Suing Good Samaritans

[Ralph E. Powers]

Woman Sued for Rescue Effort in Car Crash


Legal Experts Say California Ruling Could Make Good Samaritans Hesitate


By SUSAN DONALDSON JAMES
Dec. 19, 2008

http://abcnews.go.com/TheLaw/story?id=6498405&page=1No good deed goes unpunished, or so goes the saying. Such was the case with Lisa Torti, who is being sued for pulling a now-paralyzed friend from the wreckage of a Los Angeles car accident in 2004.
The victim's lawyers claim the Good Samaritan bumbled the rescue and caused injury by yanking her friend "like a rag doll" to safety.
But Torti -- now a 30-year-old interior designer from Las Vegas -- said she thought she had seen smoke and feared the car would explode. She claims she was only trying to help her friend, Alexandra Van Horn, and her own life has been adversely affected by the incident.
"I know [Van Horn] has a lot of financial issues and her life has changed," she said. "But it's not my fault. I can't be angry at her, only the path she has chosen to take. I can only pray it helps her."
"I don't have any more fight left," Torti told ABCNews.com, choking back tears. "It's really emotional."

The California Supreme Court ruled this week that Van Horn may sue Torti for allegedly causing her friend's paralysis. The case -- the first of its kind -- challenges the state's liability shield law that protects people who give emergency assistance.

I myself find personal outrage at this court ruling. Having come across the scene of several accidents in the course of my life and lending what assistance I could until EMS arrived I find the thought of hesitating because "what if they decide to sue me??" is just unthinkable at best. That I jumped in and helped happened without even a moment's pause or fleeting thought of being sued for doing THE RIGHT THING!

You're in a car accident bad enough to where you're trapped, hurt and you can smell gasoline leaking from your car ... do YOU wanna sit there and wait for 15-20-maybe 30 or as long as 45 minutes for EMS to arrive?
So which is it... better to be burned alive or to be paralyzed for the rest of your life? Hmm, tough choice huh?
Even taking 30 seconds to shout at the trapped victim of an accident and asking them..."hey, your car is on fire... do you wanna be rescued or wait until the pros arrive??" that is ... I'm trying to find the word... callous? insensitive? paranoid??
Even asking permission to help someone isn't going to protect you in court.
How many people across the country, because of this ruling in California (which we all know sometimes what happens out there can affect the entire country...) are going to suffer their plights because people are more hesitant to help on account that it might lead them AND their families to financial ruin?
What was that judge thinking when he ruled on this? What will the other judge who presides over this case going to do? Award the suit? One can imagine the ripple effect THAT will have on would be Samaritans out there.
I have been a volunteer SAR person for years and while I do not get called out or am not on a call list anymore, if I am asked then I will surely go to lend what assistance I can. I'm not trying to be noble or heroic here just want to be of help however/whenever/wherever I can...
But now... I can wipe out my whole family just by doing so.
On the level of cave rescue this can have impact as well. Now if we come across some hiker or spelunker (read: non-caver) or even a caver who is injured and is in need of immediate assistance... do we say ... "hold on and I'll call 911 and NCRC for ya! Then sit back and wait... doing nothing?
I doubt many of us will, because we know that minutes are precious when it comes to an accident in a cave... especially dealing with things like hypothermia. But if the person is injured say in a fall and in a rock fall zone where stuff is still coming down or COULD come down as a result of rescuers making their way to them... ?? I think as cavers we know the risks and are willing to assume them whenever we go underground. But how hesitant are we going to be if it's a non-caver that's fallen down, say a 12 foot free-climb and may have suffered spinal injuries? No, not supposed to move them -- this almost everyone knows -- but sometimes it's necessary (cold water or water fall or the imminent fall of rocks from above?).
Even outside the cave are we going to stop and help?
Things to ponder for those of us who have a proclivity to stop and render assistance.

[slapout]

This is sad and as you know in a post I made awhile back this worries me. but as a wise man said in my post only in the good ol' U.S. I will pray for both tho

[cave rat]

Hell, why bother to show up to save the SOB. Seems it is not worth anymore. People want to be saved but always wants something in return with a huge cost to the other person. People can be so freeking greedy sometimes. I'll take not being to walk over dying anyday.

