August 28, 2020
by: Colin E. Flora
In today’s installment of the Hoosier Litigation Blog, we look to a recent decision from the Indiana Court of Appeals that provided a rare look at the breadth and scope of Indiana’s Good Samaritan Law (the “GSL”). The case is McGowen v. Montes, which was issued last week. While I support the utility of Good Samaritan laws, I think the Court reached the wrong outcome in this instance for the simple fact that no one appears to have asked the crucial question: does the statute actually extend to third-parties?
Before we dive into McGowen, let us pause for a moment and acknowledge a handful of other notable decisions from both Indiana and the Seventh Circuit since our last post. First up is Pearson v. Target Corp. that took on the “recurring problem in class-action litigation known colloquially as ‘objector blackmail.’” Upon finding that objectors to a class-action settlement had acted in bad faith to obtain $130k in payments so as to withdraw their objections and not further delay the settlement, the solution that the Seventh Circuit utilized was to order disgorgement of the money. Further, because it was no longer feasible to disburse those funds to the class, the money was ordered to be disbursed as a cy pres distribution.
Next is the Indiana Supreme Court’s ruling from earlier this week in Smith v. Franklin Township Community School Corporation. There, the court ruled that Trial Rule 41(F) cannot be utilized to reinstate a complaint where the arguments being presented were ones that could and should have been presented prior to dismissal.
Also of note was Murphy v. Indiana State University, which revisited the question of in what circumstances something short of the formal filing of a tort claim notice will constitute substantial compliance or be excused through application of equitable estoppel. Another important decision from the Indiana Court of Appeals was Anonymous Physician 1 v. White, which held, among other things, that a son had standing to bring a breach of contract claim as the intended third party beneficiary of a contract wherein there was to be an anonymous but specified sperm donor and the treating physician used his own sperm instead. Due to the underlying philosophical questions that are necessary to the resolution of the claim—specifically whether the son could bring a claim when, had the contract not been breached, he would be a different person genetically, which raises questions about immortality of the soul and whether it preexists conception such that the person of the son would be the same regardless of his genetics—I suspect this case may end up in front of the Indiana Supreme Court.
Finally, before we turn to McGowen, is Shiel Sexton Co. Inc. v. Towe, which explored non-delegable duties for worker’s safety at jobsites. Of further note, appearing as amicus curiae on behalf of the Indiana Trial Lawyers Association was Pavlack Law’s own Lance Ladendorf, who helped in securing an important outcome for the injured worker.
Now we turn to McGowen and the GSL. The facts of the case are fairly straightforward. On a foggy morning, a semitruck was driving down a rural two-lane road when it came upon a truck in a ditch with damage to its hood and windshield and another care pulled to the side of the road. As the semi approached, the car on the side of the road drove away. The driver of the semi “speculated that there had been a two-car accident, and the other vehicle was leaving the scene.” The driver then saw a man wandering around the truck in the ditch, who the semi driver feared was intoxicated or possibly injured in the accident. The semi driver stopped his vehicle, rolled down the window, and shouted to the man outside to see if he needed help. After the person outside the vehicle asked the driver to call 911, another vehicle collided with the rear of the semi.
The driver of the semi filed suit against the driver of the car that rear-ended the semi and the defendant driver filed a counterclaim asserting that the semi driver had been negligent. In his defense, the semi driver asserted the GSL. Ultimately, the court ruled that it did apply and that it was a bar to the counterclaim. In order to understand why I disagree, we must, as the court of appeals did, look to the relevant text of the GSL:
[A] person who comes upon the scene of an emergency or accident, complies with IC 9-26-1-1.5, or is summoned to the scene of an emergency or accident and, in good faith, gratuitously renders emergency care at the scene of the emergency or accident is immune from civil liability for any personal injury that results from:
(1) any act or omission by the person in rendering the emergency care; or
(2) any act or failure to act to provide or arrange for further medical treatment or care for the injured person;
except for acts or omissions amounting to gross negligence or willful or wanton misconduct.
The entire focus of the court was on two questions: (1) did the driver “come upon the scene of an emergency or accident”; and (2), if so, was there a question of fact as to whether the driver was grossly negligent. The court easily found that the driver was, as a matter of law, not grossly negligent. More interesting was the court’s resolution of whether it was an emergency or accident. Little in the way of precedent exists on this question. It was addressed in McKinney v. Public Service Company of Indiana, Inc., wherein the Indiana Court of Appeals ruled that a person who stopped to assist another with a flat tire was not rendering emergency care at the scene of an accident. Notably, for our purposes, the resulting injury in McKinney was neither to the driver with the flat or the person assisting, but to a third-party. Thus, the court’s ruling was fairly easy, since there was no accident until after the driver had stopped to assist with the flat. Without much analysis, the court of appeals concluded:
We are unaware of any authority supporting [Defendant]’s assertion of its “Good Samaritan” defense under the present circumstances in which [the employee] parked [Defendant]’s truck in the driving lane of an interstate in order to help another motorist change a flat tire on her car which was not entirely disabled. Therefore, we must conclude that [Defendant]’s “Good Samaritan” defense is unavailing.
Unlike McKinney, the semi driver did arrive upon a scene of an accident and sought to render aid to the driver.
Since the court of appeals answered the two questions presented in favor of the semi driver, it ruled that the GSL applied and the claim by the car that rear-ended the semi was foreclosed.
