Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-22-2003

Brown v. Comm PA Emergency
Precedential or Non-Precedential: Precedential

Docket 01-3234




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                                                                               PRECEDENTIAL

                          THE UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                      ___________

                                            No. 01-3234
                                            ___________

             CHARMAINE BROWN; ORAL DOUGLAS, in their individual capacities
                 and as Administrators of the Estate of Shacquiel A. Douglas

                                                                       Appellants

                                                  v.

           COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH
               EMERGENCY MEDICAL SERVICES TRAINING INSTITUTE;
             CITY OF PHILADELPHIA; MARK STEWART, individual and official
                  capacity; JOHN CAFFEY, individual and official capacity
                                    ___________

                   APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                                       (D.C. No. 99-cv-04901)
                           District Judge: The Honorable Herbert J. Hutton
                                            ___________

                                     ARGUED APRIL 18, 2002

                BEFORE: NYGAARD, AMBRO, and KRAVITCH, * Circuit Judges.

                        Sur Panel Rehearing Submitted September 12, 2002
                  Before: NYGAARD, AMBRO and KRAVITCH*, Circuit Judges
                                   (Filed: January 22, 2003 )



*        Honorable Phyllis A. Kravitch, Circuit Judge for the United States Court of
Appeals for the Eleventh Circuit, sitting by designation.

                                                 -1-
                                              ___________

David J. Berney, Esq. (Argued)
Nancy G. Rhoads, Esq.
Sheller Ludwig & Badey
1528 Walnut Street, 3rd Floor
Philadelphia, PA 19102
        Counsel for Appellants


Jane L. Istvan, Esq. (Argued)
Richard G. Feder, Esq.
City of Philadelphia Law Department
1515 Arch Street, One Parkway
Philadelphia, PA 19102
        Counsel for Appellees

                                              ___________

                                      OPINION OF THE COURT
                                           ___________
NYGAARD, Circuit Judge

        We vacated our prior opinion in this appeal and granted panel rehearing to clarify

certain issues raised by the Appellants in their petition for en banc reconsideration.

        Appellants, Charmaine Brown and Oral Douglas, filed a civil rights complaint against

the Commonwealth of Pennsylvania Department of Health, the City of Philadelphia and two

emergency medical technicians, Mark Stewart and John Caffey. Litigation arose out of the

tragic death of Appellants’ one-year-old son. The District Court granted summary

judgment for the City because there was no genuine issue of material fact and concluded

that deliberate indifference by city policymakers had not been demonstrated. The District

Court also granted summary judgment for Stewart and Caffey because it concluded that the



                                                    -2-
Appellants’ federal claim was barred by a prior state judgment. We will affirm, although

for different reasons than given by the District Court.1

                                                     I.

        Shacquiel Douglas, the one-year-old son of Charmaine Brown and Oral Douglas, was

at the residence of Angela Morris, his maternal aunt. While there, Shacquiel choked on a

grape. Morris dialed “911” at 11:06:22 a.m. and informed the operator that her nephew was

choking on a grape. The 911 operator called Appellees Mark Stewart and John Caffey, who

were emergency medical technicians at Engine 73, Fire House at 76th Street and Ogontz

Avenue in Philadelphia. The operator then informed Morris that “[r]escue is gonna come

help you.” At 11:10:24 a.m., Morris again called 911 to determine when the EMTs would

arrive. Morris was informed that “[r]escue was on the way.” At 11:14:50 a.m., when the

EMTs still had not arrived, Morris placed a third call to the 911 operator and was again told

that help was on the way.

        Stewart and Caffey arrived at Morris’s residence at 11:16:35 a.m., ten minutes after

the initial 911 call had been placed. They transported Shacquiel to Germantown Hospital

and tried to restore Shacquiel’s breathing during the trip. Once at the hospital, the grape

was removed from Shacquiel’s throat. He was then transferred to St. Christopher’s

Hospital for Children where he died two days later due to “asphyxia by choking.”

        Appellants filed a civil complaint in the Court of Common Pleas of Philadelphia



1.      We may affirm the District Court on any basis which has support in the record.
Bernitsky v. United States, 

, 950 (3d Cir. 1980).

