Protecting Michigan’s
Good Samaritans
A Legislative Proposal
Thomas N. Hubbert
Senior Thesis
Senior Seminar II
PS 492
Dr. Gary Johnson
Department of Political Science
Lake Superior State University
Spring 2013
Abstract
In tort law, a Good Samaritan is a person who provides assistance to another in an emergency
situation. Unfortunately, the well-intended actions of Good Samaritans sometimes cause harm,
harm that puts them in legal jeopardy. A Good Samaritan law protects these individuals from
liability. Without such protection, citizens may be reluctant to come to the aid of those in need.
This gap in the law fails to protect altruistic citizens, and protection is the most important aspect of
the law. With a wide variety of Good Samaritan laws across the states, it is difficult to understand
why the Good Samaritan would be so vulnerable when going to the aid of a neighbor in need.
Michigan’s current Good Samaritan law provides inadequate protection for its citizens. My thesis
will analyze the weaknesses of this law and go on to propose more comprehensive legislation that
corrects for these weaknesses.
Contents
Introduction…………………………………………………………………………………...........1
Good Samaritans and Altruistic Animals……………………………………………………...…2
Altruism in Philosophy……………………………………………………………………...4
Tort Law…………………………………………………………………………………………….6
The Traditional Theory………………………………………………………………………………7
The Economic Theory………………………………………………………………………………..7
The Corrective Theory………………………………………………………………………8
The Protective Theory………………………………………………………………………………10
Tort Theory in Practice……………………………………………………………………11
Tort Theory and Legislative Intent………………………………………………………………..13
The Insurance Impact……………………………………………………………………..………..14
Bad Samaritans……………………………………………………………………………20
The Nature of Emergencies………………………………………………………………………25
Michigan…………………………………………………………………………………………...26
Good Samaritan Statutes and Case Law………………………………………………………...30
Case Law……………………………………………………………………………………………..31
The Impact of Policy on Behavior…………………………………………………………36
Conclusion…………………………………………………………………………………………38
Appendix i…………………………………………………………………………………………40
References………………………………………………………………………………………….59
Lisa Torti found herself in a difficult situation. In 2004, the California resident was a passenger in
a car that was following a car in which her friend, Alexandra Van Horn, was a passenger. When
the car in front crashed into a light pole at forty-five miles per hour, Torti reacted. She reacted in
what she considered to be in the best interest of her friend at the time of the accident, pulling Van
Horn out of the car. By Torti's account, there was smoke and liquid coming from the car in a way
that made her fear that the car was prone to explosion. Therefore, she reacted in the best way that
she knew how. Van Horn left the accident as a paraplegic.
If we place ourselves in Torti's shoes, we might ask ourselves what we would do in the same
situation. Would we leave our friend sitting in the car and run from the emergency? Would we
freeze up and simply stand and watch? Or would we follow Torti's example and take action? The
last thing we should be asking ourselves, however, in an emergency situation, is whether we are
vulnerable to a lawsuit if we try to help. The California case of Van Horn v. Torti is just one
example of a serious issue in our legal system—The Good Samaritan law.
A Good Samaritan law is a component of civil law that allows for those that act altruistically
in an emergency situation to be protected if a person is harmed despite, or as a result of, the
responder's actions. This is what a Good Samaritan law should accomplish, but there are many
different varieties of this law between states. Every state has a different kind of Good Samaritan
law; some are more comprehensive and others, such as the California Health Code in 2004, fail to
protect those that are not medically licensed and offer what is legally determined to be non-medical
assistance in an emergency.
The closest things to a Good Samaritan law in Michigan is the “Liability of Certain Persons
for Emergency Care” Act 17 of 1963 and the “Immunity from liability” Act 368 of 1978 in the
Public Health Code.
These statutes protect medically licensed persons, such as doctors,
physician’s assistants, and nurses, as well as those licensed to perform CPR, from liability in
rendering emergency care, but it does not protect the Lisa Tortis of the world. It is a slippery slope
in our litigious society to have this kind of gap in the law that might cause those that have heard the
Protecting Michigan’s Good Samaritans
story of Lisa Torti, and others, to question whether they are vulnerable to a lawsuit if they try and
help a person in an emergency situation. Therefore, it is necessary to investigate and establish a
new and more comprehensive law for Michigan.
Good Samaritans and Altruistic Animals
Jesus said: "a man was going down from Jerusalem to Jericho, when he was attacked by
robbers. They stripped him of his clothes, beat him and went away, leaving him half
dead. A priest happened to be going down the same road, and when he saw the man, he
passed by on the other side. So too, a Levite, when he came to the place and saw him,
passed by on the other side. But a Samaritan, as he traveled, came where the man was;
and when and when he saw him, he took pity on him. He went to him and bandaged his
wounds, pouring on oil and wine. Then he put the man on his own donkey, brought him
to an inn and took care of him. The next day he took out two denarii and gave them to
the innkeeper. 'Look after him,' he said, 'and when I return, I will reimburse you for any
extra expense you may have.' "Which of these three do you think was a neighbor to the
man who fell into the hands of robbers?" The expert in the law replied, "The one who
had mercy on him." Jesus told him, "Go and do likewise."
Luke 10:29-37
This story, which has provided a name for hospitals, community centers, donation centers, and
laws, conveys a valuable lesson about acts of kindness and helping others. The lesson of the Good
Samaritan was focused on helping others in times of need, even to the point of overcoming
prejudice of those who are supposed to be your enemy. In Biblical times, the Samaritans were
considered pagans and enemies by the Jewish Israelites.
Following the model of the Good
Samaritan is more than just about helping others. It means living life in such a way that everyone
is your neighbor. Frequently befriending the scum of society, healing the sick, and spending his
time in the company of prostitutes, lepers, and, worst of all, tax collectors (there must be many IRS
agents that wish more people would take a page from Jesus’s book), Jesus exemplified this
altruistic life.
Religious affiliations aside, living an altruistic lifestyle is beneficial to both the altruistic
individual and to society. If all people, Christians and non-Christians alike, behaved in this way,
the world would certainly be a better place to live. Taking the initiative to help our fellow humans
goes beyond religion and is rooted in evolution and human nature. In fact, altruism is an idea that
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Protecting Michigan’s Good Samaritans
is completely separate from religion; we associate altruism with religion because every religious
person (including those that observe the religion of Atheism) observe and practice altruism in one
form or another.
This is where the distinction between altruism and morality must be
acknowledged. Altruistic behavior is not a facet of morality, despite the fact that most people
consider altruism to be a “good” way to act. The problem with this is that morality differs greatly
from one person to another, and two people with a completely different outlook on morality can
both act altruistically.
Altruism is not unique to humans. Altruistic behavior can be observed throughout nature in a
wide variety of species. For example, bees will disembowel and kill themselves when stinging
anything that might be in danger to the hive, and worker bees will work for nothing but the good of
the queen bee, just so she can create more offspring. What separates humans from the other
animals is the idea that humans have the capacity to think about altruism and the impact beyond
basic survival instincts.
Perhaps, to put the best possible construction on the matter, conscious altruism is a
transcendental quality that distinguishes human beings from animals...I doubt if any
higher animal, such as an eagle or a lion, has ever deserved a Congressional Medal of
Honor by the ennobling criteria used in our society. Yet minor altruism does occur
frequently in forms instantly understandable in human terms, and is bestowed not just on
offspring but on other members of the species as well...Other than man, chimpanzees
may be the most altruistic of all mammals. In addition to sharing meat after their
cooperative hunts, they also practice adoption. (Wilson 1978).
Altruism is a natural occurrence throughout nature, but humans, as animals that have the ability to
distinguish between behavior that is good or bad based on their own personal moral compass,
champion those that act altruistically and act for the greater good of humanity.
There is an evolutionary phenomenon known as kin recognition that provides a glimpse at
why humans seem to be predisposed to exercise altruistic behavior. Kin recognition, first proposed
by William Hamilton in 1964, advances the idea that humans, among other animals, can distinguish
between their genetic kin and others. This has served an important function in evolution. People
have evolved with the capacity to act altruistically to those who they perceive as possible relatives,
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Protecting Michigan’s Good Samaritans
even to the extreme of self-sacrifice through social suicide. This can be observed by soldiers who
are willing to give their lives for fellow soldiers in battle. On an evolutionary scale, altruism and
kin recognition have evolved together.
It is natural, then, to ask whether through kin selection the capacity for altruism has also
evolved in human beings. In other words, do the emotions we feel, which in exceptional
individuals may climax in total self-sacrifice, stem ultimately from hereditary units that
were implanted by the favoring of relatives during a period of hundreds or thousands of
generations? This explanation gains some strength from the circumstance that during
most of mankind’s history the predominant social unit was the immediate family and a
tight network of other close relatives. Such exceptional cohesion, combined with detailed
kin classifications made possible by high intelligence, might explain why kin selection
has been more forceful in human beings than in monkeys and other mammals. (Wilson
1978).
Despite the fact that altruism is, at its core, essentially self-serving, it is still evident that it is in our
nature to act altruistically due to the evolutionary process. If humans have the capacity to lie down
on a grenade in battle, humans certainly have the capacity to help others in need during an
emergency.
Altruism in Philosophy
There are many different philosophies concerning altruism. Most would agree that we are in
fact altruistic creatures, but the base for such behavior has been a major talking point for many
great thinkers throughout history. Aristotle described humans as political animals, and his ideas
about the political association of people are still important ideas in political philosophy. In
Politics, Aristotle states that the polis, or city, is a species of association, and that all associations
come into being for the ultimate purpose of achieving some good, as all people act in ways that are
working toward some end that they perceive as good. A society is built out of a hierarchy of
political associations. Going beyond the limited knowledge of evolutionary biology in Aristotle’s
time, we can start with the idea that human bodies are made up of single cell organisms that at one
time joined forces to gain some benefit, thus forming bodies full of cells that all have an individual
purpose but are working together for the same goal. The next association is the family, where man
and woman join together to leave offspring and work together in caring and providing for their
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Protecting Michigan’s Good Samaritans
children. Families band together to form villages, villages form states, states form countries, et
seq. So, Aristotle’s hierarchy of species of association points to the idea that altruistic behavior is a
natural occurrence for humans, because all humans are working towards whatever they perceive as
good, and the most good can be gained from joining forces for the benefit of others.
Altruism is included in the philosophies of those that believe that humans are inherently
selfish. Thomas Hobbes also discussed the patterns of altruistic behavior in humans. While
Hobbes took a distinctly dark approach to his views on humanity, he still saw altruism as an
important function in human nature. He thought that humans did simply what was necessary for
survival, purely out of motivation driven by selfish desire, altruistic behavior being no exception.
“The laws of Nature therefore need not any publishing, nor proclamation; as being contained in this
one sentence, approved by all the world, ‘Do not that to another, which thou thinkest unreasonable
to be done by another to thyself’” (Hobbes 1886). Hobbes, an atheist, included in his works this
idea that is taught in all major religions: the Golden Rule.
Altruism is a general phenomenon that involves taking
the interests of the other as
one’s own; it is often identified with the Golden Rule (present in many religious and
ethical traditions as we shall shortly see)–do unto others as you would have them do unto
you. The Golden Rule seems to identify altruism with morality, but it is far from clear
whether acting from the Golden Rule is always moral. Hobbes endorsed the Golden
Rule, but interpreted it egoistically: a person first decides how they want to be treated and
then they treat others on this basis. (Scott 2007).
Hobbes felt that because all humans act for their own selfish ambitions, and because of this humans
live by this Golden Rule, the same used by religions as basis for living a moral life, when
questioning how we are to treat others.
Altruism is a natural occurrence that is not unique to humans, and we would be going against
our very nature in allowing a gap in the law that would limit people or attempt to stop them from
acting altruistically. People, who go out of their way to help others in emergencies, even at times
putting themselves into harm ’s way, deserve protection from liability, provided they acted in a
reasonable manner. Someone like Lisa Torti could act as they are naturally geared to act in a
situation and be subject to liability. The arguments against allowing someone without medical
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Protecting Michigan’s Good Samaritans
training to assist a victim before professional help can arrive might say that a victim would be
better off waiting for professional help to arrive, but if it is in our nature to act altruistically, it
would be unwise to attempt to legislate that away. Whether the natural motives behind altruism are
selfish or unselfish, altruistic behavior should be encouraged through the protection of an
individual by the Good Samaritan law, rather than discouraging this behavior by allowing Good
Samaritans to remain vulnerable to liability.
