Cop Sues Victim's Family for Slip and Fall During Rescue

I think this lawsuit is over the top.

A one year old falls in the family pool. The family calls 911.

The child, Joey Cosmillo, fell into the family pool in January. He was resuscitated but suffered brain damage and can't walk, talk or swallow. He lives in a nursing home and eats and breathes through tubes.

A cop responds to the 911 call and slips and falls due to a puddle of water inside the home.

Police Sgt. Andrea Eichhorn alleges the boy's family left a puddle of water on the floor, causing her fall during the rescue effort. She broke her knee and missed two months of work.

Eichhorn's attorney, David Heil, said she now has persistent knee pain and will likely develop arthritis. He said city benefits paid by workers' compensation and some disability checks helped with medical bills, but it wasn't enough.


Lawyer Heil says the infant's family is playing the victim. I agree with the grandfather:

''The loss we've suffered, and she's seeking money?'' said Richard Cosmillo, the boy's grandfather who lived in the home with his wife and the boy's mother. ''Of course there's going to be water in the house. He was sopping wet when we brought him in.''

The cop should have checked out the city's policy on workman's comp and disability payments before taking the job. If they weren't enough, she should have taken a different job.

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    You're forgetting another aspect of the liability (5.00 / 1) (#9)
    by scribe on Wed Oct 10, 2007 at 12:55:46 PM EST
    issue:  the common law's "fireman's rule".

    At first blush, the suit for falling may have been morally (or otherwise) reprehensible.  I dunno.  But, the legalities are a Gordian knot of ... well, whatever.

    You remember the Fireman's Rule from first-year torts, maybe dimly or maybe not.  It says, in short, that when a fireman goes into a burning building and gets hurt, his remedy is limited to workers' comp because he knew what he was getting into.  It's sort of a corollary of  "assumption of risk" doctrine, but because of analytical issues not germane here, don't call it that, OK?

    The Firemans' Rule over the years grew so many exceptions, lacunae, fictions and inanities* that some states just threw up their hands and legislatively abolished it, or even provided a civil action for emergency workers supplementing, or replacing, or aligned with workers' comp.

    [* Stuff like:  Who's covered by the rule, when, what for, are volunteer firefighters covered or not, what about taking the fire truck to the supermarket (to get food for the firehouse)?, the cop who gets food poisoning from the "complemenary" hot dog or apple from the street vendor, and so on ad infinitum. ]

    The problem is, workers' comp is a woefully inadequate remedy.  The same [bad enough you wouldn't wish it on Rush] back injury that might get anyone $50,000 or so in a tort suit, might only yield the injured worker $10,000 or so through comp (these are rough numbers merely presented to show the disparity - every case is unique).  And then, there's the issue of whether the injury is truly compensible.  Because the workers' comp system is an administrative, rather than adversarial system, the insurance companies which provide coverage (and run the WC Courts like puppeteers) have every incentive to, and do, delay payout.  In some states, a WC claimant does not even have subpoena power to get documents and information, let alone to force the carrier to proceed.  (sound familiar?) So, sometimes you wind up with lawsuits brought more to empower the claimant to get subpoenas issued and responded to for discovery (and the ability to file motions and get orders to compel full, complete and truthful responses) than anything else.  

    Then, there's the whole issue of the comp and, lately, Medicare and Medicaid, liens.  Bushie farmed out the processing of Medicare liens to some contractor which has managed to put major kinks in the money hose, all to cut down on payouts. (Read the whole article....) This, because no lawyer is going to complete paying out until all the liens are addressed, even assuming the insurance companies will come up with the money before the Medicare/Medicaid liens are resolved.  Some people die waiting for their money.

    So, beyond the surficial reprehensibility of alleged greed, there are a lot of good reasons for the injured cop to sue for slipping and falling.  

    Oh, and don't forget.  The insurance industry has a small subsidiary of PR types who collect cases like this and pimp out articles like the one in issue here, deliberately.  The objective is to propagandize the recipients of these articles and stories against claimanats/plaintiffs, so as to cut down on payouts and increase insurance company profits.  Which, undoubtedly, is how this story got to be in the paper in the first place.

