Smyser v. City of Peoria – 6/12/2007

June 21, 2007

Arizona Court of Appeals Division One Affirms That City Providing Emergency Medical Services Is Performing a Governmental Function and Therefore Entitled to Qualified Immunity, But Vacates Award of Rule 68 Sanctions.

Smyser, individually and on behalf of her children and the parents of her late husband, filed an action for medical malpractice and wrongful death against the City of Peoria, alleging that the City’s paramedics and EMTs who responded to the husband’s 911 call failed to properly treat his severe asthma attack. Smyser moved for summary judgment on the grounds that
ARS § 9-500.02, which granted immunity to municipalities in providing emergency medical services, was unconstitutional. The trial court found the statute constitutional and, after a jury trial on the issue of gross negligence, Smyser appealed.

The court of appeals affirmed the trial court’s ruling that Section 9-500.02(A) is constitutional. The court concluded that in granting immunity to municipalities and towns, Section 9-500.02 does not exceed the legislature’s powers to adopt statutes governing the immunity of the state and its political subdivisions if the public entities and employees, in providing emergency medical services, are acting in a governmental capacity. The court further concluded that the provision of emergency medical services is a governmental — rather than proprietary — activity. In addressing a jury instruction challenge brought by Smyser, the court of appeals held that when no evidence shows intentional or bad faith destruction of evidence, a spoliation instruction was not mandatory and that failure to give the instruction was not reversible error. The court of appeals vacated the trial court’s award of sanctions against Smyser pursuant to Arizona Rule of Civil Procedure 68, finding that the City’s unapportioned lump-sum offer of judgment did not comply with Rule 68 because it did not allocate damages among the beneficiaries.

Judge Thompson authored the opinion, joined by Judges Portley and Barker