The Perils of Rescue: Unpacking South Carolina’s Good Samaritan Statute
Michael W. Rabb | South Carolina Young Lawyer Magazine
“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences.” 1 Taking their name from a biblical parable, “Good Samaritan” statutes offer legal protection intended to encourage bystanders to help victims in distress by minimizing their fear of being sued or prosecuted for their errors or mistakes in rendering aid or treatment. 2
South Carolina’s Good Samaritan statute reads as follows:
[a]ny person, who in good faith gratuitously renders emergency care at the scene of an accident or emergency to the victim thereof, shall not be liable for any civil damages for any personal injury as a result of any act or omission by such person in rendering the emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person, except acts or omissions amounting to gross negligence or wilful or wanton misconduct.
Similar to many other state Good Samaritan laws, the statute contains multiple ambiguous terms such as “good faith,” “gratuitously,” “scene of the accident or emergency,” and “emergency care,” that have yet to be interpreted by South Carolina appellate courts. The end of the statute is notable for the clear language providing that a plaintiff can hurdle the statute’s immunity by proving to a jury that the rescuer’s conduct rose to the level of gross negligence or wilful or wanton misconduct.3
The only published opinion from South Carolina courts directly addressing the state’s Good Samaritan statute is a thirty-four-year-old Court of Appeals opinion where the court explicitly refused to interpret the statute. 4 In Ballou v. Sigma Nu General Fraternity, the South Carolina Court of Appeals addressed a trial judge’s refusal to give a jury instruction on the statute in a wrongful death suit brought against a fraternity by the estate of a deceased fraternity pledge.5 In avoiding addressing the merits, the court cleverly explained the fraternity suffered no prejudice from the trial court’s failure to charge the Good Samaritan statute because the jury found the fraternity guilty of willful, wanton, or reckless conduct, which would have rendered the statute unable to aid the fraternity, due to the immunity limitation, even if charged to the jury.6
For an interesting example of how courts interpret these statutes, consider the landmark 2007 appellate court decision of Van Horn v. Watson.7 In this case, a group of friends were driving home from a bar in separate vehicles around 1:30 a.m. An accident occurred when the driver of one car lost control and crashed into a curb. The other vehicle’s driver pulled over after the accident and several passengers ran to help. One of the passengers testified that he dragged the plaintiff in that case out of the wrecked car after he saw smoke and liquid coming out of the vehicle. The plaintiff later brought a personal injury suit against this passenger claiming she had only sustained an injury to her vertebrae during the accident, but sustained permanent damage to her spinal cord rendering her a paraplegic after she was dragged from the car. The trial court, relying on California’s Good Samaritan statute protecting rescuers, granted summary judgment for the passenger. The California Court of Appeals reversed this decision, finding the Good Samaritan statute did not provide protection for the passenger in this situation because the passenger was not rendering “emergency medical care” at the time. California’s Supreme Court later reviewed and upheld the court of appeals’ controversial decision. Notably, California’s Good Samaritan statute and South Carolina’s Good Samaritan statute are nearly identical, both containing the seemingly innocuous language that led to the controversial California opinion. This article will attempt to predict how a South Carolina court might interpret this language and in turn offer a framework to local practitioners advising clients on the applicability of the statute.
In unpacking South Carolina’s statute, one should first address the “good faith” requirement the legislature put in place for the Good Samaritan. In the rescue context, most states consider a rescuer to be acting in good faith so long as he is not guilty of gross, willful, or wanton negligence.8 Good faith has been specifically defined in the rescue context by one state as “a reasonable opinion that the immediacy of the situation is such that the rendering of care should not be postponed.”9 Either of these definitions leads to a heavily fact-driven analysis that a South Carolina court would likely defer to a jury. A leading decision on this issue from the Seventh Circuit found a jury issued existed on whether a physician’s decision not to bill for his emergency assistance with a patient’s labor was made in good faith or whether it was a decision made to ensure protection under Illinois’ Good Samaritan Act.10 A leading decision on this issue from the Third Circuit found no evidence of bad faith on the part of a hotel when the hotel’s emergency medical equipment allegedly malfunctioned during a patron’s emergency.11 Because of the fact oriented nature of a good faith determination, South Carolina courts would likely find this issue should be addressed on a case by case basis and often defer to a jury’s decision on the issue. Moreover, the existence of good faith is also a determination based in large part on the credibility of witnesses—an area where appellate judges routinely defer to the findings of circuit court judges who are in better positions to evaluate credibility and assign weight as they saw and heard the witnesses’ testimony.12
The term “gratuitously” has been defined as “without valuable or legal consideration” or voluntary, without receiving anything in return or with the expectation of receiving anything in return for services rendered.13 Many Good Samaritan statutes contain this requirement, including South Carolina’s statute. This requirement is in place both to exclude immunity for health care practitioners who are “on the job,” but to encourage those same practitioners when they are “off the clock,” to provide assistance without fear of litigation.14 A Georgia appellate court addressing this requirement found that physicians who wisely chose not to charge a patient after performing unsuccessful services were not per se entitled to immunity under the state’s Good Samaritan statute.15
However, an interesting situation arose in Held v. City of Rocky River when an off duty firefighter rushed into an emergency situation to save another on duty firefighter from drowning in a flood of water coming from an exploded truck cap valve.16 The rescued firefighter sued his rescuer after he was injured while being dragged out of the water. An Ohio appellate court determined the off duty firefighter became “on the job” when he entered the scene, and thus was rendering services expecting compensation. Nevertheless, the court found the off duty firefighter was entitled to immunity under the state’s Good Samaritan statute based on the following language in the statute, “[t]he administering of such care of treatment by one as part of his duties as a paid member of any organization of law enforcement or fire fighters does not cause such to be rendering treatment for remuneration or expectation of remuneration.”17 In essence, the court found emergency care rendered by police or firefighters to be gratuitous for the purposes of the state’s Good Samaritan statute.
