IVERS v. BRENTWOOD BOROUGH SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LUCAS M. IVERS,

Plaintiff, Civil Action No. 2:20-cv-1244

v. Hon. William S. Stickman IV

BRENTWOOD BOROUGH SCHOOL

DISTRICT, ef al,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

In August 2020, Lucas M. Ivers (“Ivers”) filed a Complaint in the Court of Common Pleas

of Allegheny County, Pennsylvania against Brentwood Borough School District (“School

District”), Floyd Olsavicky (“Olsavicky”), Aggie Greer (“Greer”), Brentwood Emergency

Medical Services (“Brentwood EMS”), and a minor, N.M. (ECF No. 1-2). The case concerns the

assault of Ivers by N.M. during gym class. The only count against Brentwood EMS is Count XII,

and it alleged “professional liability — negligence.” (ECF No. 1-2, §§ 178-81). Defendants

collectively removed the case to this Court in late August 2020. (ECF No. 1). Brentwood EMS

filed its Answer, New Matter and Affirmative Defenses in September 2020. (ECF No. 7).

Attached thereto as Exhibit | is the contract between the Borough of Brentwood and Brentwood

EMS in effect at the time of the events outlined in Ivers’ Complaint. (ECF No. 7-1). In November

2020, Defendant Brentwood EMS filed a Motion for Judgment on the Pleadings pursuant to Fed.

R. Civ. P. 12(c) and a supporting brief. (ECF Nos. 14 and 15). Briefing is now complete, and the

motion is ripe for adjudication. The motion will be denied.

I. STANDARD OF REVIEW

Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay

trial—a party may move for judgment on the pleadings.” FED. R. Crv. P. 12(c). Judgment is only

granted when the moving party establishes that there are no material issues of fact and that it is

entitled to judgment as a matter of law. Sherzer v. Homestar Mortg. Serv.’s, 707 F.3d 255, 257

(3d Cir. 2013) (citing Allstate Prop. & Cas. Ins. v. Squires, 667 F.3d 388, 390 (3d Cir. 2012));

DiCarlo v. St. Mary Hosp., 530 F.3d 255, 259 (3d Cir. 2008).

The primary distinction between motions under Rules 12(b)(6) and 12(c) is timing: if a

motion is filed before an answer, it is a motion to dismiss; if it is filed after the answer, it is a

motion for judgment on the pleadings. The distinction between these motions is merely semantic

because the same standard of review generally applies to both. Turbe v. Gov’t of V.I., 938 F.2d

427, 428 (3d Cir. 1991). A plaintiff must allege sufficient facts that, if accepted as true, state a

claim for relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must accept all well-pleaded

factual allegations as true and view them in a light most favorable to the plaintiff. DiCarlo, 530

F.3d at 262-263 (citation omitted). “[A] motion to dismiss may be granted only if, accepting all

well-pleaded allegations in the complaint as true and viewing them in the light most favorable to

the plaintiff, a court finds that a plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v.

Amgen Inc., 643 F.3d 77, 84 Gd Cir. 2011). Although a court must accept the allegations in a

complaint as true, it is “not compelled to accept unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d

187, 195 (Gd Cir. 2007) (citations omitted).

The critical difference between motions to dismiss and motions for judgment on the

pleadings is not the standard of a court’s review, but its scope. Unlike with motions to dismiss, a

court reviewing a motion for judgment on the pleadings considers not only the complaint, but also

the written answer and attachments to the pleadings. Compare In re Burlington Coat Factory Sec.

Litig., 114 F.3d 1410, 1426 (Gd Cir. 1997) (“As a general matter, a district court ruling on a motion

to dismiss may not consider matters extraneous to the pleadings.” (citation omitted)), with Horsley

v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) (“It would seem to follow that if an attachment to

an answer is a “written instrument,” it is part of the pleadings and can be considered on a Rule

12(c) motion for judgment on the pleadings without the motion being converted to one for

summary judgment.”), and Ferencz v. Medlock, No. 11-1130, 905 F. Supp. 2d 656, 663 (W.D. Pa.