    Florida (none / 0) (#12)
    by Deconstructionist on Wed Oct 10, 2007 at 01:06:28 PM EST
    abolished the "fireman's rule" doctrine by legislation way back when, so it has no bearing on this case. In Florida a fireman (or cop or EMY, etc.) does not have to allege or prove intentional or wanton conduct to  sustain an action against someon who injures him in the line of duty. You always seem to make things  seem way more complex than they really are, when the "art" of being a good lawyer is getting to the crux of the issue that matters.

      While the rest of your post is bordering on incoherence, I tend to agree with the point i assume you are trying to make.



    Now it's my turn to yell at someone for (none / 0) (#17)
    by scribe on Wed Oct 10, 2007 at 01:32:03 PM EST
    being over the line on site rules.

    I'm not admitted in Fla., so I don't know Florida law (and don't care to learn it).

    Every one of the points I raised is highly germane to the cop's decision to sue:

    • inadequate compensation through comp
    • delays in the comp system
    • Bushie mucking up some more the already messed up comp system
    • manipulations of comp through its being an administrative rather than adversarial process
    • insurance co propaganda which oversimplifies to make "claimant bad, insurance co. profits good" the only message most people receive.

    If you, as an attorney, can't discern my points and that I put enough meat on each of those points to make my comments something useful (and maybe even thought-provking) to the non-lawyer audience, then you need to find a new job.  Or, better yet, make a comp claim and let me defend it so that five or six years from now you (a) still hurt and need treatment and (b) haven't been paid.

    The last refuge (none / 0) (#18)
    by Deconstructionist on Wed Oct 10, 2007 at 01:49:53 PM EST
     is playing the "victim" card after accusing someone of "forgetting" an issue when that issue has no relevance at all to the case at hand. I didn't forget anything; I knew the law even though I too am not admitted to practice in Florida. Where we might be licensed to practice is entirely irrelevant to the issues in THIS case which is in Florida, making Florida's law relevant.

    Don't go around accusing people of "forgetting" or omitting things if you don't kinow what you are talking about.

       I have trouble discerning your points because of your  rambling, disorganized writing style and your penchant for tossing in bizarre references with no discernible connection to the topic.

     For example:

    "Then, there's the whole issue of the comp and, lately, Medicare and Medicaid, liens.  Bushie farmed out the processing of Medicare liens to some contractor which has managed to put major kinks in the money hose, all to cut down on payouts. (Read the whole article....) This, because no lawyer is going to complete paying out until all the liens are addressed, even assuming the insurance companies will come up with the money before the Medicare/Medicaid liens are resolved.  Some people die waiting for their money."

      If you can connect that up in your mind  to why a Florida police officer is suing these homeowners for a knee injury more power to you.


    I'm struck by (none / 0) (#1)
    by Deconstructionist on Wed Oct 10, 2007 at 11:53:48 AM EST
      incredible arrogance and insensitivity of the lawyer's comments and i agree the suit seems dubious as reported, but I take issue with the last part of your comment.

      The city's disability program and the state worker's comp system really should  have nothing to do with assessing the "legitmacy" of a third-party lawsuit. Other than  the state law pertaining to the collateral source rule and offset of damages, they should be considered irrelevant. The fact an injured party is eligible for and receives benefits through his employment for an on-the-job injury should not relieve a third-party (one other than the employer)of liability for his negligence causing injury.

     If you invite someone into your home to perform a service the fact he is covered by disability insurance and/or WC does not mean you cannot be liable for damages if he is injured because you failed to use due care to correct or warn of an unsafe condition.

      In this specific case, however, it is a stretch to argue that the homeowner here failed to use due care if the water in which the cop slipped is water tracked in during an emergency situation and the slip occurred soon after. Due care means "reasonable" care under the circumstances and it is likely a fact-finder would consider it reasonable not to have mopped up the water that dripped from the child and rescuers.

      But, let's say a cop came to your house to take a statement regarding a complaint you filed and because you had failed to fix the front steps for many months he stepped through  rotten wood that was not readily visible upon normal observation and was seriously injured. in that case, the fact the cop would be covered by the same disability and WC programs as this cop would not likely cause many people to say it is wrong to seek damages from the homeowner.


