California Diving News - Rescue Diving Liability

Rescuing the Rescuer: Rescue Diving and Civil Liability

This article is intended only as a general discussion of legal concepts without reference to any particular factual situation. It is not intended to constitute, and should not be construed as, legal advice. Laws vary widely from jurisdiction to jurisdiction. People desiring specific legal advice should contact an attorney licensed in the proper jurisdiction.

You have just completed a class in responding to diving emergencies. But although you are proud of your new certification, you realize that the class didn’t really deal with one very important issue: What is your liability if something goes wrong during a rescue?

Historically, one who voluntarily undertook to perform an act was liable for damages resulting from any mistakes made while acting. It made no difference that the act involved rescuing a person from danger. Needless to say, this rule deterred physicians and others who otherwise might have been inclined to assist in an emergency.

Beginning in 1959, states began to respond by enacting laws protecting emergency caregivers from lawsuits arising out of their actions. Today, all 50 states have enacted some type of “Good Samaritan” legislation.

California’s “Good Samaritan” legislation is actually a patchwork of laws offering different degrees of protection in different situations, subject to differing conditions. But although these laws do not offer a consistent, “bright line” standard for determining when a rescue diver is protected, a careful reading reveals the presence of certain themes.

First, the “Good Samaritan” laws will not protect the rescuer who acts in the expectation of receiving any compensation for his or her services. This clearly applies to the rescuer who says, “Give me $1,000 and I’ll go get your friend.” But it might also apply where, for example, the rescuer acts only after a third person says something like, “I’ll give you $1,000 if you rescue my friend”; or where, after the rescue is completed, the rescuer either requests payment for his or her services or accepts an offer of payment. It is also important to remember that “compensation” does not have to take the form of money; any benefit requested or accepted by the rescuer may be sufficient to remove “Good Samaritan” protection.

Second, “Good Samaritan” laws protect only those who act “in good faith.” This requirement refers to, as one court put it, “...that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation.”

“Being faithful to one’s duty or obligation” does not necessarily mean that the rescuer’s actions must have been free of error. To the contrary, implicit in the “Good Samaritan” laws is the recognition that rescuing people in distress can be a messy, chaotic—and sometimes dangerous—business. Thus, it is to the rescuer who does the best that he or she can under the circumstances, based on his or her knowledge, training and ability, that the protection of the “Good Samaritan” laws is addressed.

The “good faith” standard has its limits; for example, it does not protect the rescuer whose actions amount to criminal misconduct. But beyond this, the “Good Samaritan” laws do not clearly state how for their protection goes. One protects the rescuer who acts “as an ordinary, reasonably prudent person would have acted under the same or similar circumstances”; another recites that the rescuer can be held responsible only for acts amounting to “gross negligence”; and still others are silent on the issue altogether.

Dissecting these differences is beyond the scope of this brief article. Rather, it is enough here to say that while the rescuer’s actions need not be totally error-free; the more significant the rescuer’s error is, the more likely it is that his or her “Good Samaritan” protection will be put at risk.

The “Good Samaritan” laws also imply that “good faith” is not relevant in determining whether an “emergency” exists. In other words, it appears that a would-be rescuer who acts in the “good faith,” but mistaken, belief that there is an “emergency” cannot claim “Good Samaritan” protection. Rather, there must actually be a real “emergency”—a situation in which “an individual has a need for immediate medical attention,” as one of the laws defines it—for the laws to apply.

Fortunately, it is usually obvious whether a person needs “immediate medical attention.” Thus, the likelihood of a mistake on this point is probably pretty low. But the would-be rescuer would do well to be sure that the apparent victim actually needs rescuing before coming to the rescue. Where possible, a quick inquiry—”Do you need help?”—probably would go a long way toward resolving any doubt on this score.

Finally, if a rescuer uses certain rescue techniques, then “Good Samaritan” protection is available only if he or she received training in those techniques. For example, a rescuer who gives CPR is protected only if (a) he or she has completed a “basic” CPR course that (b) “complies with the standards adopted by the American Heart Association or the American Red Cross for cardiopulmonary resuscitation and emergency cardiac care.” Another law, applicable to civilian participants in search and rescue operations organized by local sheriffs and other agencies, protects only those civilian participants who have received “first aid training equivalent to the Red Cross advanced first aid and emergency care training standards.” And once again, other laws are silent on this subject.

Once again, rather than further dissecting these rules, it is enough here to state that training in CPR and other rescue techniques benefits both victim and rescuer. It benefits the victim by making the rescuer more knowledgeable, thus increasing the victim’s chances for survival. And it benefits the rescuer, not only by giving him or her additional tools with which to effect a successful rescue, but also by expanding the universe of “Good Samaritan” laws whose protection he or she might be able to claim if the need should arise.

Mr. Crary is an attorney is licensed to practice law in California and New Mexico. He specializes in appellate litigation at Corbett & Steelman, in Irvine, California. He has been diving since 1979, and currently holds a PADI Divemaster certification.