                                                    -3-
County against Stewart and Caffey alleging a state tort cause of action based on the same

facts as their federal claim. The Court of Common Pleas granted Stewart and Caffey’s

motion for summary judgment and dismissed all claims against them.

         Appellants, in their individual capacities and as administrators of Shacquiel’s estate,

next filed a civil rights lawsuit in federal court under 42 U.S.C. § 1983 against the City of

Philadelphia, and Stewart and Caffey in their individual and official capacities.2 Count I of

the Complaint asserts a § 1983 claim against Stewart and Caffey for alleged violations of

their son’s life, liberty, personal security, and bodily integrity without due process of law in

violation of the Fourteenth Amendment and for deprivation of their son’s rights, privileges,

and immunities secured by the laws and Constitution of the Commonwealth of

Pennsylvania. Count II asserts a § 1983 claim against the City for

violations of the Commonwealth Constitution and the Fourth and Fourteenth Amendments.

The claims arising under the Commonwealth Constitution and the Fourth Amendment were

dismissed, so only the Fourteenth Amendment claim remained.

        The District Court granted the City of Philadelphia’s motion for summary judgment

because it found that Appellants had failed to raise a genuine issue of material fact and

because Appellants had not shown “deliberate indifference” by City policymakers. Brown

v. City of Philadelphia, No. Civ.A. 99-4901, 

, at *6 (E.D. Pa. July 31,



2.       The Commonwealth of Pennsylvania Department of Health was also sued, but that
claim was dismissed because it was barred by Eleventh Amendment sovereign immunity.
Brown v. Pennsylvania, No. 99-4901, 

, at *3 (E.D. Pa. May 8, 2000).
This dismissal was not appealed.

                                                     -4-
2001). The District Court also granted Stewart and Caffey’s motion for summary judgment

because it concluded that Appellants’ federal lawsuit against Stewart and Caffey was barred

under principles of claim preclusion by the prior state court judgment. 

It is

from this order that Brown and Douglas now appeal.

                              II. Deprivation of a Constitutional Right

        The threshold issue presented by any § 1983 case is whether a plaintiff has

sufficiently alleged a deprivation of a right secured by the Constitution. See Baker v.

McCollan, 

, 140 (1979). Appellants allege that 42 U.S.C. § 1983, and the

substantive component of the Fourteenth Amendment’s Due Process Clause, provide them

a cause of action under the federal Constitution.

        The requirements for establishing a constitutional claim under 42 U.S.C. § 1983 are

clear. The pertinent language of the statute provides that:

        Every person who, under color of any statute, ordinance, regulation, custom
        or usage, of any State or Territory or the District of Columbia, subjects, or
        causes to be subjected, any citizen of the United States or other person
        within the jurisdiction thereof to the deprivation of any rights, privileges, or
        immunities secured by the Constitution and laws, shall be liable to the party
        injured in an action at law, suit in equity or other proper proceeding for
        redress.

By its own terms, the statute does not create substantive rights. Instead, it only provides

remedies for deprivations of rights established elsewhere in the Constitution or federal

laws.

        The initial point of reference for our analysis is DeShaney v. Winnebago County

Department of Social Services, 

(1989). In DeShaney, the Supreme Court

                                                    -5-
addressed a claim brought by a mother and her child under 42 U.S.C. § 1983 against the

county department of social services alleging that the child had been denied due process of

law when the department failed to intervene and protect him from the injuries he suffered at

the hands of his violent father. The Court reaffirmed that “our cases have recognized that

the Due Process Clauses generally confer no affirmative right to governmental aid, even

where such aid may be necessary to secure life, liberty, or property interests of which the

government itself may not deprive the individual.” 

The Court instructed:

        If the Due Process Clause does not require the State to provide its citizens
        with particular protective services, it follows that the State cannot be held
        liable under the Clause for injuries that could have been averted had it chosen
        to provide them. As a general matter, then, we conclude that a State's failure
        to protect an individual against private violence simply does not constitute a
        violation of the Due Process Clause.

        The Court also found no duty to protect or rescue in the history of the amendment,

noting that “the Due Process Clause of the Fourteenth Amendment was intended to prevent

government ‘from abusing [its] power, or employing it as an instrument of oppression.’” 

(quoting Davidson v. Cannon, 

, 348 (1986)). The Clause was intended

“to protect the people from the State, not to ensure that the State protected them from each

other.” 

