BILL ANALYSIS AB 83 Page A Date of Hearing: March 3, 2009 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 83 (Feuer) - As Amended: February 26, 2009 As Proposed to Be Amended as An Urgency Measure SUBJECT : Torts: "GOOD SAMARITAN" INCENTIVES AND PROTECTIONS KEY ISSUE : Should "good Samaritans" who OFTEN COURAGEOUSLY RISK THEIR OWN LIVES TO come to the aid of OTHERS In danger be immune from SUIT so long as ANY harm POTENTIALLY CAUSED DURING THE RESCUE was not the result of the Good Samaritan's gross negligence or willful OR WANTON Misconduct? SYNOPSIS California currently has a statute, Health & Safety Code Section 1799.102, that provides that 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 committed while rendering emergency care. This so-called "Good Samaritan" law, enacted 29 years ago, sought to encourage persons to come to the aid of those in peril by removing any fear of liability for taking such potentially courageous action. In the recent decision of Van Horn v. Watson, however, the California Supreme Court, by a 4-3 vote, interpreting decades' old legislative intent, narrowly construed Health & Safety Code Section 1799.102 to apply only to situations in which a rescuer is providing medical care in a medical emergency. According to the author, the Court's ruling "may inadvertently discourage courageous Californians from coming to the aid of others in an emergency." Several newspaper editors and legal scholars, as well as a broad section of organizations, have similarly criticized the ruling, alleging that fears of liability may tragically dissuade at least some potential Good Samaritans from coming to the aid of others in need. This bill responds to the recent narrow Court ruling by amending Section 1799.102 to expressly state that persons who provide emergency care or assistance, whether medical or non-medical , shall not be liable for damages caused by their acts or omissions while rendering emergency care, so long as their AB 83 Page B conduct does not constitute "gross negligence" or "willful or wanton misconduct." The author suggests that the qualified immunity provided by this bill strikes a proper and delicate balance between "blanket immunity," which some have called for, and the Court's holding of no immunity except for those providing "medical care" in a medical emergency. The author contends that this balanced approach offers fair protection to Good Samaritans, while at the same time protecting rescued victims from the reckless or grossly negligent interloper. The bill is supported by both the Consumer Attorneys of California and the Civil Justice Association of California, as well as the California Association of Nonprofits as well as other groups. There is no registered opposition to the bill, and the bill, as proposed to be amended, will be an urgency measure to minimize any confusion about the state of Good Samaritan law in California. SUMMARY : Seeks to encourage Good Samaritans to continue to step forward and help others in danger by providing that a person who, in good faith and not for compensation, renders emergency medical or non-medical care or assistance at the scene of an emergency shall not be liable for any civil damages resulting from an act or omission while rendering such care, so long as that act or omission does not constitute gross negligence or willful or wanton conduct. Specifically, among other things, this bill : 1)Clarifies that medical, law enforcement, and emergency personnel who in good faith, and not for compensation, render emergency care at the scene of an emergency shall continue to not be liable for any civil damages resulting from any act or omission. 2)States the intent of the Legislature to encourage individuals to volunteer, without compensation, to assist others in need during an emergency, while ensuring that those volunteers who provide care or assistance act responsibly. 3)Clarifies, in response to the recent decision by the California Supreme Court, that laypersons other than medical, law enforcement, and emergency personnel who in good faith, and not for compensation, render emergency medical or non-medical care or assistance at the scene of an emergency shall also not be liable for civil damages resulting from any act or omission, other than an act or omission constituting AB 83 Page C gross negligence or willful or wanton misconduct. 4)Specifies that nothing in this section shall be construed to change any existing legal duties or obligations and contains an urgency clause to clarify the law in this area as quickly as possible. EXISTING LAW : 1)Provides, under traditional common law principles, that a person has "no duty to rescue" or help another person in need of emergency assistance. However, when a person voluntarily comes to the aid of another, that person owes the victim a duty of reasonable care. Thus if a volunteer rescuer, through negligent acts or omissions, causes additional harm to the person rescued, then the rescuer shall normally under the common law be liable for that additional harm. (See e.g. Williams v. California (1983) 34 Cal.3d 18, 23; Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 613.) 