Avera Law Firm

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Monday, March 13, 2006

Sovereign Immunity: Shielding Government from Suits by Citizens

As I sit at home preparing for a hearing tomorrow before a circuit judge in case where a lady who was mother to four adult children unnecessarily died, it struck me that even the government twists the law to avoid being held accountable for unconscionable negligent acts.

In October 2004, our client was attending a wedding in South Carolina. Her mother lived with she and her husband. Her mom was 58 and had a history of diabetes and high blood pressure. She began calling home to check on her mom and could not get an answer. When she called throughout the day and still could not get an answer, she called her neighbor and asked her neighbor to go over to check on her mom.

The neighbor went directly next door and could not get an answer to the doorbell and her knocks on the doors and windows. She called 911 and two sheriff's deputies responded.

The deputies entered the house through an unlocked window in the back of the house. They let the neighbor and her dad into the home. Our client's mom was found in her bed. The deputies began to shake her roughly and shout out her name, along with the neighbor, all to no avail. Absolutely no response was observed by the neighbor or her dad. Her dad suggested that perhaps she was in a diabetic coma. The deputies rebuffed that suggestion and tried to arouse her again by shaking her. At no time did our client's mom ever awaken, stir, or give any indication that she was anything but unconscious.

Incredibly, the deputies suggested that the neighbor leave the side door unlocked and come and check on this lady from time to time. The neighbor was quite taken aback by this suggestion. But, believing that the deputies respond to these kinds of calls all the time, she did not push the matter further.

Early the next morning, she went back over to the home and entered to find that her neighbor's mom had not moved and had soiled herself. She immediately called 911. The operator said she would send a deputy and the neighbor begged her to not do that and to send an ambulance. Once the ambulance arrived, they found our client's mother unconscious. She was rushed to the hospital where she died 6 days later. A forenic pathologist reviewing the case has rendered an opinion that had the deputies called an ambulance, as common sense suggests, physicans would have been able to save her life.

The department that was sued has filed a motion to dismiss this case arguing that the deputies had no duty to call an ambulance. The department argues that whether to call an ambulance or not was discretionary; and that they cannot be held liable for NOT calling an ambulance.

As a trial lawyer, I often watch the rantings by some who would take away a citizen's right to hold someone accountable for causing damages through negligence. They make up stories and post them on the internet (ever heard about the man who was driving the motor home, got up while driving to make coffee, and sued the motor home manufacturer when it crashed?) to inflame people's sense of what is right and what is wrong.

Meritless cases? Sure. They happen from time to time. But judges and juries are smart and usually they are thrown out of court. One of my clients was sued not long ago by an employee who ran into the back of another car. He first claimed he was looking for his cell phone. Later he tried to argue that the brakes were faulty. We secured affidavits from the people who had driven the car in the days before the crash to show there was nothing wrong with the brakes. I called the lawyer representing this person and he fired the client. That is usually what happens to meritless cases a vast majority of the time.

But what I never hear them talk about, are stories such as what happned to my client's mother and how this law enforcement agency is defending it. This kind of nonsense happens all of the time in our courts, but you never hear about it. Why? Perhaps it is of less interest to the media and the public that someone who gets 3rd degree burns from McDonald's coffee.

I will write from time to time about cases we are handling and cases in the media. If you have any questions, don't hesitate to ask.

Be well and be safe.

posted by Mark Avera at 3/13/2006 09:19:00 PM

1 Comments:

 David said...

I have to agree that the law enforcement officials are supposed to "Serve and Protect" ... someone in an unconscious state to me would warrent protection and the sound judgement to have medical (service) attention promptly...I find it extremely disturbing that these officials did not act in the best interest of this deceased woman!

March 17, 2006 10:59 AM  

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