Tort Law
The rule that you are to love your neighbor becomes in law, you must not injure your
neighbor; and the lawyer’s question, Who is my neighbor? receives a restricted reply.
You must take reasonable care to avoid acts or omission which you can reasonably
foresee would be likely to injure your neighbor.
Lord Atkin (1932)
Tort law involves harm caused to a private person or group due to another’s wrongful action.
Contemporary tort law evolved from English Common law. In the middle ages, the king’s courts
would punish citizens for “trespass against the king’s writs.” Citizens were allowed to plead to the
king when they or their property was injured, directly or indirectly, by another citizen’s actions.
From these basic writs came torts, which were broken into intent and fault, and are known today as
intentional torts and negligence. In a complex way, reflecting on a more complex legal system
than was England in the Middle Ages, torts in the United States achieve the same basic societal
needs as the king’s writs. A person causes some sort of harm to another, and the law forces the
tortfeasor, or one who caused the harm, to provide some sort of monetary compensation, or
damages.
Negligence is the largest area of tort law. Negligence occurs when there is some sort of
unreasonable conduct by a party. This leads to two main questions that must be answered in
establishing liability: The first, was the behavior in question unreasonable? And the second,
assuming that the answer to the first is yes, was the unreasonable behavior the cause of the injury
or loss to the victim of the action?This is a shallow and uncontroversial explanation of negligence,
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but torts are complicated, and in the details are found a wide variety of philosophies concerning
what it is exactly that is and should be accomplished by negligence.
The Traditional Theory
The traditional view of negligence in the United States grew out of the industrial revolution. In his
essay,A Theory of Negligence, Richard A. Posner outlines the three main points in this orthodox
perspective. First, that negligence was a subsidy to growing industries in the industrial revolution,
second, that the main purpose of civil liability is to compensate the victim of negligence for their
losses in the process, through medical expenses, loss of earned pay, or suffering, and third, that
negligence mirrors a moral objective. This particular mindset on negligence has come and gone.
Any occasion for subsidization has long passed, laying bare the inadequacy of the
negligence standard as a system for compensating accident victims. The need for
compensation is unaffected by whether the participants in the accident were careless or
careful and we have outgrown a morality that would condition the right to compensation
upon a showing that the plaintiff was blameless and the defendant blameworthy. (Posner
1972).
The function of tort law has been well established in the roots of industry, and it has evolved past
simply keeping the best interests of the work force in mind. Morality is in itself a key issue that
will be discussed at length throughout this paper. This stage of negligence in America shows the
transition between tort law as it evolved from English Common Law to tort law as it is seen today.
The Economic Theory
Another theoryis the economic view of tort law. Basically, this theory claims that precautions for a
potential harm should be taken up to the point where the cost of an accident would be less than the
cost of the precaution. The idea behind this school of thought is that with liability, someone has to
bear monetary harm, whether by paying damages to another or by paying to prevent those harms
from occurring. The idea is that there is an underlying theme of economic reciprocity.
The question is commonly thought of as one in which A inflicts harm on B and what has
to be decided is: how should we restrain A? But this is wrong. We are dealing with a
problem of a reciprocal nature. To avoid the harm to B would inflict harm on A. The
real question that has to be decided is: should A be allowed to harm B or should B be
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allowed to harm A? ... [An] example is afforded by the problem of straying cattle which
destroy crops on neighboring land. If it is inevitable that some cattle will stray, an
increase in the supply of meat can only be obtained at the expense of a decrease in the
supply of crops. The nature of the choice is clear: meat or crops. (Coase 1960).
This theory is contentious and has faced much scrutiny. One problem with this idea that is
particularly relevant in this thesis is that the economic theory might be fine for discussing crops
and cattle, but it falls severely short when talking about the idea of human health and livelihood.
“Economic theory can suggest one approach—the market—for making the decision. But decisions
balancing lives against money or convenience cannot be purely monetary ones, so the market
method is never the only one used” (Calabresi 1970). One can't simply justify breaking the law as
long as one is willing to pay for it, even if paying the consequences for the broken law is cheaper
than taking the precaution to avoid breaking the law to begin with. It may be one factor in creating
legislation, but it is not a dominant justification for illegal negligent behavior.
The Corrective Theory
Another interpretation is that of tort law as a corrective system. The idea of corrective justice was
first established by Aristotle. By his theory, corrective justice was the idea that when one’s gains is
thrown out of balance in connection with another’s losses, the law should seek to correct the
injustice of the event, reverting things to the way they were before the unjust act was committed.
The overarching justificatory categories expressive of correlativity are those of the
plaintiff's right and the defendant's corresponding duty not to interfere with that right.
The injustice that liability rectifies consists in the defendant's having something or having
done something that is incompatible with a right of the plaintiff. Right and duty are
correlated when the plaintiff’s right is the basis of the defendant's duty and, conversely,
when the scope of that duty includes avoiding the kind of right-infringement that the
plaintiff suffered. Under those circumstances the reasons that justify the protection of the
plaintiff’s right are the same as the reasons that justify the existence of the defendant's
duty. (Weinrib 2002).
When applied to negligence, corrective justice means that if a wrongful act is committed, the
person that committed that wrong is liable for whatever is necessary to restore what is right.
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Protecting Michigan’s Good Samaritans
One might object to this idea, based on the fact that in many negligence cases, the defendant
doesn’t gain from negligent action or the plaintiff doesn’t lose anything. This objection does not
fully realize Aristotle’s treatment of justice and equality.
But since, in Aristotle's account, the baseline for the parties' gain and loss is their initial
equality, this assumption would imply that corrective justice presupposes - absurdly - an
initial equality in the parties' wealth. In fact, however, equality is merely Aristotle's way
of referring to the entitlement of each of the interacting parties to have what is rightfully
theirs. A defendant who breaches that equality realizes a gain solely in the sense of
having more than he or she ought to have as a matter of corrective justice, and similarly,
mutatismutandis, with the plaintiff’s loss. (Weinrib 355).
This is an important specification when applying corrective justice to negligence, as most
negligence cases are going to involve someone who does not get any benefit and simply acted in a
negligent way. This implies that anytime a person is harmed, an injustice is committed if the
person that caused that harm isn’t harmed him or herself in a manner that returns as much
equilibrium as is possible to all involved.
Advocates for corrective theory, such as Jules L. Coleman, see the importance of torts in
liability, such that:
At the core of tort law is a certain practice of holding people liable for the wrongful
losses their conduct has occasioned…The structural feature is that in the typical case
decisions about who should bear a loss are rendered within a framework restricted to
victim and those individuals they identify as their injurers. The question is not; who in
the world should bear this loss? Instead, it is: should the injurer or the victim bear it?
The substantive feature is that if a victim can show that her loss is wrongful in the
appropriate sense, the burden of making good her loss falls to the individual responsible
for it. (Coleman 1992).
This is the general theme of corrective justice;someone did something wrong and has to pay the
price for a harm or loss. In corrective theory, according to Coleman, the question comes down to
whether the person who caused the harm should pay the price, or whether it should fall on the
person who was already harmed.
It may be natural to think that the theory of tort law as corrective justice is appropriate,
especially when we or someone close to us has been harmed by another’s actions. We want to see
justice fulfilled, and we look to the law to restore balance to the universe and put people in their
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place. However, there are problems with the logic behind this theory as a predominate theory of
tort law.
The Protective Theory
One argument, developed by HanochSheinman,claims that the primary and secondary duties of tort
law determine that the corrective function of torts is not actually at the heart of tort law. As he
defines tort law, there are, “two classes of duties. Duties of the first class proscribe various types of
harmful conduct; and duties of the second class require that the harm involved in any breach of a
duty of the first class be remedied” (Sheinman 2003). In classifying these two duties of tort law, it
must be noted that the first, prohibiting harmful conduct, is primary while the second, the remedial
duty, is subordinate to the first. Accordingly, if the primary duty is fulfilled then no harmful
conduct has occurred; therefore the remedial duty is conditional on some deviation from the status
quo and a breach in the duty prohibiting harmful conduct.
As an alternative theory, Sheinman suggests, “Tort law is essentially protective—the most
important point of tort law as a whole is the prevention of, or protection from, harm.” (Sheinman
2003). This proposition is of tort law as a protector of justice—not simply as a protection for the
individual citizen, but as a protection for the greater good of society as a whole. Based on his
argument that the corrective duty of tort law is conditional on a breach of the primary duty,
prohibiting harmful acts, it follows that the first and foremost essential purpose of tort law is the
protection of harm.
If we accept this as the most logical theory mentioned thus far, then in determining how a law
is crafted and what the purpose of a law truly is, one should take care to think of how that law will
protect the good of society in general. However, even if the theory of protection is to be thought of
as the most important duty of tort law, there are other key aspects of the various theories that
cannot be ignored, and with such, a hybrid theory is established.
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The first duty is the protection of people from harms. When that duty is breached and there is
a change in the status quo, then the conditional remedial duty is activated. These are the two most
important characteristics of tort law, and they must be the greatest concern of lawmakers.
However, even though it is inferior to both the corrective and the protective theories of tort law,
economic theory must be taken into consideration as well. While it is not enough to judge a law
simply based on economic implications, it is still a factor that must be applied. Tort law is
necessary to protect people from harm and to reestablish the status quo when that protective duty is
breached, but there is a reasonable extent to which measures must be taken to protect people from
all the potential harms of this world. We should protect the well-being and health of people, but it
would be naïve to think that we would take every last step available to protect people. For
instance, we drive cars because it is faster and more efficient than other modes of transportation,
and time is a valuable resource. People take risks because the alternative would be to spend life in
a box, sealed off from the world. The best theory of tort law, therefore, is a theory of protection,
which corrects a breach in the duty of correction, and is laced with components of economic
theory.
Tort Theory in Practice
To put this theory to the test, we can apply it to the infamous landmark negligence case of Liebeck
v. McDonald’s Restaurants, better known as “The McDonald’s Hot Coffee Case.” Most people
have heard of this case, and many have referred to it in disgust, lashing out at the frivolous nature
of our litigious society. Few, however, understand the true facts of this case. As illustrated in
HBO’s 2011 documentary, Hot Coffee, which discusses the trend of tort reform in America and
refers toLiebeck in great detail, people are generally averse to the idea that someone could make
millions of dollars, just because they don’t understand that coffee is hot. However, when made
aware of the true facts of the case, and shown pictures of the injuries sustained by Ms. Stella
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Liebeck, many were given a new perspective that left them horrified and with a fresh opinion on
the case and in the law in general.
The facts of the case are as follows: Stella Liebeck, who was seventy-two at the time of the
accident, received coffee through the drive-through window at a McDonald’swhen she was a
passenger in a car driven by her nephew. She opened the lid to add cream and sugar, and spilled
coffee on her lap.
As a result, Liebeck suffered nearly fatal third degree burns, and was
hospitalized for eight days for skin grafts and debridement treatments. McDonald’s refused to
settle her initial claim of $20,000, despite having records of hundreds of claims submitted by other
customers of burns over the previous decade, many of which included third degree burns.
Furthermore, McDonald’s required their restaurants to sell their coffee at around 180 degrees;
studies submitted at trial showed that liquids at 180 degrees would cause third degree burns in two
to seven seconds after initial contact with skin. The jury initially awarded for Liebeck $160,000 in
damages and $2.7 million in punitive damages, an amount roughly equal to two days’ worth of
coffee sales by McDonald’s. The punitive damages were later reduced to$480,000 by the trial
court, despite a harsh commentary given by the judge directed at the malicious behavior of the fast
food franchise. (“The Actual Facts About—The McDonald’s Coffee Case” 1995).
If we apply the theory of protection from harms to the facts of this case, the theory holds up
nicely. McDonald’s was wellaware of the potential damage brought by keeping the temperature of
their coffee at such a high level, and the fact that the company had ten years’ worth of customer
complaints showed that they weren’t about to change. People shouldn’t need a warning label on a
coffee lid to know that coffee is supposed to be hot, but it can’t be reasonably expected of them to
know that the beverage they were consuming can cause life-threatening burns. The lawsuit brought
by Liebeck was the kick in the pants necessary to get McDonald’s to turn down the heat, and
billions of coffee consumers that have purchased McDonald’s product since that case have been
protected from these burns as a result. Liebeck was compensated for her medical bills and
suffering as much as was possible (she suffered from her injuries until she passed away several
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years later) thus fulfilling the secondary corrective duty of torts, and McDonald’s clearly wasn’t
put out of business by this case, thus answering the economic concerns.