As South Carolina’s Good Samaritan statute does not contain language addressing this loophole, it would be up to South Carolina courts to interpret the statute in this situation. South Carolina courts would first likely look to the South Carolina Tort Claims Act or the Pre-Existing Duty rule to address the situation without having to review the applicability of the Good Samaritan statute. However, when interpreting the statute by looking at the plain and ordinary meaning of the statute’s language often noted in precedent, a South Carolina court would likely find the Good Samaritan statute does not immunize a firefighter in this situation because he was being paid for his services.18
Defining the “scene” of an accident or emergency for the purposes of a Good Samaritan statute has also been a tricky task for courts interpreting these statutes. Most of these situations are fact intensive enough that a South Carolina court would typically defer to a jury. A physician in Pennsylvania was held to not be entitled to immunity as he was not at the “scene” of an accident or emergency when he gave a nurse instructions on treating a patient over the telephone.19 A nurse working at a private school in New York was held to be at the “scene” of an accident when she treated an injured child in a different building at the school than the one in which the child was injured.20 Several states have also determined that the “scene of an emergency” for the purposes of a Good Samaritan statute cannot be a hospital when a physician at the hospital is responding to an emergency.21 Questions remain however on how broad or narrow a South Carolina court would construe the term “scene of an accident.” For instance, imagine a situation where a Good Samaritan driving a victim of a car accident to a hospital gets into another car accident furthering injuring the already injured victim. Is the Good Samaritan still at the “scene” of an accident for the purposes of the statute’s immunity? If the second accident was the Good Samaritan’s fault, does the statute’s language immunizing a rescuer who commits ordinary negligence still apply? It seems plausible that South Carolina courts would again typically defer to a jury in these case by case situations, but other courts reviewing these situations often side with a rescuer over an injured party’s rights in an effort to further the intent of the statute to encourage rescue.
Emergency care is a final ambiguous term included in South Carolina’s Good Samaritan statute. The South Carolina legislature has defined the term “Emergency Medical Care” as health care services provided in a hospital emergency facility to evaluate and treat an emergency medical condition.22 South Carolina courts would undoubtedly look to this definition when interpreting the term “Emergency care,” but the legislature’s decision to drop the term “medical” indicates intent for the term to take on a broader meaning in the Good Samaritan context. The initial question will first be what constitutes an emergency, and again, the South Carolina legislature has provided a definition: “‘Emergency medical condition’ means a medical condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of medical attention to result in: (a) placing the health of the individual . . . in serious jeopardy; (b) serious impairment to bodily functions; or (c) serious dysfunction of any bodily organ or part.”23 Despite this complete definition, the legislature’s decision to remove the word “medical” again suggests intent for a broader definition of emergency. In Dahl v. Turner, a Good Samaritan encountered an injured person at the scene of a car accident and volunteered to drive him into town.24 The court held the emergency ended when the samaritan put the injured party into her car. In Pemberton v. Dharmani, the Court of Appeals of Michigan found the state’s Good Samaritan statute merely required a good faith belief by health care personnel that they are attending a life-threatening emergency in order to be afforded immunity under the statute, regardless of whether a life-threatening emergency actually exists.25 Finally, courts have determined that whether an emergency continued to exist at any given juncture is an issue of fact.26 South Carolina courts would likely follow suit in this determination and place heavy weight on the applicable definitions put in place by the state legislature in interpreting the term emergency care for the purpose of South Carolina’s Good Samaritan statute.
