Larry's Legal Lessons: Good Samaritan Immunity Limited to Medical Assistance

Jan. 5, 2009
In California, a judge allowed a lawsuit when a woman pulled her friend from a car crash, which caused life-changing injuries.Legal Lesson Learned: Fortunately in most states, the courts have broadly interpreted their "Good Samaritan" statutes, thereby encouraging people to stop and render emergency care while awaiting fire and EMS responders. Unfortunately, the California Supreme Court has gone the other way. Hopefully this decision does not lead to litigation in other states against Good Samaritans.

In California, a judge allowed a lawsuit when a woman pulled her friend from a car crash, which caused life-changing injuries.

Legal Lesson Learned: Fortunately in most states, the courts have broadly interpreted their "Good Samaritan" statutes, thereby encouraging people to stop and render emergency care while awaiting fire and EMS responders. Unfortunately, the California Supreme Court has gone the other way. Hopefully this decision does not lead to litigation in other states against Good Samaritans.

On Dec. 18, 2008 in Alexandra Van Horn v. Anthony Glen Watson and Lisa Torti, et al, the Supreme Court of California (4 to 3) held that a lawsuit by Ms. Van Horn -- who claims she was pulled from the car "like a rag doll" and permanently paralyzed -- may proceed to trial against her friend Lisa Torti. The majority opinion starts with the following observation: "Under well-established common law principles, a person has no duty to come to the aid of another." The majority opinion holds: "we conclude that the Legislature intended for section 1799.102 to immunize from liability for civil damages only those persons who in good faith render emergency medical care at the scene of a medical emergency."

Good Samaritan Statue
Section 1799.102 of the California Health and Safety Code (1978) provides:

"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."

The trial judge in Los Angeles County Superior Court, based on the plain language of this statute, granted Lisa Torti's motion for summary judgment. The plaintiff appealed and the Court of Appeals reversed on her attorney's novel argument that the Good Samaritan statute protects only those giving medical care, and not to rescue services.

Ms. Torti then appealed to the California Supreme Court; during oral argument her counsel agreed that lifting a passenger, trapped in a vehicle, is not medical care, but argued that the Good Samaritan statute should be broadly interpreted to protect all Good Samaritans who respond in good faith. Unfortunately, the 4 to 3 majority disagreed, setting forth "Reasons To Prefer A Narrower Interpretation."

Smoking Pot, Drinking Lead To Crash
On the evening of Oct. 31, 2004, Alexandra Van Horn and Jonelle Freed were at Lisa Torti's home, smoking pot. (Author's comment: It is presumably Ms. Torti's Homeowner's Insurance policy that is providing the "deep pocket" that plaintiff is seeking.) The three women were later joined by two male friends, Anthony Glen Watson and Dion Ofoegbu. At about 10 p.m., they drove over to a local bar. They all drank until about 1:30 a.m.

On their way home, Anthony Watson drove one car, with Van Horn in front passenger seat and Ms. Freed in the rear. Dion Ofoegbu was following in his car, with Torti in front passenger seat. In Chatsworth, CA, Mr. Watson lost control of his car, and crashed into a light pole at about 45 mph. The air bag deployed, and the light pole was knocked over.

Dion Ofoegbu pulled to the side of the road, and he and Lisa Torti jumped out to help their friends. Anthony Watson was able to get out on his own. Dion Ofoegbu helped Jonelle Freed get out of the back seat. Lisa Tori ran up to the front passenger seat and found Alexandra Van Horn unable to move.

The Court referred to Ms. Torti's pre-trial deposition:

"Torti testified at deposition that she saw smoke and liquid coming from Watson's vehicle, and she removed plaintiff from the vehicle because she feared the vehicle would catch fire and 'blow up'. Torti also testified that she removed plaintiff from the vehicle by placing one arm under plaintiff's legs and the other behind plaintiff's back to lift her out."

The Court noted, however, that "Others testified, on the other hand, that there was no smoke or any indications that the vehicle might explode and that Torti put Van Horn down immediately next to the car."

Van Horn testified in her pre-trial deposition that "Torti pulled her out of the vehicle by grabbing her by the arms and yanking her out, "like a rag doll."

EMS crews arrived moments later and transported Van Horn and Freed to the hospital. Van Horn was seriously injured, with a lacerated liver requiring surgery, and was permanently paralyzed from injury to her vertebrae.

The majority opinion relied on the fact that the Good Samaritan statute is part of the "Emergency Medical Services" section of the Health and Safety Code. The court cited from the 1978 legislative history: "It is the intent of the Legislature to promote the development, accessibility, and the provision of emergency medical services to the people of the State of California."

The Court also referenced another statute, 1799.107, where the Legislature granted "qualified immunity" to emergency rescue personnel performing any type of "emergency services," including medical care and non-medical care. The court concluded that the Legislature could have likewise provided Good Samaritans immunity for a broad range of emergency services, but did not do so.

In addition, when the Legislature was considering the Good Samaritan statute, they also deleted a provision granting immunity for a bystander who "transports an injured person for emergency medical treatment."

