The Intermediate Court of Appeals of West Virginia has affirmed the dismissal of a lawsuit brought by a family who claimed that 911 operators mishandled carbon monoxide incident resulting in serious injuries. The suit was brought by three members of the Marchant family against Preston County over an incident that occurred in February 2018.
The facts as explained in the decision are as follows:
- This case arises from a telephone call to Preston County’s 911 emergency line on or about February 7, 2018.
- The Marchants resided in… Preston County. Bad weather that day led to a power outage at their home.
- Timothy S. Marchant, the minor child of Rhoda and Timothy E. Marchant, who was home alone at the time, started a generator outside the door to the home’s mudroom and ran a power cord from the generator inside the house to an outlet near the electrical box to provide temporary power to the home.
- The proximity of the generator to the mudroom allowed carbon monoxide produced by the generator’s combustion engine to enter the house.
- While this was happening, Rhoda and Timothy E. Marchant came home.
- Perceiving fumes in the house, Timothy E. Marchant opened the windows and doors in hopes that circulating fresh air would remove them.
- However, by that time, the Marchants were all allegedly and unknowingly suffering the effects of carbon monoxide poisoning.
- Eventually, the power was restored, and the generator was turned off.
- At some point, the family began to question whether they were exposed to carbon monoxide, so Timothy E. Marchant called 911 for assistance.
- He claims that when he made the call, he was confused because of the carbon monoxide in his system.
- Mr. Marchant alleges that the 911 operators he spoke with displayed “a distinct lack of knowledge” concerning the dangers and symptoms of carbon monoxide toxicity and no “sense of urgency” regarding his complaints, but did dispatch a fire department to test the carbon monoxide levels in the family’s home.
- Sometime later, before the fire department arrived, Timothy E. Marchant made another call to 911 and informed them that Rhoda and Timothy S. Marchant wanted to go to the hospital.
- During that call, he claims the 911 operator told him that the decision to seek medical treatment was at the Marchants’ discretion, the fire department was on the way to their house, and that if they wanted an ambulance to be dispatched, he could call back and request one.
- Mr. Marchant alleges that the operator again displayed “a distinct lack of knowledge . . . and/or sense of urgency” during the second call.
- He told the operator that the family would wait at home for the fire department.
- After the firefighters arrived, Timothy E. Marchant drove himself and his family from Independence to Morgantown’s Ruby Memorial Hospital in what he says was an “intoxicated” state because of his carbon monoxide poisoning.
- He claims he has no memory of the drive.
- The Marchants allege that the 911 operators caused them to experience a severe delay in receiving medical treatment for their carbon monoxide poisoning and lulled them into a false sense of safety regarding their medical condition by acting as if there was no need to respond with urgency.
- The Marchants allege that all members of the family suffered physical and mental injuries as a result of the delay in treatment, but that Rhoda suffered most severely, as she was rendered permanently legally blind and disabled and is unable to work.
The family sued the 911 center and the Preston County Commission, asserting claims of negligence and willful or wanton misconduct under W. Va. Code § 24-6-8. The trial court dismissed the case, concluding that the statutory immunity provided under § 24-6-8 barred negligence claims and that the allegations did not rise to the level of willful or wanton misconduct. The appellate court agreed, emphasizing that the complaint described the same conduct for both negligence and willful misconduct, and failed to allege the requisite awareness or intentional disregard needed to overcome immunity.
The court noted that while it may be difficult to distinguish negligence from willful misconduct, the latter requires consciousness of likely harm and a reckless disregard for consequences—elements the Marchants did not adequately plead. On the contrary, their complaint emphasized the 911 operators’ lack of knowledge about carbon monoxide, undermining any suggestion of willful misconduct.
The appellate court also rejected the Marchants’ argument that they should have been given an opportunity to amend their complaint. The court found that they had defended the sufficiency of their original complaint throughout the litigation and never moved to amend it. Given that the trial court reasonably concluded the plaintiffs had pleaded their best case, the dismissal was affirmed.
Here is a copy of the decision.
