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