By A. Vince Colella
“…[I]f they agree in nothing else, concur at least in the value they set upon trial by jury…”
— Alexander Hamilton
On April 15, 2018, a powerful ice storm swept through southeast Michigan toppling trees, downing power lines, and creating a catastrophic blackout. DTE estimated 370,000 customers lost power in Metro-Detroit. For most residents, the power outage amounted to a terrible inconvenience. However, for one man, the loss of power became a matter of life and death.
Maurice Freeman, a lifelong resident of the City of Detroit, was oxygen dependent. His primary “survival” tank – the one that allowed him to live and breathe was electric. Hours into the storm, Freeman’s oxygen supply depleted and eventually ceased. Luckily, his roommate recognized the seriousness of the situation and called 911. He told the dispatcher that Freeman’s oxygen was “not working” and pleaded with the call taker for an ambulance, stating “he’s about to fall out…he can’t breathe,” and was assured that emergency help was on the way.
A short while later, two emergency medical technicians (EMTs) arrived at the home. Upon encountering Freeman, they noticed an auxiliary “backup” tank and recommended he connect to it. “He’ll be fine,” they surmised — and left. They left without even bothering to check the amount of oxygen in the reserve tank. Just four hours later, Freeman’s oxygen ran dry.
Out of oxygen and struggling for air, Freeman’s roommate again called 911, pleading with dispatch, “[this man] is dying…he can’t breathe at all.” Perhaps coincidentally, or not, the same two EMTs from the original run responded to the call. However, as they arrived, Freeman lost consciousness, lapsed into cardiac arrest, suffered a severe anoxic brain injury and eventually was mercifully taken off life support.
Later, the EMTs claimed that Freeman refused transport to the hospital — an allegation that Freeman’s roommate vehemently denied. Despite making this claim, the EMTs failed to credibly explain why Freeman had not signed a Refusal of Care form as required under the city’s own policy.
The family filed suit against the City of Detroit and its EMTs, claiming they grossly neglected the perilous circumstances that cost Freeman his life.
They sought refuge in the court.
In its pleadings, they pointed to stark contradictions in the paramedics’ account of the events. They highlighted the blatant disregard for the city’s own policies. They offered expert opinions on the ease of calculating the amount of oxygen and necessity for hospital intervention when the supply is insufficient to sustain life. However, the city, on behalf of its first responders, wrapped themselves in the shroud of immunity, refusing to accept responsibility or be held accountable.
In a curiously scathing opinion, the trial court chose to side with the city offering a rebuke of the plaintiff’s claims and castigating its counsel, stating in part, “[b]ad things happen in the world.” Remarking further, “[t]hose of us fortunate to sit in the relative comfort and safety of offices on our computers using big fancy words like gross negligence, should keep in mind, as we are tasked with determining legal liability for folks in the real world, that tragic results are not always avoidable and don’t always equate with the high bar of gross negligence.” Buffington, et. al. v Layne, et. al. (Wayne County Circuit Court, Case No. 19-014064-NH)
An appeal ensued. However, like the trial court, the appellate panel weighed and measured the veracity of witnesses and reconciled disputed facts in favor of the city and its employees contrary to black letter standards of review. Incredulously, the panel found that while some of the trial court’s statement were “not supported by the evidence in the record,” it determined that the lower court’s comments only amounted to “dictum” not necessary to the decision of the case. The panel further determined, “it does not appear that the trial court engaged in impermissible fact-finding or credibility determinations that would render summary disposition improper.” Buffington v Layne, et. al., unpublished per curiam opinion of the Court of Appeals, Case No. (October 27, 2022)
As we have seen time and time again, government immunity bestows upon our courts a seemingly unfettered discretion to eliminate our Seventh Amendment right to trial by jury. Perhaps Hamilton’s skepticism of usurping society’s right to decide civil wrongs prompted his staunch advocacy for the amendment (nearly at the sacrifice of the entire Constitution itself). However, it would seem if our courts are so determined to eradicate the right to civil jury trials under the auspice of protecting government from “undue” financial burden, it would offer something in its place.
Yet, our courts have offered Maurice Freeman nothing. No recourse. No salvation. No justice.
————————
A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.
