the perpetrator would be, but she gave the name and location of the would-be victim. He was at a state hospital, due to be released the next day at 4:30 p.m. He would be spending the weekend at an address the caller gave.
The telecommunicator should have:
(a) dispatched the police, allowing them to decide the best way to prevent harm to the would-be victim.
(b) told the caller nothing could be done without more information and not passed the tip on to the police.
(c) attempted to verify the story by looking up the victim's name in the phonebook to see if a resident by that name lived at the address the caller gave.
(d) not finding him in the phone book, forgotted the whole thing without passing the tip on.
Scottsdale's telecommunicator did (b), (c) and (d). The man was released from the hospital and went to the address given. He was later stabbed 25 times and he died.
The anonymous caller, a telephone operator who had accidentally plugged in on a call where the victim's wife and boyfriend were planning to hire a hit man, read about the case in the paper and wondered why no one acted on her warning. It was another case of failure to send. Scottsdale was held liable.
Johnson provided this rule of thumb: "When you get information from a 911 caller, you have to relay it to a responder. That's all there is to it."
Scenario Five
In Shelbyville, N.C., a citizen reported a house fire. It was unclear if it was known if anyone was inside.
The telecommunicator should have:
(a) immediately dispatched the fire department and EMS.
(b) gone to the bathroom before dispatching the call.
(c) waited six minutes, then dispatched the call.
The dispatcher delayed six minutes before dispatching. (Johnson didn't know the reason for the delay).
A woman and three children were inside the home. The mother and two kids got out. Law enforcement units, dispatched separately, arrived and heard the third child screaming, trapped by flames. They couldn't get in to rescue her.
The fire station was 1.1 miles from the home, literally a minute away. The child burned to death before the fire department arrived.
The North Carolina Supreme Court determined in this case the public-duty doctrine applied to the law enforcement officers but not to the telecommunicator, who could, therefore, be held liable.
Failure Two: Delay in Dispatch
This case shows the second biggest area of liability Johnson found in his research: delay in dispatch. Of the 35 cases he reviewed, seven stemmed from delay in dispatch. Following are additional examples.
Scenario Six
At 10:30 a.m. in Chicago, two sixth-grade boys collided on the playground, hitting their heads. One complained of pain in his head and stomach. He turned pale, vomited three times and wanted to go to sleep. At 10:40 a.m. school employees took him to the office and tried to find his mother. They reached her at 11 a.m., and she instructed them to call 911, believing her son needed to go to the hospital.
The school district's policy wouldn't allow them to take the child across the street to the hospital, so a school employee called 911. The telecommunicator should have:
(a) immediately dispatched an ambulance.
(b) waited 30 minutes. When the school called back, the telecommunicator should have said in a gruff voice, "We've already got the call and we'll take care of it like we told you we would."
(c) waited an additional 15 minutes and, when the school called again, the telecommunicator should have said, "We already told you we'd take care of it."
The telecommunicator did (b) and (c).
On the third call, the assistant principal requested a supervisor and eventually got through directly to the fire deparment at 11:45 a.m. The ambulance was dispatched at 11:48 and arrived at 11:50 - a two-minute response time. The ambulance had been parked across the street at the hopsital the whole time.
The child was found to have a subdural hematoma that, during the delay, grew from the size of a walnut to the size of an orange. Six years later, when this case went to trial, the boy couldn't walk without a cane, had permanent brain damage and blurry vision and would carry some of these problems for life.
The school district and the city were both found liable. The courts said, "Policy, schmolicy, the school should have taken the child across the street to the hospital." The public safety liability was, again, delay in dispatch. The school district and the city split the $2.5 million in damages.
Scenario Seven
A citizen called 911, saying a friend felt weak. The caller described symptoms that indicated possible heart trouble. The telecommunicator should have:
(a) dispatched EMS immedicately.
(b) told the caller EMS would respond, then waited 15 minutes until the victim actually collapsed from cardiac arrest and the caller called back before actually sending anyone.
(c) waited 30 minutes until the caller called back a third time before sending the ambulance.
(d) after 30 minutes, sent first-responder firefighters only and waited even longer to send an ALS unit.
The telecommunicator didn't choose option (a).
According to Johnson, the firefighters did not help in this situation. They sauntered into the house despite the caller's frantic beckoning. One of them actually used his portable's antenna to open the eyelid of the victim, who was prone on the kitchen floor, and said, "We can't work on her here. Carry her into the living room."
They took her into the living room and started CPR. An ALS unit finally arrived, but it was too late. The victim was pronounced dead at the hospital. A doctor testified in his deposition she could have been saved if she'd gotten there sooner.
Scenario Eight
This call took place in Phoenix. A woman called 911, worried about her ex-boyfriend. He'd threatened to come to her current boyfriend's apartment, where she was staying, and do some harm. Specifically, he'd threatened to damage a vehicle.
She also revealed she and her current boyfriend, Arizona Cardinals' wide receiver Darryl Usher, had been at a club in Tempe, where the ex-boyfriend had threatened to kill them both. Friends had rescued her and the police were called. The police suggested she get a restraining order, but the courts were closed for the weekend. They also advised her not to go home that night. They suggested she stay somewhere unknown to the ex-boyfriend. The woman also said the ex had gone to one of her friend's apartments twice, looking for her. He lived within five minutes of where she was staying. Moreover, her current boyfriend said he had a gun and, if the ex showed up, he'd kill him.
The telecommunicator should have:
(a) dispatched officers in accordance with Phoenix's "priority one" code (serious crimes with potential for immediate danger, average response time four minutes).
(b) dispatched "priority two," (urgent call, average response time 13 minutes).
(c) dispatched "priority three," (not in progress, average response time 32 minutes).
The dispatcher said, "I'll send an officer out," and put in the call at priority three. Thinking the officer would be right there, the woman and Usher waited in the apartment instead of leaving. Before the officers arrived, the ex showed up and shot them both to death. When the shooting was dispatched, the response time was six minutes.
In court, the judgment against Phoenix totaled $1.7 million, with the fault apportioned at 75 percent to the city and only 25 percent to the actual shooter. The jury said if the telecommunicator hadn't misprioritized the call, the victims might be alive. An Arizona appellate court, uncomfortable with those percentages, sent the case back for a new trial, strictly to reassess the apportionment of liability. Those results have not been reported yet.
Failure Three: Failure to Properly Prioritize Calls
The Usher case exemplifies the third area where telecommunicators are found liable: failure to properly prioritize calls. Two other examples follow.
Scenario Nine
A boy in Detroit called 911 and said two men had broken into his house. The calltaker said someone would be sent out. No one showed up. The boy called again and advised the men were beating on his parents. He was again told someone would be sent out. No one responded. The boy called a third time. He received the same answer. He called a fourth, fifth and sixth time, by which time he advised his parents weren't moving. The boy called six times during a 1.5-hour period. Both his parents were beaten to death in front of him.
The dispatcher's response was "No officers were available." The city escaped liability because of the public-duty doctrine, but nonetheless, this is clearly a prioritization problem.
Scenario Ten
This truly mind-boggling case occurred in Iowa. Just after midnight, two men went to a home and awakened the residents to ask about a truck for sale. The wife went with them to test-drive the truck. The would-be purchasers bound her with duct tape at knife-point. They did not rape her. Instead, they took her home.
At the house, they bound the husband with duct tape and raped the 16-year-old daughter in front of her parents. Then they marched the whole family - the parents, the 16-year-old and her 12-year-old sister - out to their car. One suspect put the 16-year-old and 12-year-old in the back seat. The other held a knife to the mother's throat.
The father escaped and ran to a neighbor's house to get help. One suspect panicked and cut the woman's throat.
In the confusion, the 16-year-old got out of the car and tried to pull the 12-year-old out, but the suspects escaped with the 12-year-old still in the car. The neighbor, meanwhile, called 911 and related this story.
The telecommunicator sent a sheriff's deputy and EMS and broadcast a description of the car. The first deputy arrived, identified the suspects and called in their probable destination. He requested a unit to go to that location and asked for a second ambulance, as he had two victims (the rape victim and the woman whose throat was cut). The telecommunicator sent the second ambulance only.
Regarding sending additional units to the probable suspect location, the telecommunicator should have:
(a) immediately dispatched officers and put out a BOLO on the suspect vehicle.
(b) put the deputy on hold twice to dispatch officers to an illegally parked car.
(c) once the telecommunicator got back to the deputy and got the information, taken a complaint regarding a telephone harassment prior to sending anyone to the possible suspect location.
(d) having finished taking that complaint, instead of broadcasting the kidnapper information, written a note about the call, walked to the squad room where the shift supervisor was working at a computer and given him the note.
(e) when the supervisor told the telecommunicator to call an officer to come to the station to get the information, called in the officer who was investigating the illegally parked car, without indicating the request was urgent.
(f) when he didn't show up for 15 minutes, shrugged and forgotten about it.
The telecommunicator chose (b) through (f).
What happened next was the shift supervisor walked in to the dispatcher and asked, "Where's officer so and so. I told you to have him come in."
The dispatcher said, "He's investigating this illegally parked car."
Instead of calling him on the radio, the supervisor drove out, found him and summoned the on-duty officers to the courthouse parking lot, where he told them what was going on. Then, they all headed to the probable destination of the kidnappers.
Meanwhile, the first on-scene deputy and the father figured out something wasn't right. They went to the probable destination themselves, arriving within a couple of minutes. The suspects had, in fact, gone there. One of the suspects' wives was still there. She said, "They just left."
The outcome: the suspects attempted to rape the 12-year-old and killer her later that morning.