State is not constitutionally required by the Due Process Clause to

provide protective services, the Court found that there can be no liability when the State

fails to provide such services, even if it would have prevented the private injury from

occurring. 

                                                    -6-
        It is a basic tenet of tort law that although an individual generally has no duty to

rescue, once voluntarily undertaken, a rescue must not be performed negligently. See, e.g.,

Restatement (Second) of Torts §§ 314, 323 (1965). One might infer from the general rule

that, although the State is not constitutionally required to provide rescue services, once the

State undertakes a rescue, federal constitutional law requires that it do so competently.

Such an inference, however, incorrectly conflates state tort law and federal constitutional

law. The Supreme Court has repeatedly stated that “the Due Process Clause of the

Fourteenth Amendment . . . does not transform every tort committed by a state actor into a

constitutional violation.” 

(collecting cases). Although state

tort law might provide a remedy for a state’s negligent rescue attempt, it neither logically

nor legally follows that federal constitutional law must do the same. See Berg v. County of

Allegheny, 

, 268 (3d Cir. 2000) (“Section 1983 is not a source of substantive

rights and does not provide redress for common law torts — the plaintiff must allege a

violation of a federal right.”).

        We have not decided whether the Due Process Clause requires states to provide

adequate or competent rescue services when they have chosen to undertake these services.

Other appellate courts addressing this question have held that states have no constitutional

obligation to provide competent rescue services. See Salazar v. City of Chicago, 

, 237 (7th Cir. 1991) (“Government generally has no constitutional duty to provide

rescue services to its citizens, and if it does provide such services, it has no constitutional

duty to provide competent services to people not in its custody.”); Bradberry v. Pinellas

                                                      -7-
County, 

, 1517 (11th Cir. 1986) (“The Constitution, as opposed to local tort

law, does not prohibit grossly negligent rescue attempts nor even the grossly negligent

training of state officers.”); see also Archie v. City of Racine, 

(7th Cir.

1988) (en banc); Jackson v. City of Joliet, 

(7th Cir. 1983). We agree with

the reasoning of these decisions and join these Circuits in holding that there is no federal

constitutional right to rescue services, competent or otherwise. Moreover, because the

Due Process Clause does not require the State to provide rescue services, it follows that

we cannot interpret that clause so as to place an affirmative obligation on the State to

provide competent rescue services if it chooses to provide them.

                             III. Exceptions to DeShaney’s General Rule


        In DeShaney, the Supreme Court expressed two exceptions to its general non-

liability rule. It held that there was an affirmative duty to protect “when the State by the

affirmative exercise of its power so restrains an individual's liberty that it renders him

unable to care for himself, and at the same time fails to provide for his basic human needs,”

thereby creating a special 

. The “special relationship”

exception is implicated when the state restrains an individual so as to expose the individual

to harm. Sargi v. Kent City Bd. of Educ., 

, 910-11 (6th Cir. 1995) (“A special

relationship can only arise when the state restrains an individual.”) (emphasis in original).

DeShaney also left open the possibility that the state may be liable for constitutionally

protected rights, even in the absence of a special relationship with an individual, when the



                                                      -8-
state, through its affirmative conduct, creates or enhances a danger for the 

. This “state-created danger” exception applies when the state, through some

affirmative conduct, places the individual in a position of danger. See Kallstrom v. City of

Columbus, 

, 1066 (6th Cir. 1998).

        The “special relationship” exception is not at issue here. However, the “state-

created danger” exception, permitting liability when the State caused the harm or made the

victim more vulnerable to an existing harm, is relevant to our inquiry. This exception was

not clearly defined by the Court in DeShaney, but has been developed by the lower courts

based upon the Court’s statement in DeShaney that

                 [w]hile the State may have been aware of the dangers that
                 Joshua faced in the free world, it played no part in their
                 creation, nor did it do anything to render him any more
                 vulnerable to them. That the State once took temporary
                 custody of Joshua does not alter the analysis, for when it
                 returned him to his father’s custody, it placed him in no worse
                 position than that in which he would have been had it not acted
                 at all; the State does not become the permanent guarantor of an
                 individual’s safety by having once offered him 

.

