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Posted in Blog on July 9, 2018   |  by Gary Burger

Appeal to Eastern District

Last week, we filed an appeal for one of our cases in the Eastern District Appellate Court. This case follows an interesting immunity given to EMS employees with regards to negligence. The appeal was initiated in response to the trial court awarding summary judgement against us on the basis of the Sovereign and Official Immunity for a City and its EMS employees.

This court has explained public officials are not protected by official immunity for “torts committed when acting in a ministerial capacity,” and immunity only applies to discretionary acts. Southers v. City of Farmington, 685 S.W.3d 603, 610 (Mo. Ban 1985). What this means is that EMS workers are protected by immunity only in situations where they are exercising discretion and not simply following protocol. Richardson, 293 S.W.3D at 142.

It became clear we had to demonstrate the EMS worker was working in a ministerial capacity. The court defines a ministerial act as “in a prescribed manner, in obedience to the mandate of legal authority, without regard to [the public official’s] own judgement or opinion concerning the propriety of the act to be performed.” Richardson v. City of St. Louis, 293 S.W.3d 133, 139(Mo. App. E.D. 2009). This law only gives official immunity to state employees if they are performing a duty that requires their professional judgement or discretion. The law does not afford immunity if there is a set protocol that instructs the employees on exactly what to do given a specific set of facts since no professional judgement would be required. This is a ministerial duty.

Another aspect specific to this case was the factor that the city bought insurance to cover the negligence of EMS personnel. According to Missouri state, sovereign immunity is waived if the City has purchased liability insurance to cover the issue of negligence. R.S. Mo. § 71. 185 and § 537.610. Courts have interpreted these statutes and have long held municipalities waive sovereign immunity for governmental functions to the extent they are covered by liability insurance. Southers at 609.

In our brief, we argued that the EMS personnel were performing ministerial duties. Our oral arguments will come next and I cannot wait for this opportunity to fight for my client. To read the brief, or check out our other resources for lawyers, click here.