2)Provides that no person who in good faith, and not for compensation, renders emergency medical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. (Health & Safety Code 1799.102, as interpreted by Van Horn v. Watson (2008) 45 Cal.4th 322.) 3)Defines "'wanton' or 'reckless' misconduct" as conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know it is highly probable that harm will result." (City of Santa Barbara v. Superior Court, 41 Cal.4th 747, 753 (2007) (emphasis added).) 4)Defines "gross negligence" as an "exercise of so slight a degree of care as to justify the belief there was indifference to the interest and welfare of others." (46 Cal. Jur. 3d Negligence 100.) 5)Provides, under various provisions, various types of qualified immunity to professionals who render emergency care outside of the scope of their employment. FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. AB 83 Page D COMMENTS : This non-controversial bi-partisan bill responds to a recent ruling by the California Supreme Court that, if left unaddressed, could inadvertently discourage people from being courageous "Good Samaritans" by coming to the aid of accident victims facing great peril. In essence, the measure provides immunity from suit to all Good Samaritans who render emergency care at the scene of an emergency regardless of whether the care they provide is found to be of a medical (e.g., CPR) or non-medical nature (e.g., carrying someone out of a burning building). However the bill appropriately makes clear that such broad protection from suit is appropriately not available to rescuers who engage in grossly negligent or even reckless behavior. Author's Statement of Support : In support of this bill, the author notes: Although the Supreme Court's recent Good Samaritan ruling may be accurate regarding the Court's narrow reading of 1980s legislative intent, it is also an important invitation to the Legislature to quickly clarify the Legislature's goal of encouraging Good Samaritan acts -- whether of a medical or non-medical nature - so long as such acts are done in good faith and responsibly. My bill responds directly to the Supreme Court's invitation for legislative clarification in a measured manner that encourages Good Samaritan acts that can save lives. The Van Horn Decision : Last December, in Van Horn v. Watson (2008) 45 Cal.4th 322, the California Supreme Court narrowly interpreted an existing statute (Health & Safety Code Section 1799.102) that provides immunity for anyone who in good faith renders "emergency care at the scene of an emergency." In enacting this statute in 1980, the Legislature sought to encourage people to come to the aid of accident victims without fear of later being sued for their efforts, should those efforts fail or unintentionally even turn out to make matters worse. In the Van Horn case, Lisa Torti pulled her friend and co-worker, Alexandra Van Horn, from a crashed vehicle in Los Angeles, fearing the vehicle was about to catch fire or even explode. Tragically, in doing so, Torti may have worsened Van Horn's injuries. Van Horn later sued the driver, who in turn sued Torti for exacerbating Van Horn's injuries. The trial AB 83 Page E court dismissed the action against Torti, finding that she was immune from liability under Section 1799.102 since she provided "emergency care at the scene of an emergency." However, an appeals court then overturned the trial court ruling. The California Supreme Court, by a 4-3 vote, affirmed the appeals court decision. The Court held that the state's "Good Samaritan" statute, when read as part of the overall statutory scheme, only provides immunity to persons with respect to medical care at the scene of an emergency- not "non-medical" emergency assistance, such as pulling a person from a potentially exploding automobile or a burning building. As the 4-3 vote suggests, the Supreme Court's narrow reading of legislative intent is open to debate. More importantly, however, the Court stressed that its ruling was primarily one of statutory interpretation; the Court found that Torti was not covered by statutory immunity, but did not find that her actions were unreasonable or blameworthy. Thus the Court's decision in this case was arguably an open invitation to the Legislature to clarify its intentions as to how broadly it wishes to protect Good Samaritans good faith actions. The Court's decision essentially addressed the question: does the Legislature intend, via this Good Samaritan statute, to provide narrow immunity from suit only to those Good Samaritans rendering medical types of emergency care at the scene of an emergency (e.g., CPR) or does the Legislature instead wish to provide broader immunity that protects Good Samaritans from suit when they provide non-medical assistance to those in