Flaherty said the trial court had granted summary judgment to Longwood on the basis of its status as a local agency.
Regester argued that the company could not be a local agency because its contract with Kennet Township states that it is an independent contractor “and shall not be deemed an agency, servant or employee of” the township.
Flaherty basically said the plaintiff was comparing apples and oranges.
“Regester is engaging in the fallacy of equivocation which is just because the same word or form of the same word is used in two different contexts, it must mean the same thing in both contexts,” he said.
“As Longwood points out, simply because under the contract with Kennet Township, Longwood cannot be deemed Kennet’s ‘agent’ it does not follow that Longwood cannot be a ‘local agency’ within the meaning of [the Political Subdivision Tort Claims Act]. Local agency status is accorded to volunteer fire companies not because they are otherwise deemed agents of the local government unit under traditional concepts of principal-agency law but rather are traditionally ‘accorded local agency status because the duties performed by fire fighters are of a public character.’”
Even if immunity did apply to Longwood, Regester argued, the suit was allowable under the motor vehicle exception to governmental immunity. Longwood asserted the exception did not apply because the negligence Regester alleged had nothing to do with the “operation” of the vehicle.
The motor vehicle exception bars agencies from claiming immunity when negligence has stemmed from the operation of a motor vehicle.
Regester argued Longwood’s position ignored the state Supreme Court’s decision in Mickle v. City of Philadelphia, PICS Case No. 98-0506 (Pa. Feb. 25, 1998) Nigro, J.; Castille, J., dissenting (13 pages), a case in which an ambulance’s rear tires fell off the vehicle while the plaintiff was being transported to the hospital.
Even though there was nothing negligent about the way the ambulance was being driven, the justices said the city could be held liable for the negligent maintenance of their vehicles.
Under Mickle, the Regester court was compelled to look at whether the paramedics’ failure to follow directions was operation of the vehicle.
Following a line of Commonwealth Court precedent, Flaherty said that it was not.
He cited Keesey v. Longwood Volunteer Fire Co., 601 A.2d 921 (Pa. Comwlth. 1992), in which the plaintiff alleged the county had failed to direct the driver of a Longwood fire truck to slow down, resulting in an accident. The court said the failure to pass on the instruction was not operation of the vehicle.
And in two police-chase cases, Tyree v. City of Pittsburgh, 669 A.2d 487 (Pa. Cmwlth. 1995) and Hawks v. Livermore, 629 A.2d 270 (Pa. Cmwlth. 1993), the court said the choice to initiate high-speed pursuits was negligent, but did not constitute operation of the vehicle.
“Taking these cases together, and keeping in mind that the exception to immunity must be narrowly construed … we find that the failure of Longwood’s paramedics to follow directions was not an act with respect to the actual operation of a vehicle, but rather as in Keesey, was an act with respect to the giving and receiving of directions which does not constitute ‘operation’ of a vehicle,” Flaherty wrote.
“Likewise, the decision of the paramedics to not follow the explicit directions given by the 911 dispatcher is similar to the decision of the police in Tyree and Hawks. Such decisions do not constitute acts with respect to the ‘operation’ of a vehicle.”
EMSA
Turning to the medical center, Flaherty said Section 11 of the EMSA provides that no paramedic or health professional who attempts to administer emergency care authorized by the act will be held liable for acts of negligence.
On appeal, Regester argued that the medical center was not a licensed entity pursuant to the EMSA because that statute covers only “emergency medical technicians, EMT-paramedics and health professionals.”
The trial court had concluded that the immunity provided by the EMSA applied to the employer of the enumerated individuals in addition to those individuals, citing D’Amico v. VFW Post 191 Volunteer Ambulance Assoc., A.2d (Pa. Super. 1991).
In D’Amico, which the medical center also argued on appeal, the Superior Court affirmed a trial court’s finding that an ambulance service fell within the protections of the EMSA.
The medical center said it would be “nonsensical” to provide immunity to medical employees but not to the employer.
Flaherty looked at the definitions of each enumerated individual given immunity under the EMSA and found that none contained the word “hospital.”
If the court were to consider a hospital a protected entity under the act, it would be misapplying the plain language of the law, Flaherty said.
It was not necessary to delve into a study of the Legislature’s intent in enacting the statute, as the medical center suggested, because the language of the act was so clear, he said.
Flaherty said the court would not follow D’Amico because it was not binding precedent on the Commonwealth Court. The Superior Court opinion in that case was unpublished.