        We adopted the state-created danger theory of liability in Kneipp v. Tedder, 

(3d Cir. 1996). To state a claim for a civil rights violation under the state-created

danger theory, we held that a plaintiff must show: (1) the harm ultimately caused was

foreseeable and fairly direct; (2) the state actors acted in willful disregard for the safety of

the plaintiff; (3) there existed some relationship between the State and the plaintiff; and (4)


                                                      -9-
the state actors used their authority to create an opportunity that otherwise would not have

existed for the third party to cause harm. 

(citing Mark v. Borough of Hatboro,

, 1152 (3d Cir. 1995)). The “relationship” required by the third element of

this test is different than the “relationship” in the “special relationship” exception to

DeShaney. In the context of the state-created danger theory, the “relationship”

requirement implies that there was contact between the parties such that the plaintiff was a

foreseeable victim in the tort sense, and not in the custodial sense because the State has

deprived the individual of the liberty necessary to care for himself. 

n.22.

        Determining the appropriate lens through which we must view actions in the state-

created danger context, though, is a vexing problem. See Ziccardi v. City of Philadelphia,

, 64 (3d Cir. 2002). The Supreme Court has specifically pointed out that the

Due Process Clause is not implicated by an official’s negligent act. Daniels v. Williams,

, 328 (1986). Additionally, the Court has instructed that “deliberate

indifference” is the necessary standard in order to establish § 1983 liability of a

municipality. City of Canton v. Harris, 

, 388 (1989). “[I]ndefensible

passivity,” and “nonfeasance” do not rise to the level of a constitutional violation. D.R., v.

Middle Bucks Area Vocational Technical Sch., 

, 1376 (3d Cir. 1992)(en

banc). In light of these holdings, we have required a plaintiff to show that a state actor acted

with deliberate indifference to a known or obvious danger. Morse v. Lower Merion

Township, 

, 910 (3d Cir. 1997). We first explained that there is little

difference between the terms “deliberate indifference,” “reckless disregard,” or “reckless

                                                      -10-
indifference.” 

, n. 10. Each of these terms requires a state

official’s action that falls somewhere between intent and negligence. 

v. City of Vineland, 

(3d Cir. 1994) (Fagan II), sitting en

banc we rejected the “reckless indifference” standard and further defined the substantive

component of the Due Process clause, instructing that it “can only be violated when . . .

[state] conduct amounts to an abuse of official power that ‘shocks the 

. The Fagan II litigation involved a high-speed police chase that resulted in the

serious physical injury to, and death of, civilians. In Kneipp, we recognized the somewhat

narrow holding of Fagan II, where we held that: “the Fagan II shocks the conscience

standard is limited to police pursuit cases, and accordingly, we are not bound to follow that

standard in the case before us [which involves the police leaving a drunk woman alone to

walk home on a cold 

–08.

        The same year that we issued our opinion in Morse, the Supreme Court issued its

decision in County of Sacramento v. Lewis, 

(1997). The issue before the

Supreme Court in Lewis was “whether a police officer violated the Fourteenth

Amendment’s guarantee of substantive due process by causing death through deliberate or

reckless indifference to life in a high-speed automobile chase aimed at apprehending a

suspected offender.” 

The Court noted the difference between state action that

deprives an individual of constitutional rights and state action that is merely tortious or

negligent: “[i]t should not be surprising that the constitutional concept of conscience



                                                     -11-
shocking duplicates no traditional category of common-law fault, but rather points clearly

away from liability or clearly toward it, only at the ends of the tort law’s spectrum of

culpability.” 

The Supreme Court held that “in such circumstances,” only state

conduct that is “shocking to the conscience” will suffice. The Supreme Court was referring

to high pressure situations where state actors must act quickly when it established the

“shocks the conscience” standard “in such circumstances.” 

        In Miller v. City of Philadelphia, 

(3d Cir. 1999), a social worker

allegedly wrongfully removed two children from a parent suspected of child abuse. Citing

Lewis, we held that to establish liability, a state official’s action “must be so ill-conceived

or malicious that it ‘shocks the 

. We applied the “shock the

conscience” standard in Miller because although a social worker normally did not have to

act in a “hyperpressurized environments [like] a prison riot or high-speed chase . . . he or

she will rarely have the luxury of proceeding in a deliberate fashion.” 