[fuzzy-hair-man]

Remembering from when we did a first aid course here in Australia we were told to inform the person who we were and that we were going to perform first aid, if they then said "no bugger off" you had to leave them alone if they were unconsous then it was assumed that they gave implicit permission for you to perform first aid. This could lead to the rediculous situation where someone refuses help and the first aider has to sit and wait for them to pass out before giving assistance (after ringing 000/911). if they were then to wake up and say "go away" they were to be left alone until unconsious again. No hitting them over the head is not the answer that's assault.

The general view was yes we are on a legal grey area and if we didn't feel comfortable we were within our rights to do nothing (not very appealing), if we did help what we did needed to be within the bounds of our training and not negligent or reckless, if that were the case it was thought the law would generally come down on your side (but no guarantees).

We were also advised to tell them what we were doing (in general) but this also means that they have the opportunity to object, or indeed tell the first aider more like "but my back's sore and I'm worried I have a broken back" which leaves the first aider better informed about their condition and better able to make a decision about what to do, if they raise no objections it might also be considered consent for the proposed action, or at least help legally. Of course this doesn't apply if they are unconsious....

[Stridergdm]

Interesting post.

First, before folks panic, I'll point out a key phrase: "The California Supreme Court ruled this week that Van Horn may sue Torti for allegedly causing her friend's paralysis." This is simply arguing that the case may go forward. No actual verdict as been rendered.

I am a bit surprised by the next statement though, "The case -- the first of its kind -- challenges the state's liability shield law that protects people who give emergency assistance." I'd be a bit surprised if that's truly the case.

Reading the article does give a bit more background, including two (in my mind) key pieces:
"She couldn't open the door and without being asked Ms. Torti grabbed and pulled her out of the car. It was her belief that the car was about to explode." In other words, consent was apparently NOT given. (note, I think "her" in the 2nd sentence refers to Ms. Torti, now Van Horn.) Which is probably a big part of what went into the court's decision here.

In addition, "Hutchinson argues that despite her belief that there had been an explosion, Torti pulled the victim at an angle and dumped her on a hard median next to the car, allegedly injuring Van Horn's spine." This may be another key.

Generally if you start to rescue someone, you're obligated to continue as long as you're safe and can continue and don't exceed your training. You also are trusted to do what "the reasonable man" would do. Would a reasonable person yank a person from a car without their consent and "dump them on the pavement"?


I do think this case has the potential to be damaging to Good Samaritan laws, but so far, I don't think it's too much to worry about.

[Dane]

Excellent points Stridergdm.
The decision to go forward is unusual - most states have enacted and/or are beefing up their "Good Samaritan" laws to prevent just this type of suit.
Most of them do exclude reckless behavior, as they should, and it may be that this stipulation is applicable in the California case. Of course "reckless" is one of those gray words open to interpretation.
ASSUMING THIS SUIT GOES FORWARD......
I have to wonder wonder about the impact of winning such a suit.
After the advent of AED's (automated external defibrillators), many organizations and establishments were afraid of the potential liability of having and using such devices. As it turns out, nearly all of the lawsuits involving them have been because they were NOT available, or were available and NOT used.
Could such a lawsuit have the same effect on Good Samaritans? If you were at the scene of an accident or other emergency, were trained and/or certified, and FAILED to give assistance, could you be held accountable?
Suddenly any deliberation becomes even more......deliberate!!!

[Stridergdm]

Excellent points Stridergdm.

Thanks, though I will disclaim with "I am not a lawyer".

After the advent of AED's (automated external defibrillators), many organizations and establishments were afraid of the potential liability of having and using such devices. As it turns out, nearly all of the lawsuits involving them have been because they were NOT available, or were available and NOT used.
Could such a lawsuit have the same effect on Good Samaritans? If you were at the scene of an accident or other emergency, were trained and/or certified, and FAILED to give assistance, could you be held accountable?
Suddenly any deliberation becomes even more......deliberate!!!

I don't know of any states that obligate a "regular person" to stop and help. That said, I could situations where one might be held accountable. (you see a person fall down in convulsions in front of you , you have a cell phone in hand and no absolutely nothing.) The case is obviously different for trained medical personal who often ARE in fact obligated.

