Find Legal Information

THIRD DIVISION
Date Filed:

JUSTICE HALL delivered the opinion of the court:

The plaintiffs, Wayne Prowell and John Prowell, appeal froman order of the circuit court of Cook County, granting summaryjudgment to the defendant, the City of Chicago (the City).

On June 10, 1999, the plaintiffs filed their first amendedcomplaint against Loretto Hospital and the City.⁽¹⁾ In thecomplaint, the plaintiffs alleged that on June 24, 1997, EssieProwell, the plaintiffs' mother, was transported to LorettoHospital by ambulance. Upon arrival at the hospital, as Mrs.Prowell was removed from the ambulance on a stretcher, she felloff the stretcher onto the concrete ramp leading into thehospital and sustained injuries that resulted in her death onJuly 23, 1997.

The first amended complaint further alleged that the twoemergency technicians (EMTs) who transported Mrs. Prowell fromthe ambulance into the hospital emergency room were negligent inthat they:

"a. Failed to strap or otherwise secure ESSIE PROWELL'sbody to the full stretcher prior to transporting her to theambulance to the hospital.

b. Failed to properly hold or grip the full stretcherwhile transporting ESSIE PROWELL's body from the ambulanceto the Loretto emergency department.

c. Failed to communicate with the other emergency medicaltechnician as to the movement of ESSIE PROWELL's body fromthe ambulance to the hospital.

d. Dropped and/or failed to hold ESSIE PROWELL's bodywhile transporting her from the ambulance into the Lorettoemergency department.

e. Moved ESSIE PROWELL's body from the ambulance into theLoretto emergency department in a manner inconsistent withtraining an emergency medical technician receives."⁽²⁾

On April 11, 2001, the City filed its motion for summaryjudgment. The City contended that there was no evidence that theEMTs acted willfully or wantonly or that they had moved Mrs.Prowell in any way inconsistent with their training. In supportof its motion, the City relied on the following depositiontestimony.

Wayne Prowell testified that on June 24, 1997, he called 911because his mother was feeling weak. After the ambulancearrived, the EMTs determined that Mrs. Prowell should betransported to the hospital. Wayne was present when Mrs. Prowellwas placed on the stretcher; he did not notice any problems whenhis mother was moved from the house to the ambulance. Wayne rodeto the hospital in the ambulance and stood by the rear door ofthe ambulance while Mrs. Prowell was being removed.

Wayne acknowledged that he had problems remembering whathappened. He knew that Mrs. Prowell ended up on the ground, buthe did not know how it happened. He did remember hearing one ofthe EMTs say to the other "See I told you," but he did notunderstand what that meant. Wayne did not recall whether thestretcher was in a position close to the ground or in a higherposition or whether the stretcher moved at all after Mrs. Prowellwas removed from the ambulance. He did not remember seeing anypotholes in the area. Wayne could not remember whether Mrs.Prowell was strapped to the stretcher. He could not rememberwhether the stretcher collapsed or fell over. He has difficultywith his eyes and has problems visualizing up, sideways anddirectly down.

Andrea McEastland testified that he was a friend of WayneProwell's and was acquainted with Mrs. Prowell through the churchthey both attended. He was present at the time Mrs. Prowell wasplaced in the ambulance for the trip to the hospital. The EMTsstrapped Mrs. Prowell on to the stretcher with straps around eachof her legs and her waist. The stretcher was lowered and thenplaced in the ambulance.

Mr. McEastland then walked to the hospital and arrived justas Mrs. Prowell was being removed from the ambulance. One EMTwas in the front of the stretcher, where Mrs. Prowell's head was,and the other was at the back of the stretcher. After thestretcher was removed from the ambulance, the EMTs pulled thewheels of the stretcher out and set it on the ground in the highposition. Mrs. Prowell was still strapped to the stretcher, butMr. McEastland did not know how secure she was because her armswere moving. After closing the ambulance doors, the EMTs, one infront and one in back of the stretcher, began to push it towardthe hospital. As the stretcher was being pushed, the front legsof the stretcher "went in," and Mrs. Prowell slid out, strikingher head on the pavement. One of the paramedics tried to catchher and in doing so may have then tipped over the stretcher. Thestretcher had moved only a few feet from the ambulance when theaccident occurred. Mr. McEastland recalled that one of the EMTssaid to the other, "'I told you you didn't have the legs locked,'or something like that, about the legs didn't lock under thegurney⁽³⁾." The other EMT responded, "'I thought I had it right.'" Wayne and Mr. McEastland tried to get Mrs. Prowell back on thestretcher. After the stretcher had been righted and was back up,one of the EMTs "slapped" the legs very tight. After Mrs.Prowell was placed back on the stretcher, she was strapped invery tightly.

