Help @ your own risk

[Knight165]

Re: Help @ your own risk

We don't know what lead to the accident, if the man who rescued her (I believe the story said he was a co-worker and passenger) did something inside the car that was negligent to cause the accident, then he had the duty to rescue her and the Good Samaritan law would not even apply.

Mass...

I'm going to have to disagree with you again buddy....(It's more fun that way anyway)
....1. I don't believe that even if you cause an accident you have a duty to act(in California) OTHER than to call 911 and remain on the scene.
....2......I'm pretty certain the Good Sam Law would apply anyway....
OTHERWISE
....why would the California Supreme Court need to hear a case to allow this woman to circumvent the Good Sam Law and have a court hear this civil suit?
If it was the way you are describing...no Good Sam.....straight to court, right?

...and oh man...your previous post to this one I quoted...spoken like a TRUE lawyer. Damned if you do....damned if you don't when a lawyer gets involved. The true salt of the earth.(don't get nuts...I'm just breaking chops )



M.K.
Knight165

[MassNole]

Re: Help @ your own risk

Don't you think that if the guy did something to cause the accident the victim would've talked? He did nothing wrong and now he's being tried. This is seriously a B.S law. The only reason that the suit would be liable is if he INTENTIONALLY injured her and tried to mask it as a rescue attempt. And I know how expensive it is. It's a huge waste of money. If I were her I'd still thank the guy

Yeah, really. How is she going to prove he caused her paralysis?

Essentially, it's her word vs. his. He can counter her claims by saying she was paralyzed prior to his involvement.

As I said for the lawyer to have pursued this case this far, there has been a substantial cost incurred. You could prove the injuries a number of ways, through the statements made by the defendant as to how he pulled her out of the car. Accident recreation software and experts could be used to testify that in this type of accident, if not for the actions of the defendant, the severity of these injuries would not be as bad as they presently are. Believe it or not there are intelligent people out there who can shed light on what happened other than the two parties to the case. And again, I guarantee the victim's lawyer did his homework and has these witnesses lined up.

Mass...

I'm going to have to disagree with you again buddy....(It's more fun that way anyway)
....1. I don't believe that even if you cause an accident you have a duty to act(in California) OTHER than to call 911 and remain on the scene.
....2......I'm pretty certain the Good Sam Law would apply anyway....
OTHERWISE
....why would the California Supreme Court need to hear a case to allow this woman to circumvent the Good Sam Law and have a court hear this civil suit?
If it was the way you are describing...no Good Sam.....straight to court, right?

...and oh man...your previous post to this one I quoted...spoken like a TRUE lawyer. Damned if you do....damned if you don't when a lawyer gets involved. The true salt of the earth.(don't get nuts...I'm just breaking chops )

I'll be the first to admit I know little to nothing about California Torts law. I am speaking from the general majority rule. I also haven't seen this court decision and am speculating as to why the court would have ruled this way. If someone finds the names, I'll try to pull the case and post a PDF of the decision on this board which should shed more light on this discussion. Perhaps this case went this far because as I said, the defendant did something to cause the accident, and the true issue was if the initial tortfeasor is protected by the GS statute in California when he then tries to rescue,which was conveniently unreported by this news outlet. The majority rule, which I don't know if California follows, is that the tortfeasor has a duty to try and help for his own negligence or intentional tort. There has to be something more to this case than has been reported for it to have gone this far and for the California Supreme Court to seemingly strike down the statute.

(I looked for this case on Casemaker, it doesn't appear it's been loaded into the system yet)

[Knight165]

Re: Help @ your own risk

I am with you on this point at least.....trying to determine facts and what really happened by relying on media coverage is fruitless.
They will only put forth what will sensationalize their coverage the best.
...and I like you am only going by what little I saw there and what I quickly looked up on the internet.
If you do follow this up and find out anything....I'd be very interested in hearing about it,if you don't mind.

M.K.
Knight165

[MassNole]

Re: Help @ your own risk

I'll definitely post a PDF of the case if I find it on Lexis.