Then, in

Ziccardi, we stated that our decision in Miller “mandates [a standard] at least something

more than subjective deliberate indifference” in circumstances requiring somewhat urgent

state action.” 

(emphasis in original). Ziccardi involved a law suit

brought by a quadriplegic who alleged that paramedics caused his quadriplegia by

mishandling him after an accidental injury. Our opinion in Ziccardi stopped short of

requiring a ‘shocks the conscience’ standard in all substantive due process cases, however.

        We derive from these cases the principle that the “shocks the conscience” standard



                                                     -12-
should apply in all substantive due process cases if the state actor had to act with urgency.

This has been the law for police pursuit cases, see, e.g., Fagan II, and, social workers when

they are acting with urgency to protect a child, see, e.g., Miller; Croft v. Westmoreland

County Children & Youth Services, 

(3d Cir. 1997). We now hold that the

same ‘conscience shocking’ standard applies to the actions of emergency medical

personnel—who likewise have little time for reflection, typically making decisions in haste

and under pressure. With this standard in mind, we will examine the Appellant’s claims, and

the facts upon which they are based.




                                                    IV.

                                         A. Stewart and Caffey

        Appellants allege that EMTs Stewart and Caffey violated their son’s constitutional

rights in that: (1) Stewart and Caffey failed to “exercise the well-established and universally

recognized protocols for choking situations”; (2) neither Stewart nor Caffey attempted to

“reach down and directly” remove the grape from Shacquiel’s throat; (3) Stewart and Caffey

did not arrive at the Morris residence in a more timely manner because they could not

locate Weaver Street on the station map; (4) when Stewart and Caffey left the station house

to look for the Morris residence, they were lost; and (5) Stewart and Caffey were never

provided “information on the neighborhood in which they were responsible for providing

emergency services,” and they failed to familiarize themselves with the neighborhood.


                                                    -13-
Brown, 

, at *1.

        The District Court concluded that the federal action against Stewart and Caffey was

barred by the prior state court action. Appellants argue that the District Court erred in

determining the res judicata effect of the state action. We do not reach Appellant’s

contention because we find that: (1) under the general rule of DeShaney, Shacquiel

Douglas had no constitutional right to be rescued or to be provided with competent rescue

services, and (2) DeShaney’s two exceptions are inapplicable. Thus, no viable federal

claim exists against Stewart and Caffey.

        The “special relationship” exception is applicable “when the State takes a person into

its custody and holds him there against his will” or, where “the State, by the affirmative

exercise of its power, so restrains an individual’s liberty that it renders him unable to care

for himself.” 

. Such circumstances are not present here.

Attempting, however, to state a claim under the “state-created danger” exception, appellants

allege that:

                  (a) [Stewart and Caffey’s] actions created foreseeable and
                  fairly direct harm to the decedent and the plaintiffs; (b) their
                  actions evidenced willful disregard of harm to the decedent and
                  the plaintiffs; (c) a relationship existed between the parties; and
                  (d) their actions created and/or increased a danger to the
                  decedent that otherwise would not have existed.


Compl. at ¶ 36.

        We need to consider only one of the Kneipp elements to understand why



                                                     -14-
Appellants’ state-created danger claim fails. First, the allegation that Stewart and Caffey

acted with “willful” disregard is misplaced. As noted, in cases where the state actor is

acting with urgency, the standard is whether the actions shock the conscience of the court.

On this record, there are no actions that meet this standard. The record depicts an attempt

by Stewart and Caffey to ascertain the location of the victim through all available means, as

well as their concerted effort to reach him as quickly as possible. The delay in reaching

Shacquiel was not caused by Stewart and Caffey purposely delaying their rescue efforts or

acting in an otherwise outrageous manner. Instead, the record depicts EMTs who attempted

to arrive at the scene of the incident as rapidly as they could. Although Stewart and Caffey

may have ultimately failed to rescue Shacquiel successfully from a pre-existing danger, we

have already said that they had no constitutional obligation to do so. We cannot say that

their actions in attempting a failed rescue shocks the conscience. Thus, Appellants have not

demonstrated a viable state-created danger claim. We will, therefore, affirm the District

Court’s award of summary judgment to Stewart and Caffey.

