It is uncontroverted that none of the four police officers who stopped at and took control of the accident scene ever checked Mr. Mueller's mouth to determine whether his airway was obstructed.
In addition to various causes of action under New York State law, the plaintiffs, consisting of the estate and survivors of Mr. Mueller, allege no fewer than eight causes of action under 42 U.S.C. § 1983 for supposed violations of Mueller's constitutional rights. But the first five of these claims, which variously allege failures of the police officers at the scene to properly administer first aid and failures of Westchester County to train them to do so, all effectively premise a constitutional right to first aid from police officers at the scene of an accident. Plaintiffs offer no authority for this premised "right," and such roughly analogous precedents as exist are to the contrary. Cf. DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989) (state has no constitutional duty to protect child from beatings by parent). While the police officers may arguably be liable under state law for negligence, negligence does not metamorphose into a § 1983 claim simply because the defendant is a state actor. Daniels v. Williams, 474 U.S. 327, 333, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). Moreover, it would hardly comport with sound public policy if every accident scene to which a police officer responded could potentially frame a federal lawsuit. Accordingly, the Court declines to recognize a constitutional right to first aid.
The sixth § 1983 claim alleges that officers of the defendant Westchester County Police Department impeded the proper providing of medical assistance by the Empress Ambulance Service medical technicians. Quite aside from other deficiencies, this claim lacks an adequate evidentiary basis. As noted above, the technicians testified at their depositions that they conducted an adequate physical examination of Mr. Mueller without interference, and concluded that he was dead. Gurliacci Dep. at 51, 62, 65, 68, 87-88; Greer Dep. at 99-100, 194. In opposition, plaintiffs offer only the deposition testimony of plaintiff Catherine Mueller that technician Greer had previously told her that the technicians had not been allowed to touch the body. C. Mueller Dep. at 95. But quite aside from Greer's testimony to the contrary, supra, Catherine Mueller's testimony about what Greer supposedly told her is patently inadmissible hearsay that cannot carry plaintiff's burden under Fed. R. Civ. P. 56(e).
The seventh cause of action under § 1983 is asserted against Empress Ambulance and alleges that the supposed failure of its technicians properly to examine and treat Mr. Mueller deprived him of constitutionally protected rights. Here, again, the plaintiffs have failed not only to establish the existence of the supposed constitutional right on which they purport to ground the claim but also to adduce admissible evidence in its support. Indeed, even assuming the supposed Greer "admission" excluded from the sixth cause of action, supra, might arguably not be hearsay with respect to this seventh cause of action where Empress Ambulance is the defendant, on its face the statement attributed to Greer would still not be probative of liability for, on the contrary, it effectively exonerates Empress Ambulance by placing all blame entirely on the Westchester County police officers. Likewise, plaintiffs' forensic expert, while claiming that Officer Lopez could have cleared Mr. Mueller's air passages and thereby resuscitated him, notably does not opine that resuscitation would still have been possible by the time the Empress Ambulance technicians arrived. See Boyd Aff. P 6. Thus, plaintiffs have failed to create a genuine factual issue as to whether Empress Ambulance caused any of the harm alleged.
As for the eighth § 1983 cause of action, it is entirely derivative of the other claims, simply alleging that the preceding claims are being asserted on behalf of all of the plaintiffs.
Accordingly, summary judgment is granted as to all the claims asserted under federal law. Furthermore, plaintiffs' cross-motion for leave to file an amended complaint is denied, since the allegations they seek to add would not alter the legal analysis here given. Finally the Court declines to maintain pendent jurisdiction over the state law cases of action. Accordingly, the entire action is hereby dismissed.
Clerk to enter judgment.
JED S RAKOFF, U.S.D.J.
Date: White Plains, New York
October 24, 1996