The important point about looking at tort law as a protective system of justice is that civil law
is crucial for the good of society. Civil law is a way of keeping people and businesses in check.
Examples such as Liebeck make many think that our legal system is corrupt and broken, and this
feeling is spurred on by the media in many ways. While it is true that there are circumstances
where people are able to get large settlements, these settlements are often smaller than they are
portrayed to the masses, and it is the fear of what these lawsuits can do to a person or a business
that holds people in check.
Tort Theory and Legislative Intent
What then should be the legislative intent behind Good Samaritan Law? If the primary purpose of
tort law is protection from harms, then you have to consider both sides of a potential law suit in
which Good Samaritan law would come into play. Using Van Horn and Torti for example, one
argument is that that the law should protect Van Horn from being pulled out by someone who
doesn’t have medical training. It could also be argued that Torti should be protected from a lawsuit
given that she was acting altruistically in an emergency situation. The real question concerning
negligence in this case should be focused on whether Torti’s actions were reasonable based on the
situation at hand, not whether she should have stayed away from the car completely.
The issue is that if it were the mindset of a person responding to an emergency that he or she
shouldn’t act because of a potential lawsuit, then a victim might be seriously injured or killed
because that person didn’t act and emergency services couldn’t respond quickly enough. For
example, a lady and her two year old daughter very well could have been lost to a flash flood in
Arizona if it wasn’t for the quick actions of a bystander. David Rhoades was standing nearby and
noticed a car that was caught in a flash flood. He was able to help the young girl and then her
mother out of the car before it washed away, saving their lives. In a news interview after the
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accident, Rhoades stated, “I wouldn’t want my family in jeopardy for me trying to help someone
else” (Degeneres). It is this kind of protection that Good Samaritans deserve from the threat of
lawsuits.
The Insurance Impact
Another factor that must be considered is the role that liability insurance plays in tort law. Some
would maintain a traditional view that insurance does not have any impact on how tort law is
created and how it affects parties to suits, as well as attorneys, judges, and juries. Others, however,
believe that liability insurance has a large and direct impact on tort law. Insurance raises many
new issues to the discussion. One issue is whether insurance gives people a heightened sense of
security, causing them to act differently in potentially harmful situations, and if so, whether their
having that insurance causes judges and juries to take a different approach in determining how
much compensation should be awarded for negligent behavior.If legislators felt that insurance did
in fact have a significant impact on people in tort cases, then it would raise the issue of whether
insurance should be a factor in creating tort law.
Insurance costs impact those that have the least money to spend on protective insurance, and
therefore becomes a sociological issue. Based on this notion, Tom Baker has conducted research
on the impact that liability insurance has on tort law, focusing on the behavior of attorneys and
litigants rather than statutes and case law. Baker claims that liability insurance has at least six
impacts on tort law:
First, for claims against all but the wealthiest individuals and organizations, liability
insurance is a de facto element of tort liability. Second, liability insurance limits are a de
facto cap on tort damages. Third, tort claims are shaped to match the available liability
insurance, with the result that liability insurance policy exclusions become de facto limits
on tort liability. Fourth, liability insurance makes lawsuits against ordinary individuals
and small organizations into “repeat player” lawsuits on the defense side, making tort
law in action less focused on the fault of individual defendants and more focused on
managing aggregate costs. Fifth, liability insurance personnel transform complex tort
rules into simple “rules of thumb,” also with the result that tort law in action is less
concerned with the fault of individual defendants than tort law on the books. Sixth,
negotiations over the boundaries of liability insurance coverage (which appears nowhere
in tort law on the books) drive tort law in action (Baker 2005).
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Protecting Michigan’s Good Samaritans
If true, these claims show that insurance has a major role in the way that people act when it comes
to tort law.
Insurance is an Element of Tort Liability.There are four elements that must be established in a
negligence case in order to establish liability. The first element is that there is a duty to do, or not
do, something. The second is that there was some breach of that duty by the defendant. The third
is that the plaintiff suffered some sort of harm from the breach of duty. The fourth is that the
breach of duty by the defendant was a proximate cause of the harm suffered by the plaintiff. These
are the elements that one would learn at law school, but in practice, lawyers don’t think much about
those elements in deciding whether or not to take on a case. According to the tort attorneys
interviewed by Baker, “there are three things: liability, damages, collectability. I need collectability
first. I need damages second”. Lawyers want to get paid, so they take on the case that will result in
the largest settlement. Because of the effect that the state of the economy has had on people and
the option to declare bankruptcy, which has an effect on how much a person has to pay out, the best
tort cases a lawyer can take, besides those with rich defendants, are those involving defendants
with great insurance.
This shows that insurance has a clear effect on who is likely to benefit from law suits. Apart
from auto accidents, attorneys are far less likely to go after cases for which they are unlikely to get
a decent settlement. There are a high number of people that don’t have the kind of insurance that
would protect them in these cases, so there are many people that would not even be vulnerable to a
negligence law suit because they rent their home, and are therefore not required to buy
homeowners insurance.
If this was realized by lawmakers, then it might lead to greater
requirements of who has to buy insurance, which would then lead to a higher number of tort cases
in the United States. A higher number of tort cases would change the system, even perhaps causing
a change in the law itself. As Torti taught us, it takes only one case to draw enough attention to a
law to call for change.
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Protecting Michigan’s Good Samaritans
Insurance Places a Cap on Damages. There are limits on how much an insurance company has to
pay for a claim. Along with the fact that many people will not pay more into their homeowners
and auto insurance than is necessary to meet the requirements of the law, and that attorneys will not
take most cases in which the defendant can’t pay much out of pocket, this creates a cap on the
damages that a person is likely to receive in a tort case.
For present purposes, however, the reasons that liability insurance policy limits function
as a cap on tort damages do not matter. What mattersis the consequence. Even tort
litigation against wealthy individuals andlarge organizations has become, in all but the
unusual case, an exercise inrecovering money from liability insurance companies and
only frominsurance companies. (Baker 2005).
This is a highly significant impact that insurance should have on the thought process that goes
into drafting laws. In considering the primary and secondary purposes of tort law, protection
and correction, whether lawmakers directly link tort legislation to insurance or not, it has to be
assumed that insurance will be taken into consideration, at least in considering the factors that
must be applied in thinking about the elements of a particular law.
If the primary purpose of tort law is in protecting people from harm, and negligence cases
are about getting the largest pay-out possible from the insurance company, then it creates a
problem for lawmakers. If you are liable fornegligently inflicting harm on another in a nonauto accident and you don’t have homeowners insurance, then there is a good chance that you
will not have to pay damages. This means that people are less likely to feel the pressure to
avoid a negligent act because they do not fear the repercussions of their behavior. For those
that do have liability insurance, the only issue they will face is that they will have to pay a
higher insurance premium and whatever legal bills they have in defending the lawsuit. To
make matters worse, this also throws a wrench in the secondary purpose of tort law in
correcting for wrongs. If lawyers won’t take cases in which the defendant doesn’t have
insurance coverage, then people who are harmed as a result of another’s negligent actions may
be stuck paying for their own damages either out of pocket or through their own insurance
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Protecting Michigan’s Good Samaritans
companies. There is no simple fix for this problem, as it is a byproduct of an imperfect legal
system, but it should be taken into consideration by legislators when drafting laws.
Insurance Limits Liability. Proof that insurance has an impact on tort law can be observed in
the way in which suits are claimed. There are exclusions in insurance policies that do not
cover specific actions, and this causes these actions to be largely left alone by tort lawyers.
If only people with insurance are sued, and if the suits are targeted at recovering
insurance money, then claims that fit into one of theexclusions in the applicable liability
insurance policy (and thus would notbe covered by the policy) are not worth
bringing…Exclusions in liability insurance policies create, in effect, remote islands of
tort liability that lawyers andlaw professors know about, but almost no one goes to visit
(Baker 2005).
Due to these exclusions, defense attorneys will work with plaintiff’s attorneys to have the claim fit
the available coverage provided by the insurance company. Therefore, because insurance is not
universal and will not cover any and all maladies that may occur, there are limits to what a person
will be held accountable for.
This expands the problem stated before. Not only are people without insurance not being held
accountable for negligent actions, but people who do have insurance are not being held accountable
because the limits of insurance in specific exclusions in policies directly creates gaps in liability,
regardless of whether or not there are laws that would find a person liable for damages. If they
can’t pay and their insurance company won’t pay, then they get off free and the victim of the harm
committed is forced to fix the damage him or herself.
The Portfolio Approach to Liability Insurance. It has been established that most negligence cases
will result in an insurance company paying out the claim, and that this takes away from the spirit of
the purpose of tort law. Insurance means that the law does less to protect people by discouraging
negligent behavior and less to correct for negligent behavior because of most people’s inability to
pay large claims, leading to attorneys not wanting to take cases without adequate insurance.
Another factor that results in a change in the rules governing tort law is more focused on the
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Protecting Michigan’s Good Samaritans
economic side of tort law. Because insurance companies have large amounts of claims to deal
with, cases become less about the individual nature of what they represent and more about how it
might affect the portfolio of cases at large.
This means that the results in one case can affect the results in another. As a result,
liability insurers have an interest in the development of tort law rules and settlement
norms that goes far beyond the interests of any ordinary defendant. In the terms of Mark
Galanter’s classic study, liability insurers are the ultimate “repeat player.”…The repeat
player phenomenon makes tort law in action less focused on the fault of individual
defendants and more focused on managing aggregate costs. (Baker 2005).
The implication of this factor is that tort law is less guided by what the intended effect of the law is
supposed to be, and more guided by how the insurance companies conduct their business. As
discussed previously, the economic theory of tort law is one that should be taken into
consideration, but not as the most important part of the law. Insurance companies all but remove
the primary and secondary duties of tort law and bring the economic duty to the front of the
argument. Again, there isn’t a quick and easy fix for this problem, as insurance and tort law are
well established and intertwined.
The insurance companies take the position that they need to have an advantage because judges
and juries are going to be naturally less sympathetic toward a defendant that is covered by
insurance, and will therefore be more likely to allow larger damages to the plaintiff. According to
Baker, there is reason to believe that this isn’t the case, but because insurance companies act as
though this is grounded in fact, it has the same effect regardless of whether or not it is actually true.
Insurance Fosters Cookie-Cutter Law. The large scale of tort cases in the United States and its
reliance on insurance causes tort law to be reduced to a series of simple rules about how a case is
settled. Simple cases are handled based on rules set by the industry. In a run-of-the-mill rear end
auto collision, the person driving the car in the back is liable, as long as there aren’t any red flags
that suggest that the person in the front may have been negligent. Cases are handled in an
assembly line fashion; insurance handlers apply basic elements to basic rules and the results end up
meaning that tort law largely loses its individualistic nature.
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Protecting Michigan’s Good Samaritans
I would never argue that tort doctrine and the consistent behavior of insurance adjusters
are “law” in exactly the same sense, nor would I argue that tort doctrine is irrelevant.But I
would argue that any law professor who thinks that the routine behavior of “street level
bureaucrats”like insurance adjusters is not law needs to spend some time representing
real people in the ordinary, low value accident cases that constitute the bulk of the tort
law universe. (Baker 2005).
Law that is found in a textbook or in a classroom is different than law in practice. Insurance breaks
tort law down into cookie-cutter cases and is more concerned with handling the large volume of
cases rather than the supposed doctrines that are supposed to apply to laws. There must be a better
compromise in considering how a law looks on paper and how a law is actually going to be put into
action.
Insurance Defines the Boundaries of Tort Law. Each of these factors mentioned thus far has an
impact on tort law. Based on a combination of all these factors, insurance seems to dictate much of
how tort law is applied to cases. On a basic level, subject to exceptions, insurance creates a sphere
that determines the likelihood that you will be successful in a negligence suit. If you are suing
someone that has liability insurance or is upper-class wealthy, then you fall within the sphere. If
you are unfortunate to be on the damaging side of negligent action at the hand of someone that
doesn’t have much in the way of assets and is not covered by liability insurance, then you fall
outside of the sphere.
As a philosophical and doctrinal matter, tort liability certainly exists outside the
boundaries of liability insurance coverage, but we are not going to go through the effort
of establishing liability “out there” very often because there is no return in it. This
suggests that liability insurance coverage establishes to some extent the boundaries of tort
law itself, or at the very least the boundaries of tort law in action. (Baker 2005).
