Lawsuit contends rescuers failed to save a 16-year-old heatstroke victim, but are they liable?

From the hiking trail where her 16-year-old son lay moaning and unable to stand, Carissa Brealey could see the emergency responders gathering in the parking lot.

By then, Isaac Brealey-Rood had become overheated in the July sun and lost control of his bowels as the family returned from their morning hike in the Organ Mountains east of Las Cruces. She had called 911 on her cellphone to explain he was suffering heatstroke, a condition that has a high rate of death if not treated promptly. She tried dragging him down, but didn’t have the strength.

“Is there an ambulance coming that can take him to the hospital?” she said.

Carissa Brealey waited a total of 81 minutes for rescue crews to arrive, organize and finally come up the three-quarters of a mile from the parking lot trailhead to treat Isaac.

In that time, the delays mounted. The 911 dispatchers called off the ambulances twice. A fire prevention specialist was contacted instead of the two fire departments that routinely handle such calls.

Somehow, the emergency call was labeled a “search and rescue” when there was no lost hiker.

Just a boy who needed immediate medical attention he wasn’t getting. A boy whose temperature had reached 106 degrees. A boy who died of multiple-organ failure the next day.

A lawsuit is filed

A wrongful death lawsuit Brealey and her husband, James Rood, filed in 2022 alleges a “cascade of failures” by government employees led to Isaac’s death.

Whether the lawsuit can proceed may end up resting with the state Supreme Court after a federal judge asked the state’s highest court to answer the “novel” legal question in the case: Do 911 operators have immunity from civil liability under New Mexico law?

The federal lawsuit alleges negligence, recklessness and willful acts on the part of dispatchers and others, and cites the state Emergency Medical Services Act.

Attorneys representing the defendants, the Mesilla Valley Regional Dispatch Authority, which handles dispatching for agencies in the area; Doña Ana County Board of County Commissioners; New Mexico Department of Public Safety; and the City of Las Cruces have asked that the lawsuit be dismissed, relying on a different law.

They contend the state Enhanced 911 Act bars lawsuits against 911 dispatchers except when there is a claim of intentional misconduct.

U.S. District Judge David Urias in Albuquerque decided in early October to ask the state Supreme Court to consider the question of 911 operator liability.

The answer “will be determinative of an issue in this pending matter, that is, whether certain defendants are immune from suit and there is no controlling appellate decision, constitutional provision or statute in New Mexico,” Urias wrote in an opinion. “This Court finds that the question is sufficiently novel that it feels uncomfortable attempting to decide it without further guidance.”

It isn’t clear when or if the state Supreme Court might rule. The lawsuit is on hold for now.

Las Cruces attorney Mollie McGraw, who represents the family, said at an Aug. 24 hearing before Urias that the lawsuit goes beyond the tragedy in the Organ Mountains, according to a transcript obtained by the Journal.

The effect of the lawsuit dismissals, she said, “would mean that those numerous hiking trails and public lands that are preserved for the citizens of this state and those who come here to enjoy, would be zones of lawlessness where immunity is granted to any law enforcement agency who has a responsibility to render emergency aid to the users on that land.”

The lawsuit alleges there was an “unreasonable” response time compared to other similar incidents.

A review of records of the Mesilla Valley Regional Dispatch Authority between May 2016 to 2020 shows responders went up trails in the Organ Mountains five times to administer medical aid, the lawsuit states.

From the time 911 was called, rescuers arrived to help the injured bikers or hikers within 23 minutes to less than 38 minutes. After a 75-year-old hiker fell and fractured his hip, contact was made with the patient on the trail within 67 minutes.

911 calls from the trail

Before he died, the lawsuit states, Isaac was looking forward to starting his sophomore year at what then was Oñate High School in Las Cruces, along with his brother and best friend, Aidan Brealey-Rood. Both were 16 years old.

Isaac had had a rough start in his native Colombia, suffering traumatic brain injury before he was 3. When Carissa and her husband adopted him, he was 3 years old and in foster care. He was intellectually disabled with cognitive delays, but enjoyed communicating with others and attended special education classes within Las Cruces Public Schools.

While in school, he participated in Special Olympics, played ice hockey and won awards in track, flag football and basketball. He and his brother appeared together in the drum line of the Oñate Royal Knight Regiment marching band to the delight of his mother, according to the lawsuit.

The morning of Tuesday July 7, 2020, the two brothers, their mother and two family dogs went to hike on the popular Baylor Canyon Pass Trail. Isaac ordered an iced S’mores Frappuccino when they stopped at a coffee shop on the way there.

At about 10 a.m., after about an hour of hiking, Isaac began stumbling and tripping on the trail. He looked tired and was red and sweaty. His feet went out from under him and his hand fell into a cactus. Carissa and her other son, Aidan, tried to help him up, but he was unable to stand.

She told Aidan to take their dogs back to the car and to get water while she stayed with Isaac. Aidan noticed his brother’s frozen drink in the car, and ran it back up the trail in the span of about 10 minutes.

Carissa was on the phone with a 911 dispatcher when he returned, about 10:16 a.m. They tried to cool Isaac down by rubbing the frozen drink on him, but his condition was deteriorating.

Meanwhile, the 911 dispatcher’s first call was to a fire prevention specialist, instead of notifying the two fire departments that are most frequently called out and have the equipment to rescue hikers, the Las Alturas Fire Department of Doña Ana County and the New Mexico State University Fire Department.

“They have special equipment that can go up that trail and they are ready and loaded to go at a moment’s notice. (Mesilla Valley) did not call them out. The reasons are inexplicable to the plaintiffs,” McGraw told Urias at the August hearing.

The state Department of Public Safety was also notified, but a miscommunication occurred and the DPS computer-aided dispatch system reported that Isaac and his mother were 3¼ miles up the trail. Carissa had a hiking app on her cellphone, so she knew to tell the Mesilla Valley dispatcher they were three quarters of a mile away.

Aidan had gone back to the family SUV in the parking lot and stayed there at the direction of the rescue workers, who offered him and the dogs water. He and his mother called each other at least 10 times, but no one from the rescue teams ever phoned Carissa, the lawsuit states. Her son said the rescuers, who numbered more than a dozen, were speaking without urgency.

Carissa called 911 a second time, telling the dispatcher she could see the rescue workers in the parking lot. Her son’s eyes were swollen and he wasn’t responsive. She told the dispatcher she was scared.

She was told the rescue workers were “just trying to get organized.” No one came to help for another 25 minutes.

Aidan said rescuers at the trailhead said they were waiting for a utility terrain vehicle to head up the trail. When it arrived, a handful of responders rode on the vehicle up to Isaac and his mother, poured cold water on Isaac and inserted an IV. He was placed in an ambulance, taken to Mountain View hospital in Las Cruces and airlifted to University of New Mexico hospital that night. He died the next day.

McGraw said that the responders had the “means to help Isaac” and could have run up the trail instead of waiting for the vehicle.

“When he was brought down off that trail, they found burns on his legs and his body,” McGraw told the judge. “They couldn’t figure out what those burns were. It was his mother trying to drag him and his body down the trail.”