Dissent From The Justice
Justice Baxter wrote a dissenting opinion, joined by two other Justices. He noted: "The statute protects from the threat of civil litigation a layperson who, acting as a Good Samaritan, reasonably believes that another human being needed immediate emergency assistance and intervened, despite possible personal risk and danger, to provide it. The purpose, of course, is to encourage persons not to pass by those in need of emergency help, but to shoe compassion and render the necessary aid."

Justice Baxter provided some interesting examples of the practical effect of the majority's decision.

First Example: "a passerby who, at risk of his or her own life, saves someone about to perish in a burning building can be sued for incidental injury caused in the rescue, but would be immune from harming the victim during the administration of cardiopulmonary resuscitation out on the sidewalk."

Second Example: "A hiker can be sued if, far from help, he or she causes a broken bone while lifting a fallen comrade up the face of a cliff to safety, but would be immune if, after waiting for another member of the party to effect the rescue, he or she set the bone incorrectly."

Third Example: "One who dives into swirling waters to retrieve a drowning swimmer can be sued for incidental injury he or she causes while bringing the victim to shore, but is immune if, after waiting for someone else to undertake the physical and legal risk of rescue, she then caused harm by attempting to administer to the victim's injuries at roadside.

Justice Baxter further notes that under California statutes, fire and EMS personnel enjoy "qualified immunity" and are only liable when their actions were performed with gross negligence. Therefore paid fire and EMS personnel are "held to minimal standards of care in keeping with their training and their compensated professional status."

Comparing this to Good Samaritans who respond without pay and without training, Justice Baxter writes:

"I therefore conclude that this [Good Samaritan] statute protects from civil liability any person who, without compensation, renders emergency assistance of any kind during a situation he or she reasonably perceives to be an emergency."

Author's comment: The minority dissenting opinion is "right on" the mark. The California legislature needs to "fix" this decision by quickly amending the statute so all Good Samaritans are covered, whether rending medical care, or lifting a victim from a car crash, or otherwise helping at an emergency.

Additional Good Samaritan Cases
Many states have Good Samaritan statutes that have been broadly interpreted by the courts, thereby providing immunity protection for those trying to help others without compensation. EMS personnel, serving for compensation, in many states enjoy "qualified immunity" where they are not liable unless there is proof of willful or wanton, or gross misconduct.

Kentucky, 2008 - The Kentucky Good Samaritan statute, KRS 411.148(1) includes protection for EMS. "No... person certified as an emergency medical technician by the Kentucky Cabinet for Health and Family Services...shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency outside of a hospital, doctor's office, or other place having proper medical equipment excluding house calls, for acts performed at the scene of such an emergency, unless such acts constitute willful and wanton misconduct." In 2002, the Kentucky General Assembly expanded the statute to include paramedics. KRS 411.148(2), however, excludes the immunity protection for EMS personnel being paid; "[n]othing in this section applies to the administering of such care or treatment where the same is rendered for remuneration or the expectation of remuneration."

In Rose Annette Cook v. Anderson County Emergency Medical Services, et al., Kentucky Court of Appeals, No. 2007-CA-000122-MR, and No. 2007-CA-000221-MR (August 22, 2008), two paramedics were sued. On May 11, 2006, David Cook became lightheaded as he was driving home from work. He pulled to the side of the road, and Anderson County Medical Services dispatched a paramedic and an EMT. They advised him to go to the hospital, but Mr. Cook refused transport to the hospital. Instead, he called his wife, who witnessed patient "Release of Liability/Refusal To Consent To Treatment" form. About five hours later, he suffered a cardiac arrest and died at home. She filed a lawsuit, and they filed a motion to dismiss, citing the Kentucky Good Samaritan statute. The trial judge dismissed the lawsuit. On appeal, the Kentucky Court of Appeals reversed, and ordered the lawsuit reinstated, holding that under the plain language of the statute, "care or treatment for remuneration or due to a preexisting duty, as in the instant case, is specifically exempted from the immunity granted by KRS 411.148."

Wisconsin, 2007 - The Wisconsin Good Samaritan statute, Wis. Stat. 895.48(1) provides: "Any person who renders emergency care at the scene of an emergency or accident in good faith shall be immune from civil liability for his or her acts or omissions in rendering such care."

In Katrina Clayton v. American Family Mutual Insurance Company and Marvin Williams, Court of Appeals of Wisconsin, 741 N.W.2d 297 (2007), Katrina Clayton was injured when run over by a car. She was in front of her home, when a vehicle driven by Ms. Johnnie Mae Carter, who was trying to run down her husband and his girl friend, struck a parked car owned by Marvin Williams. This pushed the right front tire of Williams' car over the curb, and trapped Katrina Clayton under the vehicle. She had sufficient room to breath and was not in pain. Marvin Williams than got into his car, started it up, and drove it forward. This had disastrous consequences -- pinning Ms. Clayton, crushing her shoulder and burning her with the exhaust system.

