BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 83                                                  
          Assemblymember Feuer                                   
          As Amended May 6, 2009
          Hearing Date: June 9, 2009                             
          Health and Safety Code                                 
          SK                                                     
                                                                 

                                        SUBJECT
                                           
                            Personal Liability: Immunity

                                      DESCRIPTION  

          This bill would provide that 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.

                                      BACKGROUND  

          Under traditional principles of common law, a person has no duty  
          to come to the aid of another.  If, however, a person does  
          assist another then he or she has a duty to exercise reasonable  
          care.  If the actions of the "good Samaritan" fall below this  
          standard of care and he or she causes harm then the good  
          Samaritan may be held liable.  There are certain statutory  
          exceptions to this rule, however.  Most relevantly, Health and  
          Safety Code Section 1799.102 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 civil damages  
          resulting from any act or omission. 

          Last December, the California Supreme Court interpreted this  
          provision in Van Horn v. Watson (2008) 45 Cal.4th 322 to hold  
          that the Legislature intended that Section 1799.102 provide  
          immunity from liability for any person who renders emergency  
          medical care.  Because the defendant in Van Horn did not render  
          emergency medical care, she could be held liable for her actions  
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          in assisting the plaintiff.  This bill would respond to the  
          Court's ruling by providing for immunity from liability in such  
          cases unless the person rendering assistance acted with gross  
          negligence or willful or wanton misconduct. 










































                                                                      



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                                CHANGES TO EXISTING LAW
           
           Existing law  provides that a person has no duty to come to the  
          aid of another, but if he or she decides to assist another then  
          he or she must act with reasonable care. (Artiglio v. Corning  
          Inc. (1998) 18 Cal.4th 604; Williams v. State of California  
          (1983) 34 Cal.3d 18.)

           Existing law  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.  Existing law also provides that the scene  
          of an emergency shall not include emergency departments and  
          other places where medical care is usually offered. (Health &  
          Saf. Code Sec. 1799.102.)             

           Existing caselaw  interprets Health and Safety Code Section  
          1799.102 to provide immunity from civil liability only for  
          individuals who provide emergency medical care at the scene of a  
          medical emergency. (Van Horn v. Watson, supra, 45 Cal.4th 322.)

           Existing law  defines "gross negligence" as "the entire failure  
          to exercise care, or the exercise of so slight a degree of care  
          as to justify the belief that there is an entire indifference to  
          the interest and welfare of others." (Weber v. Pinyan (1937) 9  
          Cal.2d 226.)  "Gross negligence" has also been described as "the  
          want of even scant care or an extreme departure from the  
          ordinary standard of conduct." (See, e.g., Eastburn v. Regional  
          Fire Protection Authority (2003) 31 Cal.4th 1175; City of Santa  
          Barbara v. Superior Court (2007) 41 Cal.4th 747.)

           Existing law  defines "willful or wanton 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." (Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d  
          863; City of Santa Barbara v. Superior Court, supra, 41 Cal.4th  
          747.)

           This bill  would revise Health and Safety Code Section 1799.102  
          to provide that its provisions immunizing persons rendering  
          emergency medical or nonmedical care at the scene of an  
          emergency from civil liability apply only to specified medical,  
          law enforcement, and emergency personnel. 

           This bill  would provide that it is the intent of the Legislature  
                                                                      



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          to encourage other 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.

           This bill  would provide that any person, other than medical, law  
          enforcement, and emergency personnel, who in good faith and not  
          for compensation renders emergency medical or nonmedical care or  
          assistance at the scene of an emergency shall not 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.  This bill would specify that the scene of an  
          emergency shall not include emergency departments and other  
          places where medical care is usually offered. 

           This bill  would provide that it shall be not construed to change  
          any existing legal duties or obligations or to affect the  
          provisions in Civil Code Section 1714.5 as proposed to be  
          amended by SB 39 (Benoit).  The changes proposed by this bill  
          would apply exclusively to any legal action filed on or after  
          the effective date of the bill. 

