Friday, August 14–OC Files Motion To Dismiss CO Suit Against Paramedics

OCEAN CITY – Ironically, on the same day another resort hotel was evacuated because of the threat of carbon monoxide poisoning, town attorneys filed a motion to dismiss a $20 million civil suit filed by the family of two Pennsylvania tourists who died of CO poisoning in June 2006 against Ocean City paramedics who allegedly failed to respond to their pleas for help in the confusion of the tragic morning.

In June, Yvonne and Morgan Boughter, surviving family members of the pair of tourists who perished from carbon monoxide poisoning at the Days Inn on the Boardwalk in Ocean City, filed suits against the town of Ocean City’s Department of Emergency Services-Fire/EMS Division along with five individual defendants for failing to respond to their first 911 call at around 9:43 a.m. on the morning of June 27, 2006. According to the complaint, Ocean City EMTs responded to a similar call from a family in two adjacent rooms and rendered treatment and transported patients afflicted with CO poisoning, but never responded to Room 121 where the Boughter family was staying.

According to 911 transcripts from the incident, the defendants were aware there was another family afflicted with carbon monoxide poisoning in Room 121 where the Boughter family was staying, but didn’t respond to the room after taking care of patients in Rooms 125 and 127. Around 1:53 p.m. on June 27, 2006, Yvonne Boughter awoke again and called 911 a second time. Ocean City EMTs were dispatched at around 1:58 p.m. and arrived at the Days Inn at approximately 2:02 p.m. By the time they arrived, Patrick and Kelly Boughter had died of carbon monoxide poisoning

According to the 911 transcripts included in the complaint, Yvonne Boughter told the dispatcher during the second call, “Yeah…um…I called you earlier and nobody came yet. My husband has passed away, my daughter looks like she passed away also.”

In March, the Boughter family reached a settlement with the owner of the hotel, the manufacturer of the faulty water heater deemed responsible for the CO leak, the company that distributed the water heater and the company that purchased and installed the water heater for an undisclosed amount. With that element of the case settled, the family is now targeting the Ocean City paramedics that allegedly failed to respond to their initial 911 call. The new suit is seeking a combined $20 million for six counts including gross negligence/ wrongful death and gross negligence/personal injury.

On Tuesday, the same day another Ocean City hotel was being evacuated because of the threat of carbon monoxide poisoning, City Solicitor Guy Ayres filed a formal motion to dismiss the Boughter’s suit against the EMTs, citing a variety of reasons chief among them a notion the defendants owed no affirmative duty of care to the plaintiffs. Basically, the motion asserts because the paramedics never made contact with the Boughters in Room 121, no “special relationship” with the victims was never forged and, therefore, the EMTs had no liability to provide care to the family afflicted with CO poisoning in that room.

In essence, the Boughters are claiming that because they called 911 early that morning, the Ocean City EMTs had a duty to respond and provide care to them. Ocean City, meanwhile, is countering because the EMTs never made contact with the Boughter family in Room 121, no relationship with the victims was established.

“In the present case, there was never a custodial relationship between the EMTs and the Boughters,” the motion to dismiss reads. “While the EMTs were dispatched to the room where the Boughters were in peril, they never administered any care, custody or control over the Boughter’s situation.”

The town’s motion to dismiss the case goes on to assert the apparent lack of a special relationship between the EMTs and the victims absolves the defendants from liability.

“The rescuers never had an opportunity to control the Boughters, nor did they increase or alter the peril the Boughters faced, both circumstances that characterize a special relationship,” the motion reads. “It is clear from the facts of this case that the responding EMTs never had such a relationship with the Boughters and thus never had a legally enforceable special relationship or duty to them.”

Citing several examples of Maryland case law, the town is attempting to show that without the affirmative action directed specifically to the Boughters, the first prong of the special relationship test is not met.

“While the town and the EMTs do have a duty to the public to render emergency services to those in need, it is acknowledged in Maryland that this does not rise to a duty to an individual until justifiable specific reliance has been established and a special relationship has been created,” the motion reads. “This reliance is typically not brought about absent some affirmative effort to rescue and relationship where the rescuer has care, custody and control of the patient needing assistance.”