Legal Commentary

?That?s Only Air Escaping the Body?

By Eugene Volokh

From Green v. Kearney (N.C. Ct. App. Apr. 6, 2010) (some paragraph breaks added):

The facts as alleged in plaintiffs? complaint show that on 24 January 2005, at approximately 8:53 p.m., emergency services were dispatched in Franklin County, North Carolina to the scene of an accident involving a pedestrian-Green-and a motor vehicle. Green suffered an open head wound as a result of the accident. Defendant Wade Kearney (?Kearney?) with the Epsom Fire Department was the first to arrive at the scene and checked Green for vital signs. Kearney determined that Green was dead and did not initiate efforts to resuscitate him.

Several minutes later, defendants Paul Kilmer (?Kilmer?) and Katherine Lamell (?Lamell?) with Franklin County EMS arrived. Kearney asked Kilmer to verify that Green did not have a pulse, but Kilmer declined to do so, stating that Kearney had already checked and that was sufficient. Without checking the pupils or otherwise manually rechecking for a pulse, Kearney and Kilmer placed a white sheet over Green?s body.

At approximately 9:00 p.m., defendants Pamela Hayes (?Hayes?) and Ronnie Wood (?Wood?) with the Louisburg Rescue Unit arrived at the scene. After being informed by Kearney and Kilmer that Green was dead, neither Hayes nor Wood checked Green for vital signs. At around 9:31 p.m., Perdue, the Franklin County Medical Examiner, arrived at the scene. He first conducted a survey of the scene, taking notes regarding the location of Green?s body and the condition of the vehicle that struck him.

Once the Crime Investigation Unit arrived, Perdue inspected Green?s body. While Perdue was examining Green, eight people saw movement in Green?s chest and abdomen. Kearney asked Perdue whether Green was still breathing and Perdue responded: ?That?s only air escaping the body.? Once Perdue finished examining Green, he directed that Green should be taken to the morgue located at the Franklin County jail.

At approximately 10:06 p.m., Green was transported to the morgue by Hayes and Wood where Perdue examined him. Perdue lifted Green?s eyelids, smelled around Green?s mouth to determine the source of an odor of alcohol that had been previously noted, and drew blood. During this particular examination, Perdue, Hayes, and Wood all observed several twitches in Green?s upper right eyelid. Upon being asked if he was sure Green was dead, Perdue responded that the eye twitch was just a muscle spasm. Plaintiffs claim that Hayes did not feel comfortable with Perdue?s response and went outside to report the eye twitch to Lamell. Hayes then returned inside and asked Perdue again if he was sure Green was dead. Perdue reassured Hayes that Green was, in fact, dead.

Green was then placed in a refrigeration drawer until around 11:23 p.m. when State Highway Patrolman Tyrone Hunt (?Hunt?) called Perdue and stated that he was trying to ascertain the direction from which Green was struck. To assist Hunt, Perdue removed Green from the drawer and unzipped the bag in which he was sealed. Perdue then noticed movement in Green?s abdomen and summoned emergency services.

Green was rushed to the hospital where he was treated from 25 January 2005 to 11 March 2005. Green was alive at the time this action was brought. His exact medical condition is unknown, though plaintiffs allege that he suffered severe permanent injuries.

The court holds that the lawsuit can?t continue in superior court, because of sovereign immunity and official immunity, and has to instead go through the North Carolina Industrial Commission (no word on how that claim, which has already been filed, is going).

Full post as published by The Volokh Conspiracy on April 13, 2010 (boomark / email).