I tried searching the California case law database with a search of:
Accident and Negligence and Paralysis or Paraplegic and "Good Samaritan" and came back with no results recent enough to be this case. If someone has a better search string I'll gladly try it.

Perhaps as I said, it was him trying to hide behind the GS law after causing the accident and his lawyer doing a good job using the GS as a shield because of the rescue attempt.

[RAZRr1275]

Re: Help @ your own risk

As I said for the lawyer to have pursued this case this far, there has been a substantial cost incurred. You could prove the injuries a number of ways, through the statements made by the defendant as to how he pulled her out of the car. Accident recreation software and experts could be used to testify that in this type of accident, if not for the actions of the defendant, the severity of these injuries would not be as bad as they presently are. Believe it or not there are intelligent people out there who can shed light on what happened other than the two parties to the case. And again, I guarantee the victim's lawyer did his homework and has these witnesses lined up.

But if he didn't pull her out she could've been dead. And to me being dead trumps being a paraplegiac so if he did injure her it is not grounds for a suit IMO. If I were a lawyer I'd definatly challenge the law.

[p_rushing]

Re: Help @ your own risk

Unless the guy broke her legs, grabbed her by the arms and twisted her spine, etc to get her out, you can't say he was negligent. He is not a doctor or mechanic, if he smelled gas, saw fluid leaking, etc, any reasonable person would assume there was a great risk for the car to explode. He thought he had to do what it took to get her out. I know they will argue that he shouldn't have done anything, but I don't see them winning unless there was some witness to this guy treating her like a rag doll when removing her from the car.

Its all about what a reasonable human would have thought and done.

[rsnomar05]

Re: Help @ your own risk

Unless the guy broke her legs, grabbed her by the arms and twisted her spine, etc to get her out, you can't say he was negligent. He is not a doctor or mechanic, if he smelled gas, saw fluid leaking, etc, any reasonable person would assume there was a great risk for the car to explode. He thought he had to do what it took to get her out. I know they will argue that he shouldn't have done anything, but I don't see them winning unless there was some witness to this guy treating her like a rag doll when removing her from the car.

Its all about what a reasonable human would have thought and done.

I'm a law student, and you are right about the "reasonable person" standard. However, MassNole is 100% correct in that if he was negligent, he can be held liable. In these cases, the courts look for a "but for" causation. In other words, "but for the man's actions, the woman would not have been paralyzed." As for people asking how you prove negligence, well you can never do it 100% unless you have an admission or a "res ipsa loquitur" case, which basically means "the act speaks for itself," that the injury could not have occurred in the absence of negligence. Negligence can be shown in cases where 100% proof is impossible, however, through expert testimony, witness reports, etc. So the defense can line up doctors and medical experts who will testify that the man's actions caused the injuries.

In California, there is no affirmative obligation to act in these situations, and once you begin a rescue attempt you are liable for any negligent damage that attempt may cause.

[Knight165]

Re: Help @ your own risk

In California, there is no affirmative obligation to act in these situations, and once you begin a rescue attempt you are liable for any negligent damage that attempt may cause.

Okay....
Question.
Does California have the Good Samaritan Law or not?(hint: it does)
You are not subject to the threat of a lawsuit in states that have the Good Samaritan law.
There is no negligence in rendering aid in Good Samaritan states.
That is the entire purpose of the law.
That is why this case is becoming a bid deal.
Study harder

M.K.
Knight165

[Knight165]

Re: Help @ your own risk

States with the Good Samaritan Law.
If you're in a state other than these.....help...but you better know what you're doing....
....
... STATES WITH GOOD SAMARITAN LAWS

Alabama
Section 6-5-332

Alaska
SECTION 09.65.090

Arkansas
A.C.A. § 17-95-101

Arizona
A.R.S. § 9-500.02.

California
Ann.Cal.Bus. & Prof.Code §2395.

Connecticut
C.G.S.A. §52-557b.