    Negligence? (none / 0) (#11)
    by Pancho on Wed Oct 10, 2007 at 01:03:07 PM EST
    But, let's say a cop came to your house to take a statement regarding a complaint you filed and because you had failed to fix the front steps for many months he stepped through  rotten wood that was not readily visible upon normal observation and was seriously injured. in that case, the fact the cop would be covered by the same disability and WC programs as this cop would not likely cause many people to say it is wrong to seek damages from the homeowner.

    Failing to fix a rotten step is negligence, failing to clean up a puddle caused by carrying your unconscious child into the house is absolutely not negligence.

    Isn't the standard something along the lines of "reasonable and prudent"? Would a reasonable and prudent person have cleaned up that puddle under the circumstances?


    Since I know nothing of how this works (none / 0) (#2)
    by jerry on Wed Oct 10, 2007 at 12:02:49 PM EST
    it's quite easy for me to know what the right thing to do is.

    But I would have thought the cop would have first sued the city for actual damages.

    It makes me wonder how the cops medical plans are different from the fire departments.

    Firemen are covered for slip and fall but not for crazed mentally ill attacks?  Cops are covered for crazed mentally ill attacks but not for slip and fall?

    And please everyone, pool fences, pool locks, and pool covers.  I don't know if this family had them, but make sure you do.

    Also need to add: Lawyer Heil? (none / 0) (#3)
    by jerry on Wed Oct 10, 2007 at 12:04:06 PM EST
    OMG, the jokes for Lawyer Hell, or for this Lawyer straight from the Third Reich!

    Did he change his name in law school or upon passing the bar?


    In almost all states (maybe all) (none / 0) (#4)
    by Deconstructionist on Wed Oct 10, 2007 at 12:12:33 PM EST
     employer's have immunity from civil actions arising from workplace injuries that were not caused by the "deliberate intention" of the employer if ther employer is properly enrolled in the WC system. Moreover, outside of products liability and certain classes of suits e.g., dangerous instrumentalities) one is not liable for injuries unless one's neglignce was a contributing factor to the injury.

      The immunity does not extend to third-parties (persons other than the employer).

      So here, the employer (city) would likely be immune from suit under WC law AND there does not appear to be any evidence supporting negligence of the employer even if it was not immune. so, to receive more than the whatever benefits offered by WC (which usually is limited to wage replacement, medical costs and scheduled benefits, which generally are not particularly generous  for permanent injuries) and the contractual benefits provided by any disability coverage, the injured person has no recourse through the employee benefit programs. Bear in mind these programs typically do not provide compensation for things such as pain and suffering, mental anguish, loss of ability to enjoy life, loss of consortium and other damages which are available in civil actions.

    I'm not so much concerned with the legalities (none / 0) (#5)
    by Jeralyn on Wed Oct 10, 2007 at 12:21:48 PM EST
    as the moral issue. I agree with your previous distinction between a pre-existing danger and one caused by the incident that prompted the 911 call. I wouldn't have a problem with the suit in case of the pre-existing danger.

    This suit strikes me as wrong, regardless of whether it's legally allowable.


    It is wrong... (none / 0) (#54)
    by Michael Gass on Wed Oct 10, 2007 at 05:13:04 PM EST
    There is no way this officer should be suing because they fell down, went "boom", and got a "boo boo" (and I don't care how injured they were).

    You don't sue a family because you slipped in a puddle of water during a 911 call to an infant in a pool.


    I have (none / 0) (#7)
    by Patrick on Wed Oct 10, 2007 at 12:38:25 PM EST
    sucessfully sued for being assualted in the line of duty.   That differs from this incident in some keys aspects.   I thought the Fireman's rule, barred suits for this type of tort.   Either way, I agree with the grandfather.  It's bad form.  Of course the officer is going after the insurance company, not the family, but the perception is still awful.  

    I'm so tired of accidents.... (none / 0) (#8)
    by kdog on Wed Oct 10, 2007 at 12:51:34 PM EST
    becoming winning lottery tickets.  People have no shame.  This was an accident, no malice or negligence as far as we can tell.

