Negligence, Responsibility, and the Clumsy Samaritan: Is There a Fairness Rationale for the Good Samaritan Immunity?

• Publication year: 2013

Negligence, Responsibility, and the Clumsy Samaritan: Is there a Fairness Rationale for the Good Samaritan Immunity?

Dov Waisman

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NEGLIGENCE, RESPONSIBILITY, AND THE CLUMSY SAMARITAN: IS THERE A FAIRNESS RATIONALE FOR THE GOOD SAMARITAN IMMUNITY?

Dov Waisman^*

Abstract

The Good Samaritan immunity has been roundly criticized for failing in its stated goal of encouraging physicians and laypersons to volunteer assistance in emergencies. Yet in the half century since its inception, all fifty states have adopted the immunity in one form or another, and it shows no sign of disappearing any time soon. This Article represents the first serious attempt in the literature to evaluate a rarely discussed rationale for the immunity which may explain its persistence: that it is unfair to impose negligence liability on the clumsy Samaritan, i.e., someone who, without obligation, altruistically comes to the aid of another in an emergency but does so ineptly.

Based on a close examination of different types of voluntary rescue cases, I conclude that fairness does require an immunity but only in narrow circumstances: where a lay rescuer's act of ordinary negligence leaves the victim no worse off than she would have been absent the intervention (i.e., where the gravamen of the action is that a lay rescuer negligently failed to alleviate the pre-existing peril). Outside of these circumstances, principles of fairness support holding the clumsy Samaritan liable for negligence in performing the rescue.

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This, I argue, has an important and unappreciated implication for negligence theory. My analysis presents a novel challenge to the view of corrective justice theorists like Ernest Weinrib, who contend that the duty to repair an injury caused by negligence rests on the culpable disrespect the injurer evinces in failing to act with due care. Because, in the paradigm case of voluntary rescue, the rescuer acts selflessly and out of a profound respect for the physical integrity of the imperiled person, the intuition that liability may nevertheless be appropriate if the rescuer fails to exercise reasonable care supports a competing view of the moral basis of negligence liability. The case of the clumsy Samaritan shows in a compelling way that the moral basis of negligence liability has to be the injurer's moral responsibility for the consequences of her dangerous, even if non-culpable, conduct.

Table of Contents

Introduction.................................................................................611

I. The Volunteer Rescuer At Common Law..............................616

A. Doctrinal Basics...................................................................617
B. Conflicting Views On Non-Worsening Negligence..............620

II. The Good Samaritan Immunity..............................................626

A. Origin...................................................................................628
B. Content.................................................................................631
C. Application...........................................................................633
D. Criticism..............................................................................635

III. The Volunteer Rescuer And Corrective Justice..............637

A. The Inadequate Rationale Offered By Courts......................638
B. Corrective Justice: Culpability v. Responsibility.................641
C. Samarital Negligence Through The Lens Of Risk Ownership..........................................................................662
D. Non-Worsening Samarital Negligence Revisited................671

Conclusion....................................................................................682

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Introduction

On a winter day in 1998, five friends rode their snowmobiles alongside a highway in rural Minnesota.¹ Among them was thirteen-year-old Kelly Swenson.² When the snowmobile she was driving struck a drainage culvert in a ditch next to the highway, Swenson suffered a dislocated knee.³ Swenson's companions flagged down a passing motorist, Lillian Tiegs, who offered to drive Swenson to a nearby hospital.⁴ After Swenson entered Tiegs's van, Tiegs— apparently without checking for oncoming traffic—attempted a U-turn onto the opposite side of the highway.⁵ Before Tiegs could complete the U-turn, a tractor-trailer traveling in the opposite direction struck the passenger side of her van, killing Swenson.⁶

Under the common law, Swenson's survivors would have been entitled to recover from Tiegs upon a showing that she acted negligently in making the U-turn.⁷ However, half a century ago, American state legislatures began abrogating the common law doctrine that allows liability to be imposed on a volunteer rescuer for her negligence in performing the rescue.⁸ By 1980, all fifty states had enacted "Good Samaritan immunity" statutes shielding medical professionals (and, in most states, laypersons) from liability for ordinary negligence committed in the course of a voluntary,⁹ good-faith attempt to assist someone in an emergency.¹⁰ Thus, when Swenson's survivors

