In this day of shrinking budgets, municipalities are searching for methods by which they can deliver services more efficiently and cheaply. One of the ways of accomplishing this is through the increased use of mutual aid agreements. While such arrangements have been widely used for many years, they tend to generate their own special issues. A case in point follows.

The City of Tempe, Ariz., entered into a mutual aid agreement with several other Arizona municipalities, including the City of Guadalupe. Under the East Valley Automatic Aid Agreement for Fire Protection and Other Emergency Services, known as the AAA, participants were required to provide an automatic vehicle location system and a computerized Geographic Information System that, used together, “allow the dispatch system to match the closest response unit to the emergency” and then to dispatch that unit, notwithstanding that the emergency may be in a municipality other than the one in which the dispatched unit is based. When Tempe city officials, advised by Tempe's fire chief and assistant fire chief, considered joining the AAA, they expressly decided that the advantages of entering into the agreement outweighed the risks.

On July 31, 2002, Jo Ann Myers experienced an “asthma-like attack” while she was in Tempe. In accordance with AAA practice, the closest fire unit, which happened to be from the Guadalupe Fire Department, was dispatched. Unfortunately, Myers passed away during the call.

On April 22, 2003, Richey Myers brought suit against the cities of Tempe and Guadalupe, as well as members who responded to the call, alleging that the Guadalupe Fire Department was grossly negligent by improperly intubating his wife, ultimately causing her death. He based his claim against Tempe on the argument that it was responsible for his wife's death because it “had a non-delegable duty to provide emergency medical services to persons within its borders, including Ms. Myers.” Tempe moved for summary judgment, arguing that it could delegate its duty to provide emergency care within its borders to others and that Arizona statutes afforded the city absolute immunity for its decision to make such a delegation.

The case made its way through the Arizona court system, ultimately ending up in the Supreme Court of Arizona in Myers v. City of Tempe, No. 05-0154, Supreme Court of Arizona (2006). In reviewing this case, the court stated that there were three decisions made by the defendants that arguably could establish a basis for Tempe's liability. The first was Tempe's decision to enter into the AAA. The second was the decision to dispatch the Guadalupe Fire Department to the emergency, and the third was that department's decision to provide the specific care it gave to Jo Ann Myers. The first two decisions implicate the reach of Tempe's absolute immunity, while the third implicates its vicarious liability.

The court began by citing the applicable Arizona immunity statute, which provides in part that “a public entity shall not be liable for acts and omissions of its employees [including] the exercise of an administrative function involving the determination of fundamental governmental policy.”

The court then focused on whether Tempe's challenged actions involved such immunity. The court said that Tempe's decision to enter into the AAA indisputably determined fundamental governmental policy. It involved weighing risks and gains; concerned the distribution of resources and assets; and required consulting the city's subject-matter experts, its fire chief and assistant fire chief. For these reasons, the court concluded that the statute's absolute immunity protected this decision. The court further noted that even the plaintiff recognized this to be the fact.

The court then considered Tempe's second decision, which was to dispatch the Guadalupe Fire Department rather than some other emergency unit to the Myers emergency. The court said that the plaintiff correctly argued that the court gives great weight to the statute's limiting phrase, “determination of fundamental governmental policy” and has not extended absolute immunity to actions that merely implement a fundamental policy, even when those actions are themselves decisions involving some level of discretion.

The court went on to say that this case, however, did not involve an implementing decision. The AAA determined, without the need for any additional implementing decision, which emergency unit would respond to Myers's call for help. The automatic vehicle location system, working in conjunction with the Geographic Information System, identified the nearest emergency unit, and the dispatcher sent that unit. Tempe's participation in the AAA and the terms of that agreement, without anything more being required, caused the dispatch of the Guadalupe Fire Department to the emergency.

The court said that it would be strange indeed if, as the plaintiff conceded, the decision to enter into the AAA were protected by statutory immunity, yet the decision to dispatch the Guadalupe Fire Department, which follows automatically from the terms of the AAA, nonetheless deprived Tempe of immunity.