    Maybe I'm the sucker, I could have sued for injuries twice in my life but decided against it.   Having been sued for a million bucks myself, when the insurance only covers 100 thou, I know the stress it causes.  It just ain't righteous.

    It's a shame all around (none / 0) (#10)
    by Joe Bob on Wed Oct 10, 2007 at 12:57:55 PM EST
    I have a hard time believing anyone would consider the homeowners negligent in this situation. As such, I don't really see a lawsuit going anywhere.

    As morally and socially despicable as the cop's (and her lawyer's) suit is, I can imagine where she is coming from. It looks to me that she is getting screwed by her employer. It's unconscionable to put a cop on the street and not have them 100% covered if they are hurt on the job.

    So here this officer sits with large unpaid medical bills. Where does she turn? Sue her employer? I think that's where the blame lies, but it might not be the best career move. The next place to look is the victim, the ones with the homeowner's policy. Standard policies don't typically have a huge amount of negligence coverage...but probably enough to cover $10,000 in medical bills.

    More info (none / 0) (#13)
    by sarcastic unnamed one on Wed Oct 10, 2007 at 01:12:01 PM EST
    If the Cosmillos had made their pool baby-proof, police would not have been called to the scene, there would have been no water on the floor, and Eichhorn would not have hurt herself, he said.

    "It's a situation where the Cosmillos have caused these problems, brought them on themselves, then tried to play the victim," he said.

    Florida has a law requiring pools built after 2001 or so to have various safety devices, if this pool is one of them and did not have those devices, I imagine the law suit would have more legal and moral heft.

    Then again, maybe not.

    Two cars get in an accident because one of the drivers did something wrong. Happens every day.

    A cop/ambulance guy/whatever responding to the scene slips on the radiator fluid and wrenches his back.

    Does he now get to sue the at-fault driver (Ok, the at-fault driver's insurance co.)?

    Doesn't seem right to me, such dangers are part of the job he chose of his own free will.

    can't get too worked up about this, moral (none / 0) (#14)
    by oculus on Wed Oct 10, 2007 at 01:14:36 PM EST
    outrage-wise.  Assuming the homeowner has homeowner's insurance, this should be covered.  Think of all the lawsuits where the people who called law enforcement then sue the officers who responded to that call.

    Yep (none / 0) (#16)
    by Wile ECoyote on Wed Oct 10, 2007 at 01:24:57 PM EST
    may as well as make all of the homeowners who have insurance pay for it.  No harm done.  

    I'd assume they have homeowner's (none / 0) (#15)
    by Deconstructionist on Wed Oct 10, 2007 at 01:22:21 PM EST
     not only because nearly everyone does but because most lawyers would not bother with a suit over a minor knee injury in the absence of coverage. The ability to collect against the defendants would be extremely limited (especially in Florida).

      I'd also assume the lawyer assumed the insurance company would make a cost of defense settlement offer in exchange for a release of claims against  the insured and the insurer and he'd make a modest fee for relatively little work.

      That might well happen because defending claims costs money and insurance companies are businesses not arbiters of merit. On the other hand, the insurer might call the bluff.

    My comment about homeowner's insur. (none / 0) (#19)
    by oculus on Wed Oct 10, 2007 at 01:53:19 PM EST
    wasn't meant to support the concept of filing a frivolous lawsuit just to hit up the insurance company.  

    Whadda ya mean oculus..... (none / 0) (#23)
    by kdog on Wed Oct 10, 2007 at 02:30:50 PM EST
    It's the American way:)

    We reap what we sow...with so many of us looking to shake down an insurance at the drop of a hat, it's no wonder the insurance co's look to gouge us at every turn.


    I can't believe this is on a legal blog. (none / 0) (#20)
    by fiver5 on Wed Oct 10, 2007 at 02:00:51 PM EST
    This is an insurance claim.  The family's loss is irrelevant to the claim and is merely a PR skirt that the carrier is hiding behind.  As is far too common, the family has been suckered into coming onto the insurance company's side and has forgotten that they paid their premiums to cover exactly this type of loss.  