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brought suit, the Minnesota Court of Appeals held Tiegs immune from liability under the state's Good Samaritan immunity statute.¹¹

The policy justification courts and legislators have offered for the immunity has, without exception, been an instrumental one: to encourage people to offer help in emergency situations by allaying their fear of suit in the event the rescue goes badly.¹² Over the past fifty years, the thrust of the scholarship on the immunity has been to question its success in attaining this goal.¹³ One commentator after another has voiced skepticism about whether, even at the margin, the immunity makes willing rescuers of people who otherwise would have looked the other way.¹⁴

No commentator, however, appears to have addressed the equally fundamental question of whether the immunity can be justified on non-instrumental grounds; in particular, on the basis of fairness.¹⁵ On a gut level, penalizing a person for their clumsiness in performing an altruistic act of rescue seems unfair. But does this intuition withstand scrutiny, particularly when considered alongside the victim's interest in being made whole? In this Article, I offer the first systematic attempt to answer that question, which is important on two accounts.

First, to the extent imposing negligence liability on clumsy Samaritans like Lillian Tiegs turns out to be unfair in some meaningful

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sense, this blunts the force of much of the criticism the immunity has received. If the immunity is there as much to ensure volunteer rescuers are treated fairly as for any other reason, it would seem to be a law worth having even if it has no appreciable effect on people's behavior.

Second, the question leads naturally to a consideration of the moral basis for negligence liability generally. Though scholars have widely discussed the corrective justice rationale for negligence liability,¹⁶ no commentator appears to have considered what light the case of samarital negligence can shed on the debate. I do so here and argue that Swenson and similar cases involving clumsy Samaritans reveal something important about the moral underpinnings of negligence liability.

This Article has three parts. Parts One and Two are setup; Part Three lays out my argument. In Part One, I examine the common law volunteer rescuer doctrine, which the Good Samaritan immunity abrogates.¹⁷ Here I point out an apparent conflict among the leading authorities. The conflict concerns whether liability is appropriate in a case where, without worsening the imperiled person's plight, the volunteer rescuer negligently fails to prevent the pre-existing peril from taking its harmful course. The Second and Third Restatements of Torts suggest liability may be appropriate in such circumstances;¹⁸ a number of leading cases and treatises suggest otherwise.¹⁹ I note the conflict here but do not attempt to resolve it until the final section of Part Three.

In Part Two, I examine the origin and content of Good Samaritan immunity statutes in the United States and then discuss some broad trends in how courts have applied the statutes over the past fifty years.²⁰ I also discuss the chief criticism that commentators have leveled at the immunity: that it has failed, even at the margin, to make

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willing rescuers of people who, absent the immunity, would have declined to intervene.²¹

In Part Three, I turn to a critique of the rationale for the volunteer rescuer doctrine and, by implication, of the hypothesis that the Good Samaritan immunity can be justified as vindicating the rescuer's fairness interests.²² Based on a close examination of different types of voluntary rescue cases, I argue that the immunity can be justified on fairness grounds but only in narrow circumstances: where the gravamen of the imperiled person's action is that a lay rescuer, acting in good faith and without recklessness, negligently failed to alleviate the pre-existing peril but did not make the situation any worse. Otherwise—i.e., where the rescuer is a physician or other medical professional, where the rescuer's misconduct exceeds ordinary negligence, or where the rescuer's intervention changes the imperiled person's situation for the worse—fairness considerations support liability for injuries resulting from the rescuer's negligent conduct.

This finding has an important implication for the scholarly conversation about the moral rationale for negligence liability. Broad consensus exists that one of the primary justifications for negligence liability is corrective justice—the view that the central purpose of tort liability is to enforce agents' duty to repair the wrongful losses they cause to other agents. Corrective justice theorists are divided, however, on the question of the precise moral basis of this duty in cases of negligence.

On the one side are commentators...