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 (more) AB 83 (Feuer) Page 2 of ? 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. AB 83 (Feuer) Page 3 of ? 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 AB 83 (Feuer) Page 4 of ? 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. . . . AB 83 (Feuer) Page 5 of ? [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 AB 83 (Feuer) Page 6 of ? 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 AB 83 (Feuer) Page 7 of ? 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: AB 83 (Feuer) Page 8 of ? 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)". AB 83 (Feuer) Page 9 of ? 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 ************** AB 83 (Feuer) Page 10 of ?