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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