Jim Porter: Change in the ‘Good Samaritan’ law
November 11, 2010
TRUCKEE/TAHOE, Calif. and#8212; Apparently the California Legislature reads the Law Review, as they recently passed a new Good Samaritan law as I suggested in April of 2009.
Good friends Alexandra Van Horn and Lisa Torti were in two different cars leaving a bar after a night of smoking pot and drinking. Van Horn was in the first car, which crashed into a curb and light standard at 45 mph. Torti, in the second car, rushed up, and believing the first car was going to and#8220;blow up,and#8221; removed Van Horn. Van Horn ended up paralyzed.
Van Horn was appreciative of the assistance, but that didnand#8217;t keep her from suing her good friend. The trial court found Torti not liable. The Court of Appeal reversed, finding her potentially liable. Then as we wrote in 2009, the Supreme Court let Van Horn take her case to the jury.
Emergency Medical Care Law
California has several Good Samaritan laws protecting rescuers and emergency caregivers from liability and#8212; even if they are negligent. The Emergency Medical Services law reads: and#8220;No person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered.and#8221;
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For a variety of reasons, despite the literal wording and#8220;emergency careand#8221; in the statute, the California Supreme Court determined the emergency services immunity is applicable only if emergency medical care is rendered. Torti did not render emergency medical care; she merely pulled Van Horn from the crashed vehicle (and#8220;like a rag doll,and#8221; Van Horn claimed.)
If Torti had given Van Horn CPR or some form of medical care, a Band-aid would do, she would have been immune from liability even if she were negligent, because the emergency medical care immunity is absolute and#8212; no matter how bad the medical care is and#8212; there is no liability.
Porterand#8217;s take on new legislation
I was critical of the decision, saying the Supreme Court got this case wrong. As a matter of public policy we should encourage bystanders to assist in emergencies and not stand by for fear of being sued. Good faith rescuers who risk their lives to help someone should be provided full immunity even if they are negligent, meaning they screw up during the rescue, not just when they render emergency medical care. That was my pitch.
As it turns out, the California Legislature heeded my advice and passed new legislation signed by Governor Arnie last year amending the Health and Safety Code. The Good Samaritan law now reads in part: and#8220;No person who in good faith, and not for compensation, renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct.and#8221;
So a rescuer who is negligent, but not grossly so, is immune from liability from a lawsuit filed by the rescued. A good change in the law.
In sum, while no one has a duty to come to the aid of another unless there is a special relationship between the rescuer and the rescued, if someone volunteers to assist another, that rescuer is not liable unless they are grossly negligent or act willfully or with wanton misconduct. Whatever that is, but you get the drift.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmand#8217;s website http://www.portersimon.com.