Most personal injury lawsuits are filed in state courts as simple tort actions. However, suits occasionally are filed in federal courts, often as Section 1983 claims. While there are various reasons for pursuing a 1983 claim instead of a tort claim, the important point is that a tort doesn't automatically give rise to a 1983 claim. A case in point is Brown v. Commonwealth of Pennsylvania Department of Health Emergency Medical Services Training Institute, 318 F3d 473 (2003).

In this case, Shacquiel Douglas, the 1-year-old son of Charmaine Brown and Oral Douglas, was at the Philadelphia residence of his maternal aunt, Angela Morris, when he choked on a grape. Morris dialed 911 at 11:06:22 a.m. and informed the operator of the emergency. The 911 operator relayed the call and EMTs Mark Stewart and John Caffey responded. The operator then informed Morris that “rescue is gonna come help you.”

At 11:10:24 a.m., Morris again called 911 to determine when the EMTs would arrive. Morris was informed that “rescue was on the way.” At 11:14:50 a.m., when the EMTs still had not arrived, Morris placed a third call to the 911 operator and was again told that help was on the way.

Stuart and Caffey arrived at the Morris residence at 11:16:35 a.m., 10 minutes after the initial 911 call had been placed. They transported Shacquiel to the hospital and tried to restore his breathing during the trip. Once at the hospital, the grape was removed from Shacquiel's throat. Unfortunately, he died two days later due to “asphyxia by choking.”

Brown and Douglas subsequently filed a civil rights lawsuit in federal court under 42 U.S.C. Section 1983 against Stewart and Caffey in both their individual and official capacities, and also against the City of Philadelphia. The complaint against Stewart and Caffey alleged violations of their son's right to life, liberty, personal security and bodily integrity without due process of law in violation of the 14th Amendment to the U.S. Constitution, and for deprivation of their son's rights, privileges and immunities secured by the laws and Constitution of the Commonwealth of Pennsylvania.

Specifically, they claimed that the EMTs:

• Failed to exercise well-established, universally recognized protocols for choking situations;
• Did not try to “reach down and directly” remove the grape from Shacquiel's throat;
• Did not arrive at the Morris residence in a timely manner because they could not locate the residence on the station map;
• Left the station house without knowing their destination; and
• Were not provided with information on the neighborhood in which they were providing emergency services, and failed to familiarize themselves with the neighborhood.

The complaint against the City of Philadelphia also alleged violations of the Commonwealth Constitution and the Fourth and 14th Amendments to the U.S. Constitution. The specific allegation against the city was that it violated Shacquiel's constitutional rights under the “policy or custom” theory of Section 1983 municipal liability. Those claims arising out of the Commonwealth Constitution and the Fourth Amendment were later dismissed, so only the 14th Amendment claim remained when the court of appeals heard the case.

The court first considered the claim against Stewart and Caffey, observing that the threshold issue presented by any Section 1983 case is whether a plaintiff has sufficiently alleged a deprivation of a right secured by the Constitution. Previous cases have recognized that the due process clause generally confers no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty or property interests of which the government itself may not deprive the individual.

The court went on to note that if the due process clause does not require the state to provide its citizens with particular protective services, it follows that the state can't be held liable under the due process clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, the state's failure to protect an individual against private injury simply does not constitute a violation of the due process clause.

The court stated that there is no duty to protect or rescue in the history of the 14th Amendment, noting that “the Due Process Clause of the Fourteenth Amendment was intended to prevent government from abusing its power or employing it as an instrument of oppression.” The clause was intended to protect the people from the state, not to ensure that the state protected them from each other. Because the state isn't constitutionally required by the due process clause to provide protective services, there can be no liability for the state's failure to provide such services, even if it would have prevented the private injury from occurring

However, it is a basic tenet of tort law that although an individual generally has no duty to rescue, once voluntarily undertaken, a rescue must not be performed negligently. It would seem that one could argue from the general rule that, although the state is not constitutionally required to provide rescue services, once the state undertakes a rescue, federal constitutional law requires that it do so competently.

The court, however, held that such an inference incorrectly confuses state tort law and federal constitutional law. The U.S. Supreme Court has repeatedly stated that “the Due Process Clause of the Fourteenth Amendment does not transform every tort committed by a state actor into a constitutional violation.” Although state tort law might provide a remedy for a state's negligent rescue attempt, it neither logically nor legally follows that federal constitutional law must do the same.

