When we think of first responders, we normally think of public servants such as police officers or the fire department. We do not often think of 911 operators, who, despite not physically being at the scene of an emergency, are often the first and most important link to getting help where its needed.
Of course most 911 operators do a fantastic job in what is admittedly a high-stress position. What happens when a 911 operator drops the ball? Can a 911 operator be sued for negligence the way that any other person or public servant can?
Few Cases Define Scope of Liability
There are not many Florida cases that deal with this unique issue. One of the most recent cases involved a situation in which a woman called 911 because her husband was experiencing breathing problems and pulmonary distress. The 911 operator told her that “help was on the way,” but as she was waiting, her husband’s condition worsened.
When the woman asked the operator what to do then, the operator told her to “just leave him there” until EMS arrived. However, by the time EMS did arrive it was too late and the man died at the scene.
The woman sued the sheriff alleging negligence of the 911 operator. She specifically alleged that the 911 operator gave her the wrong impression about the seriousness of her husband’s condition and telling her to do nothing constituted negligent advice. She also alleged that valuable time was lost when she followed that advice when she could otherwise have been administering CPR to him.
Analyzing Government Liability
The trial court dismissed the case and the matter went to an appellate court. As a government agent, an analysis of a 911 agent’s liability entails understanding of how and when government agencies can be sued.
Courts have divided government liability into four categories:
- Category I activities include legislative, permitting, and executive functions, like lawmaking, or the way that an officer in the executive branch carries out job duties
- Category II includes law enforcement protecting the public
- Category III concerns capital improvements and management of government property
- Category IV includes providing professional, educational, and other services for the welfare of citizens, such as doctors who work at public hospitals or public school teachers
Governments are liable in different ways for these different categories. With the first two, there is no liability by the government unless some “special relationship” is created. As relates to a 911 operator, showing that relationship requires showing:
- An express promise or assurance of assistance;
- Reliance by the victim on the promise or assurance of assistance; and,
- Damages caused by relying on the promise or assurance of assistance.
For example, if a 911 operator were to assure someone that law enforcement was on the way, when in fact law enforcement had not even been called, a “special relationship” might exist. In that situation, help is being explicitly promised to the victim, and the victim is relying on the 911 operator’s assurances.
It is much easier to show government liability for categories III and IV. Where government agents negligently carry out duties, they can be held liable.
Court Finds No Liability
In this case, the Court held that a 911 operator’s duties constituted law enforcement, and thus fell under Category II, making it much more difficult for the victim to make her claim unless she could show a special relationship.
Here, the 911 operator did say that help was on the way, but that was true; help was, in fact, on the way and eventually did arrive. Thus, the Court found that no special relationship was created. The operator did not “control the situation,” and the Court did not believe that anything she said or did increased any risk to the woman’s husband.
Although it could be said that telling the woman to just wait for EMS was incorrect, it was not enough for her to argue that she could possibly have done something to help her husband had she been told differently, and that he possibly would have survived. The Court found that to be mere speculation.
Operators can Still be Negligent
The case solidifies the law in Florida that 911 operators have to blatantly misrepresent some fact or make some assurance of help that is false, in order to be negligent. That means it is not enough to argue that a 911 operator acted too slowly, or to second guess a 911 operator’s advice.
Situations giving rise to liability would be where an operator says help is coming when it has not been called, or where help is sent to an incorrect address or location.
It is also possible that an operator’s advice that is totally out of bounds could also give rise to liability—for example, if an operator were to say something outrageous like tell someone not to rescue a drowning person, if an operator rendered improper medical advice over the phone, or if an operator completely refused to call for help. One example is a Houston operator who admitted to hanging up on callers simply because she “did not want to talk to anyone.”
Expert Testimony May be Needed
Expert testimony in these kinds of cases may be needed to see if the operator followed the policies and procedures, whether the closest available first responders were called, and whether they were given sufficient information. Certain kinds of 911 calls are treated differently based on emergency level, and experts will determine whether proper codes were used to indicate that level.
If you feel that a government agency or officer is negligent and has caused you injuries make sure that you know your rights. Contact Brill & Rinaldi today for a free consultation to discuss your injury case.