But, as I led off, I think the court of appeals got this one wrong because there is an important question not addressed: does the GSL even apply to claims by third-parties? In order to resolve that question, I think we need to start with what the purpose of the GSL is. Though no Indiana court has specifically defined the statute’s purpose, a court applying similar statutes in another state said, “The purpose of the statute is to encourage laypersons to help those in need, even when they are under no legal obligation to do so, by providing immunity from liability claims arising out of an attempt to assist a person in peril.” I think that’s an accurate reflection of the purpose of Indiana’s GSL.
At common law, there is no duty to come to the aid of an injured bystander. But, if you do seek to render aid to an injured person, you must do so in a manner that is not negligent. That is, you must not cause the person injury or harm that would not have occurred had you simply stayed out of the way. As the Seventh Circuit explained:
There is no duty to rescue a bystander in distress, but having rescued him from certain death you are not privileged to kill him. This is not to say that you assume responsibility for his future welfare. You do not. Our point is only that the absence of a duty to rescue does not entitle a rescuer to harm the person whom he has rescued.
Where immunities under the GSL come in is that they have decided that the risk of disincentivizing people to help injured persons was greater than the risk of further injury, so it provided immunity to those who seek to render aid to the injured person. Because the GSL is in derogation of the common law, it is to be narrowly construed, a point recognized by the McGowen court.
With that background, I return to the question, does it apply to claims by third-parties? The purpose of the GSL, as we have seen, is to make aid to the initially injured person more likely to occur. Expanding immunity to claims of other bystanders who have been injured does not appear to generally serve that purpose. Indeed, it would appear quite perverse that the GSL would serve to incentivize a person to aid a minimally injured person and, through the Samaritan’s negligence in trying to assist, do serious harm to countless others.
The McGowen court also began with the simple proposition that if a statute is clear and unambiguous, its words must be adhered to. But if we return to the relevant text of the GSL, it seems ambiguous at best as to whose claims the statute is meant to reach. Truncating it down to the important parts it says: “[A] person who . . . gratuitously renders emergency care at the scene of the emergency or accident is immune from civil liability for any personal injury that results from: (1) any act or omission by the person in rendering the emergency care; or (2) any act or failure to act to provide or arrange for further medical treatment or care for the injured person . . . .” The second part seems only applicable to the injured person. But so too does the first part.
The first part extends to “any act or omission . . . in rendering the emergency care.” On first blush, that appears extremely expansive, and it is. But that does not mean it reaches third persons. Instead, look at what conduct is being immunized: “rendering the emergency care.” The stopping of the semi in the road is not the rendering of emergency care; it was merely what the driver did before he could attempt to render the care. When we focus in on precisely what it immunized, it looks like the conduct protected is conduct toward the person receiving the aid. That, coupled with the underlying purpose and that the GSL must be narrowly construed, suggests that it does not extend to third-parties such as the driver who rear-ended the semi. But this question does not appear to have been raised and was not addressed by the court.
So, I think the result is wrong even if I, as I do, think the court correctly answered the questions presented to it.
Join us again next time for further discussion of developments in the law.
- McGowen v. Montes, —N.E.3d—, No. 19A-CT-1707, 2020 Ind. App. LEXIS 335 (Ind. Ct. App. 2020) (Friedlander, S.J.).
- Pearson v. Target Corp., —F.3d— No. 19-3095, 2020 U.S. App. LEXIS 24797 (7th Cir. 2020) (Hamilton, J.).
- Smith v. Franklin Twp. Cmty. Sch. Corp., —N.E.3d—, No. 20S-CT-98, 2020 Ind. LEXIS 678, at (Ind. 2020).
- Murphy v. Ind. State Univ., —N.E.3d—, No. 20A-CT-313, 2020 Ind. App. LEXIS 340 (Ind. Ct. App. 2020) (Tavitas, J.).
- Anonymous Physician 1 v. White, —N.E.3d—, No. 19A-CT-1262, 2020 Ind. App. LEXIS 318 (Ind. Ct. App. 2020) (Pyle, J.).
- Shiel Sexton Co. Inc. v. Towe, —N.E.3d—, No. 18A-CT-1446, 2020 Ind. App. LEXIS 368 (Ind. Ct. App. 2020) (May, J.).
- McKinney v. Publ. Serv. Co. of Ind., Inc., 597 N.E.2d 1001 (Ind. Ct. App. 1992) (Robertson, J.), trans. denied.
- Swenson v. Waseca Mut. Ins. Co., 653 N.W.2d 794 (Minn. Ct. App. 2002).
- K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990) (Posner, J.).
- Indiana Good Samaritan Law, codified at Ind. Code § 34–30–12–1.
- Colin E. Flora, 7th Circuit: Posner Explains Notice Requirements & Utility of Cy Pres Decrees in Small Class Actions, Hoosier Litig. Blog (Sept. 13, 2013).
- Colin E. Flora, Indiana Tort Claim Notice: Substantial Compliance & Standard of Review, Hoosier Litig. Blog (Aug. 26, 2016).
- Colin E. Flora, Indiana Supreme Court Permits Application of Equitable Estoppel Doctrine to Tort Claims Act Case, Hoosier Litig. Blog (Aug. 30, 2013).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.