Ms. Clayton sued Mr. Williams. In his pre-trial deposition, Williams denied that he drove his car over Clayton, and he filed a motion to dismiss the case since even if he drove the car over her, he was acting as a Good Samaritan. The trial judge agreed and dismissed her lawsuit. The Wisconsin Court of Appeals reverses, and orders the lawsuit reinstated. There is an issue of fact about whether he drove the car at all. In addition, there is an issue of fact regarding his driving the car forward after his initial evaluation of Clayton's condition. The Wisconsin Good Samaritan statute protects those rendering immediate assistance to Ms. Clayton under the car, not to subsequent acts such as moving the car forward.

North Carolina, 2002 - The North Carolina Good Samaritan statute, N.C. Gen. Stat. 20-166(d) (2001) provides: "Any person who renders first air or emergency assistance at the scene of a motor vehicle accident on any street or highway to any person injured as a result of such accident, shall not be liable in civil damages for any acts or omissions relating to such services rendered, unless such acts or omissions amount t wanton misconduct or intentional wrongdoing."

In Susan (Erickson) Hutton v. Melanie Logan, North Carolina Court of Appeals; No.COA01-351 (2002).On Jan. 19, 2004, Ms. Hutton was driving eastbound along a long, sweeping curve and observed a car had gone into a ditch. It looked "real bad." Another motorist driving westbound also stopped. Susan Hutton was rear-ended by Melanie Logan, who said she became distracted by the car in the ditch and was going about 50 mph and left 29 feet of skid marks before striking Ms. Hutton's vehicle.

Hutton filed a lawsuit against Logan, but after the testimony by the police officer and Hutton, the trial judge granted a directed verdict for the defendant based on the contributory negligence of the plaintiff. On appeal, Ms. Hutton asserts that she was a "rescuer" and under the Rescue Doctrine, and contributory negligence does not apply. The Court of Appeals disagreed, finding that the Good Samarian statute does not protect her from liability to third parties who are not being rescued. Therefore her lawsuit against Ms. Logan was properly dismissed.

Ohio, 2000 - The Ohio Good Samaritan statute provides: "No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency outside of a hospital, doctor's office, or other place having proper medical equipment, for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct." Ohio Revised Code 2305.23.

In James Butler v. Andrew Rejon, Jr., Ohio Court of Appeals for 9th District (Summit County), C.A. No. 19699 (2000), on Jan. 25, 1998, Mr. Butler and his wife stopped on westbound I-76 to assist a motorist, whose vehicle was facing on coming traffic, partially blocking the highway, with its lights off. Mr. Butler put on his emergency flashers, and began to direct traffic to the other lane. Another motorist also stopped, and he parked on the berm. While waiting for police to arrive, Andrew Rejon, Jr. crashed into the rear of the Butler's car, injuring Mrs. Butler. Mr. Butler, in extricating his wife, aggravated a pre-exiting back injury. Mr. And Mrs. Butler filed lawsuit against Rejon, and a jury awarded Mrs. Butler $20,000, and Mr. Butler $8000, but found Mr. Butler to be 35 percent comparatively negligent (Mr. Butler's verdict was therefore reduced to $5,200). Mr. Butler asked the Ohio Court of Appeals to throw out this reduced verdict, arguing that the trial judge should have instructed the jury that if they found him to be a Good Samaritan, then they should not reduce their verdict for comparative negligence. The Court of Appeals disagreed, holding that while Mr. Butler was acting as a Good Samaritan regarding the disabled driver, he was not a Good Samaritan towards Mr. Rejon since he did not provide any emergency care or treatment to Mr. Rejon.

New Mexico, 1999 - New Mexico Good Samaritan statute 24-10-3 provides: "a person administering emergency care at the scene of an emergency, without remuneration or the expectation of remuneration, is not liable for any damages unless the person acts in a grossly negligent manner."

In Ernesto Ortiz v. United States Board Patrol, U.S. District Court, District of New Mexico, 39 F. Supp.2d 1321 (1999), Mr. Ortiz' Bronco hit a patch of ice and rolled onto its top, trapping the driver. A New Mexico State Trooper observed that Mr. Ortiz was pinned and suffocating. He asked two U.S. Border Patrol agents that had stopped at the accident to hook a chain from their vehicle to the Bronco and pull it back to its wheels. Ortiz later sued the two agents and the U.S. Border Patrol, claiming they caused him spinal injuries when rolling the vehicle upright. The Federal District Judge dismissed the lawsuit on the base of the New Mexico Good Samaritan statute.

California needs to amend their Good Samaritan statute; courts which broadly interpret these statutes in order to protect the public from frivolous lawsuits perform a great public service.

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LARRY BENNETT, a Contributing Editor, is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, that is used by the National Fire Academy (NFA) in its distant learning course, Political and Legal Foundations of Fire Protection. The NFA appointed Larry as their Subject Matter Expert to update the curriculum in this course. and he serves on the NFPA 1500 Fire Service Occupational Safety and Health Committee. Larry writes a free Fire & EMS and Safety Law newsletter which you can sign up online to receive free. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page To read Larry's complete biography and view his archived articles, click here. You can reach Larry by e-mail at [email protected].

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