Colorado
CRS title 13-21-108

Delaware
16 Del.C. §6801 (a)

Florida
Section 678.13 (2008) The Good Samaritan Act
Sections 678.1315 - 678.1382 (2008) Other related laws
Section 401.2915 AED use by the public

Georgia
§31-11-8

Hawaii
Sec. 663-1.5

Idaho
I.C. §5-330

Illinois
210 ILCS 50/3.150

Indiana
IC 16-31-6-1

Iowa
I.C.A. §613.17

Kansas
K.S.A. §65-2891

Kentucky
KRS §411.148

Louisiana
LSA-R.S. 37:1731

Massachusetts
5-309 Chapter 137

Maryland
Maryland Law 5-309

Maine
Title 14 164

Michigan
333.20965

Minnesota
604A.01

Mississippi
§73-25-37.

Missouri
Section 190.092

Montana
27-1-714

North Carolina
G.S. 90-21.16

North Dakota
§ 20-9-4.1

Nebraska
25-21,186

Nevada
(NRS) 41.500

New Hampshire
Section 508:12

New Mexico
24-10-3

New Jersey
2A:62A-1

New York
Article 30

Ohio
§ 2305.23
§ 4765.49

Oklahoma
Title76.Torts Section5
Title76.Torts Section5.1
Section 698.17
Title 76. Torts Section 5.4

Oregon
(ORS) 30.800

Pennsylvania
42 Pa.C.S.A. § 8 332

Rhode Island
§ 9-1-27.1

South Carolina
SECTION 15-1-310

South Dakota
§ 20-9-4.1.

Tennessee
63-6-218.

Texas
6701d

Utah
78-11-22

Virginia
H.B. 2097

Vermont
SS 519 S.283

Washington
4.24.3000

Washington DC
D.C. CODE 1981 §2-1344.

Wisconsin
895.48

West Virginia
55-7-15

Wyoming
1-1-120.


M.K.
Knight165

[Brandwin]

Re: Help @ your own risk

man, that's just crazy. Makes you think twice before helping someone.

[rsnomar05]

Re: Help @ your own risk

Okay....
Question.
Does California have the Good Samaritan Law or not?(hint: it does)
You are not subject to the threat of a lawsuit in states that have the Good Samaritan law.
There is no negligence in rendering aid in Good Samaritan states.
That is the entire purpose of the law.
That is why this case is becoming a bid deal.
Study harder

M.K.
Knight165

Yes, but the Good Samaritan Law is restricted to emergency medical care.

Here is what it says in Division 2.5 of the California Health and Safety Code:

1799.102. 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 scene of an emergency shall not include emergency departments and other places where medical care is usually offered.

I researched cases on WestLaw and The California Supreme Court has interpreted the statute to mean only cases involving medical care, as the last sentence suggests.

Because moving a victim to a safer location is not medical care, I was right when I said in these circumstances there is no affirmative obligation to act.

[Knight165]

Re: Help @ your own risk

Yes, but the Good Samaritan Law is restricted to emergency medical care.

Here is what it says in Division 2.5 of the California Health and Safety Code:

1799.102. 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 scene of an emergency shall not include emergency departments and other places where medical care is usually offered.

I researched cases on WestLaw and The California Supreme Court has interpreted the statute to mean only cases involving medical care, as the last sentence suggests.

Because moving a victim to a safer location is not medical care, I was right when I said in these circumstances there is no affirmative obligation to act.

Well, you could argue that.....but I think you'd STILL be wrong.
Part of Emergency Medical Service is to remove the victim to a safe area. It is THE FIRST part of rendering emergency care(here in N.Y. for Fire and Rescue and the Samaritan Laws are meant to parallel our duties and cover civilians)
I think that you are interpreting the way the Law is stated incorrectly by not including the safe removal. NOBODY...not even F.D. members are expected to work on a victim in an unsafe environment....so why would a civilian?
What is the alternative?...remove them to a safe area!

If you could....I would love to read a case study that shows someone that was allowed to be sued for removing someone from an unsafe location.

