California lawyers make helping one in danger risky
|December 22, 2008||Posted by Staff under Progress Report, The Progress Report|
California lawyers make helping one in danger risky
Save a Life, Get Punished
by Fred E. Foldvary, Senior Editor, December 2008
It is common knowledge that in the U.S., lawyers have an enormous influence on government. The American Association for Justice, which used to be more honestly called the Association of Trial Lawyers of America, lobbies against tort reform and attempts to limit excessive lawsuits. Among the industries that lobby, as listed by The Center for Responsive Politics (www.opensecrets.org), lawyers and law firms are the second highest contributors to political campaigns.
So we know that the U.S.A. is plagued with excessive litigation and that regulations and tax laws are ultra-complicated in order to provide employment with high remuneration to lawyers. Government chiefs appoint trial lawyers to be judges, so the bias of the judges is the interest of the lawyers. It is nevertheless shocking to see the influence of the legal lobby extend to punishing those who help others, even those who saves lives when there is an accident or disaster.
On December 18, 2008, the California Supreme Court ruled that a person can be held legally liable when he with good intentions attempts to rescue a person in distress. They have put the rule that no good deed goes unpunished into the law.
A woman had pulled a co-worker from a crashed vehicle to rescue her. The court ruled that if you try to save a life, you can get punished. The rescuer has legal liability; she may be sued for her attempt to help. The accuser claimed that the rescuer made her injuries worse by pulling her out, as she became a paraplegic.
In 1980, California enacted the good Samaritan act, which states that 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 California Supreme Court ruled that the legislature had intended to protect only those persons who render emergency medical care, not rescuers in general. (The court ruling is at http://www.courtinfo.ca.gov/opinions/documents/S152360.PDF.) The Court stated that if a person elects to come to someones aid, he or she has a duty to exercise due care. So one can be sued if the survivor claims that the rescuer was not careful enough to avoid extra injury, because English common law gives a person rescued a right to sue the rescuer.
In justification for its decision, the Court noted that the good Samaritan law, Section 1799.102, is located in division 2.5 of the Health and Safety Code, titled Emergency Medical Services. The law is titled the Emergency Medical Care Personnel Act. So, to be fair, there was some ambiguity in the intentions of the legislature.
But three of the seven justices dissented. They argued that by distinguishing between medical care and other rescue, the court created an arbitrary and unreasonable limitation on protecting those who seek to save those who might die or suffer greater injury. The dissenters argued that the aim of the good Samaritan law was to encourage persons to rescue those in need of emergency help.
The moral issue here is gross negligence. A person who helps someone in distress is performing a morally good act, and if the helper reasonably did his best to help, such acts should not be subject to legal action by the ungrateful and greedy persons rescued. However, if in the rescue, the helper is deliberately reckless, and thereby makes the injury worse than if he had not helped, then that person should be liable for the damage. But the burden of evidence should be on the accuser, and the negligence should be gross and very clear. The benefit of doubt should be on the helper, since that person is in good faith performing a morally good act, and should not be held liable even if he did not in retrospect use the best judgment.
In this particular case, the rescuer thought she saw smoke, and believed that the car could catch fire, in which case quickly pulling the victim out may have been reasonable, even if the pulling possibly caused further injury. In my judgment, the defendant should not be liable.
The effect of this ruling is that if there is an earthquake and somebody is injured and trapped inside a building, others will fear to save him, lest they get sued. If someone is on fire, and there is a hose nearby, others will fear to pour water on the victim, since they could get sued, maybe for using too much water. If someone is drowning in a swimming pool, others will fear to offer a stick to the victim to pull him out, since the pulling might stretch a muscle too much.
This ruling will create greater injury and stifle cooperation and friendly assistance. There should be legislation to override common law to expand immunity and clearly protect all those who assist others in an emergency. But we should not expect California legislature to offer such protection. The trial lawyers do not pay money to politicians out of altruism. They expect privileges in return, such as a maximum of legal action, and they have gotten them with this California Supreme Court ruling.
– Fred Foldvary
Copyright 2008 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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