As for the case of AEDs, they are at the point where public (and many private) facilities are expected to have them. This is similar to trained personal being obligated to help. I don't that becoming an issue in the future.

[ditchdoc]

Several good points made. From a Firefighter Paramedic's point of view, the good samaritain law does protect the average person from legal action. The catch is that there are clauses that are open for interpretation by greedy lawyers. Words such as "resonable action" and "due regard" for the safety of others. The prosecuting lawyer will have to show that the rescuer did something that general society would see as a wrong doing. Also, the news media never gets the full story and can make an accident scene sound totally different from what actually happened. I have first hand experience with that!

Asking a concious victim if they want you to help them is a good CYA, but you really need a witness or its your word against the victims. Even as a professional, we have to verify that someone want's our help in many cases, such as do you want to go to the hospital? If someone is unconcious consent is implied though.

As for the AED's. Not to fear, they are placed out in public because they are fool proof. Unless the unit was to malfunction, then it would go back on the manufacturer. I have never heard of this happening though. As thier name implies, an Automated External Defibrillator automatically reads the electrical activity in the heart, if the heart is not in a shockable rhythm it will tell you to check for a pulse, if no pulse continue CPR. If there is no pulse it will not shock if there is not an electrical rythm detected. The cardiac monitors used on ambulances and many fire trucks, display the cardiac rhythm on a screen and the user must be able to read it and determine the best course of action such as defibrillation, syncronized cardioversion, pacing, or pharmacological interventions.

[Stridergdm]

As for the AED's. Not to fear, they are placed out in public because they are fool proof. Unless the unit was to malfunction, then it would go back on the manufacturer. I have never heard of this happening though. As thier name implies, an Automated External Defibrillator automatically reads the electrical activity in the heart, if the heart is not in a shockable rhythm it will tell you to check for a pulse, if no pulse continue CPR. If there is no pulse it will not shock if there is not an electrical rythm detected. The cardiac monitors used on ambulances and many fire trucks, display the cardiac rhythm on a screen and the user must be able to read it and determine the best course of action such as defibrillation, syncronized cardioversion, pacing, or pharmacological interventions.

BTW, as a complete aside, the American Red Cross and others will offer training on an AED in addition to their CPR offerings. Not a bad idea to take it. Yes, they're foolproof, but doesn't hurt to practice with a demo unit.

And now we take you back to your regularly scheduled hole in the ground.

[Dane]

I love this place because there truly are so many nice, caring, intelligent people on here!
Sure, there are a few that can be cantankerous, and some like me that are just generally silly, but for the most part CaveChat and the NSS are made up of dedicated people that care about caves and cavers and the public at large.

Now, having said all that!!!.......

I didn't bring up the AED's to get off subject.
My point was that the California decision to allow a suit against a "Good Samaritan" broke legal ground.
There may be merit - I'm not familiar with the case - but the fact that the judge is allowing it to go forward made news because most folks did not think it would be ruled that way.
I brought up the AED's (and BTW, I have taken the Red Cross course w/ AED's for the past few years) because the majority of those suits are concerned with them NOT being available and/or used.

It seems a small step to assume, given the California decision, that a non-acting Good Samaritan could be sued using the same logic.
And following the logic in both cases, I believe it could be applied to anyone that is trained and/or certified to perform whatever service was needed at the time, whether that be CPR, SAR, aid in exiting a cave or pit, etc, and that would include a lot of people that are not officially recognized as First Responders.

Obviously we live in a highly litigious society, and while I don't think just because someone is able and has a modicum of knowledge or training could be held liable by the state, folks can pretty much sue one another for virtually any reason.
I don't WANT to see that happen, and I don't necessarily think it will, but I do find the concept plausible and therefore interesting.

[ek]

Dane: On the topic of non-acting Good Samaritans, Good Samaritan laws (only) protect people who do not have a legal duty to act. They do not protect people who have a duty to act, as the purpose of the laws is to encourage people to act when otherwise they might hesitate due to fear of lawsuits.

My understanding is that (contrary to what we see in action flicks) it's very rare for a vehicle to actually explode and kill its passengers. (Street EMT's and paramedics here on Cavechat: Am I wrong?) It would be an interesting turn if Torti's lawyer argues that Torti was driven by the profound misconception that is rampant in our society that a damaged car with gasoline leaking is an immediate explosive danger. What is key, after all, is what a reasonable person would have done.