I would find it very difficult to believe that even the laid back California law would not allow for the removal of a victim from an unsafe scene to an area of safety to not be part of EMERGENCY medical service.

M.K.
Knight165

[Knight165]

Re: Help @ your own risk

rsnomar...

I just want you to know....that I'm not "challenging" you to find me a case like that...as if I refuse to believe you otherwise....
I'd just be interested in seeing one.(I also realize that you are probably swamped with studies....so if time is a factor.....I fully understand that, but for me to try and find something like that would be pretty difficult...I wouldn't know where to start)

This situation has me very interested in what will happen.
.....and if I am wrong about the scope of the Samaritan Law there....I apologize.....
I hope I'm not though, not for the sake of being correct, but I would actually find it a bit disheartening to think that someone could be punished for trying to help(even though the results were tragic).
If it were a professional....negligence would certainly be in order IMO...but not for a civilian I think.

M.K.
Knight165

[RAZRr1275]

Re: Help @ your own risk

I'm with Knight on this one.

[rsnomar05]

Re: Help @ your own risk

Well, you could argue that.....but I think you'd STILL be wrong.
Part of Emergency Medical Service is to remove the victim to a safe area. It is THE FIRST part of rendering emergency care(here in N.Y. for Fire and Rescue and the Samaritan Laws are meant to parallel our duties and cover civilians)
I think that you are interpreting the way the Law is stated incorrectly by not including the safe removal. NOBODY...not even F.D. members are expected to work on a victim in an unsafe environment....so why would a civilian?
What is the alternative?...remove them to a safe area!

If you could....I would love to read a case study that shows someone that was allowed to be sued for removing someone from an unsafe location.

I would find it very difficult to believe that even the laid back California law would not allow for the removal of a victim from an unsafe scene to an area of safety to not be part of EMERGENCY medical service.

M.K.
Knight165

"You could argue that, but you'd still be wrong."

It's the court that does the arguing, and it's the court that interpreted the statute that way. I'll provide with a case cite in a bit (I have to go look it up).

"Part of Emergency Medical Service is to remove the victim to a safe area. It is THE FIRST part of rendering emergency care(here in N.Y. for Fire and Rescue and the Samaritan Laws are meant to parallel our duties and cover civilians).
I think that you are interpreting the way the Law is stated incorrectly by not including the safe removal. NOBODY...not even F.D. members are expected to work on a victim in an unsafe environment....so why would a civilian?
What is the alternative?...remove them to a safe area!"

Again, it's the courts who interpret the statute, and the interpretation will differ by state.

Because I can't link to WestLaw (as you need to pay for the service), I'll give you the holding in the "Van Horn v. Torti" case, or the one this thread is about. The case went on appeal to the California Supreme Court, and I will summarize what the majority said:

Justice H. Walter Croskey went to the statutory definition from the Health and Safety Code of medical emergency, which defines a medical emergency to be a situtation where a person “has a need for immediate medical attention . . . perceived by emergency medical personnel or a public safety agency.”

This definition applies, the majority reasoned, because the Good Samaritan Statute is contained inside the Emergency Medical Services System section of the Emergency Medical Care Act, and a "general immunity statute would more likely be found in the Civil Code."

Moving a victim to a safer location based on a perceived risk does not qualify, then, under the statute, as being "medical." The majority did state, however, that there are some exceptions that would place moving a victim to a safer location in the "medical" realm, such as "where a carbon monoxide victim needs to be moved to a source of fresh air," but none of the exceptions apply to this case.

The Court, in refusing to extend the statute to rescue attempts, wrote that acts not covered under the statute must be governed by precedent and common law, and at common law there is no affirmative obligation to act. When someone attempts a rescue and is sued for tort liability in court, it is up to the jury to determine whether the rescuer satisfied his/her duty of reasonable care.

Here is the holding from the Supreme Court:

"There may be circumstances in which moving someone from their current location is a matter of medical exigency, such as where a carbon monoxide poisoning victim needs to be moved to a source of fresh air. We do not hold that the act of moving a person is never the rendition of emergency medical care, only that it was not in this case."