2012) (“The only notable difference is that a court, for a motion on the pleadings, may review not

only the complaint but also the answer and written instruments attached to the pleadings.” (citing

Brautigam v. Fraley, 684 F. Supp. 2d 589, 591-92 (M.D. Pa. 2010)).

I. FACTUAL BACKGROUND

On June 5, 2018, Ivers and the minor Defendant, N.M., were students at Brentwood High

School, in the Brentwood School District. They were in gym class playing against one another in

a basketball game. During the game, N.M. became angry with Ivers and made contact. by

“slapping,” “elbowing [Ivers] in the ribs,” and “pushing [Ivers] in the face.” Olsavicky, the gym

teacher, was present and observed these acts. When N.M. attempted to slap Ivers again, at

approximately 1:00 p.m., Ivers grabbed N.M.’s arm, which caused both boys to fall to the ground.

N.M. then “lifted [Ivers] up on his shoulders and said, ‘it’s over.’” He slammed Ivers to the ground

and Ivers’ head “forcefully” hit the gym floor. Ivers was unable to move; he could not feel his

torso, arms or legs, including his left hand that was lodged underneath his body. Olsavicky

approached and tapped Ivers on the shoulder to see if he was awake and alright. Olsavicky walked

away. The school nurse, Greer, arrived at approximately 1:15 p.m. When she asked Ivers to get

up, he responded, “I can’t move.” Greer told Ivers he was fine and that he could get up from the

floor. When he requested assistance, Greer said he could do it himself. Ail the while, Ivers was

crying. At some point, Greer “slid” Ivers to the wall with her hand on his back. At no point did

Greer “stabilize or immobilize” Ivers’ spine. (ECF No. 1-2, 12-27).

Brentwood EMS arrived and Greer said Ivers was fine and it was “okay to lift [Ivers]

without a spinal stabilization.” Paramedics strapped Ivers onto a stretcher. When Ivers’ mother

arrived, she expressed concern because his shoulders appeared crooked. Paramedics told her that

Ivers was okay, his condition was not serious, and that the nurse had cleared his neck. (ECF No.

1-2, 28-36).

Ivers’ mother took him to her vehicle with the assistance of two men and transported him

to nearby MedExpress for treatment. On the way, as Ivers was in and out of consciousness, she

determined he needed to go to Children’s Hospital instead of MedExpress. She then drove home

and she went inside and got Ivers an ice pack, ibuprofen and water. At some point while she was

inside, Ivers slid out of the car and onto the driveway pavement. Brentwood EMS paramedics,

some of whom had treated Ivers at the school, arrived. One paramedic asked Ivers to hug himself,

which he was unable to do. That paramedic took Ivers’ arms and crossed them against his chest.

Another paramedic lifted Ivers’ legs while another paramedic lifted Ivers’ arms to place him on a

stretcher. Ivers was transported to the emergency room at Jefferson Memorial Hospital. Once

there, doctors and staff asked why Ivers’ neck and back were not stabilized and an argument ensued

between them and the paramedics. (ECF No. 1-2, 28-52).

Ti. ANALYSIS

Brentwood EMS argues that under Pennsylvania statutory law it is a local agency and,

therefore, immune to suit pursuant to the Pennsylvania’s Political Subdivision Tort Claims Act

(“PSTCA”), 42 Pa.C.S.A. § 8541, et seg. Alternatively, it argues that, as a first responder, it is

entitled to immunity under the Pennsylvania Emergency Medical Services System Act

(“EMSSA”), 35 Pa.C.S.A. § 8151. According to Brentwood EMS, no genuine issues of material

fact exist that would establish the gross negligence necessary to overcome the immunities provided

to it under both statutes. The Court disagrees.

A. PSTCA

PSTCA provides broad legal immunity for government bodies and their employees unless

their actions fall within certain enumerated categories of negligence. See 42 Pa.C.S.A §§ 8541,

8545; 42 Pa.C.S.A § 8542(b) (listing exceptions as: vehicle liability; care, custody or control of

personal property; real property; trees, traffic controls and street lighting; utility service facilities;

streets; sidewalks; care, custody or control of animals; and sexual abuse). It provides that “no

local agency shall be liable for any damages on account of any injury to a person or property

caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.C.S.A §

8541. In order to determine whether a given entity falls within the ambit of the Act, the

Pennsylvania Supreme Court applies a two-prong approach. Snead v. SPCA of Pa., 985 A.2d 909,

913 (Pa. 2009). Under the first prong, a court determines whether the entity meets the statutory

definition of “local agency,” and the second prong, requires an examination of the purpose of the

Act and the entity’s relationship to the political subdivision. Jd.