The court noted that the plaintiff did not and could not claim that the dispatcher erred in sending the Guadalupe Fire Department because the AAA unambiguously dictated that “decision.” The dispatcher did nothing more than follow the policy that Tempe adopted when it entered into the AAA. The court then held that the dispatch mandated by the AAA, like the entry into the AAA, could not be subjected to judicial review

The court next considered the third critical decision, the one involving the choices related to the specific care provided to Myers and Tempe's potential vicarious liability for those choices. In this context, vicarious liability is the doctrine that provides an employer can be held liable for the unlawful actions of its employee. This, in turn, raised the question of whether the responding Guadalupe personnel were Tempe employees when responding to a call in Tempe.

The court said that it agreed with the plaintiff that Arizona statutes prevented intergovernmental agreements from eliminating a municipality's liability. However, it went on to say that Tempe's entry into the AAA did not prevent the city from disputing the scope and nature of its duty to the public. In other words, although the AAA couldn't immunize Tempe from liability where it would otherwise exist, the agreement also didn't automatically impose liability upon Tempe for the actions of Guadalupe's emergency responders. If such liability were to exist, it must come from some independent source. The court then considered the doctrines of respondeat superior, in this instance related to the doctrine of vicarious liability, and non-delegable duties as possible independent sources, and concluded that neither of them applied to this case.

In reviewing the respondeat superior doctrine, the court said that an employer could be liable for the negligence of its employee when, “with respect to the physical conduct of the employee and the performance of his service, he is subject to the employer's control or right of control.” The court said that the members of the Guadalupe Fire Department, however, were not Tempe employees and that the plaintiff didn't contend that Tempe employed them. This fact didn't change, even when those members were operating within Tempe under the mutual aid agreement. Thus, the court held that Tempe wasn't liable under the respondeat superior doctrine.

The court next moved to consideration of the doctrine of non-delegable duties. It said that while a city may delegate most of its duties, it remains liable for certain duties even when they're carried out by independent contractors. If an employer has a special or non-delegable duty, the general rule that “an employer is not liable for the negligence of an independent contractor” does not apply. The court assumed for the purpose of ruling on this motion, without deciding, that the Guadalupe Fire Department may be treated as an independent contractor of Tempe. Therefore, if Tempe had a non-delegable duty to provide emergency services, the city could be held vicariously liable for the Guadalupe Fire Department's actions.

In Arizona, however, the duty to provide emergency services may be delegated. Neither Arizona common law nor any statute, regulation, contract, franchise or charter imposed any duty upon Tempe to provide emergency services. For this reason, the court said that this was not one of the few non-delegable duties.

In making its ruling, the court, in what appears to be rather strained logic, distinguished this case from a decision in an earlier case where it held that once a municipality “assumes the responsibility of furnishing fire protection, then it has the duty of giving each person or property owner such reasonable protection as others within a similar area within the municipality are accorded under like circumstances.” The court said that this language did not impose upon municipalities the duty of providing emergency services. In the current case, the court said, the duty of providing emergency services could be delegated because neither the common law nor any other source imposed the duty on Tempe; Tempe assumed that duty. Because Tempe could delegate its duty to provide emergency services, the court would not hold Tempe vicariously liable for the Guadalupe Fire Department's actions.

Thus, the court concluded that none of the three critical decisions made by the defendants established a basis for Tempe's liability, and it granted Tempe's summary judgment motion, dismissing the action against it. While Tempe was successful in its defense, this case nonetheless provides us with some points to ponder:

• Mutual aid agreements should spell out the relationship between the parties, whether employer — employee or independent contractor.
• Not all states will have Arizona's statutory arrangement regarding non-delegable duties. You need to know what the laws of your state provide.
• Automatic dispatch can not only provide very good public service, it also may limit liability in some instances.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair.