Judge dismisses Neb. EMTs from lawsuit over woman's death

Chief U.S. District Judge Robert F. Rossiter Jr. ruled that they were shielded from civil liability under qualified immunity


Lori Pilger
Lincoln Journal Star, Neb.

BELLEVUE, Neb. — The family of a woman who died of alcohol toxicity at the Sarpy County Jail in 2018 has lost its wrongful death lawsuit against the police, rescue workers and jailers after she was taken to jail instead of a hospital.

Danielle Harbison's blood-alcohol content was 0.34%, more than four times the legal limit to drive.

Attorneys for her estate and her children had argued the case should go forward because officials had been deliberately indifferent to her serious medical needs.

But Chief U.S. District Judge Robert F. Rossiter Jr. ruled that all except one defendant — the city of Bellevue — were shielded from civil liability under qualified immunity and dismissed the claims against them.

Because municipalities aren't protected in the same way, Bellevue remains the only party left being sued.

It all started on the evening of June 23, 2018. Bellevue Police Officer Aaron Jezek was sent to Nebraska Medical Center about a woman who appeared to be passed out in a lane of traffic in a still-running truck, her foot on the brake.

When Jezek woke the driver, Harbison, she was lethargic and her speech slurred. A second officer who arrived, Matt McGinn, described her as "out of it" and mumbling.

Jezek detained her and called Bellevue EMS to determine if she needed medical help. EMTs Jason Weber and Erin McCormick talked with Harbison, who said she just wanted to go home.

They left, telling the officers she had refused to go to a hospital and was denying any medical care.

Though, Universal Patient Care guidelines used by their department say if a patient is deemed incompetent, the patient must be transported to a hospital. The standard operating procedures say that an incompetent individual includes someone who is intoxicated.

"While their medical evaluation certainly could have been more thorough, they simply did not observe many of the tell-tale signs showing Harbison's medical need," Rossiter said in his order last week. "At most, their quick evaluation and failure to follow Bellevue Fire procedures was grossly negligent, but that is not enough."

After the EMTs left, Jezek and McGinn did a sobriety check, where Harbison smelled of alcohol and had difficulty walking a straight line and couldn't perform other tests at all.

When they arrested her for DUI, her BAC tested 0.34%, which McGinn said was higher than he'd ever seen. So they took her to jail, where staff came to believe she had been medically cleared.

She was put on a 15-minute watch but never was screened by the nurse. She was checked 28 times that night and into the next morning, with staff finding her asleep on the toilet, with spit coming out of her mouth, with vomit on her bed and the floor at different times.

In the jail video, staffers said they weren't cleaning it up and joked about whether to take her to a hospital. One said she had never "been worried like this before," but never contacted the jail nurse.

When Harbison was found on the floor, snoring, Sgt. Mark Shiller instructed staffers to leave her there.

At 2:01 a.m., they found the 37-year-old unresponsive and performed CPR, but she died.

Rossiter said the jail employees who were sued knew of Harbison's dangerously high BAC during her booking process, but Harbison was otherwise alert and able to answer questions. Jezek also told them she had been "medically cleared" by EMS.

The judge said viewing the circumstances together, he didn't believe a reasonable jury could find Shiller and the correctional officers acted with deliberate indifference.

"Though these defendants could have done more and certainly should have treated Harbison with more respect, the plaintiff has not established these defendants had 'a mental state akin to criminal recklessness,'" Rossiter said.

Now, if officers bring anyone to the jail whose BAC is above 0.2% — 2 1/2 times above the legal limit — those individuals need to be cleared by a hospital first. Before this, there wasn't a cut-off BAC.

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(c)2022 Lincoln Journal Star

McClatchy-Tribune News Service

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