There is no federal constitutional right to rescue services, competent or otherwise. Moreover, because the due process clause doesn't require the state to provide rescue services, it follows that the due process clause can't be interpreted so as to place an affirmative obligation on the state to provide competent rescue services if it chooses to provide them.

The court did note that there are two exceptions to the general non-liability rule.

1. Special relationship

   There is an affirmative duty to protect “when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs,” thereby creating a special relationship. The special relationship exception is implicated when the state restrains an individual so as to expose the individual to harm. A special relationship can only arise when the state restrains an individual.

2. State-created danger

   It is also possible that the state may be liable for constitutionally protected rights, even in the absence of a special relationship with an individual, when the state, through its affirmative conduct, creates or enhances a danger for the individual. This state-created danger exception applies when the state, through some affirmative conduct, places the individual in a position of danger.

The court noted that the special relationship exception did not apply in this case. However, the state-created danger exception, permitting liability when the state caused the harm or made the victim more vulnerable to an existing harm, merited further examination. The court noted that to state a claim for a civil-rights violation under the state-created danger theory, a plaintiff must show:

1. The harm ultimately caused was foreseeable and fairly direct;
2. The state actors acted in willful disregard for the safety of the plaintiff;
3. There existed some relationship between the state and the plaintiff; and
4. The state actors used their authority to create an opportunity that otherwise wouldn't have existed for the third party to cause harm.

To establish the relationship required by the third element, a plaintiff must show that a state actor acted with deliberate indifference to a known or obvious danger. The court noted that there is little difference between the terms “deliberate indifference,” “reckless disregard” and “reckless indifference.” Each of these terms requires a state official's action that falls somewhere between intent and negligence.

The court then spoke of the “shocks the conscience” test, which refers to high-pressure situations where state actors must act quickly. This standard applies in all substantive due process cases if the state actor had to act with urgency. The court held that the standard applies to the actions of the EMTs, who have little time for reflection and typically make decisions in haste and under pressure.

When the court applied the shocks-the-conscience standard to the facts, it felt that there were no actions on the part of Stewart and Caffey that met this standard. The record showed their attempt to ascertain the location of the victim through all available means, as well as their concerted effort to reach him as quickly as possible. The delay in reaching Shacquiel was not caused by Stewart and Caffey purposely delaying their rescue efforts or acting in an otherwise outrageous manner.

Instead, the record depicts the EMTs' attempt to arrive at the scene of the incident as rapidly as they could. Although Stewart and Caffey may have ultimately failed to rescue Shacquiel from a pre-existing danger, they had no constitutional obligation to do so. Consequently, their actions in attempting a failed rescue did not shock the conscience of the court. The court found that since Shacquiel Douglas had no constitutional right to be rescued or to be provided with competent rescue services, and no exceptions applied, no viable federal claim existed against Stewart and Caffey, and the court dismissed the claims against them.

The court next considered the claim against the City of Philadelphia. It began by stating that it is only when the execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Section 1983. Thus, the first question in any case of alleged municipal liability for a failure to train is “whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” It is possible for a municipality to be held independently liable for a substantive due process violation in situations where none of its employees is liable. However, for there to be municipal liability, there still must be a violation of the plaintiff's constitutional rights. It isn't enough that a municipality adopted with deliberate indifference a policy of inadequately training its personnel. There must be a “direct causal link” between the policy and a constitutional violation.

Here, the parents alleged that the City of Philadelphia had a number of policies involving EMTs that were enacted with deliberate indifference and which caused harm to them and their son. The court said that even if this allegation were true, they still would have failed to establish that the policies caused constitutional harm. The city was under no constitutional obligation to provide competent rescue services. The failure of the city and its EMTs to rescue Shacquiel Douglas from private harm was not an infringement of the parents' constitutional rights, and the claim against the City of Philadelphia was likewise dismissed.

Important points to consider are:

• Tort actions are not the equivalent of Section 1983 actions; the lack of a basis for a 1983 action doesn't rule out a successful tort claim.
• Governments are not constitutionally required to provide protective services.

---

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. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500.