The Pennsylvania Supreme Court has determined:

“Local agency” is defined as “[a] government unit other than the Commonwealth

government.” 42 Pa.C.S. § 8501. A “government unit” is defined as “any

government agency,” which includes “any political subdivision, municipal

authority and other local authority, or any officer or agency of any such political

subdivision or local authority.” 42 Pa.C.S. § 102.... [T]he Judicial Code does not

define “local authority,” but ... the Statutory Construction Act describes it as “a

municipal authority or any other body corporate and politic created by one or more

political subdivisions pursuant to statute.” ....

Christy v. Cranberry Volunteer Ambulance Corps, Inc., 856 A.2d 43, 46 (Pa. 2004) (citations in

original). Applying these statutory definitions, for an entity to be a local authority, and thus qualify

for governmental immunity, it is necessary to determine if the entity is a non-profit corporation

created by a political subdivision.

Here, the Borough of Brentwood, a political subdivision of the Commonwealth, entered

into a contract (“EMS Agreement”) with Brentwood EMS, a Pennsylvania non-profit corporation,

designating Brentwood EMS as the primary provider of emergency medical services for the

borough. (ECF No. 7-1, p. 2). It was authorized to do so under 8 Pa.C.S.A. § 1202(56) (stating

that “[t]he specific powers of the borough shall include the following: (56) To ensure that fire and

emergency medical services are provided within the borough by the means and to the extent

determined by the borough, including the appropriate financial and administrative assistance for

these services. The borough shall consult with fire and emergency medical services providers to

discuss the emergency services needs of the borough. The borough shall require any emergency

services organization receiving borough funds to provide to the borough an annual itemized listing

of all expenditures of these funds before the borough may consider budgeting additional funding

to the organization.”). It may be that Brentwood EMS falls within the scope of “local agency” as

that term is defined under the plain language of the PSTCA, but the Court is of the opinion that

adjudicating the issue is premature particularly where the exact nature of the relationship between

Brentwood EMS and the Borough of Brentwood is unknown based on the record currently before

the Court.

The second question the Court must answer is whether Brentwood EMS is so intertwined

with the Borough of Brentwood that extending immunity to it would serve the purposes of the

PSTCA. The Court must consider whether: (1) a political subdivision created Brentwood EMS;

(2) Brentwood EMS assists a political subdivision in serving its citizens; (3) a political subdivision

appoints the Brentwood EMS’s board of directors; (4) a political subdivision exercises substantial

control over Brentwood EMS; (5) Brentwood EMS’s assets would vest in a political subdivision

if Brentwood EMS were to be dissolved; (6) Brentwood EMS’s employees participate in any

benefit plans exclusively reserved for employees of political subdivisions; (7) Brentwood EMS’s

sole source of income is a political subdivision; and (8) a political subdivision indemnifies

Brentwood EMS, its employees, officers, and directors from claims and liabilities arising from

services Brentwood EMS provides. Christy, 856 A.2d at 53-54. Determining whether Brentwood

EMS qualifies as a “local agency” is a fact-intensive inquiry.

Brentwood EMS attached the contract with the Borough of Brentwood to its pleading and

the Court’s review of it reveals that Brentwood EMS is a nonprofit corporation that provides

emergency medical services to borough citizens, residents, workers, visitors and guests of the

borough. However, the Court cannot ascertain the answer to many of the other questions regarding

whether Brentwood EMS is so intertwined with the Borough of Brentwood. Because this motion

is advanced before discovery has commenced, the record does not affirmatively show whether the

Borough of Brentwood exercises substantial control over Brentwood EMS. The record does not

affirmatively demonstrate that the Brentwood EMS’s assets would necessarily vest in the Borough

of Brentwood. The record is absolutely silent with respect to (1) whether Brentwood EMS’s

employees participate in any Borough of Brentwood benefit plans exclusively reserved to the

Borough of Brentwood’s or other local authority's employees; (2) whether Brentwood EMS’s sole

source of income is the Borough of Brentwood or some other local authority; and (3) whether the

Borough of Brentwood or some other local authority indemnifies employees and officers and

directors of Brentwood EMS.