According to Mr. McEastland, there was nothing on thepavement to cause the legs of the gurney to collapse. However,his attention was focused on Mrs. Prowell, and he did not see thestretcher wheels come into contact one way or another with apothole. He did not know the specific reason the stretchercollapsed. His view of the stretcher wheels rolling against thepavement was obstructed at the time the stretcher collapsed.

Neither John R. Florine nor John P. Leen, the EMTS whotransported Mrs. Prowell to the hospital, had any recollection ofthe accident at the time of their respective depositions. Bothrelied on fire department records prepared contemporaneously withthe accident.

According to the "E.M.S. Incident Case Report" (EMS IncidentReport), prepared by Mr. Florine, upon their arrival at LorettoHospital, the EMTs removed Mrs. Prowell from the ambulance on thestretcher, which was placed on the ground in the down position. EMT Florine was closing the ambulance doors when the stretcherrolled about four to five feet, and the front wheels fell into apothole. The stretcher fell over on its right side. Mrs.Prowell was strapped down on the stretcher. The report did notstate where EMT Leen was located during this time, and EMT Leentestified that he did not recall his location.

In his deposition, EMT Leen testified that the stretcherthat was used to transport Mrs. Prowell was manufactured by Fernoand was referred to as a "two-man" stretcher. It took two peopleto move the stretcher or take it in or out of the ambulance. Inorder to move it out of or into the ambulance, the legs arecompletely collapsed underneath it so it has to be physicallylifted from the ground into the ambulance or vice-versa from theambulance back out to the ground. By pushing either of thehandles, located in the middle and the foot of the stretcher, thelegs will collapse or drop down. The legs are interlockedtogether and have to go up or down together. There was no way toput the front legs down and still have the back legs engaged in alocked position without the stretcher breaking. The stretcherdid not break in this case. A person would know if the legs arelocked when the stretcher is in the up position because, when thehandle is released, the person would feel that the stretcher wasgoing to fall back down again.

According to EMT Leen, he had never encountered a situationwhere the handle was released and the legs came down but did notlock. As far as he knew that did not happen on June 24, 1997. In his deposition, EMT Florine testified that he had never heardof a situation where a Ferro two-man stretcher collapsed once itwas in the up position.

The plaintiffs filed a response to the City's motion forsummary judgment. The plaintiffs argued that a material questionof fact existed as to whether the EMTs acted with recklessdisregard for Mrs. Prowell's safety. The plaintiffs relied onthe deposition testimony of Mr. McEastland and the depositiontestimony of their expert witnesses, Janice Sanchez, R.N., andDr. David Farkas. Dr. Farkas testified that the EMTs in thiscase violated the standard of care of reckless or utterindifference by not having a hand on the stretcher at the time itfell. Ms. Sanchez testified that the EMTs were willful andwanton or reckless by failing to monitor where Mrs. Prowell'sstretcher was located.

On July 11, 2001, the circuit court granted the City'smotion for summary judgment. On September 14, 2002, the circuitcourt denied the plaintiffs' motion to reconsider. Theplaintiffs filed a timely notice of appeal

The sole issue on appeal is whether the circuit court erredin granting the City's motion for summary judgment.

Summary judgment is proper if, and only if, the pleadings,depositions, admissions, affidavits and other relevant matters onfile show that there is no genuine issue of material fact andthat the movant is entitled to judgment as a matter of law. Smith v. Tri-R Vending, 249 Ill. App. 3d 654, 657, 619 N.E.2d172, 174 (1993). The purpose of summary judgment is not to try aquestion of fact but to determine if one exists. Gilbert v.Sycamore Municipal Hospital, 156 Ill. 2d 511, 517, 622 N.E.2d788, 792 (1993). In determining whether a genuine issue ofmaterial fact exists, a court must construe the pleadings,admissions and affidavits strictly against the movant andliberally in favor of the opponent. Gilbert, 156 Ill. 2d at 518,622 N.E.2d at 792. A triable issue precluding summary judgmentexists where the material facts are disputed or where reasonablepersons might draw different conclusions from undisputed facts. Gilbert, 156 Ill. 2d at 518, 622 N.E.2d at 792.

The court reviews the granting of a motion for summaryjudgment de novo. Outboard Marine Corp. v. Liberty MutualInsurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992).

