| Velazquez v New York City Health & Hosps. Corp. |
| 2009 NY Slip Op 06735 [65 AD3d 981] |
| September 29, 2009 |
| Appellate Division, First Department |
| Lillian Velazquez, Appellant, v New York City Health andHospitals Corporation et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), forrespondents.
Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), entered October 23,2007, which dismissed the complaint pursuant to a trial order granting defendants' motion at theconclusion of plaintiff's case for judgment as a matter of law, unanimously reversed, on the law,without costs, the motion denied, the complaint reinstated, and the case remanded for a new trial.
Plaintiff, a home attendant, allegedly was injured in a mishap that occurred as her client wascarried down a stairway by two emergency medical services (EMS) workers employed by themunicipal defendants. The EMS workers (Awilda Gomez and Jacqueline Martinez) wereresponding to the 911 call plaintiff placed when her client, a severely disabled 85-year-oldwoman, suffered a seizure. Plaintiff testified that the EMS workers said that they were at the endof a long shift, and one of them (Ms. Gomez) appeared to be drowsy. Plaintiff suggested that theEMS workers call for help moving the client, who weighed about 200 pounds and shook due toher Parkinson's disease. Although the EMS workers had the option to call for help, they toldplaintiff that they would take the client down the stairs themselves. The EMS workers moved theclient while she was strapped into a chair, with her oxygen tank placed in her lap. Ms. Martinezwas in front of the chair, lifting it from the bottom with both hands, while Ms. Gomez wasbehind the chair, lifting it by the handles on the back. According to plaintiff's testimony, as theEMS workers were carrying the client down the stairs in this fashion and plaintiff was lockingthe door to the apartment, plaintiff heard Ms. Gomez call out, "Help, I'm falling." Plaintiff ran tothe stairway to help and grabbed one of the back handles of the chair, whereupon Ms. Gomez"let go of the chair." The next thing plaintiff knew, she was lying on the landing at the bottomthe stairs, with her client (who was not injured) strapped into the chair on top of her. Thedeposition testimony of the EMS workers (which was read into the record) differed; Ms. Gomezclaimed that plaintiff had bumped into the chair and caused the fall when she tripped on a mat,while Ms. Martinez attributed the accident to Ms. Gomez's slipping, but said that plaintiff wasnot involved in it.
At the jury trial of this action, defendants moved for judgment as a matter of law at the [*2]close of plaintiff's case (see CPLR 4401) on the groundsthat (1) defendants were protected from liability by governmental immunity, (2) even ifgovernmental immunity did not apply, defendants' employees, the EMS workers, did not oweplaintiff (as opposed to her client) any duty of care, and, in any event, (3) plaintiff failed topresent any evidence of negligence by defendants' employees. The court granted the motion and,upon plaintiff's motion for reargument, adhered to that determination. Upon plaintiff's appealfrom the ensuing judgment, we reverse, reinstate the complaint, and remand for a new trial.
To begin, the doctrine of governmental immunity does not insulate defendants from liabilityfor the negligence of their employees, if any, in carrying an ill person down a stairway, as suchan act is plainly ministerial in nature, rather than discretionary or quasi-judicial (see Haddockv City of New York, 75 NY2d 478, 484 [1990]; see also Fonville v New York CityHealth & Hosps. Corp., 300 AD2d 623, 624 [2002] [although plaintiff stated no claim basedon the alleged failure by EMS to timely respond to a call to assist decedent, "assuming EMSworkers undertook the affirmative action to treat the decedent, they were required to do so withdue care"]; Schempp v City of New York, 25 AD2d 649 [1966], affd 19 NY2d728 [1967] [reinstating jury verdict for plaintiff in action alleging, inter alia, that "the city wasnegligent in the manner of transporting the decedent from his apartment to the ambulance"]).
Assuming that there was evidence in this case that negligence by the EMS workersendangered plaintiff's client (a point discussed below), plaintiff is entitled to recover fromdefendant for any injury she incurred in attempting to rescue the client from that danger. Underthe "danger invites rescue" doctrine, there exists "a duty of care toward a potential rescuer wherea culpable party has placed another person in a position of imminent peril which invites a thirdparty, the rescuing plaintiff, to come to [the] aid" of the imperiled person (Villoch vLindgren, 269 AD2d 271, 273 [2000]; see also Provenzo v Sam, 23 NY2d 256, 260[1968]). "The doctrine . . . appl[ies] . . . where a potential rescuerreasonably believes that another is in peril," which "determination is made on the facts andcircumstances of each case" (Gifford v Haller, 273 AD2d 751, 752 [2000] [citationsomitted]). Contrary to defendants' argument that they had no "special relationship" with plaintifffrom which a duty of care could arise, the assumption of a duty of care toward plaintiff's clientby the EMS workers (when they undertook to carry her down the stairs) gave rise to a duty ofcare to plaintiff when she sought to rescue the client from the peril in which the latter wasallegedly placed by the alleged negligence of the EMS workers (see Wagner v InternationalRy. Co., 232 NY 176, 180 [1921] ["The wrong that imperils life is a wrong to the imperilledvictim; it is a wrong also to h(er) rescuer"]).
Finally, bearing in mind that the determination of whether plaintiff has made out a primafacie case is " 'guided by the rule that the facts adduced at the trial are to be considered in theaspect most favorable to [plaintiff] and that [plaintiff is] entitled to the benefit of every favorableinference which can reasonably be drawn from those facts' " (McCummings v New YorkCity Tr. Auth., 81 NY2d 923, 926 [1993], cert denied 510 US 991 [1993], quotingSagorsky v Malyon, 307 NY 584, 586 [1954]; see also Villoch v Lindgren, 269AD2d at 272), we conclude that the evidence presented by plaintiff gave rise to an issue of factas to whether negligence by the EMS workers contributed to the accident in question. Based onthe evidence in the trial record, the jury, had it credited plaintiff's account of how the accidentoccurred, could reasonably have concluded that the EMS workers were negligent in attemptingto carry plaintiff's client down the stairs themselves rather than calling their dispatcher to requestassistance. Since determining whether the EMS workers acted with due care in this regard"required only consideration of[*3][their] common sense andjudgment" in undertaking to carry a person of the client's obviously heavy bulk (along with heroxygen tank) down the stairs, plaintiff was not required to offer expert testimony to reach thejury on the issue of negligence (Reardon v Presbyterian Hosp. in City of N.Y., 292AD2d 235, 237 [2002] [expert evidence was not required to reach the jury on the question ofwhether physician was negligent in helping patient off an examining table by himself, withoutthe assistance of another hospital employee]). Of course, we reiterate that, on this record,whether the accident happened in the manner described by plaintiff is also a question for thefactfinder. Concur—Mazzarelli, J.P., Friedman, Moskowitz and Acosta, JJ.