    I can't believe lawyers are falling for the same ruse.

    I fully cooperated with the insurance co.... (none / 0) (#25)
    by kdog on Wed Oct 10, 2007 at 02:34:09 PM EST
    and the lawyer they assigned to my case when I was sued.

    Why?  Because the lawsuit was outrageous.  Maybe this family feels the same.


    there goes their policy (none / 0) (#58)
    by txpublicdefender on Wed Oct 10, 2007 at 07:50:04 PM EST
    Yeah, insurance companies never cancel policies after having to pay out a big claim.  I can't imagine why the family is upset.

    How do you know how much (none / 0) (#21)
    by Deconstructionist on Wed Oct 10, 2007 at 02:12:56 PM EST
      liability coverage the family has? A basic homeowner's policy often  provides only $100,000 in liability coverage per occurence.

      The homeowners might also be concerned that there premiums will increase.

      To say the family has been suckered into being a PR flak for the insurer is just leaping to a conclusion. Maybe they are just outraged that the cop would sue THEM under these circumstances regardless of insurance. Even if you have a large umbrella policy, no deductible and laws in your jurisdiction  that prevent cancellation, non-renewal, or premium increases after a paid claim, the mere reality of being sued is unpleasant as is the spectre of enduring lengthy depositions, intrrogatories, production requests and all the fun stuff that comes with being sued.

    I wonder why Florida no longer has (none / 0) (#22)
    by oculus on Wed Oct 10, 2007 at 02:25:18 PM EST
    Fireman's Rule immunity?  If Floridians are outraged about this lawsuit, they should call their legislators.  

    Well (none / 0) (#26)
    by Patrick on Wed Oct 10, 2007 at 02:35:20 PM EST
    When I posted above about it, believing it was still in place, I saw an article through a google search which indidated it was done away with by statute.  Here's a good overview of what it is and what it does.  

    I know what it is and what it does, at least (none / 0) (#27)
    by oculus on Wed Oct 10, 2007 at 02:41:15 PM EST
    in California, where there is common law Fireman's Rule in place.  Perhaps the law enforcement lobby in FL got rid of it in the Legislature.

    I would agree (none / 0) (#31)
    by Patrick on Wed Oct 10, 2007 at 02:50:03 PM EST
    public safety unions are very strong in california and if you read that article I linked to, they are absolutely going after it in Ca. like was done in Florida.  

    The only reason the family was sued... (none / 0) (#24)
    by fiver5 on Wed Oct 10, 2007 at 02:32:23 PM EST
    is because, in most jurisdictions, third-party claimants are prohibited from suing the liability carrier directly.

    No, I don't know the liability limits, but I assume, like you, that the limits are at least 100K - more than enough to address the case from the information given.  

    As far as "leaping to a conclusion" that the carrier is using this family's tragedy for PR purposes: Why is this relatively minor Florida case in the New York Times?  Who has the clout to get it there?  Why is there not even an allusion to insurance coverage in the story?  

    I believe the story was put on a national stage by the insurance industry as part of its consistent campaign to all portray insurance claims as "morally bad."

    It is not the first time and, unfortunately, many people continue to buy it.  


    Maybe the attorney representing the family (none / 0) (#28)
    by oculus on Wed Oct 10, 2007 at 02:42:41 PM EST
    usually does plaintiffs' work.  Get to the press first.  

    Then why not mention the insurance claim? (none / 0) (#30)
    by fiver5 on Wed Oct 10, 2007 at 02:48:24 PM EST
    The insurance (none / 0) (#38)
    by Deconstructionist on Wed Oct 10, 2007 at 03:19:04 PM EST
    company almost certainly assigned a lawyer to represent the family. Many insurers now have "captive firms" that are really insurance company employees operating nominally (masquerading)  as Law Firm of __ . Otherwise, insurance companies have contracts with private insurance defense firms to represent the insureds (in theory) on an hourly fee basis. So the lawyer for the family is almost certainly one who devotes the bulk if not the entirety of his practice to insurance defense.