Based on all the evidence, the conclusion must be that insurance does in fact have a major effect on
tort law and that it cannot and should not be ignored. What can be taken away from this analysis is
that what you can understand about tort law from a textbook and what you can understand about
tort law in action are two different animals. What a legal philosopher says should be the purpose of
the law and what a law actually ends up doing are two separate ideas. Because of the large scale
nature of our litigious society and the fact that attorneys and insurance adjusters have to do what it
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Protecting Michigan’s Good Samaritans
takes to survive in the legal market, there are certain ways in which tort cases fall into place. In
legislation, there should be a balance between tort doctrine and philosophy and real world
application.
Bad Samaritans
In the final episode of the hit sitcom Seinfeld, the writers decided to have the main characters make
their grand exit from the show in hilarity, and had them all arrested for a crime that came across as
terribly silly. Jerry, Elaine, George, and Kramer were in Massachusetts and they witnessed a man
being held up at gunpoint. Instead of offering assistance when the man cried for help, or calling
the police, the four just made jokes and looked on—until an officer walked up and put them all
under arrest. Shocked by this news, the four were forced to go into custody for breaking a new
Good Samaritan law that required citizens to offer assistance in an emergency should the
opportunity present itself.
This law as portrayed by Seinfeld comes across as absurd, but it is a real law in some states.
This type of Good, or Bad in this context, Samaritan law is a criminal law that holds people
responsible should they fail to offer assistance when it is reasonable to do so. While it may seem
ridiculous after watching Seinfeld, real world case examples allow for a reasonable argument for
these laws. Consider the case of Kitty Genovese:
On a March night in 1964, Kitty Genovese was set upon by a maniac as she came home
from work at 3 A.M. Thirty-eight of her Kew Gardens neighbors came to their windows
when she cried out in terror—none came to her assistance. Even though her assailant took
over half an hour to murder her, no one even so much as called the police. (Latane 1969).
This example is much more serious than that which was given in Seinfeld, and makes one consider
the validity of Bad Samaritan laws in a more serious way. If someone was suffering and in need of
assistance, we should want anyone who could possibly lend some type of hand to do whatever they
possibly could to help. Bad Samaritan laws are one way this can be achieved. If a person knew
that they might be held to criminal charges if they didn’t do something as simple as call 911 while
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Protecting Michigan’s Good Samaritans
witnessing an accident or a violent crime, one would think they would be more likely to pick up the
phone.
On the other hand, Kitty Genovese may have suffered, not only from the unfortunate attack of
a brutal murderer, but also from a phenomenon known as “bystander apathy”. Psychological
studies suggest that when a stressing eventoccurs, the more people there are to witness this event,
the less likely that one of those persons will intervene. This is owed to what psychologists John
Darley and Bibb Latane refer to as the “diffusion of responsibility.”
When only one bystander is present in an emergency, if help is to come, it must come
from him. Although he may choose to ignore it (out of concern for his personal safety, or
desires "not to get involved"), any pressure to intervene focuses uniquely on him. When
there are several observers present, however, the pressures to intervene do not focus on
any one of the observers; instead the responsibility for intervention is shared among all
the onlookers and is not unique to anyone. As a result, no one helps. (Darley1968).
This idea that people might look on if they are afraid of what might happen, whether they might be
embarrassed, put into danger, or make it worse, especially when there are many others who are
seemingly available to bear the burden, spins the question about Bad Samaritans in a whole new
direction.
There are several psychological issues that call into question the wisdom of enacting Bad
Samaritan laws. First off, there is a major discrepancy between offering help in a non-emergency
situation and offering help in an emergency situation. For instance, most people are willing to
offer help to fellow persons in the way of lending a hand or donating some money, but there will be
times when people won’t be willing to step in during an emergency. There are reasons for this
observation. The most obvious of such is the fact that the nature of an emergency means that there
is a threat of potential harm.
Even if an emergency is successfully dealt with, nobody is better off after wards than
before. Except in rare circumstances, the best that can be hoped for if an emergency
occurs is a return to the status quo. Consequently, there are few positive rewards for
successful action in an emergency. At worst, an emergency can claim the lives not only
of those people who were initially involved in it, but also of anybody who intervenes in
the situation. (Latane 1969).
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Protecting Michigan’s Good Samaritans
People have proven to be generally altruistic, and often will not hesitate to help when there is little
or no risk of suffering some harm in the process (short of parting with time or money). This
illustrates the problem of trying to impose criminal sanctions on people who fail to respond to an
emergency. It is not that people are purposely doing something bad in these situations; rather, the
evidence suggests that people are mentally predisposed to fail when faced with an opportunity to
jump into an emergency.
Another aspect of emergency situations is that the average reasonable person will have
experience in few, if any, situations raising that level of stress.
Fortunately, although he may read about them in newspapers, or watch fictionalized
accounts on television, the average person probably will encounter fewer than half a
dozen serious emergencies in his lifetime. Unfortunately when he does encounter one, he
will have had little direct personal experience in handling such a situation. Unlike the
stereotyped patterns of his everyday behavior, an individual facing an emergency is
untrained and unrehearsed. (Latane 1969).
Persons who are not trained to react to an emergency are unpredictable. At this point, there are
many factors that come into play. A person will have to recognize that there is an emergency,
which at times can be difficult if that person does not know specifically what to look for. At this
point, he or she will have to pick a course of action and act quickly. There can be many different
stressors going on all at once, and the person will be unlikely to respond in the best possible way,
even if they have the best intentions.
Another question that must be asked when considering Bad Samaritan law, as is asked when
considering Good Samaritan law, is: what is the purpose of a law? In this case, one assumption
that is often made is that lawmakers are supposed to legislate morality. In a simple way, this
makes sense. From childhood on, there are things that we learn are wrong, and that we should not
do those things, and the government puts forward regulations that prohibit many of those behaviors
and our minds correlate the two ideas. However, there are several problems with this stance. Since
the earliest philosophers and before, there have been many different conceptions of morality. Even
today, every person has their own individual conception of justice. We may think there are
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Protecting Michigan’s Good Samaritans
instances in which there are universal truths about right and wrong, such as murder. But that raises
its own set of unique issues. For instance, should the deaths of people by drone strikes in the
Middle East be considered murders? Should killing the person who is attacking another be
considered murder?Should abortion be considered murder? The person protesting on the outside of
the abortion clinic is likely to have a different perception of morality and justice than the person on
the inside of the abortion clinic.
If we all have different ideas about morality, it is illogical to think that our government should
create laws simply for morality’s sake.
Clearly there are many benefits in the analytical separation of law from morality, strongly
associated with legal positivism. Law tolerates moral diversity and moral complexity,
without explicitly celebrating or facilitating them. Contemporary law in advanced
Western societies typically makes no judgment on many aspects of personal lifestyles.
(Cotterrell 2000).
There are things that are illegal that some think of areOK, such as marijuana, and there are things
that some people think are morally wrong that are legal, such as drinking or pornography. Thus, if
morality can’t be relied on as a baseline for deciding whether Bad Samaritan laws should be
created, then another standard must be used. Philosopher John Stuart Mill held the position that it
wasn’t in the purpose of the law to protect one’s morality, but rather to protect the individual from
criminal harm. This is a much more applicable standard. We are social creatures and we have
relationships with other humans because we are programmed to work together in groups; therefore
it is logical that the law would seek to mirror that. “The only tenable option is to draft the laws
using vague terms such as ‘minimal’ or ‘reasonable’ effort or risk on the part of the Samaritan, in
order to prevent ‘serious’ or ‘grave’ harm to another” (Malm 1995). Considering the psychological
implications of bystander apathy, this is a reasonable standard if the legislature feels that a bad
Samaritan law is necessary for the society affected.
The Michigan House currently has a Bad Samaritan bill in committee that would amend the
Michigan penal code: “An individual who knows that another individual is unconscious or is in
need of immediate assistance to prevent death or serious physical injury shall immediately inform
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Protecting Michigan’s Good Samaritans
and emergency services provider of the need for assistance and the location where that assistance is
required.” (House Bill No. 5202). If enacted, this law would mean that failing to call emergency
services, having witnessed an event in which another person was seriously injured, would be a
misdemeanor crime and would bring punishment of either imprisonment up to ninety days, a fine
of up to five hundred dollars, community service for not more than three hundred sixty hours, or
some combination of the three. There can be made a very good argument for enacting this
legislation. It is not asking bystanders to jump in front of a bullet or to run into a burning building,
it is simply asking that a person call emergency services.
There are, however, some problems with this bill. First, the hurdle of bystander apathy is one
that cannot be overlooked. In CPR and basic first aid classes, one tactic that is taught when
responding to someone in need of assistance is to look a bystander directly in the eye and tell that
person specifically, “You! Call 911 and report back to me!” They teach this because if you don’t
tell someone specifically that it is their responsibility to make sure that emergency services have
been called, and then no one will do it, either because people will assume that someone else will
have already taken care of it. Imposing criminal penalties on people who are reacting exactly the
way that studies show an average person is going to react in these situations doesn’t exactly seem
fair. In these cases, it would best be left to the discretion of the judge to determine who, if anyone
at all, should be held responsible for failing to call for help.
Another problem is that while some people will be apathetic, there will also be the Good
Samaritans who go beyond calling emergency services, and will do what they can to try and
prevent death or serious injury at the time of the emergency. If Good Samaritans are unprotected
from liability when going out of their way to try and help a fellow human being in a time of need,
then why should those who do not react be vulnerable to criminal charges? Again, a reasonable
argument could be made for enacting this type of law, but there would have to be a lot of flexibility
in determining if a person’s supposed lack of action warrants malicious behavior to the point of
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Protecting Michigan’s Good Samaritans
needing to be punished. The facts would have to be heavily against the person who had the chance
to make the call and failed to do so.
Another law recently enacted in Michigan that has been called a Good Samaritan law is the
“Medical Amnesty Act” added to the “Michigan Liquor Control Code of 1998”:
A minor who has consumed alcoholic liquor and who voluntarily presents himself or
herself to a health facility or agency for treatment or for observation including, but not
limited to, medical examination and treatment for any condition arising from a violation
of sections 520b to 520g of the Michigan penal code, 1931 PA 328, MCL 750.520b to
750.520g, committed against a minor. (MCL 436.1703).
This addition allows for minors who need medical care from alcohol related problems to be exempt
from criminal penalties. This law, in contrast with the proposed bill requiring people to call for
help in an emergency, is valid and important. If anything can be learned from the prohibition era, it
is that you won’t be able to stop people from breaking the law. This is especially true for minors
who can always be trusted to have bad judgment. Officers understand that many minors will drink
before they reach the legal age, and will cut minors a break in some scenarios. It is better for
minors to learn a lesson about alcohol through going to the hospital than for them to have a more
serious medical issue because they didn’t go to the hospital out of fear for the consequences.
The Nature of Emergencies
In order to win a civil liability suit, there are four elements that must be established by the plaintiff
based on a preponderance of the evidence surrounding the case: A duty to not cause harm to the
plaintiff, a breach of that duty by the defendant, harm caused to the plaintiff, and the breach of duty
shown as a proximate cause of the harm. One of the tests used to determine whether negligence
occurred is to apply these elements to the question: would an average reasonable person have acted
in a similar way to that of the defendant when the alleged negligence occurred? Therefore, the
question that must be asked in determining whether it is necessary to legislate the protection of the
Good Samaritan is, how would the average reasonable person respond to a serious medical
emergency?
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Protecting Michigan’s Good Samaritans
First off, the average person in the United States does not have professional medical training
and experience. In 2010 there were 850,085 actively licensed physicians (Young, Aaron 2010),
83,466 physician assistants (Elliot, Victoria Stagg 2011), and 226,500 employed EMTs and
paramedics (“EMTs and Paramedics” 2012) in the United States. In 2008 there were an estimated
3,063,162 registered nurses in the United States (“The Registered Nurse Population” 2010).
Assuming that these numbers are roughly the same today, then about 1.4% of the United States
population (at the time of the last census in 2010) has a professional medical license. In conclusion,
only around 1.4% of citizens in the United States have training beyond basic first aid, CPR and
AED, and basic first responder, and therefore, the average reasonable person cannot be expected to
have extensive medical training.
As stated before, one cannot expect a person without medical training to handle a situation as
one with medical training would. 98.6% of the United States could not be expected to know
exactly what to do and how to do it when faced with a medical emergency, as most people will be
faced with few, if any, of these experiences. So, in determining whether there was a breach in the
duty owed to a person who was in need of medical assistance, it is reasonable to say that it cannot
truly be predicted how a person might act when faced with a potential life or death situation.