                                         B. City of Philadelphia

        Appellants also allege that the City of Philadelphia violated Shacquiel’s

constitutional rights under the “policy or custom” theory of § 1983 municipal liability.

A municipality may be held liable if a constitutional violation was caused by action taken

pursuant to a municipal policy or custom. Monell v. Dep’t of Soc. Servs., 

,

691 (1978). But a municipality cannot be liable solely as an employer because there is no



                                                   -15-
respondeat superior theory of municipal liability in § 1983 actions. 

is

when execution of a government’s policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent official policy, inflicts the injury

that the government as an entity is responsible under § 1983.” 

        The Supreme Court has recognized that “under certain circumstances” a municipality

may be liable under § 1983 for a failure to adequately train its police officers. City of

Canton v. Harris, 

, 380 (1989). The first question in any case alleging

municipal liability for a failure to train is “whether there is a direct causal link between a

municipal policy or custom and the alleged constitutional deprivation.” 

Furthermore “the inadequacy of police training may serve as the basis for § 1983 liability

only where the failure to train amounts to deliberate indifference to the rights of persons

with whom the police come into contact.” 

        It is possible for a municipality to be held independently liable for a substantive due

process violation even in situations where none of its employees are liable. Fagan v. City

of Vineland, 

, 1292 (3d Cir. 1994)(Fagan I).3 In Fagan I we held “that a


3.        We note that there is a split among the courts of appeals on this issue. Some
courts have explicitly rejected our holding in Fagan I. See Trigalet v. City of Tulsa, 

, 1154-55 (10th Cir. 2001), cert. denied, 

(2001); Young v. City of
Mount Ranier, 

, 579 n.9 (4th Cir. 2001); Evans v. Avery, 

,
1040 (1st Cir. 1996); Thompson v. Boggs, 

, 859 n.11 (7th Cir. 1994). One
panel of this court has even questioned the panel opinion in Fagan I. See Mark v. Borough
of Hatboro, 

, 1153 n.13 (3d Cir. 1995). But other courts have agreed with
our opinion in Fagan I. See Fairley v. Luman, 

(9th Cir. 2002), petition for
cert. filed, 

(U.S. June 24, 2002) (No. 01-1882). This debate has no
bearing upon the present case, however, because we find no constitutional violation by

                                                      -16-
municipality can be liable under section 1983 and the Fourteenth Amendment for a failure

to train its police officers with respect to high-speed automobile chases, even if no

individual officer participating in the chase violated the Constitution.” 

However, for there to be municipal liability, there still must be a violation of the plaintiff’s

constitutional rights. Collins v. City of Harker Heights, 

, 122 (1992)

(emphasizing “the separate character of the inquiry into the question of municipal

responsibility and the question whether a constitutional violation occurred.”). It is not

enough that a municipality adopted with deliberate indifference a policy of inadequately

training its officers. There must be a “direct causal link” between the policy and a

constitutional violation. 

.

        This is where Appellants’ municipal liability claim fails. They allege that the City of

Philadelphia had a number of policies involving EMTs which were enacted with deliberate

indifference and which caused harm to them and their son. Even if we accept everything

Appellants allege as true, they will have still failed to establish that the City’s policies

caused constitutional harm. The City was under no constitutional obligation to provide

competent rescue services. The failure of the City and its EMTs to rescue Shacquiel

Douglas from privately-caused harm was not an infringement of Appellants’ constitutional

rights.4 There has been no constitutional harm alleged. Hence, there is no municipal



either the City or its employees.

4.       This case is different from our recent decision in Ziccardi v. City of Philadelphia,

(3d Cir. 2002). The paramedics in that case allegedly rendered the plaintiff a

                                                      -17-
liability under § 1983.

                                                     V.

          In summary, states are not constitutionally obligated to provide rescue services, nor

are they constitutionally required to provide competent rescue services voluntarily

undertaken. Because Appellants have failed to show any actions that shock the conscience

of the court, they can prove no violation of their federal constitutional rights. We will

affirm.

_________________________




quadriplegic by forcefully pulling him off the ground by his arms and throwing him over
their shoulders. 

The allegation in Ziccardi was not that paramedics had failed to
rescue the plaintiff from a pre-existing injury— as is the allegation in the present
case—rather it was that the paramedics actually caused the injury in the first place.

                                                     -1-