      Of course, it is certainly possible that grandad was really pissed off and called the local paper or TV dtation when served with summons and complaint. As for why the case gets national attention, regardless of who first contacted the media, maybe it's for the same reason Jeralyn wrote about it. People see the story on the wire about a cop suing a family that has suffered a terrible tragedy over a minor knee injury and decide readers/viewers will be interested and provoked.


    I Agree (none / 0) (#47)
    by squeaky on Wed Oct 10, 2007 at 04:13:31 PM EST
    It doesn't seem like a good case for the Insurance co. to get good PR on. It would blow up in their face.

    Good points on the defense firms, (none / 0) (#49)
    by fiver5 on Wed Oct 10, 2007 at 04:20:43 PM EST
    but how does a slip 'n fall make A.P. without some clout behind it?

    Well It Has (none / 0) (#50)
    by squeaky on Wed Oct 10, 2007 at 04:26:45 PM EST
    This is a story that has elements of human tragedy and farce. More content than a runaway white bride, for example.

    Easily (none / 0) (#51)
    by Deconstructionist on Wed Oct 10, 2007 at 04:27:28 PM EST
      The story doesn't need to be sold or spun or anything. We have a family that has endured an unfathomable tragedy and is caring for a permanently and profoundly injured baby getting sued over a minor  knee injury by a public employee. Most people don't need an insurance company to tell them they should think that is something they find distasteful.

      If Grandad called his local media with his story of being served with a complaint, and they assigned a rookie reporter to go interview him and get a picture it's available to any other media including AP who thinks the story might strike a chord -- which it obviously does judging by the popularity of this thread.


    That is (none / 0) (#29)
    by Patrick on Wed Oct 10, 2007 at 02:47:16 PM EST
    a pursuasive argument....But the officer's actions in suing still look bad.  

    I can't speak for Florida's workers comp laws, but in California when injured on the job a cop is covered 100%.  If after a claim is made, an officer receives financial compensation, they they have to pay back workers comp.  In my case it cost me 40% to buy back the lien.  Then there's the "Future care" issue which I had to deal with and it was a big mess.   My suggesiton to this officer is to take what comp offers and work with that.  I imagine the lawyer's working on a continengency, so this officer will be lucky to see $20K.   My injury involved a knee and needed two surgeries to correct. I got 20K when all was said and done, and I would not go through that again.  Of course, my suit stemmed from a much less tragic incident and the defendants were far less sympathetic.   If the insurance co. doesn't settle and takes this in front of a jury....yuck.    


    Oh, I think this will go to a jury... (none / 0) (#32)
    by fiver5 on Wed Oct 10, 2007 at 02:51:53 PM EST
    This is the insurance industry's "McDonald's coffee case for 2007.  They're going to play this for as much mileage as they can.

    And I thought (none / 0) (#35)
    by Patrick on Wed Oct 10, 2007 at 03:07:23 PM EST
    I was cynical....But you're probably right.  

    I'm in CA, where CCPOA rules! (none / 0) (#36)
    by oculus on Wed Oct 10, 2007 at 03:08:43 PM EST
    CCPOA (none / 0) (#42)
    by Patrick on Wed Oct 10, 2007 at 03:54:51 PM EST
    PORAC, CTA, etc....

    Why did the cop respond (none / 0) (#33)
    by ding7777 on Wed Oct 10, 2007 at 02:57:44 PM EST
    to the 911 call? Where were the EMS folks? Was the cop the one who revived the child?  Did the cops falling add to the child's brain damage?

    If I was (5.00 / 1) (#34)
    by Patrick on Wed Oct 10, 2007 at 03:06:02 PM EST
    Close to such a call I would respond...Can we make the same assumption for this officer?  I believe that's a reasonable.  There's no greater need than a child who's life is in danger.  

