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September 27, 2013

Emergency Medical Services to the General Public Considered a Governmental Function

In Applewhite v. Accuhealth, Inc., et al., 21 N.Y.3d 420 (2013), the New York State Court of Appeals affirmed the decision of the Appellate Division, First Department, which denied the defendant City of New York's motion for summary judgment. The Court considered two issues on appeal: (1) whether the provision of emergency medical services to the general public is a proprietary or governmental function; and (2) whether the City owed a special duty to the plaintiffs.

In 1998, the plaintiff Tiffany Applewhite, age 12, experienced an episode of anaphylactic shock while at home. Applewhite's mother called 911 and two EMTs from the New York City Fire Department arrived in a basic life support ambulance. One EMT performed CPR on Applewhite while the other called for an advanced life support ambulance. Applewhite's mother allegedly asked the EMTs to transport her daughter to a nearby hospital, however, the EMT continued to perform CPR until paramedics from a private hospital arrived in an advanced life support ambulance. Applewhite survived the ordeal but suffered serious brain damage.

Applewhite and her mother commenced a negligence action and the City moved for summary judgment on the basis that it was immune from liability because it did not owe a special duty to the plaintiffs. The lower court granted the City's motion, but the First Department reversed and reinstated the claims against the City.

On appeal, the Court analyzed the issue of whether the City was engaged in a proprietary function or acting in a governmental capacity at the time the claim arose. A governmental entity performs a purely proprietary function when "its activities essentially substitute for or supplement traditionally private enterprises." In contrast, a governmental function involves acts by the municipality that are "undertaken for the protection and safety of the public pursuant to the general police powers." The Court stated that, as a general rule, the distinction is that the government will be subject to ordinary tort liability if it negligently provides services that traditionally have been supplied by the private sector.

The Court considered previous decisions in which medical services were held to be proprietary in nature but it distinguished the present case from situations in which governmental activities were displaced or supplemented by traditionally private enterprises. The Court went on to state that emergency medical services are considered one of a municipalities' critical duties and that "publicly employed, front-line EMTs and other first responders who routinely place their own safety and lives in peril in order to rescue others, surely fulfill a government function." Following this analysis, the Court ultimately held that a municipal emergency response system, including ambulance assistance rendered by first responders such as City EMTs, should be viewed as a "classic governmental, rather than proprietary, function." The Court went on to state that the decision did not necessarily immunize the City from liability because it may have assumed a special duty toward the plaintiffs.

The Court's decision clarifies what was once a gray area with respect to governmental functions and addresses several public policy considerations. For example, it lessens the threat of liability to municipalities who maintain emergency medical and ambulance services and potentially alleviates the costs of tort recoveries, which would be particularly burdensome for taxpayers.

If you require further information regarding the information presented in this Legal Alert and its impact on your organization, please contact Thomas B. Cronmiller, Chair of the Torts & Products Liability Defense Practice Area at (585) 295-4424 or


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