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Chamberlin v. City of Hernando

June 18, 1998

BARBARA CHAMBERLIN, CHARLOTTE CHAMBERLIN LEE, WANDA CHAMBERLIN LYLE, TERESA CHAMBERLIN GABBERT, MIKE CHAMBERLIN AND JOHN CHAMBERLIN, JOINTLY AND SEVERALLY
v.
CITY OF HERNANDO, HERNANDO AMBULANCE SERVICE AND BARBARA WILROY, JOINTLY AND SEVERALLY



The opinion of the court was delivered by: Pittman, Presiding Justice, For The Court:

DATE OF JUDGMENT: 05/10/96

TRIAL JUDGE: HON. ANDREW CLEVELAND BAKER

COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

STATEMENT OF THE CASE

¶1. The plaintiffs, Barbara Chamberlin, Charlotte Chamberlin Lee, Wanda Chamberlin Lyle, Teresa Chamberlin, John Chamberlin and Mike Chamberlin, jointly and severally filed suit on April 25, 1995, against defendants City of Hernando, Hernando Ambulance Service and Barbara Wilroy, jointly and severally. This suit was filed as the result of alleged negligence of employees of the City of Hernando, to wit, Hernando Ambulance Service. Appellants contend that Barbara Wilroy, who was the volunteer director and an Emergency Medical Technician for the Hernando Ambulance Service, negligently contributed to the death of decedent, James Arnold Chamberlin. The complaint alleges that Ms. Wilroy violated the current regulations of the Mississippi State Department of Health and the basic training received by EMT's when she ordered CPR on the decedent to cease. The appellants further allege that the City of Hernando and Hernando Ambulance Service are vicariously liable for the negligent acts of Ms. Wilroy. Appellees admitted that Ms. Wilroy was a volunteer EMT for the City of Hernando and that she was acting in the course and scope of her duties, but denied any and all allegations of negligence on the part of appellees. There exists no separate entity known as the Hernando Ambulance Service.

¶2. This cause of action accrued on behalf of the appellants against Barbara Wilroy on April 25, 1993, the date of decedent's death. The appellants filed their complaint on April 25, 1995, two years after the cause of action accrued. The appellees timely filed their Answer and Defenses on June 29, 1995 raising as defenses: (1) failure to state a claim upon which relief can be granted; (2) plaintiffs' claims are barred, in whole or in part, by the applicable statute of limitations; and (3) defendants invoke all defenses, immunities and exemptions provided by § 11-46-1, et seq., Mississippi Code of 1972, as amended, commonly known as the Sovereign Immunity Act. Appellees then filed a Motion to Dismiss on January 30, 1996, on the basis that the Sovereign Immunity Act became effective upon passage on April 1, 1993, and the failure of plaintiffs to file their Complaint within the one-year statute of limitations provided therein barred this action. A hearing was held on appellees' Motion to Dismiss on April 22, 1996.

¶3. Judge Baker issued his order in the case on May 10, 1996, holding that the Sovereign Immunity Act applied to this case, and the discovery rule regarding statutes of limitation does not apply; therefore, the one-year statute of limitations contained in the Sovereign Immunity Act barred this action.

¶4. The Notice of Appeal was filed on behalf of the appellants on June 5, 1996. The appeal from the lower court's granting of appellees' Motion to Dismiss raises the following issues:

I. THE COURT ERRED IN PROVIDING THAT THIS ACTION IS GOVERNED BY THE SOVEREIGN IMMUNITY ACT AND § 15-1-49 OF THE MISSISSIPPI CODE ANN. (1972 AS AMENDED) DOES NOT APPLY.

II. THE COURT ERRED IN FINDING THAT THE DISCOVERY RULE REGARDING THE STATUTE OF LIMITATIONS DOES NOT APPLY IN THIS CASE.

III. THE ACT IS UNCONSTITUTIONAL AS IT APPLIES TO CLAIMS ARISING BETWEEN APRIL 1, 1993, AND OCTOBER 1, 1993.

STATEMENT OF FACTS

¶5. On Sunday, April 25, 1993, as a result of cardiac arrest, decedent, James Arnold Chamberlin died. Barbara Wilroy, volunteer director of the ambulance service provided by the City of Hernando, had just completed an ambulance run when a call came in regarding the need for an ambulance at decedent's residence. Ms. Wilroy and ambulance driver, Harold Carmon, responded to the call. When they arrived at decedent's house, Chuck Lee, a "first responder" and decedent's former son-in-law, was performing CPR on the decedent. Ms. Wilroy prepared to perform CPR, but the decedent was blue, his pupils were dilated, he had no breath sounds, and there was no capillary refill. Ray Waddell, another volunteer with the ambulance service, arrived and began chest compressions while Chuck Lee performed ventilation. Ms. Wilroy spoke to Mrs. Chamberlin, decedent's wife, and offered to take the decedent to the hospital. Ms. Wilroy voiced the opinion that the decedent had no pulse and was not responding to the CPR. Appellants allege that Ms. Wilroy told Mrs. Chamberlin that if they were able to revive decedent and he was transported to a hospital all he would be was a vegetable. Mrs. Chamberlin told Ms. Wilroy that she had been in the kitchen cooking and heard a noise, but she thought it was her two young grandchildren. She later discovered the decedent was not breathing and called her son-in- law, Chuck Lee. Ms. Chamberlin did not know how long her husband had not been breathing. Mrs. Chamberlin told Ms. Wilroy to stop CPR. Ms. Wilroy told Lee and Waddell that Mrs. Chamberlin did not want CPR continued. No one asked any questions or voiced any disagreement with Mrs. Chamberlin's decision. Mrs. Chamberlin stated in her affidavit that she relied on the expertise of Ms. Wilroy to render appropriate treatment to her husband. At Mrs. Chamberlin's request, Ms. Wilroy called the funeral home.

ANALYSIS

I. THE COURT ERRED IN PROVIDING THAT THIS ACTION IS GOVERNED BY THE SOVEREIGN IMMUNITY ACT AND ยง 15-1-49 OF THE MISSISSIPPI CODE ...


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