Failure Four: Failure to Send to the Correct Address
The fourth big area of liability occurs when calltakers or dispatchers are given the correct address but dispatch to the wrong location. Sometimes this is worsened by their failure to follow up on the problem. Sometimes they fail to verify an address or a city or otherwise don't correct errors as they occur.
Scenario Eleven
This occurred in the Buffalo, N.Y. area. At 9:29 a.m., a woman reported an intruder at her back door. The call came into a multi-agency dispatch center covering several municipalities. She gave an address. The telecommunicator should have:
(a) said someone will be there "right away" and hung up.
(b) dispatched two police units to the wrong address in the wrong city.
(c) considered the call unfounded when the responding units advised the given address didn't exist.
(d) kept her on the line, asked what city she was calling from, verified the address and dispatched immediately to the correct location.
The telecommunicator actually chose (a) and (b), (c) followed. Thirteen minutes after calling, the caller ran from her home naked and bleeding from seven stab wounds, which proved fatal. She was 1300 feet - one block - from the police station in the city where she actually lived. Her toddler watched her die.
The chief of police later testified there were officers at the station at the time whose response time would have been a minute or less, which might have scared off the intruder or allowed him to be caught. In any event, it could have prevented him from gaining entry. (He was not yet inside the house when the victim called.)
The jury and New York Court of Appeals said because the caller relied on the calltaker's assurance help would be there "right away" and had a reasonable expectation (due to her proximity to the police station) that "right away" could mean "one minute away," the caller had a "special relationship" with the calltaker. Therefore, the public-duty doctrine did not apply. Result: liability.
In this case, the calltaker did everything wrong: failing to verify the address, failing to verify the correct city and failing to keep the caller on the line.
Scenario Twelve
This call took place in Maryland on a November night during a freezing rain. A citizen reported a girl, who had been drinking, was lying in the woods behind a townhouse. The caller refused to give his name and gave the victim's location as an address a few house numbers off from the caller's actual location. The telecommunicator should have:
(a) dispatched an officer to the wrong address to look for the girl.
(b) dispatched an officer to the correct address to look for the girl.
What happened was a 15-year-old girl met some boys for the first time and went drinking with them. After she was drunk and semi-conscious, all four boys had sex with her. Afterward, they dragged her into the woods behind the house.
Then they started feeling guilty, because it was cold out and she was scantily dressed. They called 911, but didn't want to be identified, so they gave an address that was a few house numbers off, unbeknownst to the calltaker.
The comm center compounded this discrepancy by dispatching an incorrect street name. The wrong street number the caller gave didn't exist on the correct street; it was an even number on a street that had no even-numbered residences. It did, however, exist on the wrong street name that was dispatched - in a different section of the same subdivision. Several units looked for the girl without finding her. She froze to death.
The city was found not liable because of the public-duty doctrine.
Scenario Thirteen
At 5:27 a.m. in Herndon, Fla. a citizen reported the neighbor's house was on fire. The calltaker asked if anyone was inside and the caller said she thought there was. The agency policy said in cases of structure fire where someone is known or believed to be inside, EMS must be sent also. The telecommunicator should have:
(a) waited until five units got there to see if an ambulance was needed, because paramedics don't like to get up at that hour.
(b) sent EMS immediately in case there really was a burn victim.
In this case, the problem was compounded because the ambulance that eventually went wasn't the closest unit, nor was it an ALS unit and therefore it was not oxygen-equipped. Because it broke down almost an hour later, the closest ALS unit eventually did finish transporting a burned 16-year-old from the scene. The patient died of cardiac arrest.
Failure Five: Sending the Wrong Unit
The above case demonstrates another area of liability: units are sent, but the unit that is eventually sent isn't the closest (or "correct") unit, and the resultant delay causes damage.
Exacerbators
According to Johnson, most dispatch-liability cases have elements of one of these five failures. However, other aspects can contribute to liability.
The first is "dispatcher meanness" or rudeness. A good example of this is the Chicago case above, where the calltaker was "gruff" with the complainant. Poor treatment never helps a situation and can often hurt it - especially in court. Calls are, after all, recorded, and the jury will recognize rudeness when the call is played in court.
The second exacerbator Johnson mentioned was failure to follow up with a responding unit. This occurs when a telecommunicator dispatches a call but doesn't get an answer from the responder verifying he received it. It can also occur when a long time elapses without a unit arriving on scene and the radio operator fails to check to make sure something hasn't happened to cause the delay. Telecommunicators have to make sure someone actually arrives. It isn't enough just to broadcast the call.
Johnson suggested trainers focus on these areas. He pointed out he often hears "No one would do that kind of thing" from his audience. Yet these scenarios actually occurred, probably in many instances because the telecommunicators let their guard down, lost their focus or allowed themselves to be distracted by outside forces or their own poor attitudes. Clearly, vigilance is the bottom line here.
