Good Samaritans: At Risk in California, Protected in Arkansas

When Lisa Torti pulled her co-worker Alexandra Van Horn from a just-wrecked car at 1:30 a.m. after a night of Halloween revelry, perhaps she thought she was just trying to help. But this being 21st-century America, Van Horn could have only one response: She sued.

There’s some question about who really did right here. Torti’s lawyer says she was just trying to remove Van Horn from a zone of danger that had been created by a 45-mph collision with a lamppost; Torti says she saw smoke and liquid coming from the car and feared that an explosion was imminent.

Van Horn’s lawyer says she was yanked out “like a rag doll,” left near the supposedly smoking car, and suffered permanent and debilitating damage to her spinal cord such that she is now paralyzed for life as a result of Torti’s assistance.

The California Supreme Court ruled earlier this month that the lawsuit can go to trial. This case has set off a firestorm of commentary, because it raises the question of whether careless rescuers should be subject to legal liability—and, therefore, lawsuits.

I think generally they should not be, which is the reason I wrote and helped pass Act 683 of 2007 (link opens as PDF file), which will prevent the kind of trial about to take place in California from ever occurring in Arkansas. In my opinion, this is a hard policy choice but a most appropriate one.

Good Samaritan Laws

All 50 states have “Good Samaritan” laws: California, in 1959, was the first to adopt a law with this label, and the rest of the states followed over the next several decades. The label is, of course, taken from the Biblical tale of the Good Samaritan.

Here is an example of the kind of situation that Good Samaritan laws are a response to: Suppose you are walking along and you see a baby crawling on a busy street or on railroad tracks, and suppose you pick the baby up to carry him to safety, but in the process you carelessly drop or otherwise injure the baby.

Traditionally, at common law, the negligent rescuer might be sued and found liable for hurting the baby. Because it seems harsh to penalize a well-intended (if careless) rescuer by putting him in legal jeopardy, the Good Samaritan laws immunized negligent rescuers from civil liability.

The Law in Arkansas

However, unlike most states, Arkansas’s Good Samaritan act (GSA) did not itself (prior to 2007) protect negligent rescuers from civil liability. In Arkansas, we had what was called a Good Samaritan act, just as my son has a large cardboard box in our garage that he calls his car. But that box is not a car, just as in Arkansas we had what is called a Good Samaritan Act which actually serves no such function.

The technical reason why Arkansas’s GSA (prior to 2007) was not effective is that, unlike similar laws in other states, our act shielded only reasonable conduct from civil liability. However, even prior to the establishment of Good Samaritan Acts, a person could never be successfully sued or held liable for his or her reasonable conduct.

Laws like Arkansas’s pre-2007 GSA, immunizing a person from liability solely for reasonable conduct, therefore provided absolutely no protection for anyone that was not already there prior to the enactment of the GSA.

This reasoning above is not solely my opinion. It is also the opinion of UALR law professor Phil Oliver, one of the state’s top experts on tort law, who originally brought this problem to my attention. It is also the perspective of the New Jersey State Supreme Court, which in 2002 surveyed the GSAs of all 50 states and found that 4 of those 50 states have GSAs which “do not provide immunity at all” (Velazquez v. Jimenez, 172 N.J. 240, at note 4).

According to the court, Arkansas was one of those four states whose GSAs provided no immunity at all.  By January 1, 2007, the court’s analysis suggested that the states with a GSA which provided no protection at all had diminished to two: Arkansas and Mississippi. (However, the court did not foresee that California judges would, six years later, find that its own state’s GSA applied only to medical personnel and not to the general public.)

New Protections for Good Samaritans

In response to the problem of Arkansas’s ineffective GSA, the state legislature amended the GSA twice twice in 2007: Act 683 and Act 1038 (links open as PDF files) passed both houses and both Acts were signed into law by Governor Beebe.

Most significantly, Act 683 created new protections for rescuers: those rescuers who made decisions and took actions in good faith would not be subject to civil liability. Act 683 substituted a “good faith conduct” shield for a “reasonable conduct” shield, essentially because a “reasonable conduct” shield essentially shielded no conduct whatsoever (see above). The “good faith conduct” shield is parallel with protections in other areas of Arkansas law and GSA protections in other states.

Similarly, Act 1038 also adopted a “good faith conduct” shield for rescuers, but arguably gave more people protection or covered a broader class of people. It is possible that Act 1038 also shielded some paid workers from civil liability, an area where GSAs have traditionally not intruded.

What this means is that prior to the new law, a jury could second-guess a rescuer’s actions and decide in retrospect that they were unreasonable. However, it would be difficult or impossible under the new law for a jury to do this, as it would be necessary to find that the rescuer’s actions were not performed in good faith, which is essentially an honest belief on the part of the rescuer that he or she is doing the right thing.

It is important to understand that Arkansas’s GSA is not the only protection against liability that rescuers have under Arkansas law. For instance, volunteer firefighters have a broad range of statutory proposals that may shield them from liability in various circumstances: those who serve in volunteer fire departments unincorporated with cities or towns are not generally civilly liable for official duties as long as their acts are in good faith and not grossly negligent. The Arkansas Volunteer Immunity Act and the Arkansas Emergency Services Act are among the other Acts that provide immunity from civil liability.

I do believe, however, that because of the passage of the 2007 acts, the everyday Arkansan who rescues others in danger is now protected from civil liability in respects that they were not before. Although some rescuers really should be stopped in their tracks (for instance, the rescuer who behaves in a ridiculously careless way, or gets so enthusiastic in his rescuing that he gets in a fistfight with the rescuee) it’s my opinion that we should generally encourage rescuers by reducing rescuer liability.

In short, in 2007 Arkansas law took a big step forward by blocking litigants from the courtroom who would like to sue those who tried in good faith to assist others.

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