    Ah, there's the rub. Just don't respond. No duty (none / 0) (#37)
    by oculus on Wed Oct 10, 2007 at 03:12:18 PM EST
    that's a different issue (none / 0) (#39)
    by Deconstructionist on Wed Oct 10, 2007 at 03:30:45 PM EST
      Most jurisdictions have the "special duty doctrine" which protects police and other public safety workers from liability where it is alleged they failed a duty to protect a citizen and caused or allowed an injury to occur. It's more the absence of a "special duty" that protects the police. For example you call 911 and the dispatch screws up (or whatever)  and the response is belated or non-existent and thus your neighbor shoots you when a reasonably prompt response would have prevented it. Because the police did not have a "special duty" to protect you in those circumstances they would not be liable. On the other hand, for example,  if you are in police custody the police do have a special duty to protect you and if they negligently leave you alone with a violent person who harms you the police can be held liable.

      Also many states have versions of "good samaritan laws" that provide immunity to people responding to an emergency to render aid and then render that aid in a negligent fashion. (In some places these laws only apply to private citizens such as the doctor or nurse who happens upon an accident but in some they encompass government officials on duty.)



    Reliance on a 911 call (none / 0) (#40)
    by fiver5 on Wed Oct 10, 2007 at 03:38:28 PM EST
    can be used to imply a duty in some states.

    I was giving what my friend (none / 0) (#44)
    by oculus on Wed Oct 10, 2007 at 04:02:16 PM EST
    calls "the Readers Digest version,"  since this is a legal blog.

    White cop refuses to respond (none / 0) (#45)
    by sarcastic unnamed one on Wed Oct 10, 2007 at 04:05:17 PM EST
    to 911 plea for help for Cuban infant. I can see the headlines now.

    This case (none / 0) (#48)
    by Deconstructionist on Wed Oct 10, 2007 at 04:19:58 PM EST
     has nothing to do with any duty owed by the police or anyone else to the child and family.

      The cop is alleging that the family OWED HER A DUTY  immediately to wipe up water dripped on the floor while instead orf watching the paramedics attempt to revive their possibly dying child. Implicitly the cop is also alleging that her failing  to protect herself by considering the possibility that water might be found on the floor and thus use due care to prevent slipping in it was outweighed by the family's negligence.

      I wonder if she will use the exigencies of the situation to try to defeat any comparative negligence defenses?


    I was being snarky, as you probably already (none / 0) (#52)
    by oculus on Wed Oct 10, 2007 at 04:35:42 PM EST
    know.  Way to avoid this lawsuit would be for the cop to ignore the call; no subsequent slip and fall; knee surgery; need for lawsuit against homeowner.  

    As was I. (none / 0) (#53)
    by sarcastic unnamed one on Wed Oct 10, 2007 at 04:40:13 PM EST
    I'm still having (none / 0) (#60)
    by ding7777 on Thu Oct 11, 2007 at 07:29:30 AM EST
    a problem as to why the cop was even there if EMS was there.  Firefighters are you as medical responders but are cops also used as medical responders?

    it depends on the state... (none / 0) (#65)
    by Michael Gass on Fri Oct 12, 2007 at 07:53:41 AM EST
    In South Carolina, law enforcement, fire departments and EMS are all considered "first responders".

    Fire Departments in SC now roll a truck out on just about everything.  EMS can be dispatched directly, or, requested by fire department personnel or law enforcement.  But, no, it isn't uncommon to see all three on scene here anymore.

    All three are considered "first responders" simply because all three have, at least, CPR certification and basic first aid, which, as a first responder, can save a life for the time necessary until better treatment can be given.  Depending on the location of the incident, any one of them may arrive before the other, so, it really is just providing the best case scenario for a victim.

    I have no idea about other states.


    I have no idea what you mean (none / 0) (#41)
    by Deconstructionist on Wed Oct 10, 2007 at 03:50:20 PM EST
     reliance by whom on a 911 call implies a duty for whom to do what in relation to whom?

     recognize that a "special duty" or "special relationship" exception to the public duty doctrine can be established where facts showed that the person who called 911 received assurances or promises that some action would be taken and then relied on that assurance in deciding to not take additional steps to receive protection or aid.

      It's not the call to 911 itself that creates the duty but the representation made that action will be forthcoming.