Michigan
There are many different versions of Good Samaritan law across the states. Many, now
including California, have laws to protect the individual that acts in good faith and not for
compensation in an emergency situation. Others do not protect the individual. Michigan is one of
those states. There are two statutes in Michigan that fall into the category of Good Samaritan law:

Act 17 of 1963
“Liability of Certain Persons for Emergency Care” and;

Act 368 of 1978
“Immunity from Liability” from Michigan’s Public Health Code.
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Protecting Michigan’s Good Samaritans
These statutes protect a number of specific medically licensed persons, provided the circumstances
are not considered to be an “act or omission amounting gross negligence or willful and wanton
misconduct,” but they fail to protect the private individual from.
Act 17 of 1963 is broken into five sections, and was last amended in 2002. The first (section
691.1501) defines the protection afforded to physicians, physician’s assistants, and nurses. If these
persons do not have a professional relationship (physician-patient) with the person in distress, and
provide medical care without compensation at the scene of an emergency, they are protected from
liability for civil damages, provided the act does not meet the burden of proof for gross negligence,
which is a higher level of negligence, far beyond the standard of care one might expect from a
reasonable person.
A physician, physician's assistant, registered professional nurse, or licensed practical
nurse who in good faith renders emergency care without compensation at the scene of an
emergency, if a physician-patient relationship, physician's assistant-patient relationship,
registered professional nurse-patient relationship, or licensed practical nurse-patient
relationship did not exist before the emergency, is not liable for civil damages as a result
of acts or omissions by the physician, physician's assistant, registered professional nurse,
or licensed practical nurse in rendering the emergency care, except acts or omissions
amounting to gross negligence or willful and wanton misconduct. (MCL 691.1501)
This section also includes protection for these persons when providing sports physicals for minors.
Furthermore, the Good Samaritan law from Michigan’s Health Code is very similar to this section.
It includes many individuals similar to section 691.1501, and further includes various others, such
as out of state medical personnel or the medical director for an education program.
The next part of Act 17 of 1963 (section 691.1502) lists the various professionals that are
protected when responding to an emergency that occurs inside a hospital. The list specifies that
those whose in-hospital duty doesn’t include responding to emergency situations, including
physicians, physician's assistants, dentists, podiatrists, interns, residents, registered nurses, licensed
practical nurses, registered physical therapists, clinical laboratory technologists, inhalation
therapists, certified registered nurse anesthetists, x-ray technicians, or paramedics. As in the first
section, protection is given to those that don’t already have a relationship with the patient in
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distress and to those that have not acted in a way that is considered to be grossly negligent. The
third (section 691.1504) protects individuals that provide cardiopulmonary resuscitation (CPR) or
provide assistance using an automated external defibrillator (AED) to a person in need. The fourth
(section 691.1505) provides protection to a “block parent volunteer”, or person who assists minors
in getting to and from school as part of a non-profit organization, from liability when assisting
minors in an emergency. The last (section 691.1507) protects those that are registered members of
the national ski patrol system from liability when providing emergency assistance while on patrol.
This section was added in 2006.
The first section, MCL 691.1501, is the statute that would allow a non-medically licensed
Good Samaritan to be liable for civil damages. It is made very clear that only a physician, a
registered professional nurse, or a licensed practical nurse would be protected under this law when
rendering emergency care at the scene of an emergency. The law that ultimately held Lisa Torti
liable for her actions was much more ambiguous:
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. (CAL. HSC. CODE § 1799.102)
This law generated much debate about legislative intent in the California court system.
Supreme Court of California eventually decided that the law referred to medically licensed
persons, but it is easy to see why there was so much confusion on the panels. Unlike
Michigan’s Good Samaritan law, this law says nothing about physicians, physician’s
assistants, nurses, or medically licensed persons of any kind. Therefore, when Van Horn v.
Torti made its way to the Supreme Court of California, they had to determine whether to apply
the law with Torti’s “plain language” interpretation, or to go with Van Horn’s narrower
interpretation.
The court decided for Van Horn’s narrow interpretation that the law did not apply to nonmedically licensed persons, having determined that that interpretation was more consistent with the
28
Protecting Michigan’s Good Samaritans
statutory language in context with the statute at large. While the court did their job in determining
legislative intent, the ramifications of this case brought the shortcomings of this statute to the
public eye. The story hit the national scene, and was featured in an article published in Time
magazine. “The Supreme Court of California has ruled that one good deed may very well not go
unpunished — unleashing a debate not only on who is a Good Samaritan but also who shouldn't
even think about being one” (Stateman). This is exactly the problem with Good Samaritan laws
that do not protect the individual; having a law on the books that allows for people who act
altruistically in a potentially life or death situation to be held liable for the damages incurred by the
victim in the course of the accident is contradictory with a protective system of tort law.
Because of the controversial nature of the decision rendered by the Supreme Court of
California in Van Horn, a bill was quickly entered into the California legislature to make the
change that would clarify what protection would be given to the average Good Samaritan.
Assembly bill 83 was introduced to the California senate in 2008, and proposed the changes that
would clarify that which Torti fruitlessly argued in her defense. The bill was signed into law by
California governor Arnold Schwartzenneger in 2009. The statute now specifically states that “No
person who in good faith, and not for compensation, renders emergency medical or nonmedical
care at the scene of an emergency shall be liable for any civil damages resulting from any act or
omission.” (Assembly Bill No. 83, italics added for emphasis). In addition, there is another section
that clarifies that those who are not protected as medical, law enforcement, and medical personnel
will be protected when providing emergency medical or non-medical care. The language of the
bill, as an urgency statue, left no room for any confusion as to the purpose of the law in protecting
California’s Good Samaritans, “Because the state has long encouraged Californians to assist others
facing danger in an emergency, and the ability to do so without fear of potential suit has been
thrown into question.” The government of California understood the importance of encouraging
and protecting its Good Samaritans.
29
Protecting Michigan’s Good Samaritans
California Health and Safety Code Section 1799.102, before the addition of AB 83, failed to
fulfill the protective purpose of tort law. As stated before, tort law is essential in protecting
society, and protecting people from being sued when assisting others in an emergency situation is
important in encouraging altruistic behavior in these emergency situations. Further, I would argue
that the nature of emergencies and the physcological reaction of the average reasonable person to
an emergency situation predispose certain persons to act in ways similar to Lisa Torti and David
Rhodes. Michigan’s current law has the same shortfalls as California’s law before the addition of
AB 83. It doesn’t protect the non-medically licensed person from civil liability if that person
responds to an emergency. Thankfully, there hasn’t been a major incident in Michigan that has
brought a lawsuit to the attention of Michigan’s legislature, to raise the question of allowing the
Good Samaritan to be so vulnerable. However, Michigan can and should follow California’s
example and make a change that would provide a broader and more comprehensive protection for
its Good Samaritans.
Waiting for a major case to determine that a law should be changed is irresponsible and fits in
with the corrective system of justice, rather than the protective system. As stated earlier, the first
duty of tort law is in prohibiting certain behavior in order to protect people from disruptions to the
status quo. It is the secondary duty that corrects for a breach of the first. Assuming that the
position that unlicensed Good Samaritans should be protected is correct and that Michigan’s
lawmakers would follow the example of California in the event an accident and lawsuit did occur,
the status quo must be established before such a situation might occur in order to protect good
citizens and encourage altruistic behavior.
Good Samaritan Statutes and Case Law
Every state has its own unique Good Samaritan law. Under the common law there is no duty to
assist in an emergency.
One who undertakes gratuitously or for consideration to render services to another which
he should recognize as necessary for the protection of the other's person or things, is
30
Protecting Michigan’s Good Samaritans
subject to liability to the other for physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if(a) his failure to exercise such care
increases the risk of such harm, or(b) the harm is suffered because of the other's reliance
upon the undertaking. (Sutton, 2011 from 2d Restatement of Torts)
Good Samaritan Laws were created to protect individuals who go to the aid of others in need. The
Good Samaritan Law Project is an informational website created by Dr. Victoria Sutton, a law
professor at Texas Tech University. This project is intended to bring light to the inconsistencies of
the various Good Samaritan Laws between states and to promote discussion of these laws, as well
as to come up with ideas for a Good Samaritan Law that would allow for the Good Samaritan to
help those in need without fear of a lawsuit. Part of this project is a compilation of the laws
between states and their major aspects including who is immune under each Good Samaritan Law,
the legal standard for protection under each Good Samaritan Law, the jurisdiction of the protection,
which types of emergencies are covered, and whether or not the action must be gratuitous to be
entitled to protection. This information gives a clear picture of the discrepancies between which
states allow their altruistic citizens to be protected, and which do not (up to date as of 2011, see
Appendix i.)The fact that there are so many different laws covering and not covering so many
different individuals is a great example of why there should be a standard for a more
comprehensive Good Samaritan Law to protect the individual and encourage altruistic behavior.
Case Law
One of the issues surrounding Good Samaritan law is that there are so many different Good
Samaritan laws between jurisdictions, and that even if a person was aware that those types of laws
exist, it would be unfair to expect a reasonable person to know exactly what duties are owed to a
person in distress based on the current law governing the jurisdiction of the event in question.
When known and understood, policy has an effect on the way that people act in certain situations,
but it is also the case that the law may be applied when the defendant didn’t understand that the
actions taken were potentially wrong at the time of the accident. A person isn’t likely to stop
before helping someone on the side of the road or lying on the ground to think that they may be
31
Protecting Michigan’s Good Samaritans
setting themselves up for a lawsuit. As all fifty states have enacted some type of Good Samaritan
statute, there are many examples of cases that show the various ways that a Good Samaritan law is
cited and how courts apply the different elements of the various laws.
Z. Marcia Abramson v. Ritz Carlton Hotel Co.In one case, a man was dining in the restaurant at a
hotel in Jamaica when he went into cardiac arrest. His wife, a registered nurse who was certified in
CPR, called for help and, with the help of a nurse and doctor who were bystanders to the incident,
began administering CPR.
The hotel called for a loss prevention officer, or LPO, and an
ambulance was called. Two LPOs and the Assistant Director of Loss Prevention responded to the
scene and then retrieved an oxygen tank and AED. The man’s wife brought suit against the hotel
in the New Jersey Superior Court, claiming that the hotel breached the duty owed to her husband
because the equipment was faulty and was not readily available, given the size of the hotel. The
court decided for the hotel, stating that the hotel fulfilled its limited duty to its guest by calling
emergency services in a timely manner. Further, the man was in the care of medical professionals
from the time that he collapsed until the ambulance arrived. Because the court established that the
hotel fulfilled its duty concerning the inn keeper to guest relationship, the individuals that
responded were acting as voluntary individuals and were therefore protected under New Jersey’s
Good Samaritan Law.
That particular law stated that, “Any individual…who in good faith renders emergency care at
the scene of an accident or emergency to the victim or victims thereof…shall not be liable for any
civil damages as a result of any acts or omissions by such person in rendering the emergency care.”
(N.J. Stat. § 2A:62A-1 (2013) from Abramson v. Ritz Carlton Hotel Co.). While there was
disputed testimony that the equipment provided by the hotel was not functioning properly (the wife
of the guest in distress argued that the oxygen tank was low and the AED was not fully charged)
the court found that even if the equipment did not save the life of the guest, it did not harm him
either. This case shows the value of the protection a Good Samaritan law should offer. The
32
Protecting Michigan’s Good Samaritans
employees of the hotel responded in the way they were trained, and the guest in distress was taken
to the hospital as quickly as was possible. Since this case,the hotel has updated their standard for
first aid equipment and added equipment at more locations throughout the hotel, as the event
showed them how their system could be improved, but they were not negligent, and that is how the
U.S. Court of Appeals interpreted the case.
Jackson v. Mercy Health Care Center, Inc.In another case, a man was in the operating room of a
hospital in Oklahoma to witness the birth of his child by Caesarean section. While watching the
preparations for surgery, the man became dizzy and was helped by hospital staff to sit on the side
of his wife’s bed. He was not secured and fell off the bed, injuring himself. He sued the hospital
claiming that they were negligent in failing to secure him and allowing him to fall from the bed.
