Rendering Assistance - Good Samaritan Laws

[ItsBruce]

I understand your concern, but what are you suggesting, complete indemnification that permits possibly premeditated and willful misconduct at the scene of an accident?

I'm not suggesting anything. I'm just making the observation that a well worded complaint will get the plaintiff "on base" and that the good samaritan may find himself an involuntary participant in a lawsuit. It could be expensive to defend and will certainly be an inconvenience. A defendant is required to answer written questions, called "interrogatories" fully and completely under oath and the questions can be about anything so long as they are "reasonably calculated to lead to the discovery of admissible evidence." Thus, they could be very intrusive. A defendant is also required to answer questions in a deposition and that could last several days and can also be very intrusive.

If anything, the legislature should have provided a quick, efficient mechanism for determining if there is even a basis for a claim of "gross negligence" with fees awarded to a defendant who shows there isn't. Otherwise a prudent person might just pass on rendering assistance.

 

[ItsBruce]

... Proving you aren't negligent shouldn't be very difficult for most people. You supply information regarding your level of training and have information regarding your actions at the incident. If you have a high level of training this becomes significantly more difficult but should still be reasonable to do without undue financial burden.

True. It isn't too difficult, though it could cost $5,000 to $15,000 to do so. It is not just a matter of going in and telling the nice judge about your level of training and what you did. There are a lot of complicated procedures. And the plaintiff has the right to engage in what is called "discovery" (interrogatories and depositions) to find out if you are telling the truth. The plaintiff will certainly be able to find an "expert" to swear that someone with your level of training should have known to do something you didn't do or to have refrained from doing something you did.

Gosh, wouldn't it just be easier to split the difference and write the plaintiff a check for $10,000 (for the privilege of having tried to help) and be done with it?

 

[ItsBruce]

About countersuits:

Any similar status that could be used to limit the final cost of the initial suit? Or no such luck...

Sorry, there isn't.

The statute to which I referred was designed to protect people from lawsuits that are designed to "chill public participation," i.e. the exercise of the right to free speech or the right to seek redress of grievances in a court of law. A a defendant need only show he or she was exercising the right to free speech or seek redress of grievances. If the defendant succeeds, the plaintiff must then prove he or she will be able to prevail on the merits. In a lawsuit for malicious prosecution, which would be the "countersuit," the plaintiff would have to prove that the prior lawsuit was brought without a basis for believing it was meritorious ("probable cause") and that it was brought with ill-will and the specific intent of harming the defendant ("malice"). These are very tough to establish. While the statute applies to protect those bringing lawsuits, it does not help those being sued for causing injuries while trying to render assistance.

 

[ItsBruce]

I buy umbrella liability and don't worry about it further. I can't be worrying about such caca when someone may need assistance.

I hate to rain on your parade, but your umbrella policy has all sorts of exclusions. I expect that there is an exclusion for liability arising from or during the course of your "business pursuits," defined as “any full or part time trade, profession or occupation.” There is probably an exclusion for liability arising out of the ownership, maintenance or use of any watercraft.

 

[ItsBruce]

"Gross negligence"...doesn't that mean the victim has to prove that the volunteer acted horribly outside of his/her training? For example, I'm a paramedic...I know enough to tell accident victims not to move around, hold c-spine, stop bleeding, etc. If I were to whip out my pen light, box cutter, and try to perform a surgical cricothyroidotomy...I'd be grossly negligent.

Anyways, I always assumed that if I acted within the scope of my training (which is actually at the EMT-Basic level when not actually "on the clock" at work as a paramedic), then I'd be covered, as long as I didn't do something obviously stupid.

I always thought the same goes for a bystander...if he calls 911 and finds a towel to wrap around a laceration, then he is acting in the manner expected of a non-medically trained bystander, and thus covered. If he starts telling the patient, "It's OK, you can get up and walk around, as long as you didn't hit your head", and the patient gets out of her car and becomes paralyzed from her cervical spine fracture, then the bystander is liable to be sued because it's grossly negligent for a non-medically trained bystander to give medical advice.

Correct me if I'm wrong...it's late and I'm pretty sleepy

I hate to equivocate, but both "yes" and "no."

Your are mostly right about the standards. But, what do you do if you come upon the scene of a terrible car crash and there someone in the car who appears inured, but it is starting to burn? Do you call 911 and tell the victim not to move and hope professionals get there before the fire gets to the victim? Or do you pull the victim from the car and hope for the best? Whatever you do, I can find an expert who will swear that you did the wrong thing and should have known better. As a result, you get to participate in a lawsuit as a defendant. BTW: In case I forgot to mention, I'll need a $10,000 retainer to undertake your defense. I don't give any guarantees on the outcome. And, I'll probably need more money later, but for the $10,000, I'll keep you from being defaulted and I'll start trying to put together a defense.

 

[ItsBruce]

... Don't know if this is true in California, but in some (most?) jurisdictions, your burden of proof for gross negligence or recklessness (willful or wanton misconduct) is by clear and convincing evidence.

The clear and convincing standard requires more proof than a preponderance (more likely than not), the standard for most civil cases.

In California, the burden is just a simple preponderance of the evidence, i.e. greater than 50%.

Clear and convincing is the standard of proof to get punitive damages, which are awarded when a defendant acts maliciously, fraudulently or oppressively. It would be a good idea for gross negligence or recklessness.

What is needed is a better screening by the court.

 

[RU4SKUBA]

I hate to rain on your parade, but your umbrella policy has all sorts of exclusions. I expect that there is an exclusion for liability arising from or during the course of your "business pursuits," defined as “any full or part time trade, profession or occupation.” There is probably an exclusion for liability arising out of the ownership, maintenance or use of any watercraft.

I would give anything to see BioLogic's expression when he checks his policy and finds out ItsBruce is 100% correct and his policy is crap. LOL, I think that would be funny...

 

[knowone]

Capable folk that travel through life availing themselves to assisting with things are far to involved to be concerned with mongering about specific interpretation of legislation designed to assist.

 

[sharkbait69]

If we went to a system were "LOSER" pays legal fees, it would cut out on alot of silly lawsuits.

 

[Steve50]

I would give anything to see BioLogic's expression when he checks his policy and finds out ItsBruce is 100% correct and his policy is crap. LOL, I think that would be funny...

first a sex change would have to take place