Section 3.150 of the Emergency Medical Services (EMS)Systems Act (the Act) provides in pertinent part as follows:

"(a) Any person, agency or governmental body certified,licensed or authorized pursuant to this Act or rulesthereunder, who in good faith provides emergency or non-emergency medical services during a Department approvedtraining course, in the normal course of conducting theirduties, or in an emergency, shall not be civilly liable as aresult of their acts or omissions in providing such servicesunless such acts or omissions, including the bypassing ofnearby hospitals or medical facilities in accordance withthe protocols developed pursuant to this Act, constitutewillful and wanton misconduct." 210 ILCS 50/3.150 (West1996).

In American National Bank & Trust Co. v. City of Chicago,192 Ill. 2d 274, 735 N.E.2d 551 (2000), our supreme courtreiterated its definition of "willful and wanton misconduct":

"'"A wilful or wanton injury must have been intentionalor the act must have been committed under circumstancesexhibiting a reckless disregard for the safety of others,such as a failure, after knowledge of impending danger, toexercise ordinary care to prevent it or a failure todiscover the danger through recklessness or carelessnesswhen it could have been discovered by the exercise ofordinary care."' [Citations.]" American National Bank &Trust Co., 192 Ill. 2d at 285, 735 N.E.2d at 557.

Whether specific acts amount to willful and wanton conductis ordinarily a question of fact for the jury, and only in anexceptional case will the issue of willful and wanton misconductbe taken from the jury's consideration or be ruled on as aquestion of law. Green v. Chicago Park District, 248 Ill. App.3d 334, 341, 618 N.E.2d 514, 518 (1993).

The plaintiffs contend that the granting of summary judgmentto the City was error because the record contains ample evidencethat the EMTs in this case were guilty of willful and wantonconduct or reckless disregard in their care of Mrs. Prowell. According to the plaintiffs, the evidence in the record showedthat the EMTs knew that Mrs. Prowell was not secured to thestretcher, that the stretcher's legs were not locked, that theEMTs placed the stretcher on a pothole, making it highlyunstable, and that, despite their knowledge of the instability ofthe stretcher, the EMTs did not maintain physical contact withthe stretcher. The plaintiffs maintain that these acts roseabove mere negligence to willful and wanton conduct.

The City responds that the record contains two scenarios asto how the accident in this case occurred. Under the firstscenario, based upon the testimony of Mr. McEastland, thestretcher collapsed, causing it to tilt and Mrs. Prowell to slidedown the stretcher head-first. According to Mr. McEastland, oneEMT stated to the other that he had told the other EMT that thelegs were not locked and the other EMT responded that he thoughtthat they had been. Under the second scenario, based on the EMSIncident Report, when EMT Florine turned to close the door to theambulance, the stretcher rolled, one of the front wheels fellinto a pothole, and the stretcher tipped over.

The City maintains that regardless of which scenario isaccepted, the EMTs' actions did not rise to the level of willfuland wanton conduct.

As noted above, willful and wanton conduct is not confinedto intentional acts, but may also consist of a reckless disregardfor the safety of others. Such a reckless disregard may be foundwhere a person is aware of an impending danger but fails toprevent it when it could have been prevented by the use ofordinary care. Reckless disregard may also be found where theperson failed to discover the danger which could have beendiscovered through the use of ordinary care. American NationalBank & Trust Co., 192 Ill. 2d at 285, 735 N.E.2d at 557. Thefailure to discover must have been committed under circumstancesexhibiting a reckless disregard for the safety of others. Bowdenv. Cary Fire Protection District, 304 Ill. App. 3d 274, 280, 710N.E.2d 548, 552 (1999).

In Bowden, the plaintiff alleged that the EMTs were guiltyof willful and wanton conduct when they failed to force oxygeninto the decedent's lungs, failed to contact the hospital torequest permission to intubate or to administer asthmamedication, and failed to properly intubate the decedent afterbeing instructed to do so. In upholding summary judgment for thedefendant, the reviewing court concluded that the acts of theEMTs did not rise to the level of willful and wanton conduct. The court noted that the EMTs had provided extensive care andtreatment to the decedent, and that even if the plaintiff'sallegations were believed by the jury, such testimony would onlyestablish negligence. The court concluded that in light of theextensive treatment provided by the EMTs, there was simply noevidence that they showed an utter disregard to the decedent'ssafety. Bowden, 304 Ill. App. 3d at 282, 710 N.E.2d at 553.