The hospital claimed that they were immune from liability under Oklahoma’s Good Samaritan
Law, which stated:
Where no prior contractual relationship exists, any person licensed to practice any
method of treatment of human ailments, disease, pain, injury, deformity, mental or
physical condition, or licensed to render services ancillary thereto, including licensed
registered and practical nurses, who, under emergency circumstances that suggest the
giving of aid is the only alternative to probable death or serious bodily injury, in good
faith, voluntarily and without compensation, renders or attempts to render emergency
care to an injured person or any person who is in need of immediate medical aid,
wherever required, shall not be liable for damages as a result of any acts or omissions
except for committing gross negligence or willful or wanton wrongs in rendering the
emergency care. (76 O.S. 1991 § 5, from Jackson v. Mercy Health Care Center, Inc)
The trial court agreed with the hospital’s argument, but the Court of Appeals reversed and
remanded the sentence, under the reasoning that the man was not in “danger of death or serious
bodily harm when hospital personnel came to his aid”. The Supreme Court of Oklahoma then
reversed the decision of the Court of Appeals.
In the majority opinion, the Supreme Court of Oklahoma determined that based on the three
elements of immunity under Oklahoma’s Good Samaritan Law, “the absence of a prior contractual
relationship between the rescuer and the injured person, the characterization of the rescuer's act as
having been done in good faith, voluntarily and without compensation, and the injured person's
33
Protecting Michigan’s Good Samaritans
apparent need of emergency medical aid” there were two main issues to consider. The first was of
whether Jackson had a prior contractual relationship with the Hospital. The Court found that
Jackson was a visitor and not a patient and therefore there was no contractual agreement between
him and the Hospital that would take away their status as a Good Samaritan in this case. The
second issue was whether his becoming dizzy should be considered an emergency within the
legislative intent of the law.
The visitor would have us give the Act a highly technical construction. It would limit the
Act's ambit to situations where it is crystal clear to the medical provider — at the critical
moment when a decision must be made whether to render immediate aid — that failure to
act will inevitably result in death or serious bodily harm to the stranger. The primary goal
of statutory construction is to determine legislative intent…Keeping in mind that the
Act's purpose is to invite medical providers to intervene, the term "emergency" must be
given the broadest sense possible. The threat of a malpractice suit for one's failure
correctly to diagnose the seriousness of potential harm to a stranger — based upon a
gauge of perfect hindsight — would seriously undercut, if not indeed destroy, the
immunity's effectiveness. Within the Act's intended meaning an emergency occurs
whenever a stranger appears (or may be perceived) to be ill or in need of
succor.(Jackson v. Mercy Health Care Center, Inc)
The majority opinion for Jackson was very specific in stating that Oklahoma’s Good Samaritan
Law should be interpreted in the way that best encourages Good Samaritans, which are medical
providers in this case, to assist someone in need. If this case had stopped with the decision of the
Court of Appeals and the Hospital was found negligent, then those workers would have been liable
for helping the man. If they had assumed that they might become liable should they help the man
when he became dizzy, then he may have been hurt worse than he was when they did assist him.
The legislature has obviously balanced a victim's need to be compensated for bodily harm
inflicted by another's negligent rescue attempt against the public interest in encouraging
medical providers to render aid in settings in which they might otherwise not feel safe to
act. In the legislative judgment, providing an incentive for medical intervention in an
emergency doubtless became a much higher priority than that of an injured person's
competing interest in compensation.(Jackson v. Mercy Health Care Center, Inc)
This is a case in which a Good Samaritan Law protected the interests of those who were acting as
they were trained and helped a man in need. If it were the case that medical persons in a hospital
witnessed a person in need and did not act to help that person because of the threat of a lawsuit,
34
Protecting Michigan’s Good Samaritans
people would surely question that law, just as they questioned the law in California that failed to
protect Lisa Torti from liability.
Willard v. Vicksburg.A man was driving on an interstate highway in Mississippi when he was
involved in a one-car accident. Another driver arrived at the scene and called the County Sheriff’s
department to inform them that there was a serious accident and an ambulance was needed
immediately. The ambulance did not leave the terminal until twenty one minutes after the phone
call, which was described by expert witnesses as an excessive amount of time for responding to an
emergency call. The ambulance crew removed the victim from the car and put him on a backboard
for stabilization. According to the run report, the victim had no pulse and no blood pressure when
the crew gave their initial assessment. Because of the length of time between the accident and the
lack of proper care provided to the victim, he suffered from a condition leaving him bound to a
wheelchair, visually impaired and psychologically and mentally handicapped. The victim later
took his own life. The family of the victim brought suit against the Mayor representing the city of
Vicksburg, claiming that the ambulance crew was negligent in their slow response time, the failure
to use appropriate caution in removing the victim from the vehicle, and the failure to provide
appropriate care at the scene of the accident.
This case brings light to two issues. The first issue is that there is a difference between how
the law should protect citizens and how the law should protect medically licensed persons.
Because of the training that is given to ambulance crews, there should be a different standard for
negligence in these cases than there is for individual citizens. Mississippi’s Good Samaritan Law
in 1990 read as follows:
No duly licensed, practicing physician, dentist, registered nurse, licensed practical nurse,
certified registered emergency medical technician, or any other person who, in good faith
and in the exercise of reasonable care, renders emergency care to any injured person at
the scene of an emergency, or in transporting said injured person to a point where
medical assistance can be reasonably expected, shall be liable for any civil damages to
said injured person as a result of any acts committed in good faith and in the exercise of
reasonable care or omissions in good faith and in the exercise of reasonable care by such
35
Protecting Michigan’s Good Samaritans
persons in rendering the emergency care to said injured person. (Miss. Code Ann. §7325-37 (Supp. 1988). from Willard v. Vicksburg).
Emergency medical technicians are trained persons who are paid with tax-payer money. It is
reasonable to expect that when EMTs arrive at the scene of an accident, those individuals will have
the appropriate training to handle the situation at hand. Based on the facts of Willard, it would
appear that the EMTs that responded to that accident either did not have the appropriate training or
were grossly negligent in their care of the victim. The care that they gave wasn’t reasonable, and
they shouldn’t have been protected by the Good Samaritan Law in question.
A strict reading of §73-25-37grants immunity to anyone who renders emergency care in
good faith and with reasonable care at the scene of the accident or during transportation
to a medical facility. Because we decide this case on other grounds, we decline to
interpret the statute. However, we invite the legislature to review and amend § 73-25-37
to include a pre-existing duty exception. Those who have a pre-existing duty to render aid
should not be allowed to hide behind the cloak of the Good Samaritan
Statute.Additionally, the standard of care required by our statute is one of reasonableness.
This is the same as the common law. In other words§ 73-25-37 fails miserably in its twofold purpose which is to remove the common law liability associated with rescue and to
encourage people to stop and render aid to those in need. We invite the legislature to
adopt a higher degree of protection. (Willard v. Vicksburg)
This language makes it clear that the Justice of the Supreme Court of Mississippi who gave this
opinion not only saw the importance of Good Samaritan Laws, but also in the logical limitations
that should go along with it. The Supreme Court of Mississippi remanded this case to go to trial
after the previous court granted summary judgment for the emergency personnel.
The Impact of Policy on Behavior
Besides examples found in case law, there are many stories that illustrate the effect of policy on
how people act when other people are in need. Take for example the story of the unfortunate
passing of Lorraine Bayless.
Bayless was eighty-seven and living in an independent living
complex for the elderly in California when she collapsed in her dining room. A nurse responded
and called 911to summon Emergency Medical Services, but would not give the lady CPR when her
breathing stopped, despite the pleadings of the dispatcher. The reason she would not give CPR is
that it was company policy for the employees of the complex to call EMS in an emergency, but not
36
Protecting Michigan’s Good Samaritans
to give direct assistance. Listening to the nurse on the phone recording is disheartening. The
dispatcher says over and over again that someone needs to give the lady CPR or she is going to die,
even if it is another resident or a bystander, but the nurse refuses in a lethargic and annoyed voice.
This story begs the question of why a home designed for the elderly would have a policy in place
that requires its employees to ignore a dying person. If she had responded and given CPR, as a
nurse, she would have been protected under California’s Good Samaritan law from the
ramifications of going to her assistance. While this is a company policy and not a state law, this
story is a clear illustration of the dangers of having policy in place that discourages people from
helping those in need. (Fantz 2013).
Another story shows the problems with allowing a person who acts as a Good Samaritan and
saves the life of another to be vulnerable to punishment for their reaction. Tomas Lopez was a
lifeguard at a beach in Florida. He was guarding his zone of water when a person ran up and
alerted him to a man in need of assistance in the water. The man was outside the lifeguard’s zone
of protection, but the lifeguard got down from his tower and ran to help the man anyways. After
rescuing the man, he rendered CPR and the man’s life was saved as a result of the guard’s quick
action. But because he left his zone to assist someone outside of his jurisdiction, he was fired by
the lifeguarding company. The initial reasoning was that the company was liable for the zone he
left, but the internal investigation revealed that the zone was well protected by the other lifeguards
on duty. Furthermore, other guards were fired when they responded that they would have acted in
the same manner if they were faced with the same situation. The lifeguard company offered Lopez
his job back, but he refused. Lopez responded as he felt was his duty as a lifeguard, and he was
able to save the life of another. He did a morally excellent thing, and caused no harm in the
process. There was no real reason why what he did should warrant his being fired, save for a
failure in appropriate policy. (Stableford 2012).
37
Protecting Michigan’s Good Samaritans
Conclusion
Based on all of the reasons detailed in this thesis, it would be prudent for Michigan’s legislators to
consider coming up with a new law. The current law does not provide adequate protection for the
altruistic individuals that would go to the rescue of those in need. There hasn’t been a case in
Michigan to test the flaws of the current law, but it would not be wise to wait for an unjust lawsuit
to come about before making the necessary additions that would allow for people to act as they are
naturally inclined. There are several specific factors that must be carefully acknowledged in
coming up with a better Good Samaritan Law in Michigan.
First, people are naturally altruistic. Those like Lisa Torti see a person in need, and are driven
to help that person as best they know how. Because we can observe examples of altruism in
humans and other animals, it has to be understood that legislating in a way that undermines that
natural inclination to do good is unjust and against our very nature. Altruism is beneficial for
people, as leading an altruistic life will generally allow for someone to be a more fulfilled person,
as well as the fact that people who do good things are often inclined to put themselves into
beneficial circumstances. Nice guys don’t finish last, contrary to popular belief, and the law should
reflect this.
The most important function of tort law is in the protection of citizens, while the correction of
wrongs is secondary to that function. A Good Samaritan Law that fulfills its purpose should
protect medical professionals who act within the scope of their training and do not act in a way that
is grossly negligent, and it should protect private individuals that act in a reasonable manner.
Again, this means that a person who acts altruistically is acting as they are naturally inclined. It
also means that while people will try to help others if they feel that they are risk of death or serious
injury, they will not have the kind of medical experience that you would expect from someone that
is medically licensed. Therefore, gross negligence for the private individual has to fall under a
38
Protecting Michigan’s Good Samaritans
much different standard than is applied to gross negligence at the hands of the medically licensed
professional.
Liability insurance and its impacts on tort law must be considered in creating a new Good
Samaritan Law as well. Not all people are covered by liability insurance, and these are the people
who are not going to be vulnerable to a lawsuit as attorneys are not likely to take a case that will
likely not result in a substantial payout. If the law is intended to protect people, then it has to be a
consideration that all people should fall under a certain protection, not just the people who rent
their homes and don’t buy liability insurance, or those people that just do not have the assets
available to pay damages in a large lawsuit. Also, insurance numbs people to the vulnerability of
lawsuits. If the only consequence that one is likely to face is that they have to pay a higher
insurance premium, it is less likely that vulnerability for those people will be a factor in deciding
whether to act in an emergency situation. Because they would be acting in a way that they are
simply responding to the emergency situation, they should be protected from lawsuits if they are
not acting in a way that is grossly negligent.
Michigan needs a more comprehensive Good Samaritan Law, such as has been enacted in
California.
The law should go beyond protecting just those who are medically licensed to
protecting those that are not looking for some sort of compensation, but are just acting the role of
the citizen-hero. While it is true that a person should be allowed to be compensated for damages
should a person act in a way that is grossly negligent, but the Good Samaritan should not be
punished for going to the aid of his neighbor.
39
Protecting Michigan’s Good Samaritans
Appendix i
State
Alabama
Ala . Code
1975 §6-5332
Alaska
AS 09.65.090
Arizona
A.R.S. § 321471
Who is
immune?
Where?
Private
Individual
What
emergencies?
What actions?
Cardiac only
Must action
be
gratuitous?
