Sunday, December 21, 2008

The California Supreme Court Tosses a Lump of Coal to Good Samaritans This Christmas Season

Bah! Humbug! Said the California Supreme Court to Good Samaritans last Thursday in a sharply divided opinion, Van Horn v. Watson, 2008 WL 5246046.

The policy of most states is to encourage good Samaritans, a rarity in our country as shown by the Kitty Genovese case 45 years ago, to come to the aid of third parties in peril.

Kitty was returning to her Kew Gardens apartment in Queens, New York at 3:15AM on March 13, 1964 when she was repeatedly stabbed over a period of half an hour. The initial newspaper article portrayed 38 neighbors hearing and seeing the attacks without doing anything to assist her. One witness said: “I just didn’t want to get involved.”

The picture painted was one of callous, indifferent New Yorkers.

We now know that this version was incorrect, but the actual facts are still disturbing. No one actually saw or heard the whole scenario, and hence had a full understanding of the tragedy unfolding yards from their residences. Windows were closed because of the cold. At one point a neighbor yelled out to leave her alone, at which point the assailant left, but then returned ten minutes later to complete his gruesome task. The neighbor did not call the police.

One of the neighbors might at some point have taken the extra step to discover the unfolding tragedy and possibly save Kitty’s life, but didn’t. The law protects their failure to act.

The common law rule is simple; we have no legal duty to come to the aid of third parties, absent special relationships. Indeed, we can laugh at the misfortunes of others as they drown, burn, bleed, or jump to death. Such response may not be commendable, but it’s legal.

We have a moral obligation to act, but not one that is enforceable in law.

A corollary to the common law though is that even if we initially have no duty to act, once we begin to act, we must act reasonably.

California, like most states, witnessed the fear of litigation as deterrence for medical personnel to stop at the scene of an accident to render care.

The state in 1980 enacted a statute, which provides; “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.” The plain language of the statute is a broad “Good Samaritan” statute, protecting all who come to the assistance of the victim.

That brings us to the California Supreme Court opinion. The Court rewrote the plain words “emergency care” to be “emergency medical care” or “emergency medical services” by looking to the broader context of the statute. Therefore, the statutory immunity extends only to “those persons who in good faith render emergency medical care at the scene of a medical emergency.”

The dissent, as does the United States Supreme Court, starts with the plain words of the statute. If the language is clear, and it certainly is with this statute, then the analysis ends.

Five co-workers went to a bar on Halloween to drink and dance. Several had smoked marijuana before going to the bar. They left the bar in two cars at 1:30AM. Alexandra Van Horn was a front seat passenger in a car driven by Anthony Glen Watson. Lisi Torti was a passenger in the trailing car.

Watson lost control of his vehicle at 45mph, and crashed into a light pole, knocking it over onto the car. The front airbags deployed. Torti rushed to Alexandra’s assistance, and pulled her out of the wrecked car. She saw smoke and liquids coming from the crashed car, and feared the car would catch on fire or explode.

Van Horn claims Torti yanked her out by her arm “like a rag doll,” the result of which rendered Van Horn a paraplegic. She denies that the car was in danger of catching on fire or exploding. She was paralyzed as a result not of the original crash, but of Torti pulling her out of the car.

Two famous clich├ęs of the law seemingly apply here. The first, the great Shakespearean quote about lawyers: “The first thing we do, let’s kill all the lawyers” is taken out of context. The full text praises lawyers and the law.

The other though, the Dickens quote from Oliver Twist, is totally applicable here. “If the law supposes that,” said Mr. Bumble …. “the law is an ass - a idiot.”

One explanation for the case is a trite saying we provide law students for seemingly inexplicable opinions: “Hard cases make bad law,” or as I often heard it in law school: “Heart cases make bad law.”

Plaintiff, a paralyzed victim of an auto accident, presents a compelling, sympathetic claimant, especially if, under disputed facts, her paralysis could have been prevented by defendant not panicking.

Judges are as compassionate as jurors, and hence moved to compensate deserving victims, interpreting, misinterpreting, ignoring, or changing the law, as necessary to facilitate compensation.

The result though is to once again, as in the days of the late Chief Justice Rose Bird, turn the California Tort system into a lottery system in which justice is dispensed through the forensics skills of the lawyers.

The message sent by the majority to good Samaritans is simple: Don’t get involved.”

The major issue is the extent to which society wishes to encourage rescuers.

Chief Justice Benjamin Cardozo of the New York of Appeals wrote that: “Danger invites rescue.” We expect rescuers to act almost instinctively in a split second, lacking the time to fully deliberate the reasonableness of a considered response. Their decisions should be assessed in the light of the apparent emergency, with the rescuer receiving the benefit of the doubt.

But the passage of time, discovery, and the liberality of pleading, allows for a breakdown, nano second by nano second, to parse and second guess the reasonableness of the responder’s act, leaving it to the jury with the clarity of time to decide if the response was reasonable or negligent.

Cardozo said “Danger invites rescue.”

California posits a corollary: “Rescue invites litigation,” the lesson being Don’t Get Involved, or you can join Torti as a tortfeasor.

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