In the present case, upon arrival at Mrs. Prowell'sresidence, the EMTs examined her and determined that she neededto be hospitalized. Mrs. Prowell was removed from her residencestrapped to the stretcher and transported a short distance to Loretto Hospital. At some point prior to her arrival at thehospital, Mrs. Prowell was placed on oxygen and given anintravenous line. Upon arrival at the hospital, Mrs. Prowell wasremoved from the ambulance on the stretcher, whereupon theaccident occurred. According to Mr. McEastland, the EMTsattempted to catch Mrs. Prowell as she slid off the stretcher.

We note that in Bowen, the reviewing court determined as amatter of law that the actions of the EMTs in that case were notwillful and wanton, even in light of the factual discrepancybetween the plaintiff's testimony that the EMTS failed to securethe oxygen mask and were inept in their efforts to place thedecedent on the stretcher and the testimony of the EMTs.

The evidence in the present case presents questions of factas to whether the EMTs in this case had actual knowledge that thestretcher was not secure when they moved it, based on thetestimony of both Wayne Prowell and Mr. McEastland as to theconversation between the two EMTs following the accident. Thefact that the EMTs in this case attempted to move the stretcherin light of the warning that the stretcher was not securepresents a question of fact as to whether, having been warned,their failure to check the stability of the stretcher establishedrecklessness sufficient to constitute willful and wanton conduct. In contrast, in Bowen, the factual questions concerned thequality of the EMTs' efforts to provide care to the decedent.

In addition, both of the plaintiffs' expert witnessesconcluded that the conduct of the EMTs in leaving Mrs. Prowellunattended on the stretcher was reckless.

The City argues in response that where there is no factualsupport for an expert's conclusions, those conclusions alone donot create a question of fact. Damron v. Micor Distributing,Ltd., 276 Ill. App. 3d 901, 907, 658 N.E.2d 1318, 1322 (1995).

Ms. Sanchez opined that, in this case, by not physicallytouching the stretcher, the EMTs were not in attendance of Mrs.Prowell. She noted that, after Mrs. Prowell was removed from theambulance, one EMT was taking care of the ambulance door, whichleft the other EMT responsible for the patient's safety. However, according to their depositions, neither EMT was next tothe stretcher when it was removed from the ambulance, beingeither four or five feet or four or five inches away from thestretcher. The stretcher used did not have brakes. Therefore,the EMTs were willful and wanton or reckless in failing tomonitor where Mrs. Prowell's stretcher was located.

In his deposition, Dr. Farkas testified that his definitionof leaving a patient "unattended" did not rest on the distancebut, rather, on the type of patient or care being given thepatient. In the instant case, Dr. Farkas opined that the EMTsviolated the standard of care by not having their hands on thestretcher.⁽⁴⁾ While, based upon what Dr. Farkas had read, Mrs.Prowell remained strapped to the stretcher, the fact remainedthat her head struck the pavement due to the "instability of the- of her and/or the stretcher."

Contrary to the City's argument, the record presents aquestion of fact as to whether the EMTs left Mrs. Prowellunattended. EMT Leen testified that he did not recall where hewas when the accident occurred, and according to the EMS IncidentReport, EMT Florine was closing the ambulance doors. Yet,according to Mr. McEastland's testimony, the stretcher was movingwith one EMT at the head and one at the foot, when the accidenthappened. Finally, according to the EMS Incident Report, thestretcher rolled into a pothole. Even if the EMTs' version ofthe accident is accepted, it raises a question of fact as to howthe stretcher could have rolled into the pothole if at least oneof the EMTs had been in contact with it.

We conclude that genuine issues of material fact exist as towhether the EMTs in this case had actual knowledge that thestretcher in this case was in an unstable condition but chose tomove Mrs. Prowell or leave her unattended regardless of the risk. Accordingly, we reverse the granting of the motion forsummary judgment and remand for further proceedings.

Reversed and remanded.

SOUTH, P.J., and HOFFMAN, J., concur.

1. The plaintiffs settled with Loretto Hospital, and thehospital is not a party to this appeal.

2. Although the plaintiffs refer to the acts of the EMTs asnegligence, count III was captioned "WRONGFUL DEATH/WILLFUL ANDWANTON CONDUCT."

3. In his testimony, Mr. McEastland referred to the stretcheras a "gurney."

4. The City maintains that the violation of a standard of careis not willful and wanton conduct. However, earlier in hisdeposition, Dr. Farkas was questioned about the applicable legalstandard in a paramedic malpractice case. The doctor testifiedthat "there's a whole other area that's so far beyond not doing[the EMTs'] job or not doing their job in a careful manner thatin my lay terminology I would say is reckless or utterindifference."