Yes
List of
professionals
“at the scene
of an
accident,
casualty, or
disaster”
“…accident,
casualty or
disaster”
Private
individuals
“at a hospital
or any other
location”
Emergency
location,
search and
rescue
“a person at a
hospital”
“at a hospital
or other
location”
Emergency
care or
counseling
No
Only a person
who is
“authorized
by law to
provide it”
“…or any
other
location”
Advanced life
support, i.e.
defibrillator
No
Private
individuals
and
professionals
(same
treatment in
statute)
“at a public
“emergency
gathering or
occurrence”
at the scene of
an
emergency”
“acts or
omission” &
“failure to
provide or
arrange for
further medical
treatment”
Yes
40
“first aid or
emergency
care”
Yes
No
Protecting Michigan’s Good Samaritans
“school
athletic event
at the site
thereof” or
“during
transportation
to a health
care facility
“at the scene
of an
emergency”
“injury
suffered in
the course of
the event”
“voluntary
emergency
medical
assistance”
Yes
“emergency”
“Emergency
care”
No
§1799.106
firefighters,
police
officers,
EMT-1,
EMT-II,
EMT-P, the
employing
“public
agency”
Private
individual and
physician or
surgeon
[licensed by
Colorado]
“at the scene
of an
emergency”
“emergency”
“emergency
medical
services”
No
Yes
“volunteer
member of a
rescue unit”
“at the place
of emergency
or accident”
“emergency
or accident”
“emergency
care or
emergency
assistance” to a
person not
presently a
patient to the
good
Samaritan
“acts or
omissions” in
“emergency
care or
assistance”
MD/Surgeon,
LPN, RN,
dentist, person
operating a
cardio
resuscitator or
defibrillator
“to a person
in need
thereof” [no
place
specified]
“to a person
in need
thereof” of
“emergency
medical
services”
“Rendering
emergency or
professional
assistance”
Yes
(c)Physician
or surgeon
(d)chiropracto
r or podiatrist
California
Ann. Cal.
Bus. & Prof.
Code §2395,
Ann.Cal.Healt
h & Safety
Code
§1799.106
Colorado
C.R.S.A. §
13-21-108
Connecticut
C.G.S.A
§52=557b
§2395
“licensee”
“at the place
of an
emergency or
accident”
41
Yes
Protecting Michigan’s Good Samaritans
Delaware 16
Del.C.§6801
Volunteer or
paid
firefighter,
police officer
or emergency
medical
service
personnel
Various
municipal or
state
personnel
“the residence
of any
person”
A person
whom
firefighters
believe to be
in need of
emergency
first aid
“entering the
residence of
any person in
order to render
emergency first
aid”
No “paid”
“to a person
in need”
“any personal
injuries”
“renders
emergency first
aid”
No
Teacher or
other school
personnel
“on the
school
grounds or in
the school
building or at
a school
function”
During such
program
“any personal
injuries”
“renders
emergency first
aid”
No
“in apparent
need” because
of an allergic
reaction
Using a
cartridge
injector on a
child under 16
Yes
“On the
school
grounds or in
the school
building or at
a school
function”
“to a person
in need
thereof”
“rendering
emergency
care of
administration
of medication
by injection”
No
“in need of
rescue
assistance…”
“To a person
who is
unconscious,
ill, injured or
in need of
rescue
assistance, or
“act or
omission in the
rendering of
such first aid,
emergency
treatment or
rescue
yes,
including
fees paid to
nonprofits or
governmenta
l entities or
salaries paid
volunteer
worker
“associated
with” a
nonprofit
organization
serving
children under
16; or the
nonprofit
organization
teacher or
other school
personnel . .
.who has
completed a
course in first
aid and in the
“administratio
n of
medication by
injection”
“any person”
42
Protecting Michigan’s Good Samaritans
Florida
West’s F.S.A.
§768.13
Private
individual
“Any person”
or “those
licensed to
practice
medicine”
“health care
provider”
“hospital”
“At the scene
of an
emergency
outside of a
hospital,
doctor’s
office, or
other place
having proper
medical
equipment”
any person in
obvious
physical
distress or
discomfort”
assistance
“Emergency
situations
arising out of
a public
health
emergency
declared [by
the state] , a
“state of
emergency”
or “at the
scene of an
emergency
outside of a
hospital,
doctor’s
office or other
place having
proper
medical
equipment”
“Prior to the
time the
patient is
stabilized and
is capable of
receiving
medical
treatment as a
nonemergenc
y patient”
“Act or failure
to act in
providing or
arranging
further medical
treatment”
Yes
“emergency
services
pursuant to
obligations”
imposed by
federal statues
42 USC
1395dd, et al
includes
“diagnosis”
“Emergency
response
activities” “
care, treatment
or services”
No
“Any
person…
who…
participates
with an
emergency
response team
or agency or
FEMA”
43
Yes
Protecting Michigan’s Good Samaritans
Any person,
including
licensed
veterinarians
“at the scene
of an
emergency on
or adjacent to
a roadway”
An
emergency
“Renders
Yes
emergency
care or
treatment to an
injured animal”
Georgia Ga.
Code Ann.
§51-1-29.1-3
physician or
surgeon
[licensed in
Georgia]
“at the scene
of an accident
or
emergency”
“Accident or
emergency”
Yes
§51-1-29.2
“any natural
person”
“during a
time of
emergency”
and “in a
place of
emergency
declared by
the Governor”
“catastrophic
acts of nature,
including fire,
flood,
earthquake,
wind, storm
or wave
action”
§51-1-29.3
“any person”
“emergency”
“emergency”
“Act or failure
to act to
provide or
arrange for
further medical
treatment or
care”
“Minimize and
repair injury
and damage to
property
resulting from
catastrophic
acts of nature,
including fire,
flood,
earthquake,
wind, storm or
wave action”
“emergency
care or
treatment by
the use of or
provision of a .
. defibrillator”
“Any
physician or
other medical
profession”
“in or on any
premises
other than any
medical
facility”
installing or
providing
defibrillators
No
Private
individual
“at the scene
of an accident
or
emergency”
“renders
emergency
care”
Yes
Hawaii HRS §
663-1.5
“accident or
emergency”
44
Yes
Yes
Protecting Michigan’s Good Samaritans
Rescue team
member or
physician
working with
the team
“in cases of
emergency”
“in immediate
danger of loss
of life”
owners or
operators of
hospital
“Attempting to
resuscitate any
person”
No
maintenance of
equipment and
training
obligations
No
“Any
physician”
[licensed in
any state]
“In a
hospital”
“who is in
immediate
danger of loss
of life”
“Emergency
medical care”
Yes
“Any person
or other entity
who publishes
written
general first
aid
information”
“Any person
who
completes
training” for
defibrillation
or employer
publication
“emergency
first aid
treatment”
Publication of
general first
aid information
Yes and
without
expectation
of
remuneration
“The scene of
an accident”
“Immediate
danger of loss
of life”
“Administering
” defibrillator
Yes
Idaho I.C. § 5330
Private
individual or
“group of
persons”
“The scene of
an accident”
“Accident”
No
Illinois 210
ILCS
50/3.150
(a) Licensed
or authorized
person
(b)person,
private or
government
who manages
EMT or (d)
CPR services
“Being at, or
stopping at the
scene of an
accident. .
.administers
first aid or
medical
attention”
“provides
emergency or
non-emergency
medical
services”
emergency or
nonemergency
medical
services
during a
“training
course” or in
the “normal
45
No
Protecting Michigan’s Good Samaritans
(f) member of
state board (g)
EMS director
Indiana IC 1631-6-1 1631-6-3
(a) certified
EMT or
EMT-basic
advanced
paramedic or
EMTintermediate
course of
conducting
their duties”
“emergency”
“an
emergency
patient”
(b) ambulance
drivers
“Acts or
omissions”
when
“Providing
emergency
medical
services to an
emergency
patient”
“negligent
operation”
No
No
16-31-6-2
certified first
responder and
agency
“emergency”
“emergency”
Use of
defibrillator
No
16-31-6-4
paramedic,
EMTintermed,
EMT-BA,
EMT
[certified in
any state]
hospital
employee or
other staff
Private
individual
List of
professionals
7
“in
connection
with a
disaster
emergency
declared by
the governor
“Disaster
emergency”
Act or
omission in
providing life
support or
basic life
support
No
“at the place
of an
emergency or
accident” or
in transit to or
from or while
person is
being moved
to or from an
emergency
shelter
“Emergency
or accident”
“Renders
emergency
care or
assistance”
Yes
Iowa I.C.A.
§613.17
46
Protecting Michigan’s Good Samaritans
Person at
his/her work
place
“workplace”
“workplace
rescue arising
out of an
emergency or
accident”
“person
involved in a
workplace
rescue”
Yes
Kansas KS ST
§ 65-2891
Any health
care provider”
“emergency
or accident”
“emergency
care or
assistance”
No
Kentucky
KRS
§411.148
Physician, RN
or LPN
[licensed in
Kansas] or
EMT who has
completed a
Amer Red
Cross course
in CPR ; or
any employee
of any board
of education
who has a
course in first
aid from the
Amer Red
Cross
(a) physician,
surgeon,
physician
assistant,
nurse
[licensed in
Louisiana]
“at the scene
of an accident
or
emergency”
or “as a result
of having
engaged in
competitive
sports” or
“within a
hospital or
elsewhere”
“at the scene
of an
emergency”
specifically
“excluding
house calls”
specifically
excluding
“house calls”
“Acts
performed at
the scene of an
emergency”
Yes
“at the scene
of an
emergency”
“emergency”
Yes
Within the
hospital or
facility
Emergency to
which the
person was
not required
to respond
“renders
emergency
care or
services” or
providing or
arranging for
further medical
treatment
“act or
omission in
rendering the
emergency
care or
service” or
providing or
Louisiana
LSA-R.S.
37:1731
(b) physician,
on-call
physician or
oral and
maxillofacial
surgeon or
nurse
47
Yes
Protecting Michigan’s Good Samaritans
[licensed in
Louisiana]
Maine 14
M.R.S.A.
§164
Maryland MD
Code §5-603
arranging for
further medical
care or
treatment
EMT
“at the scene
of an
emergency”
“an
emergency”
“members or
employees of
nonprofit
volunteer or
governmental
ambulance,
rescue or
emergency
units”
(1) “an
individual
licensed by
this state to
provide
medical care”
and (2)
member of
state, county,
municipal
volunteer fire
dept,
ambulance
and rescue
squad or law
enforcement
agency or
National Ski
patrol system
or fire dept
responding
outside of
their district
emergency or
rescue
situation
“A person
who is
unconscious,
ill, injured or
in need of
rescue
assistance”
“at the scene
of an
emergency”or
“in transit to a
medical
facility”
.
“an
emergency”
48
“renders
emergency
care or
services” or
arranges for
further medical
treatment
“rendering of
such first aid,
emergency
treatment or
rescue
assistance”
Yes
“Giving any
assistance or
medical care”
Yes
Yes
Protecting Michigan’s Good Samaritans
(c)Private
individual (or
anyone not
covered in the
previous part)
“at the scene
of an
emergency”
“an
emergency”.
“providing
assistance or
medical aid”
Yes
Massachusetts
M.G.L.A. 112
§12B.
Any
physician,
physician
assistant or
nurse licensed
in
Massachusetts
or any state or
D.C. or
Canada
“emergency”
“emergency”
renders
emergency
treatment or
orders a person
hospitalized or
causes his
admission
Yes
Michigan
M.C.L.A.
333.20965
List of
persons-- no
private
individuals
“outside a
hospital” or in
a hospital
None
identified
Providing
services to a
patient
No
[same]
[same]
“an individual
who is in or is
exhibiting
symptoms of
cardiac
arrest"
“use of an
automated
external
defibrillator”
No
Minnesota
M.S.A. §
604A.01
Private
individual
“emergency”
“rendering
emergency
care, advice, or
assistance” or
“use of a
defibrillator”
Yes,
specifically
excludes
persons
rendering
care during
the course of
their
employment.
Mississippi
Miss. Code
Ann. §73-2537
Private
individual
“At the scene
of an
emergency or
during transit
to a location
where
professional
medical care
can be
rendered”
“at the scene
of an
emergency, or
in
transporting
the injured
person to a
point where
medical
assistance can
“an
emergency”
“actions or
failure to act”
or a personal
injury
No
.
49
Protecting Michigan’s Good Samaritans
be reasonably
expected”
Missouri
V.A.M.S.