Given the current state of the record, the applicable standard for a Rule 12(c) motion, and

the inquiry the Pennsylvania Supreme Court deems required to answer the question of whether a

specific entity qualifies as a “local agency,” the Court denies Brentwood EMS’s motion on the

basis of invocation of the PSTCA. The record before the Court does not allow it to reach a

determination as to whether Brentwood EMS is immune to suit under the PSTCA. The Court

believes it prudent to permit the parties to develop a factual record with respect to the factors it

must consider to answer whether Brentwood EMS is so intertwined with Brentwood Borough that

extending immunity to it would serve the purposes of the PSTCA. This question of whether

Brentwood EMS qualifies as a “local agency” will be better settled at the summary judgment stage.

B. EMSSA

The Court also denies Brentwood EMS’s motion on the basis of invocation of the EMSSA.

The EMSSA provides in pertinent part as follows:

No EMS agency, EMS agency medical director or EMS provider who in good faith

attempts to render or facilitate emergency medical care authorized by this chapter

shall be liable for civil damages as a result of an act or omission, absent a showing

of gross negligence or willful misconduct... ..

35 Pa.C.$.A. § 8151(2). The Act defines an “EMS agency” as including an entity that provides

emergency medical services by operating an ambulance, and “EMS provider” as including an

emergency medical responder and emergency medical technician. 35 Pa.C.S.A. § 8103.

Brentwood EMS is an “EMS agency” and the responding paramedics in this case constitute “EMS

providers” under the Act. “Gross negligence” has been defined by the Pennsylvania Supreme

Court as “a form of negligence where the facts support substantially more than ordinary

carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant,

grossly deviating from the ordinary standard of care.” Albright v. Abington Memorial Hospital,

696 A.2d 1159, 1164 (Pa. 1997) (quoting Bloom v. DuBois Regional Medical Center, 597 A.2d

671, 679 (Pa.Super. 1991)). Willful misconduct is “conduct whereby an actor desired to bring

about some result that followed or at least was aware that it was substantially certain to follow, so

that such desire could be implied.” Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994).

While it may be that some of the actions of the paramedics were at worst the product of

ordinary negligence, there are sufficient facts in controversy regarding other actions by them that

may well demonstrate the requisite higher negligence necessary to avoid immunity. At this stage,

without the benefit of discovery, the facts must be construed in the light most favorable to Ivers.

He alleges that the paramedics failed to stabilize or immobilize his spine despite his severe injury.

He notes this was particularly egregious given Pennsylvania’s Basic Life Support protocol, which

required spinal stabilization due to his symptoms. Exactly why and how he came to be released

to his mother instead of transported to a hospital is not pled in the Complaint. However, when

some of the same paramedics were summoned shortly thereafter to his home, and Ivers could not

even hug himself, paramedics lifted him onto a stretcher without examining him or taking

precautions for his injury by stabilizing his neck and back. Then, when Ivers arrived at the

emergency room, a verbal argument ensued between hospital staff and paramedics as to why Ivers’

neck and back were not stabilized.

Taking all this as true, Ivers will be permitted discovery to ascertain whether Brentwood

EMS paramedics’ actions displayed such a reckless disregard for his well-being that they rose to

the level of gross negligence or that the paramedics committed willful misconduct. The Court

denies Brentwood EMS’s motion on the basis of invocation of the EMSSA.

IV. CONCLUSION

For the aforementioned reasons of law and fact, Brentwood EMS’s Motion for Judgment

on the Pleadings (ECF No. 14) will be denied. An Order of Court will follow. Count XII will

proceed to discovery. Brentwood EMS-can renew its arguments after the close of discovery in a

motion for summary judgment.

BY THE COURT:

ety ere wee ETS

WILLIAM S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

February 26, 2021

Date

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