           This bill  would take immediate effect as an urgency statute. 

                                        COMMENT
           
          1.Stated need for the bill 

          The author writes: 

            [California's] 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.  . . .  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.  . . . 
                                                                      



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            [T]he 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.   . . .  this balanced approach offers fair  
            protection to Good Samaritans, while at the same time  
            protecting rescued victims from the . . . grossly negligent  
            interloper.  

         2.The California Supreme Court's ruling in Van Horn v. Watson  

          In Van Horn v. Watson the plaintiff Alexandra Van Horn alleged  
          that Lisa Torti had caused Van Horn to become paralyzed by  
          removing her from a vehicle involved in an accident.  Torti,  
          fearing that the vehicle would catch fire or explode, removed  
          Van Horn from the vehicle but in doing so may have worsened Van  
          Horn's injuries.  Torti subsequently filed a motion for summary  
          judgment, arguing that she was immune from liability under  
          Health and Safety Code Section 1799.102.  The trial court  
          granted her motion.  The Court of Appeal reversed, holding that  
          the Legislature intended Section 1779.102 to apply only in  
          situations where the individual rendered emergency medical care  
          at the scene of a medical emergency.  Because Torti did not  
          render medical care, the court held, she could not claim the  
          statutory immunity.  The California Supreme Court affirmed the  
          Court of Appeal's decision. 

          In upholding the decision of the Court of Appeal, the Court  
          applied principles of statutory construction to determine the  
          scope of the immunity provided for in Section 1799.102.  The  
          Court considered the words of the statute, giving them a  
          commonsense meaning while recognizing that the language of a  
          statute must be construed in context and harmonized with other  
          provisions relating to the same subject matter to the extent  
          possible.  For several reasons, the Court concluded that the  
          Legislature intended Section 1799.102, when viewed in the  
          context of the overall statutory scheme, to provide immunity  
          from civil liability for individuals who provide emergency  
          medical care at the scene of a medical emergency.  

          The Court additionally described other reasons to prefer its  
          narrower statutory interpretation including that such a reading  
          is supported by the legislative history of the 1977 legislation  
          adding Section 1799.102 to the code and that granting Torti  
          immunity under the section would undermine long-established  
                                                                      



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          common law principles which hold that a good Samaritan who  
          undertakes to come to the aid of another must exercise  
          reasonable care in doing so. 

         3.Distinction between medical and nonmedical care: the views of  
          Justice Baxter  

          In a concurring and dissenting opinion, Justice Baxter disagreed  
          with the majority's holding that Section 1799.102 provides  
          immunity from liability only for individuals who provide  
          emergency medical care at the scene of a medical emergency.   
          Instead, Justice Baxter-applying the maxim that "a statute's  
          plain language is a dispositive indicator of its meaning unless  
          a literal reading would lead to absurd consequences the  
          Legislature did not intend"-wrote that nothing in the plain  
          language of the statute limits or qualifies the kind of  
          emergency care, whether medical or nonmedical, that a good  
          Samaritan may provide under the immunity provisions of Section  
          1779.102.  (Van Horn v. Watson, supra, 45 Cal.4th 322, 334.)  In  
          his dissent, Justice Baxter wrote that the following "illogical"  
          results will flow from the majority's interpretation: 

            Thus, in the majority's view, a passerby who, at the 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 for harming the victim during  
            the administration of cardiopulmonary resuscitation out on the  
            sidewalk.  A hiker can be sued if, far from other 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 broken bone incorrectly.  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 for harm he or she produces while  
            thereafter trying to revive the victim. (Id. at 335.)

          This bill would eliminate this distinction between medical and  
          nonmedical care. Instead, it would provide for immunity from  
          civil liability when individuals act to assist another  
          regardless of whether the care or assistance they provide is of  
          a medical or nonmedical nature, provided that they do not act  
          with either gross negligence or willful or wanton misconduct. 