537.037
Montana
MCA §27-1714
“Any person”
private
individual
[does not
require
training in
AED use]
Any
physician,
surgeon, RN
or LPN ,
licensed in
any state, or
EMTs
[licensed in
Missouri]
any person
trained in first
aid render
emergency
care or
assistance to
the level for
which he or
she has been
trained
Any physician
or surgeon
[licensed in
Montana]
volunteer
firefighter or
officer of any
nonprofit
volunteer fire
company or
any other
person
“accident, or
in competitive
sports, or
other
emergency at
the scene of
an accident”
“emergency”
“renders
emergency
care or
treatment by
the use of . .
.defibrillator”
Yes
“accident, or
in competitive
sports, or
other
emergency at
the scene of
an accident”
“Render
emergency
care or
assistance...” to
anyone
including “...to
any minor
involved in an
accident
…without first
obtaining the
consent of the
parent . .
“render
emergency
care or
assistance”
Yes
“renders
emergency
care or
assistance”
Yes
at the scene of emergency or
an accident”
accident
“at the scene
of an
emergency or
accident”
“emergency
or accident”
.
50
Yes
Protecting Michigan’s Good Samaritans
person who
operates an
ambulance
[same]
[same]
Nebraska
R.R.S. Neb.
§25-21,186
.
Private
individual
“at the scene
of an accident
or other
emergency”
accident or
other
emergency
§71-5194
emergency
care provider,
physician
assistant, RN
or LPN
emergency
“public
emergency”
§35-107
member of a
volunteer fire
department or
volunteer
first-aid,
rescue or
emergency
squad
1. private
individual
.
Nevada
N.R.S. 41.500
.
2. Driver of
an ambulance
or attendant
on an
ambulance
“in an
emergency”
.
“emergency”
.
“at the scene
of an
emergency or
while
transporting
an injured or
ill person to
or from any
clinic,
doctor’s
Emergency,
ill or injured
person
.
51
“operates an
ambulance to
and from the
scene of an
emergency or
renders
emergency
medical
treatment”
renders
emergency
care or provide
or arrange for
medical
treatment or
care
“provides
public
emergency
care”
No
provides
emergency
public first-aid
and rescue
services
No
rendering
emergency
care or
assistance or
provides or
arranges for
further medical
treatment for
the injured
person
driving an
ambulance or
rendering care
.
Yes
Yes
No
No
Protecting Michigan’s Good Samaritans
office or other
medical
facility
New
Hampshire
N.H. Rev.
Stat. § 508:12
.
private
individual
.
New Jersey
N.J.S.A.
2A:62A-1
Private
individual
New Mexico
N.M.S.A.
1978, §24-103
Private
individual
New York
P.H.L. 3013
certified first
responder,
EMT, EMTAdvanced,
person under
the direction
of these
EMTs17
North
Any volunteer
Carolina
medical or
N.C.G.S.A§90 health care
-21.16
provider at a
facility of a
local health
department or
“at the place
of the
happening of
an emergency
or to a victim
of a crime or
delinquent act
or while in
transit in an
ambulance or
rescue
vehicle”
“at the scene
of an accident
or
emergency”
or while
transporting
the victim(s)
to a hospital
or other
facility
“at or near the
scene of an
emergency”
emergency
victim of a
crime or
delinquent act
in transit in
an ambulance
or rescue
vehicle
“renders
emergency
care”
.
yes, no
compensatio
n from the
person being
assisted
.
emergency or
accident
“renders
emergency
care” or
transporting
the victim(s) to
a hospital or
other facility
No
Emergency
“coming to the
aid or rescue of
another person
by providing
care or
assistance”
Yes
“in an
emergency”
.
“person who
is
unconscious,
ill or injured”
“renders
medical
assistance in an
emergency”
Yes
“rendered at
the facility,
center,
agency or
clinic” or in
other facility
if not
No
emergency
required
“rendering of
the services”
Yes
52
Protecting Michigan’s Good Samaritans
at a nonprofit
community
health center
charging a fee
to the patient
referred by
the free clinic
§90-21.14
.
Private
individual
including
volunteer
medical
health care
provider20 at
a facility of a
local health
department or
nonprofit
community
center, or
volunteer
member of a
rescue squad
“Reasonably
apparent
circumstances
” athletic
events
person is
unconscious,
ill or injured
and
“reasonably
apparent
circumstances
require
prompt”
actions; when
“delay . .
.would
seriously
worsen the
physical
condition or
endanger the
life of the
person,”
“renders first
aid or
emergency
health care
treatment”
.
Yes
§20-166
Driver of any
vehicle
At the scene
of the
accident or
collision
Accident or
collision by
the person’s
vehicle which
he/she is
operating
(a)(2)“shall
immediately
stop this
vehicle at the
scene of the
accident or
collision” and
(b) render to
any person
injured in such
accident or
collision
reasonable
assistance,
including the
calling for
medical
assistance”
Yes, Failure
to do this
results in a
Class 1
misdeamean
or
53
Protecting Michigan’s Good Samaritans
North Dakota
ND ST 3203.1-02
.
Private
individual and
their
employer
.
‘in this state”
.
“injured or
are ill as the
result of an
accident or
illness, or any
mechanical,
external or
organic
trauma”
“renders aid or
assistance
necessary or
helpful in the
circumstances”
.
No
32-03.1-02.2
Volunteer
health care
provider
[licensed in
North Dakota]
who works in
a free clinic
Private
individual
“at a free
clinic”
no emergency
required
“rendering of
that care”
Yes
“at the scene
of an
emergency”
“emergency”
“for acts
performed at
the scene of
such
emergency”
No
“wherever
required”.
“emergency
circumstances
that suggest
the giving of
aid is the only
alternative to
probable
death or
serious bodily
injury”
“giving of aid”
or “renders or
attempts to
render
emergency
care”.
Yes
“wherever
required”
“victims of an
accident or
emergency”
“render
Yes
emergency
care consisting
of artificial
respiration,
restoration of
breathing, or
preventing or
retarding the
loss of blood or
aiding or
restoring heart
action or
circulation of
Ohio R.C.
§2305.23
.
Oklahoma 76 “any person
OKL.ST.ANN licensed to
. § 5(1).
practice any
method of
treatment of
human
ailments,
disease, pain,
injury,
deformity,
mental or
physical
condition”.
§5(2)
Private
.
individual
54
Protecting Michigan’s Good Samaritans
blood”
§5(3) .
licensed
person to
perform
dentistry or
surgery
[licensed in
Oklahoma]
.
“wherever
required”.
“victim of an
accidental
act”.
§5(4)
Private
individual
“individual’s
household”
Oregon
O.R.S.
§30.800(1)(a)
medical or
dental care
NOT “in a
place where
emergency
medical or
dental care is
regularly
available”.
§30.800(1)(b)
physician in
the
professional
capacity of
team
physician
athletic
events.
“endangered
or need
person” and
“persons on
the streets in
apparent
danger, or in
need of aid”
“injured
person who is
in need or
immediate
medical or
dental care
under
emergency
circumstances
”
[same]
55
“renders
emergency
care requiring
the
performance of
an operation or
other form of
surgery”
“attempts to
render [same]”
without
consent
UNLESS adult
is conscious
and capable
sign in the
window
extending
home as a
refuge22
providing aid
and refuge in
one’s home.
“medical or
dental care”
“rendering
emergency
medical
assistance”.
Yes
“medical care”
“rendering
emergency
medical
assistance”
no, only
expectation
of no
compensatio
n
No
no, only with
the
expectation
of no
compensatio
n
Protecting Michigan’s Good Samaritans
Pennsylvania
42 PA.C.S.A§
8332
Rhode Island
RI ST §9-127.1
South
Carolina Code
1976 §15-1310
private
individuals24
certified in
first aid,
advanced life
saving or
basic life
support25 and
performing
only those
procedures
consistent
with the
person’s level
of training
Private
individual
“at the scene
of an
emergency”
“emergency”
“Acts or
omissions”in
rendering
“emergency
care, first aid
or rescue”or
“moving the
person to a
hospital or
other place of
medical care”
Yes
“emergency”
“emergency”
including
“persons
suffering
from
anaphylactic
shock”
Yes
Private
individual
“at the scene
of an accident
or
emergency”
.
“Emergency”.
Private
individual
“During an
emergency”
“an
emergency
which is in
their
judgment
indicated and
necessary at
the time”
“Renders
emergency
assistance”
“including the
administration
of life saving
treatment to
those persons
suffering from
anaphylactic
shock”
“acts or
omissions”
“act or failure
to act” in
rendering
emergency
care, or to
provide or
arrange for
further medical
treatment
“any
emergency
care and
services” and
“operation of
any motor
vehicle in
connection
with any such
care and
services.”
.
South Dakota
SDCL §20-94.1
56
Yes
No
Protecting Michigan’s Good Samaritans
“at the scene
of an
accident,
medical
emergency
and/or
disaster . . . en
route from
such scene to
a medical
facility”
“at the scene
of an
emergency”
“accident,
medical
emergency
and/or
disaster”
“renders
emergency
care” or
“participates or
assists in
rendering
emergency
care,”
including the
use of a
defibrillator
“administers
emergency
care” including
a defibrillator
No
Private
individuals
“at or near the
scene of or
during an
emergency”
“emergency”
“renders
emergency
care”
Yes
Vermont 12
V.S.A.§519
Private
individuals
“exposed to
grave
physical
harm”
“grave
physical
harm”
“shall…give
reasonable
assistance”
Yes
Virginia VA.
Code Ann.
§8.01-225
Private
individual
“at the scene
of accident,
fire, or any
life
threatening
emergency”
“renders
emergency
care or
assistance”
Yes
Private
individual
“at the scene
of emergency
or who
participates in
transporting”
“any ill or
injured person
at the scene of
an
emergency”
or “enroute”
to “a hospital,
medical
clinic, or
doctor’s
office”
“an injured
person or
persons”
Washington
RCWA
4.24.300
“renders
emergency
care” or
“participates in
transporting”
Yes
Tennessee
T.C.A. §63-6218
Private
individual
Texas TX
CIV PRAC&
REM §74.151
Private
individual
Utah UT ST
§78-11-22
“emergency”
57
Yes
Protecting Michigan’s Good Samaritans
West Virginia
W.Va Code
§55-7-15
Private
individual
“at the scene
“emergency”
of an accident
or to a victim
at the scene of
the crime”
“rendering
such
emergency
care”
Yes
Wisconsin
W.S.A.895.48
Private
individual
“at the scene
of any
emergency or
accident” or
“enroute to a
hospital”
“emergency”
“renders
emergency
care”
Yes
Wyoming
Wyo. Stat. §11-120
Private
individual
“at the place
of an
emergency or
accident”
“emergency
or accident”
“renders
emergency
care or
assistance”
Yes
(Sutton 2011)
58
Protecting Michigan’s Good Samaritans
References
Abramson v. Ritz Carlton Hotel Co., (2012). 480 Fed. Appx. 158; 2012 U.S. App. LEXIS 9498.
Assembly Bill No. 83 (2009). California Health & Safety Code §1799.102. Accessed at
http://info.sen.ca.gov/pub/09-10/bill/asm/ab_00510100/ab_83_bill_20090806_chaptered.pdf
Baker, Tom (2005). “Liability Insurance as Tort Regulation: Six Ways That Liability Insurance
Shapes Tort Law in Action,” Connecticut Insurance Law Journal. 12, 1.
Brodsky, Harold and Hakkert Shalom A., (1985). “Accessibility and Bystander Response in an
Emergency,” Transactions of the Institute of British Geographers, 10, 3 (1985): 303-316.
Accessed at http://www.jstor.org/stable/622180.
Buckley, William (1993). Torts and Personal Injury Law. Albany: Delmar Publishers Inc.
Calabresis, Guido (1970). The Cost of Accidents: A Legal and Economic Analysis. New Haven:
Yale University Press. From Perspectives on Tort Law, Robert, Rabin L (1983).
California Health and Safety Code Section 1799.102 (2013). Accessed at
http://law.onecle.com/california/health/1799.102.html
Coase, R. H., (1960). "The Problem of Social Cost". Journal of Law and Economics, 3, (October
1960) 1-44. Accessed at http://home.cerge-ei.cz/ortmann/UpcesCourse/Coase%20%20The%20problem%20of%20Social%20Cost.pdf\
Coleman, Jules L., (1992). Risks and Wrongs. New York: Cambridge University Press.
Coleman, Jules L., (1992). "Tort Law and the Demands of Corrective Justice". Indiana Law
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