peril as well (e.g., carrying someone out of a burning building)? This measure responds to this question by clarifying that this Good Samaritan statute provides immunity to all rescuers who render emergency care at the scene of an emergency -- regardless of whether the care they provide is found to be of a medical or non-medical nature. However the bill appropriately makes clear that such broad immunity is unavailable to rescuers who engage in grossly negligent or reckless behavior. Because the measure is designed to encourage Good Samaritans to volunteer in an emergency by protecting them from inappropriate liability when they render assistance to others in need, language in the bill clarifies that it does not impose any new legal duties or obligations. Nor does it seek to change any existing duties to act or to refrain from acting or liability for payment of damages when a party is at fault. In addition, as proposed to be amended, the bill is an urgency measure to minimize any AB 83 Page F confusion about the state of Good Samaritan law in California. Why the "Medical"/"Non-Medical" Distinction in the Court's Reading Appears Unwise and Is Eliminated in This Statutory Clarification : In his dissent in the Van Horn case, Justice Baxter pointed to the seeming illogic of the Court's narrow reading of the statute this bill amends, at least insofar as it distinguished "medical" from "non-medical" care. Although the express words of the statutory provision make no such distinction between "medical" and "non-medical" actions, the Court majority in that case observed that the overall statutory scheme generally applies to medical professionals. Thus, the Court reasoned, the "persons" protected in Section 1799.102 were non-professional persons providing medical care. However, while the medical/non-medical distinction may make some sense when applied to medical professionals, it does not appear to make sense as to the nonprofessional Good Samaritan who courageously responds to an emergency situation. For example, under the Court's narrow reading of the statute, a person would be immune from damages caused by negligently administering mouth-to-mouth resuscitation or CPR to a drowning victim, but not for damages caused by pulling the victim from the water in the first place. Given that the nonprofessional rescuer responds to the totality of the situation, and the rescuer would be unable to render medical care (e.g., CPR) without first performing the "non-medical" act of removing the victim from the dangerous situation (e.g., the water), it is illogical why only those parts of a rescue attempt by a layperson deemed medical would be immune from liability -- while those deemed non-medical would subject the rescuer to liability. This bill therefore eliminates this unwise distinction and clarifies the law for all would-be layperson Good Samaritans that they will be immune from suit regardless whether their efforts are of a medical or non-medical nature. The Potentially "Harsh" Common Law Approach to Rescue Liability : Under traditional common law tort rules, a person has "no duty to rescue" a stranger in peril. This "non-duty" is rooted in the significance that the common law attaches to the distinction between "misfeasance" and "nonfeasance" - that is, harm that is caused by some affirmative action on the part of the tortfeasor (misfeasance) versus harm that results from a failure to act to prevent harm to another (nonfeasance). Although a person is liable for acts of misfeasance, the common law does not impose AB 83 Page G civil liability on a person for nonfeasance -- unless that person had created the risk to begin with, or had a "special relationship" to the at-risk person. The common law "no duty to rescue" rule applies even where a person could easily and without risk provide assistance. However, where persons voluntarily render assistance even in the absence of a duty, the common law typically requires them to exercise reasonable care so as not to make matters worse. Thus, under the common law (absent statutory exceptions like those clarified in this measure), if a rescuer negligently causes more harm to the imperiled person, even if acting courageously and in good faith, he or she would assume civil liability for that additional harm. State Approaches to Modifying the Common Law Rescue Rules : Because of the seeming harshness of the common law when it comes to rescue liability - and because it discourages what most people would likely deem a moral if not a legal duty - many states including California have adopted statutes, like the one being clarified by this bill, that seek to encourage voluntary rescue efforts through so-called "Good Samaritan" laws. A few states have created a statutory duty to make an "easy rescue," where a person could render assistance without danger to self or others. (See e.g. Rhode Island General Laws Section 11-56-1 and 12 Vermont. Stat. Ann. Section 519.) More commonly, however, Good Samaritan