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Alverna Brown, As Personal Representative of the Estate of v. Kenneth C. Jenne

November 9, 2011

ALVERNA BROWN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ORAL GEORGE BROWN, DECEASED, AND ON BEHALF OF THE SURVIVORS OF ORAL GEORGE BROWN, APPELLANTS,
v.
KENNETH C. JENNE, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS SHERIFF OF BROWARD COUNTY, FLORIDA, LEONARD SMITH, SERGEANT TODD CHASE, WILLIE DOWE, KENNETH AUTENRIEB, ELI THOMASEVICH, DOES 1-10, INDIVIDUALLY, BROWARD COUNTY FIRE RESCUE, KENNETH LOUKINNEN, HAYES C. BOWEN, KEN SWAN, RONNIE HALL, KARL FROLING, LISA LONG, RICHARD CABRERA, KEN MCKINNEY, DOES 11-20, INDIVIDUALLY, SWAP SHOP MANAGEMENT, LLC, AND BROWARD COUNTY, APPELLEES.



Consolidated appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John B. Bowman, Judge; L.T. Case Nos. 03-10097 (02) and 03-18036 (05).

The opinion of the court was delivered by: Ehrlich, Merrilee, Associate Judge.

Alverna Brown, as Personal Representative of the Estate of Oral George Brown (the "decedent"), appeals from final summary judgments granted in favor of nine different defendants. The two issues on appeal are: (1) whether the circuit court erred in granting summary judgment to these nine defendants, which includes five Broward Sheriff's Office ("BSO") deputies and four Broward County Fire Rescue ("BCFR") personnel, on the grounds of qualified immunity where these nine defendants believed that the decedent needed medical care following an automobile rollover crash, the decedent began to walk away from the scene and was non-responsive to orders to stop walking, the decedent was aggressively brought to the ground, and eventually hogtied and placed face down on a stretcher before being placed into an ambulance; and (2) whether the circuit court erred in granting summary judgment as to two paramedics on the grounds of qualified immunity where the testimony of the two paramedics concerning what transpired in the ambulance substantially differed as to material facts. For the reasons expressed below, we affirm.

This case stems from the death of the decedent which occurred after he was involved in a one-car rollover crash. After the crash, BCFR personnel were required to utilize the "Jaws of Life" to help extricate the decedent from the car and lower him to the ground. Both police and fire rescue on the scene felt that the decedent was dazed; he was unable to talk, was incoherent, was unresponsive to police commands, and began to walk away. They were concerned for his health and safety. He was not suspected of any criminal activity.

Independent eyewitnesses described the decedent, after being extricated from the car, as appearing to be in shock, having difficulty breathing, being incoherent, moaning, staggering and leaning against a car as he kept walking around, as officers tried to talk to him to find out what was wrong with him. After five minutes of getting nowhere with him, several officers threw the decedent to the ground; one had his hand on the decedent's head while two other officers were on the decedent's back. They pulled his arms behind him to handcuff him and ultimately hogtied him. The officers on the decedent's back were telling the decedent to stop flailing his arms, but it did not appear that he understood. The decedent at no time acted aggressively towards the officers or the paramedics.

BCFR paramedics Bowen and Froling accompanied and attended to the decedent in the ambulance on the way to the hospital. They administered a blood glucose test on the decedent before placing him in the ambulance. The decedent was placed, still hogtied and face down, on the stretcher and then the paramedics put straps across the back of his knees and waist. Their reasoning for leaving him face-down (not hogtied) was the difficulty moving him due to his size and weight and, if he vomited, his airway would drain and he would not choke. He already was having trouble breathing, but he was not given oxygen en route to the hospital. While it may be true that neither the oxygen mask nor the adjunct would have stayed on while the decedent kept thrashing his head from side to side, such was not attempted even when the decedent ceased such behavior.

Bowen testified that they did not attempt to use the pulse oxymeter on the decedent or take his blood pressure because the decedent was being too violent; however, they recorded the decedent's pulse and performed a two-lead EKG for over eight minutes. A few blocks from the hospital, the decedent had a grand mal seizure, with the violent activity typical of such, that lasted approximately one minute. Bowen testified that, ideally, they would start an IV and give the patient medication to stop the seizure. Further, in this case, they also had a device that allows them to administer Valium in a way other than an IV. None of this was attempted herein. Other measures include protecting the airway, rolling the patient over on his side so he would not aspirate if he throws up, and trying to administer oxygen if they can, which they frequently could not do with a seizure patient. They testified that they could do none of these other measures and explained why they could not do those other measures in this case.

After the seizure ended, the decedent was typically unconscious, breathing deeply, and drooling in a postical state. The paramedics left the decedent face down and did not then administer oxygen. They were close to the hospital at that time.

Froling testified that he was able to check vital signs, take the decedent's pulse, and listen to lung sounds throughout the ride. The only difficulty Froling had with the decedent was his constant pulling of his arm away every time Froling tried to place the blood pressure cuff on his arm. He conceded that the paramedics' report reflected that the decedent was not given oxygen and a pulse oxymeter was not used. With respect to the seizure, Froling testified that they just tried to hold onto the decedent to keep him from hurting himself as they were pulling up to the hospital as the seizure stopped.

The medical examiner found that the decedent died due to positional asphyxia which led to respiratory and cardiac failure, shortly after arriving at the hospital. As the medical examiner explained:

Well, there are multiple factors in the position that he's in. He's on his stomach. He's an obese man. He is in a hogtied position which puts more pressure on the trunk of his body. Not only that, he's also cinched down tightly, as described in the record, to the gurney which is also compromising his chest. He's not able to move. He's not able to expand his chest fully to breathe.

BCFR also reviewed the incident and issued a memorandum identifying the following nine issues that cumulatively led to the decedent's death:

1. The use of handcuffs, flex cuffs, and stretcher restraints on the individual to subdue and control him;

2. Positioning him on his stomach to transport him to the hospital;

3. Failure to electronically monitor the decedent during his transport to ...


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