BILL ANALYSIS                                                                                                                                                                                                    




                                                                  AB 83
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          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  









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          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  









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            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. 










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           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  









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          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  









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          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  









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          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  









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          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  









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          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