laws provide some degree of immunity for harms caused by the acts or omissions of the rescuer. Good Samaritan statutes in about seven states appear to provide complete immunity for any harm caused by the rescuer, regardless of the level of care provided. At least 80% of the states (40) and the District of Columbia, however, follow the general approach taken in this bill, by providing only a qualified or partial immunity. Though all of these jurisdictions provide only partial immunity, the particular approaches vary: some immunize only acts or omissions that are not the result of "gross negligence;" some immunize only acts or omissions that are not the result of willful or wanton behavior; and some immunize only acts or omissions that are not the result of either gross negligence or willful or wanton behavior. This bill follows the latter approach. Bill's Proviso Exempting Grossly Negligent and Reckless Conduct From Immunity Protection Is Logical and Consistent With Other California Statutes : Although like so many other state AB 83 Page H approaches this bill immunizes Good Samaritans from negligent actions when seeking to assist others in peril, it logically does not immunize actions that are grossly negligent or even outright reckless. The author states that this balanced approach, reflective of the approach taken by many other states, makes sense because no one would contend that a would-be rescuer who pulls an accident victim from an automobile and then attempts to choke or strike them should be completely free from potential responsibility for the harm they cause. The "gross negligence or willful and wanton conduct" proviso in the bill also appears to be completely consistent with other existing California Good Samaritan statutes that grant qualified immunity to various professionals who render emergency care voluntarily, without expectation of compensation, and outside of the scope of their employment. (See, e.g., Bus. & Prof. Code sections 2727.5 and 2861.5 (Emergency care rendered by nurses outside the scope of their employment); Bus & Prof. Code section 3503.5 (Emergency care rendered by physicians' assistants outside the scope of their employment).) ARGUMENTS IN SUPPORT : Several groups have written to the Committee in support of this legislation. The Civil Justice Association of California (CJAC) contends that this bill is "urgently needed" so as to prevent would-be Good Samaritans from having to choose between following their moral inclination to help a person in need and protecting themselves from the possibility of a lawsuit. CJAC states that there is already evidence that the decision is having adverse effects on people's willingness to help others, citing a recent statement issued by California Volunteers, a state Commission that aims to encourage volunteerism. That statement, issued in response to the Van Horn decision, urges nonprofit organizations that rely on volunteers to "consult with their legal counsel and risk managers to determine how to minimize their potential liability." The Consumer Attorneys of California (CAOC) also support the measure because it "represents a balanced approach that encourages citizens to volunteer both medical and non-medical care at the scene of an emergency, while maintaining the legal rights of an injured party to seek compensation in instances of gross negligence or willful or wanton misconduct . . . we agree with the [bill's] approach that in this narrow instance, society should encourage citizens to voluntarily aid others at the scene AB 83 Page I of an emergency, and, therefore, protection is warranted." The California Association of Nonprofits (CAN) also supports the bill because shielding Good Samaritans from liability "will encourage people to help others whose safety and health is threatened by an emergency or disaster." Criticizing the California Supreme Court's distinction between medical and non-medical care, CAN argues that "Good Samaritan immunity should apply to care at the scene of any catastrophic event, not just the scene of a medical emergency." Related Pending Legislation : AB 90 (Adams), a related Good Samaritan measure, seeks to provide "blanket immunity" to anyone providing emergency medical or non-medical care at the scene of an emergency, regardless of whether the rescuer engages in grossly negligent or even reckless conduct. SB 39 (Benoit), was amended on February 24, 2009, to be a "mirror-image" of this bill - reflecting Senator Benoit's commitment to working with the author on this issue and the Senator's support of the approach taken by this measure. REGISTERED SUPPORT / OPPOSITION : Support Civil Justice Association of California Consumer Attorneys of California California Association of Nonprofits California Citizens Against Lawsuit Abuse California Fire Chiefs Association Los Angeles County Sheriff's Department Opposition None on file Analysis Prepared by : Drew Liebert / Thomas Clark / Rachel Anderson / JUD. / (916) 319-2334