    Thanks. I should have phrased it better. (none / 0) (#46)
    by fiver5 on Wed Oct 10, 2007 at 04:09:44 PM EST
    ok, let's see if i have this correct: (none / 0) (#55)
    by cpinva on Wed Oct 10, 2007 at 07:21:23 PM EST
    i come home from work to find my wife's lifeless body on the kitchen floor, a huge pool of blood surrounding her; she's been stabbed to death. i call the police. they come, and one of them slips on the pool of blood, injuring his back in the fall.

    am i at risk of being sued by this officer, because i failed to clean up an obvious hazard, prior to contacting them? bearing in mind, had i done so, i would have also been guilty of destroying potential evidence, and disturbing a crime scene.

    certainly, a pool of blood on the kitchen floor is an obvious hazard, that any "reasonable and prudent" person would realize should be cleaned up, prior to inviting anyone into their home.

    sorry, i just don't buy into the "rationale" for this. if the job is so dangerous, as policemen are always claiming it is, this hazard is just part of the normal occupational risk they accept, when they sign up.

    it's unfortunate, but i don't see our soldiers in afghanistan and iraq being allowed to sue for damages, when they get wounded or killed. again, they accept this risk when they sign up. why should police be treated any differently?

    technically (none / 0) (#59)
    by txpublicdefender on Wed Oct 10, 2007 at 07:55:44 PM EST
    The reason soldiers can't sue the military is because of sovereign immunity explicitly retained by the Federal Tort Claims Act, but I agree with your point.

    This case is just ludicrous.


    But... (none / 0) (#61)
    by Deconstructionist on Thu Oct 11, 2007 at 09:04:10 AM EST
      what about the scenario where a military officer is on duty and is injured by the negligence of a third party? For example, a naval officer works out of a leased office in Crystal City and is injured because the landlord negligently maintained the premises  for which he is responsble under the lease agreement and a portion of the ceiling collapsed on the guy. Would you have a problem with the officer having the right to and bringing a cause of action the landlord?

    no, i wouldn't, but (none / 0) (#62)
    by cpinva on Thu Oct 11, 2007 at 10:00:22 AM EST
    that wouldn't be the same thing. the officer wasn't in a combat zone, our people in iraq & afghanistan are. so, to clarify my original post, when i refered to their inability to sue, for their death or injury, i wasn't suggesting they sue the US Govt.

    I'm thinking more along the lines of the afghan, iraq, iran or maybe syrian govt's, all of whom could be considered complicit, in the failure to eliminate known hazardous situations from their property, or of actively participating in the production of such.

    in fact, maybe they could sue their superior officers, for sending them into areas where known hazards exist, and nothing's been done to mitigate those hazards, prior to sending troops or convoys in.

    obviously, i'm not being totally serious here, but i think you get my point.


    well (none / 0) (#63)
    by Deconstructionist on Thu Oct 11, 2007 at 12:08:48 PM EST
     the superior officers acting within the scope of their duties would be clothed with the immmunity of the government.

      As for suing third=-party foreign actors for alleged wrongs committed on and having their effect occur foreign soil  I think there would be a likely juridictional problem in any U.S. federal or state court. (I also tend to doubt that suing the foreign actors where they reside or where the alleged tort occurred would be fruitful, but that is not based on any analysis of the principles of liability.)

       A more apt comparison to the cop slip and fall case might be if a military officer or enlistee  was called out to respond to a civil insurrection or natural or human caused disaster in the United States and while rendering assistance to a wounded civilian on private property  was injured allegedly as a result of the negligence of the owner or keeper house. Is or should the military man  be  barred from suing the allegedly negligent property owner?

    I heard this morning the cop withdrew the lawsuit (none / 0) (#64)
    by robrecht on Fri Oct 12, 2007 at 07:34:03 AM EST

    Well, someone beat me to it. (none / 0) (#66)
    by Patrick on Fri Oct 12, 2007 at 04:05:07 PM EST
    The Orlando Sentinal is reporting the Sergeant is dropping her suit as early as today and has also been placed on leave as a result of the department looking into the incident as a result of her suit.  

    Being placed on leave can't happen just because someone filed an ill-advised lawsuit.   There's smoke there now.  Watch this one and I think we might just see a little greed derail a career.