Betty J. Archie v. City of Racine, Ronald W. Chiapete, and George W. Giese

POSNER, Circuit Judge,

with whom FLAUM, Circuit Judge, joins, concurring.

I join the majority opinion but write separately to propose a slightly different though consistent view of the case.

The case presents a strong human appeal for federal judicial intervention. Although the district court’s finding that race played no part in Giese’s decision not to dispatch an ambulance is not clearly erroneous, one suspects that, if DeLacy (the victim) and Hiles (who called for the ambulance) had been white, Giese would not have been so casual about the situation and so quick to dispense his own medical advice. The victims in these failure-to-rescue cases appear to be drawn disproportionately from marginal segments of the community, where the ordinary political pressures for effective provision of public rescue services may be attenuated. And although Giese’s gross negligence, which may well have cost De-Lacy her life (I shall come back to the question of causation), cries out for a remedy in damages, the plaintiffs’ tort remedy under Wisconsin law is inadequate because of the $50,000 ceiling on damages that Wisconsin imposes in suits against public agencies and employees. This ceiling is too low, under modern conceptions of the value of life, to provide adequate compensation and deterrence in a wrongful death case on behalf of a 43-year-old woman, even though she was not in good health and did *1225 not have good earnings prospects (Mrs. De-Lacy was on welfare).

So plastic is the language of the due process clause of the Fourteenth Amendment, at least when viewed against the ambiguous history of the term “due process” (a history discussed recently in Conisten Corp. v. Village of Hoffman Estates, 844 F.2d 461, 465 (7th Cir.1988)), that a respectable textual argument can be made in favor of the proposition that Giese deprived DeLacy either of her property or her life without due process of law. It is true that a right to the dispatch of an ambulance is remote from conventional notions of property, but this is not decisive against the argument, because the Supreme Court has, for purposes of the due process clause in any event, jettisoned those notions in favor of equating property to entitlement, and by doing so has brought within the protection of the clause all sorts of interests, such as tenure-employment rights, that are remote from traditional legal conceptions of property. See Board of Regents v. Roth, 408 U.S. 564, 577-78 , 92 S.Ct. 2701, 2709 , 33 L.Ed.2d 548 (1972), and particularly Goss v. Lopez, 419 U.S. 565, 573 , 95 S.Ct. 729, 735 , 42 L.Ed.2d 725 (1975), where the right to attend public school was deemed a property right of which the plaintiff was held to have been deprived by a brief suspension. Although an entitlement for these purposes cannot be built on an expectation created merely by practices or probabilities (e.g., a high probability that executive clemency will be granted in particular circumstances, see Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465 , 101 S.Ct. 2460, 2464 , 69 L.Ed.2d 158 (1981)), the ordinances and policies of the City of Racine can be viewed as a commitment to the residents of the city to dispatch an ambulance without fail in the event of an emergency.

And while Giese neither desired DeLa-cy’s death nor even knew or suspected that she was in serious danger — thus making this case remote from cases of police brutality, the strongest cases for a federal constitutional tort remedy — his negligence may have been a cause of her death, in the normal tort sense of cause. A cause in that sense is a condition or event that made the harm of which the plaintiff is complaining substantially more likely to occur. See Calabresi, Concerning Cause and the Law of Torts, 43 U.Chi.L.Rev. 69 (1975). Had Giese done nothing — had he not answered Hiles’ phone call at all — Hiles might well have phoned a private ambulance service and if a competent dispatcher had answered that call DeLacy might well have been saved. If so, Giese’s negligent advice to Hiles was a cause of DeLacy’s death. Our DeShaney case, now before the Supreme Court, is different in this regard because the victim in that case would probably have been no better off if the negligent caseworker had never intervened; he would simply have been beaten into a vegetative state by his father that much earlier. See DeShaney v. Winnebago County Dept. of Social Services, 812 F.2d 298, 302 (7th Cir.1987), cert. granted, — U.S. -, 108 S.Ct. 1218 , 99 L.Ed.2d 419 (1988). Another distinction is that a federal tort remedy would have placed the child-welfare authorities in an impossible position: sued for invasion of parental rights if they overprotected the child and sued for depriving the child of life, liberty, or property if they underprotected him. See 812 F.2d at 304 .

Nevertheless I agree that the plaintiffs in the present case must lose. This is a routine personal-injury case. If it states a claim under the Constitution, then every such case is a constitutional case if the defendant is a public employee. And because the type of limitation that Wisconsin imposes on tort suits against its employees is common, we can expect that a large fraction of such cases would be brought in federal courts as constitutional cases rather than in state court as ordinary common law tort cases. Nothing distinguishes this case from every other public-employee tort case in which the plaintiff dies or is injured or suffers a property loss, except that Giese’s negligence is plain enough to be described as gross. The line between ordinary and gross negligence is too fine to constitute a satisfactory demarcation between federal and state jurisdiction; the *1226 distinction has largely been discarded in tort law, as unworkable.