However, if a Good Samaritan law protects people in Torti's situation, then even if a reasonable person would not have done what she did, she would still probably be protected. So long as she acted in good faith, having a good faith belief that she was saving her friend's life.

I do think there has got to be some limit on the actions protected by Good Samaritan laws. When I took the Wilderness First Responder course, our instructor told us that he had once responded to an emergency where a man's head had been completely severed in his living room, and his wife was standing there screaming. He said that it didn't bother him at all. Later, he told us that responding to cases of child abuse bothered him greatly, that they were the worst things he'd ever seen and had made him question whether or not to continue in the field of emergency medicine. He showed us pictures of all the different types of injuries we were being trained to recognize. Most of the pictures of burns were from abuse cases. Those were the most disturbing, horrifying, morally sickening images that I have ever seen, perhaps save those that document genocides. I would hate for a parent who had sought to cure their toddler's misbehavior (which these days is often considered to represent a psychological illness) by immersing the child in boiling water ("getting rid of the devil") to protected from future civil suit by a Good Samaritan law. Once ignorance reaches a certain level it is indistinguishable from deliberate wickedness.

However, whatever you might think about the way Torti allegedly dragged Van Horn out of the vehicle, I think it's pretty clear that it was not tantamount to deliberate wickedness. It was a perfectly natural response to an emergency, motivated by the basic human need to help others. It was something that many people would have done. Wherever the line is to be drawn to separate actions that can never be protected by good Samaritan Laws from those that can, I think that removing someone from a location where you think there is immediate risk to their life is within the bounds of acting as a Good Samaritan. However, the question is whether or not it is a medical treatment. Arguably it is not--it does not address an existing medical condition, and the matter that Torti believved threatened Van Horn's life was not "medical" in nature. But arguably it is--after all, even in basic First Aid we are taught to avoid moving a patient with a possible spinal injury unless where they are is putting their life in danger; thus basic medical training arguably includes patient movement.

This narrow technical question is what determines whether or not the California Supreme Court acted rightly or wrongly. Remember, the purpose of courts is to interpret the law and to strike down laws that are themselves illegal. It is not to relegislate to correct the errors of elected representatives. The California Supreme Court ruled that the California Good Samaritan law doesn't protect people in Torti's situation. Either the law does protect that or it doesn't. It is not the job of a judge to interpret the law incorrectly whenever that would lead to a preferable outcome.

As the reporter in the video (embedded in the article) says:

The backlash is so strong that the California legislature may rewrite the law to give more protection for Good Samaritans.

That would seem like it would be an appropriate solution (though it would not affect the present lawsuit).

There is another possible reason I can think of why a Good Samaritan Law might not cover Torti's situation. Does a Good Samaritan law protect someone who is not merely present in an emergency, but who (being in the vehicle) is integrally involved in the emergency? My guess is that it does, unless they were somehow responsible for the emergency occurring, but I'm not sure.

[Dane]

[quote="ek"]Dane: On the topic of non-acting Good Samaritans, Good Samaritan laws (only) protect people who do not have a legal duty to act. They do not protect people who have a duty to act, as the purpose of the laws is to encourage people to act when otherwise they might hesitate due to fear of lawsuits.

Well said, and that is my point.
Scenario - I have had the necessary training to respond thoughtfully in a particular situation, and understand I have the protection from liability provided by the GS law, but fail to act for some reason.
The victim's lawyer discovers I was at the scene, had whatever training, knew of the GS laws, and sues me because of my failure to fulfill my moral, civic, or in his eyes, legal duty.
Several states and foreign countries have such a "Duty to Rescue" law, or clause within their GS laws.
This logic is the basis for the AED lawsuits, even in states without such a law.

And now the California decision indicates there may be a hole in my GS umbrella of protection - ROCK
Versus my civic "duty to rescue" - HARD PLACE

Don't get me wrong - if able, I will do whatever I can to help another.
And I know that nearly everyone on this forum feels the same way.
We feel the duty, regardless of the law.
But it does seem to open a can of worms.

