ItsBruce
Contributor
In August, 2009, the California Legislature amended the statute which forms the foundation for California’s Good Samaritan Rule. It did so in response to a ruling by the California Supreme Court that held that the prior statute did not apply to one rendering non-medical emergency assistance, i.e. pulling someone from a car they thought was going to explode after a crash.
I am still concerned that the amendment does not provide adequate protection to those who render assistance at the scene of an emergency and wanted to share my thoughts with the diving community.
In California, the Good Samaritan Rule is found in Health & Safety Code, section 1799.102. Subsection (b) which would apply to most scuba situations, states in pertinent part:
"(1) It is the intent of the Legislature 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.
"(2) Except for those persons specified in subdivision (a), 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."
The Legislature’s intent is good and the basic way it went about implementing it is commendable. Unfortunately, it does not protect one against getting sued and having to spend tens of thousands of dollars to defend oneself.
The problem is that the plaintiff, i.e. one who is suing, need only allege that the one who is being sued, i.e. the defendant, was “grossly negligent” to get into court and the law does not provide a speedy, inexpensive way of refuting that.
For those that are interested, here is a little background on legal procedure:
The plaintiff initiates a lawsuit by filing a complaint. The basic requirement for a complaint is that the plaintiff lay out the facts as the he or she believes them to be that he or she feels would entitle him or her to recover against the defendant.
Not every set of facts is actionable. For example, seeing a family member seriously injured and suffering emotional distress as a result is actionable. However, seeing a stranger seriously injured and suffering emotional distress is not. Neither is coming upon the scene of an accident in which a family member is injured, after the fact and suffering emotional distress as a result.
Closer to home, negligently rendering emergency care at the scene of an emergency is not actionable. Grossly negligently rendering such care is.
Because not every set of facts is actionable, the law provides a mechanism for testing whether a plaintiff has set forth a set of alleged facts that, if proven, would entitle him or her to recover. In California, the mechanism is called a “demurrer.” In the context of the Good Samaritan Rule, the defendant would likely argue either (1) although the plaintiff may have used the words “gross negligence,” the plaintiff has not alleged specific facts that amount to gross negligence, or (2) no jury could conclude that the specific facts the plaintiff has alleged amounts to gross negligence.
California law does require that a plaintiff allege specific facts, but just how specific they must be varies from judge to judge and a good lawyer will likely be able to craft something that will pass muster. Likewise, deciding whether a jury could possibly find the facts alleged, if proven, amount to gross negligence, will vary from judge to judge. And, in any event, the law allows a great deal of latitude in what a plaintiff is allowed to allege.
If the judge decides that what the plaintiff has alleged does not pass muster, he or she will dismiss the case and the defendant’s legal bills will be limited to a few thousand dollars.
On the other hand, if the judge decides that the plaintiff has alleged enough, the case continues and gets expensive and bothersome.
If the plaintiff has gotten past a demurrer by alleging facts that cannot be proven, the defendant may be able to file something called a motion for summary judgment. The premise behind such a motion, when made by a defendant, is that the defendant presents to the court a set of facts, which are supported by admissible evidence, that negates one of the things the plaintiff must prove.
For example, a plaintiff might get passed a demurrer in an auto accident case by alleging the defendant ran a red light. However, if the defendant has evidence he or she was elsewhere at the time of the accident, he or she would win on a motion for summary judgment.
To oppose a motion for summary judgment, the plaintiff must show that there is a dispute as to one or more of the facts that the defendant has presented such that a jury must evaluate the evidence and decide whether the “fact” is true or not.
Whether emergency care or assistance was properly rendered, negligently rendered or grossly negligently rendered will often call for expert opinion and a simple fact of life is that one can always find an expert who will render an opinion that one needs.
Thus, in the context of the Good Samaritan Rule, even if there is no dispute as to what was done and what happened, there will probably be a dispute, even if only by virtue of one party hiring a favorable expert, as to whether it was proper, negligent or grossly negligent. It will then be up to the individual judge whether to actually decide whether the conduct was proper, negligent or grossly negligent or to leave it up to the jury to decide.
Either way, it will be very expensive to get to this point in a lawsuit.
A few caveats relative to my analysis:
1. Please do not talk about scumbag lawyers or plaintiffs. That has been discussed on SB ad nausea. And, it does not add to or detract from the issues of whether to render emergency care or assistance. Whether you are sued by a scumbag or by a decent lawyer who genuinely believes in his case, it costs just as much to defend. (BTW: calling a lawyer or a plaintiff a scumbag will not deter a lawsuit.)
2. Please do not talk about winning and then suing back. Winning such a lawsuit is unlikely. Finding a lawyer who will not charge by the hour for bringing a lawsuit is even more unlikely. And, in California, there is a statute that (1) makes it easy for a defendant to inexpensively dispose of such a lawsuit, and (2) awards a defendant who prevails under it his or her attorney’s fees.)
3. Please do not talk about taking personal responsibility. The notion is inapplicable. And, in any event, one could equally say that he one who renders emergency care or assistance should take personal responsibility if his or her efforts actually cause more harm than good.