The combination of the procedural innovations that have in the last quarter century revitalized 42 U.S.C. § 1983 (the main vehicle for constitutional tort litigation), with the interpretations of the Fourteenth Amendment that in the same period have vastly expanded the amendment’s substantive and procedural limitations upon state action, threaten between them to transfer almost the whole of public contract law and public-employee tort law from the state courts to the federal courts. Not only are the federal courts unprepared for such an influx of litigation, but the transference would be inconsistent with a rational allocation of governmental responsibilities between the states and the federal government. The Supreme Court and the lower federal courts have therefore attempted to come up with limiting principles, and while the scope of those principles is not entirely clear (perhaps the Court will clarify their scope in the DeShaney case), they appear to defeat the effort by the plaintiffs in this case to demonstrate either a deprivation of property or a deprivation of life.

The entitlement on which the plaintiffs rely is not an entitlement to demand the dispatch of an ambulance — no one could be so foolish as to suppose that if one phones for an ambulance and refuses to give the dispatcher any reason, or gives him an absurd reason (my cat has a hair ball in its stomach), the dispatcher is violating the caller’s rights by refusing to send an ambulance. The only entitlement here is an entitlement to place before the dispatcher information which if true would require him to conclude that there was an emergency and therefore send the ambulance. DeLacy was deprived of this entitlement only by the negligence, possibly the gross negligence, of Giese. So if I am right that the line between negligence and gross negligence is not satisfactory as a jurisdictional benchmark, this is a case of negligent deprivation only, and we know from Daniels v. Williams, 474 U.S. 327 , 106 S.Ct. 662 , 88 L.Ed.2d 662 (1986), that negligent deprivations of life, liberty, or property are not actionable under the Constitution. It is therefore moot whether the entitlement I described is definite enough to count as property under the due process clause; it may well not be, cf. Yatvin v. Madison Metropolitan School District, 840 F.2d 412, 417 (7th Cir.1988).

The analysis of the claim that Giese deprived DeLacy of her life is the same. If he did so, he did so negligently — not intentionally, or recklessly in the sense in which recklessness is a form of intentionality (see Whitley v. Albers, 475 U.S. 312, 321 , 106 S.Ct. 1078, 1085 , 89 L.Ed.2d 251 (1986); Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir.1985)) and not merely a vivid appellation for gross negligence, see id. at 653 . But in addition, a case that preceded Daniels —Martinez v. California, 444 U.S. 277, 285 , 100 S.Ct. 553, 559 , 62 L.Ed.2d 481 (1980) — suggests that merely increasing the probability of death by the uncertain amount involved in this as in most failure-to-rescue cases does not rise to the level of depriving the victim of his life; a deprivation of life in the constitutional sense requires more than the minimal causal relationship that may suffice under common law tort principles.

Admittedly there is tension between the decision today and cases such as White v. Rockford, 592 F.2d 381 (7th Cir.1979), which impose liability for failure to rescue where the government placed the victim in a position of danger in the first place. The distinction between putting someone in a place of danger and enhancing the danger faced by someone who already is in danger (but through no fault of government) is a subtle one. We said in DeShaney that in the former case the government’s conduct is apt to create a greater incremental probability of harm, and thus be a more palpable cause of the victim’s injury, than in the latter case. The distinction is only one of degree, but perhaps of sufficient degree to make a constitutional difference, though that need not be decided in the present case. For this is not a case of the government’s having placed the victim in danger; the danger to DeLacy came from her emphysema, though it was increased by Giese’s negligence.

Although I am comfortable with the outcome of this case, I think that the State of *1227 Wisconsin may well be open to criticism for having placed what appears to be an arbitrary limitation on the damages that may be awarded for torts committed by its state and local agencies and employees. People rely on the availability of competent rescue services, and where as here the provision of those services falls far below minimum levels of competence the state ought to be answerable in damages, if not to the same extent that a private provider of such services would be then at least to a greater extent than Wisconsin law allows. We were told at argument that no disciplinary proceedings have been brought against Giese. Maybe if Wisconsin did not impose so low a ceiling on damage awards against public employees the City of Racine would not have reacted so casually to an act of gross negligence, committed by an employee of the city, that had fatal consequences.

Granted, the ceiling discourages lawsuits, and limits liability in those lawsuits that are brought; and by doing these things it reduces the cost of public services in Wisconsin and may therefore increase the extent of those services. To put this differently, the state might react to greater tort liability by curtailing rescue services; and while someone in exactly Mrs. DeLa-cy’s position might actually be better off as a result (for reasons discussed earlier), the people of Wisconsin as a whole might be worse off. (This, by the way, is another reason for not allowing these suits to be brought in federal court under 42 U.S.C. § 1983 , which contains no limit on liability.) But there is no indication that Wisconsin’s ceiling on damages reflects such considerations; it appears, as I have said, to be arbitrary. It merely exerts pressure to recharacterize common law tort suits as federal constitutional tort suits, and I doubt whether it is in the long-run best interests of the State of Wisconsin to encourage the federalization of its public-employee tort law.