[ek]

Again, if you have a duty to act, a Good Samaritan law generally would not protect you. If you could be sued for not acting, then that means there is already no disincentive for you to act, and a Good Samaritan law would not protect you.

The argument that you are suggesting a plaintiff's attorney would present is as follows:
(1) The Defendant had no duty to act.
(2) Therefore a Good Samaritan law removed any legitimate disincentive to act.
(3) And therefore the Defendant had a duty to act.

I intend no offense to you personally, but I think any judge would consider this absurd self-contradicting argument to be frivolous (i.e. so obviously unsound as to be a violation of professional standards for any lawyer to present it).

Good Samaritan laws do not protect anybody who acts to help another during the course of their job, anybody who had a hand in wrongfully bringing about the injury, or (in most states) a paramedic or anyone of higher medical certification, as such people are bound by the law to respond to any medical emergency they see unless it is already being responded to better than they could.

In the state of Alaska you (i.e. all motorists) are required to stop and assist anyone who is pulled over on the side of the road and requires help. I am unsure if a Good Samaritan law applies to medical treatment rendered while doing that.

Besides Alaska, what states in the United States have a "duty to rescue" law that applies to all people (rather than just to people with a certain level of medical training and certification, and higher)?

[NZcaver]

In the state of Alaska you (i.e. all motorists) are required to stop and assist anyone who is pulled over on the side of the road and requires help.

Coincidentally, I did exactly that earlier this year. It wasn't a medical emergency, but they certainly did require assistance. I didn't know it was the law, but I did know it was the right thing to do - especially in a remote part of Alaska. As fate would have it, later in the year when I needed some minor roadside assistance somebody stopped and helped me out. Imagine that!

We covered the Good Sam Law on my WFR courses too. It will be interesting to see where this thing goes.

PS - I wonder if the Good Sam Law covers cavers who render emergency assistance to somebody on a caving trip? It's not a car wreck, but I don't see why the same rules wouldn't apply.

[Dane]

Again, if you have a duty to act, a Good Samaritan law generally would not protect you. If you could be sued for not acting, then that means there is already no disincentive for you to act, and a Good Samaritan law would not protect you..........
PS - I wonder if the Good Sam Law covers cavers who render emergency assistance to somebody on a caving trip? It's not a car wreck, but I don't see why the same rules wouldn't apply.

Exactly my point!!!! Thanks NZ!

Hi Ek. The self-contradictory nature of this is the very thing that interests me!

According to Wikipedia, there are 8 states that have a "Duty to Rescue" law that compels all citizens to aid those in need.
Like the Good Sam laws, there are constraints, ie, you do not have to put yourself or others at risk, etc., but you (ordinary citizen) are expected to provide a level of aid equal to your capabilities within those constraints.
I do not know how many foreign countries have a similar law, but it is common in Europe. You may recall that some of the paparazzi at Princess Diana's fatal car crush were investigated under just such a law.
Coincidentally, these laws are often called "Good Samaritan" laws also, although they are designed to compel one to act rather than provide liability.
http://en.wikipedia.org/wiki/Duty_to_rescue

While the laws are seldom enforced, they are on the books, and again, it is this "duty to rescue" logic that is used in the case of AED's even in states that do not have Duty to Rescue laws on their books. The lower cost and prevalence of the devices create a "duty" for businesses, government agencies, schools, public buildings, health clubs, retail stores, airlines etc. (this list from actual lawsuits) to provide them.
Most of the ensuing lawsuits are in regards to AED's not being readily available, not being properly maintained, or not being used even when on-site, implying a "duty to rescue" to provide such.

In addition, even in under English Common Law, and pertaining more closely with what we do, a "duty to rescue" arises where a person creates or engages in a hazardous situation. If another person then falls into peril because of this hazardous situation, the creator of the hazard – who may not necessarily have been negligent – has a duty to rescue the individual in peril.
Sounds like a caving trip to me!!! And to your question NZ, no, if you were the trip leader, there may be no protection from liability in such a situation. I think the lawyers would just have to hash it out.

My point is that the current legal climate puts impetus on you to act as a Good Sam, even if you are not personally inclined to do so, while the California decision has the potential to put the squeeze on you from the other direction - no freedom from liability.