With these considerations in mind, a practitioner advising his or her client on compliance with the South Carolina Good Samaritan statute now has a framework. Initially it is important to always remember that there is no duty to rescue at common law. South Carolina’s Good Samaritan statute only comes into play once a rescue has been undertaken. The main concern for a rescuer consciously seeking to avoid potential liability is to avoid any actions during the rescue that could be deemed gross negligence and/or willful and wanton misconduct. Initially, a rescue must be attempted out of a good faith belief to provide aid to the victim. Rescues attempted for monetary reward or some other consideration may fail not only the gratuitous requirement but the good faith requirement as well. Emergency care given to an injured person should be rendered as much as possible at the scene of the accident or injury in order to come within the statute’s requirements. Transportation of an injured person to another place for care like a hospital should be left to paid medical professionals whenever possible; however, it is important to remember that a rescuer’s decision-making at an accident scene will likely be reviewed for reasonableness by a jury. It is possible that a decision to not transport a victim with life-threatening injuries could be viewed as gross negligence when a rescuer has already begun providing assistance. A lay rescuer without specialized training attempting to perform specialized medical care on an injured party could also be potentially viewed as gross negligence by a jury. Medical treatment beyond the rescuer’s ordinary knowledge should be left to trained professionals by a rescuer seeking to comply with the Good Samaritan statute.
Practitioners advising rescuers should be familiar with the Good Samaritan statute in place to protect them and encourage their good deeds. Practitioners should always remind rescuers that there is no common law duty to act or attempt rescue. Finally, both practitioners and rescuers should remember that a potential plaintiff must overcome not only a significant statutory hurdle to establish liability but the negative stigma associated with a rescued party suing his or her rescuer when the rescuer had no duty to act. Liability for rescuers will be a fact driven, reasonableness inquiry for both juries and South Carolina courts.
Michael W. Rabb is an associate in the firm’s Greenville, South Carolina, office. His practice includes all aspects of civil litigation, including medical malpractice defense, products liability, premises liability, insurance law, commercial litigation and general negligence.
1 Wagner v. Intl. Ry. Co., 232 N.Y. 176, 180, 133 N.E. 437 (1921).
2 Mueller v. McMillian Warner Ins., 290 Wis.2d 571, 584, 714 N.W.2d 183, 189 (Wis. 2006).
3 S.C. Code Ann. §15-1-310 (2005).
4 Ballou v. Sigma Nu General Fraternity, 291 S.C. 140, 352 S.E.2d 488 (Ct. App. 1986).
5 Id. at 155, 352 S.E.2d at 497-98.
7 Van Horn v. Watson (2008) 45 Cal. 4th 322, 325, 86 Cal.Rptr.3d 350.
8 Haw. Rev. Stat. § 663-1.5(a) (2010).
9 2 Am. Law Med. Malp. § 7:17 (July 2020).
10 Rodas v. Seidlin, 656 F.3d 610, 611 (7th Cir. 2011).
11 Abramson v. Ritz Carlton Hotel Co., LLC, 480 Fed. Appx. 158, 159 (3rd Cir. 2012).
12 Gowdy v. Gibson, 381 S.C. 225, 233, 672 S.E.2d 794, 798 (Ct. App. 2008).
13 Gratuitously, Black’s Law Dictionary (11th ed. 2019).
14 Carl V. Nowlin, NOTE: DON’T JUST STAND THERE, HELP ME!: BROADENING THE EFFECT OF MINNESOTA’S GOOD SAMARITAN IMMUNITY THROUGH SWENSON V. WASECA MUTUAL INUSRANCE CO., 20 Wm. Mitchell L Rev. 1001, 1007 (2004).
15 Clayton v. Kelly, 183 Ga. App. 45, 48, 357 S.E.2d 865, 867 (1987);
16 Held v. City of Rocky River, 34 Ohio App.3d 35, 36, 516 N.E.2d 1272, 1274 (8th Dist. 1986).
17 Ohio Rev. Code Ann. § 2305.23 (West, Westlaw Edge through file 56 of the 133rd General Assembly (2019-2020)).
18 CFRE, LLC v. Greenville Cnty. Assessor, 395 S.C. 67, 71, 716 S.E.2d 877, 879 (2011).
19 Phebus v. UPMC Horizon, No. 2001-4211, 2005 WL 2101415 (Pa. Ct. Com. Pl. Mercer Cnty. 2005)
20 McDaniel v. Keck, 53 A.D.3d 869, 870, 861 N.Y.S. 2d 516, 517 (2008)
21 LA Rev Stat § 37:1731 (Supp. 2018); Me. Rev. Stat. Ann, tit. 14, § 164 (2011); Ky. Rev. Stat. § 411.148 (2005); NY Educ. § 6527 (Supp. 2020); Ohio Rev. Code Ann. § 2305.23 (West, Westlaw Edge through file 56 of the 133rd General Assembly (2019-2020)).
22 S.C. Code Ann. § 38-71-1520(1) (2016).
23 S.C. Code Ann. § 38-71-1520(2) (2016).
24 Dahl v. Turner, 80 N.M. 564, 565, 458 P.2d 816, 817 (App. 1969).
25 Pemberton v. Dharmani, 207 Mich. App. 522, 524, 525 N.W.2d 497, 499 (1994).
26 Breazeal v. Henry Mayo Newhall Memorial Hospital (1991) 234 Cal. App. 3d 1329, 1341, 234 Cal.Rptr. 207.
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The Perils of Rescue: Unpacking South Carolina’s Good Samaritan Statute
Michael W. Rabb | South Carolina Young Lawyer Magazine