          4.Bill provides for limited immunity protection: conduct  
            constituting gross negligence or willful or wanton misconduct  
                                                                      



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            excluded from protection 
           
          This bill would provide immunity protection from civil liability  
          for good Samaritans who act to assist another at the scene of an  
          emergency.  The immunity provided by this bill is limited,  
          however.  The protection does not apply when an individual's  
          conduct constitutes gross negligence or willful or wanton  
          misconduct.  This qualified immunity approach appears to be  
          consistent with the approach taken in the majority of states  
          with good Samaritan statutes. 

          Case law has defined "gross negligence" as  "the want of even  
          scant care or an extreme departure from the ordinary standard of  
          conduct." (See, e.g., Eastburn v. Regional Fire Protection  
          Authority, supra, 31 Cal.4th 1175; City of Santa Barbara v.  
          Superior Court, supra, 41 Cal.4th 747.)  "Willful or wanton  
          misconduct" has been defined by courts to mean "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." (Donnelly v. Southern Pacific Co., supra, 18  
          Cal.2d 863; City of Santa Barbara v. Superior Court, supra, 41  
          Cal.4th 747.)

          Other provisions of existing law similarly provide for qualified  
          immunity protections. For example, architects and engineering  
          volunteers who voluntarily and without compensation provide  
          structural inspection services at the scene of an emergency at  
          the request of a public official are not liable for any injury  
          caused by their good faith, but negligent inspection of a  
          structure.  This immunity does not extend, however, to gross  
          negligence or willful misconduct.  (Bus. & Prof. Code Secs.  
          5536.27, 6706.) 

          Similarly, nurses, vocational nurses, and physician assistants  
          who in good faith render emergency care at the scene of an  
          emergency which occurs outside the place and course of their  
          employment are not liable for civil damages as the result of  
          acts or omissions in rendering that care.  No immunity exists,  
          however, if they act with gross negligence. (Bus. & Prof. Code  
          Secs. 2727.5, 2861.5, 3503.5.)

           5.Technical clarifying amendment needed 
           
          A technical amendment is needed to clarify the intent of the  
          bill as follows: 
                                                                      



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          On page 3, line 7 after "Legislature." insert a new subdivision  
          (d). 

          On page 3, line 8, strike "this subdivision" and insert  
          "subdivisions (b) and (c)". 








































                                                                      



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           Support  : Association of California Insurance Companies; Consumer  
          Attorneys of California; Civil Justice Association of  
          California; California Association of Highway Patrolmen; City of  
          Beverly Hills; California Association of Nonprofits (CAN Policy  
          Council); League of California Cities; California Citizens  
          Against Lawsuit Abuse; CSAC Excess Insurance Authority;  
          California Emergency Nurses Association; Los Angeles Police  
          Protective League; Sun City Palm Desert Community Association;  
          Association for Los Angeles Deputy Sheriffs; Riverside Sheriffs'  
          Association; California Professional Firefighters; California  
          Fire Chiefs' Association; American Red Cross; American  
          Federation of State, County, and Municipal Employees (AFSCME),  
          AFL-CIO; City of Los Angeles; Los Angeles Probation Officers'  
          Union, AFSCME, Local 685 

           Opposition  : None Known

                                        HISTORY
           
           Source  : Author

           Related Pending Legislation  :

          SB 39 (Benoit) would revise existing immunity protections for  
          disaster service workers who perform disaster services during a  
          state of emergency to clarify that such workers are not liable  
          for civil damages resulting from an act or omission while  
          performing disaster services anywhere within the jurisdiction  
          covered by the emergency other than an act or omission that is  
          willful.  This bill is in the Assembly.

          AB 90 (Adams), which has been referred to the Assembly Judiciary  
          Committee, would revise Health and Safety Code Section 1799.102  
          to provide for immunity from liability for any person who in  
          good faith and without compensation renders emergency medical or  
          nonmedical care at the scene of an emergency.

           Prior Legislation  : None Known

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