by Max Brantley
The 911 dispatcher for Little Rock, Candace Middleton, called MEMS, but failed to call rescue units, after the accident was reported by Yi on her cell phone. The long delay in arrival of a water rescue team from the Fire Department meant prolonged exposure to cold water, which led to Yi's death and severe neurological damage to the child, for whom the suit is filed.
The lawsuit restates and expands on the extensive record of poor job performance by Middleton that ultimately led to her firing from a similar job earlier in Benton — 15 written complaints by co-employees, one situation
report by a supervisor, two verbal warnings from a supervisor, and three written warnings from
supervisors for substandard work. The city of Little Rock was aware of this record, but hired her anyway.
The lawsuit, filed by Carter Stein of the McMath Woods Law Firm, said the city of Little Rock still had not provided full details on Middleton's job performance for the city. She resigned from the job before completion of the investigation of the case.
The lawsuit includes a detailed and horrifying account of the passage of agonizing minutes as the water rose in the car. Neither Yi nor the child could swim and the child was growing increasingly distraught, based on the account from tapes of the calls. It details, too, the inability of passersby and Yang to attempt a rescue before the water rescue team arrived because they were prevented from doing so, in one case by firefighters. The firefighters were following custom and rule of Little Rock emergency responders that only trained teams were supposed to attempt such rescues.
Yi made her first 911 call at 7:55 a.m. It went to a county dispatcher who transferred the call to Middleton. MEMS was notified quickly, but didn't reach the scene until 8:20 a.m. and that's when the failure to have police and fire on the scene was noticed. A water rescue team didn't arrive until 8:40 a.m. By then Dayong had arrived from his job as a nurse at Baptist Hospital. Yi was pulled out of the water at 8:48 a.m. The child was found and put in an ambulance for transport at 9:05 a.m.
The suit alleges negligence in everything from the hiring of Middleton, to her dispatch work to on-scene actions that day.
The case faces a significant legal hurdle. The defendants, all agents of the city, typically enjoy immunity from lawsuit under the law. The suit, for one, makes a civil rights claim, that agents acting under color of law deprived Le of his liberty and thus violated his civil rights. But additionally, the suit argues that the city is responsible for its individual employees' actions. And it contends that the statute holding the city immune from suit is unconstitutional.
Here's the argument:
Ark. Constitution Article 2 § 13 states: “Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, . . .; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.”
Ark. Constitution Article 5 § 32 provides: “ . . . no law shall be enacted limiting the amount to be recovered for . . . injuries to persons . . .,”
Ark. Constitution Amendment 80 § 3 provides: “The Supreme Court shall prescribe the rules of pleading, practice & procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.
To the extent Le has suffered a harm for which Ark. Code Ann. § 21-9-301 prevents a remedy, the aforementioned statue is an unconstitutional violation of Ark. Constitution Article 2
Such a finding would be ground-breaking and reverse years of practice. As it stands, the state Claims Commission serves as an opportunity for people harmed by the state to seek compensation for their injuries given the state's immunity. But there is no such alternative for those damaged by cities, thus there could be a wrong without a remedy, which the lawyers argue is unconstitutional. The facts in this case are undeniably compelling. The 13-minute tape of the MEMS conversation with Yi would be particularly powerful if the suit leads to the requested jury trial.
The suit asks for actual and punitive damages. Here's the full suit.