4. Please do not complain about the jury system unless you have performed jury service without looking for an excuse to avoid it.
5. Please do not complain about elected representatives unless you consistently vote against incumbents.
I am still concerned that the amendment does not provide adequate protection to those who render assistance at the scene of an emergency and wanted to share my thoughts with the diving community.
In California, the Good Samaritan Rule is found in Health & Safety Code, section 1799.102. Subsection (b) which would apply to most scuba situations, states in pertinent part:
"(1) It is the intent of the Legislature 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.
"(2) Except for those persons specified in subdivision (a), 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."
The Legislature’s intent is good and the basic way it went about implementing it is commendable. Unfortunately, it does not protect one against getting sued and having to spend tens of thousands of dollars to defend oneself.
The problem is that the plaintiff, i.e. one who is suing, need only allege that the one who is being sued, i.e. the defendant, was “grossly negligent” to get into court and the law does not provide a speedy, inexpensive way of refuting that.
For those that are interested, here is a little background on legal procedure:
The plaintiff initiates a lawsuit by filing a complaint. The basic requirement for a complaint is that the plaintiff lay out the facts as the he or she believes them to be that he or she feels would entitle him or her to recover against the defendant.
Not every set of facts is actionable. For example, seeing a family member seriously injured and suffering emotional distress as a result is actionable. However, seeing a stranger seriously injured and suffering emotional distress is not. Neither is coming upon the scene of an accident in which a family member is injured, after the fact and suffering emotional distress as a result.
Closer to home, negligently rendering emergency care at the scene of an emergency is not actionable. Grossly negligently rendering such care is.
Because not every set of facts is actionable, the law provides a mechanism for testing whether a plaintiff has set forth a set of alleged facts that, if proven, would entitle him or her to recover. In California, the mechanism is called a “demurrer.” In the context of the Good Samaritan Rule, the defendant would likely argue either (1) although the plaintiff may have used the words “gross negligence,” the plaintiff has not alleged specific facts that amount to gross negligence, or (2) no jury could conclude that the specific facts the plaintiff has alleged amounts to gross negligence.
California law does require that a plaintiff allege specific facts, but just how specific they must be varies from judge to judge and a good lawyer will likely be able to craft something that will pass muster. Likewise, deciding whether a jury could possibly find the facts alleged, if proven, amount to gross negligence, will vary from judge to judge. And, in any event, the law allows a great deal of latitude in what a plaintiff is allowed to allege.
If the judge decides that what the plaintiff has alleged does not pass muster, he or she will dismiss the case and the defendant’s legal bills will be limited to a few thousand dollars.
On the other hand, if the judge decides that the plaintiff has alleged enough, the case continues and gets expensive and bothersome.
If the plaintiff has gotten past a demurrer by alleging facts that cannot be proven, the defendant may be able to file something called a motion for summary judgment. The premise behind such a motion, when made by a defendant, is that the defendant presents to the court a set of facts, which are supported by admissible evidence, that negates one of the things the plaintiff must prove.
For example, a plaintiff might get passed a demurrer in an auto accident case by alleging the defendant ran a red light. However, if the defendant has evidence he or she was elsewhere at the time of the accident, he or she would win on a motion for summary judgment.
To oppose a motion for summary judgment, the plaintiff must show that there is a dispute as to one or more of the facts that the defendant has presented such that a jury must evaluate the evidence and decide whether the “fact” is true or not.
Whether emergency care or assistance was properly rendered, negligently rendered or grossly negligently rendered will often call for expert opinion and a simple fact of life is that one can always find an expert who will render an opinion that one needs.
Thus, in the context of the Good Samaritan Rule, even if there is no dispute as to what was done and what happened, there will probably be a dispute, even if only by virtue of one party hiring a favorable expert, as to whether it was proper, negligent or grossly negligent. It will then be up to the individual judge whether to actually decide whether the conduct was proper, negligent or grossly negligent or to leave it up to the jury to decide.
Either way, it will be very expensive to get to this point in a lawsuit.
A few caveats relative to my analysis:
1. Please do not talk about scumbag lawyers or plaintiffs. That has been discussed on SB ad nausea. And, it does not add to or detract from the issues of whether to render emergency care or assistance. Whether you are sued by a scumbag or by a decent lawyer who genuinely believes in his case, it costs just as much to defend. (BTW: calling a lawyer or a plaintiff a scumbag will not deter a lawsuit.)
2. Please do not talk about winning and then suing back. Winning such a lawsuit is unlikely. Finding a lawyer who will not charge by the hour for bringing a lawsuit is even more unlikely. And, in California, there is a statute that (1) makes it easy for a defendant to inexpensively dispose of such a lawsuit, and (2) awards a defendant who prevails under it his or her attorney’s fees.)
3. Please do not talk about taking personal responsibility. The notion is inapplicable. And, in any event, one could equally say that he one who renders emergency care or assistance should take personal responsibility if his or her efforts actually cause more harm than good.
4. Please do not complain about the jury system unless you have performed jury service without looking for an excuse to avoid it.
5. Please do not complain about elected representatives unless you consistently vote against incumbents.
