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Samaritan Law requires emergency care

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“Suggesting that a bloody and vomiting woman lie in a bed rather than on a floor, covering her with a quilt, leaving her alone in a dark room for six or more hours, and periodically asking if she felt all right does not … constitute emergency care.”

Hon. Thomas Cane
Wisconsin Court of Appeals

The Wisconsin Court of Appeals held on Aug. 2 that a woman did not render "emergency care" under the Good Samaritan Law, sec. 895.48(1), where all she did was monitor the injured person’s condition.

The court also held that underage drinkers are not "accompanied" by a parent, within the meaning of sec. 125.07(1)(a), merely because the parent and child are on the same premises.

According to the case, in October 2003, Merlin and Stephani Switlick held a party for friends and business associates on property they owned in Lincoln County.

Their 19-year-old son, Apollo was present and was drinking beer inside, while the party took place outside. A friend of Apollo’s, Lina M. Mueller was also inside drinking beer with Apollo.

At around 10 p.m., Apollo and Mueller got on an all-terrain vehicle (ATV) which was owned by a family friend, Randy Van Loh, and which had been left at the property for approximately two-and-a-half weeks.

Both Apollo and Mueller were injured while riding on the ATV, which Apollo was driving, and both were bleeding and vomiting when they returned to the party around 11 p.m.

Mueller went to the bathroom and wanted to lie down on the floor, but Stephani convinced her to lie down in one of the bedrooms instead. Apollo also lay down in the same bed. Stephani woke the two approximately every hour during the night to monitor their conditions.

Around 6 a.m. the next morning, after Mueller responded to Stephani’s questions by addressing her as "mom," Stephani called an ambulance. Mueller was taken to a hospital where she was diagnosed with a skull fracture.

Mueller brought suit against Apollo, Merlin and Stephani, alleging negligence in providing alcohol for minors and in the care administered after the accident.

The Switlicks’ insurer moved for summary judgment on several grounds, which Marathon County Circuit Court Judge Vincent K. Howard granted.

Mueller appealed, and the court of appeals reversed, in an opinion written by Judge Thomas Cane, and joined by Judge Gregory A. Peterson. Judge Michael W. Hoover wrote a concurring opinion.

Liability Exemption

Mueller had claimed that the Switlicks were negligent in providing alcohol to underage drinkers, but the trial court held the Switlicks were immune pursuant to sec. 125.035(4)(b).

The court of appeals reversed, holding that the Switlicks were not immune from liability, because they were not "accompanying" Apollo while he was drinking.

Under the statute, individuals are immune from liability for injuries that arise from "procuring … selling, dispensing or giv[ing] away" alcoholic beverages to adults.

Subsection (4)(b) removes immunity for those who furnish alcohol to underage drinkers.

However, the provider is immune if the underage drinker is "accompanied" by parents, guardians or spouses of legal age. Finally, a provider is immune if the underage drinker is the one injured, rather than a third party, and the injured party was a principal to the transaction.

The Switlicks argued that it was sufficient that he drank "in their proximity," and on the same premises, with their knowledge, but the court found this insufficient.

After reviewing various ordinances and statutes that allow minors to engage in various activities if accompanied by an adult, the court explained, "Similarly, the legislature has decided that those under twenty-one cannot buy or consume alcohol legally because it is a dangerous instrumentality that most people under twenty-one are too immature to handle. To support that prohibition, the legislature has made those who provide underage drinkers with alcohol liable for third party injuries arising out of the prohibited transaction. The Legislature has also determined, however, that providers are exempt from liability if the underage drinker is accompanied by a parent because that parent is presumed to be supervising the child’s consumption of alcohol, minimizing the risks associated with underage drinking."

What the court held

Case: Mueller v. McMillan Warner Ins. Co., No. 2005AP121

Issue: Does a parent "accompany" an underage drinker, under sec. 125.035(4)(b) merely by being on the same premises?

Does monitoring an injured person every hour constitute "emergency care" under the Good Samaritan Law?

Is a recreational vehicle that has been kept on property for two-and-a-half weeks "garaged" there, within the meaning of a coverage exclusion to a homeowner’s insurance policy?

Holding: No. The parent must actually be supervising the underage drinker to be accompanying him.

No. When the defendant is a layperson, "emergency care" refers to short-term interim
care only.

No. A reasonable insured would understand "garaged" to mean "primarily garaged," and two-and-a-half weeks is not sufficient.

Counsel: Carl Ricciardi, Tomahawk, for appellant; John A. Kramer, Wausau; Michael J. Roman, Wausau, for respondent.

The court added, "We therefore conclude that underage drinkers are not accompanied by a parent merely because the parent and child are on the same premises.

Merlin testified that he had told Apollo not to drink where he could be observed by the other guests and both Merlin and Stephani admitted they did not know how much their son drank between 2 p.m. and 10 pm. Based on those undisputed facts, Merlin and Stephani were neither supervising nor otherwise controlling Apollo when he was drinking and were thus not accompanying him for the purposes of Wis. Stat. sec. 125.07(1)(a)."

The trial court had also held that the Switlicks were immune, because Mueller was a party to the provision of alcohol, but the court of appeals disagreed with this holding, also.

Had the Switlicks provided alcohol directly to her, the court concluded, she would not be an injured third party, but a party to the transaction, and the Switlicks would be immune. However, the court found material questions of fact precluded summary judgment on that ground.

The court noted, "there is no evidence Mueller asked Merlin or Stephani to procure alcohol for her and no evidence she paid them for it. Apollo testified that Mueller drank several beers, but said nothing about where she got them. Neither Merlin nor Stephani saw Mueller drink and there is no evidence about how, if she did drink, she obtained alcohol. We thus conclude that summary judgment was improper because there is a material question of fact as to whether Mueller was a principal to the transaction between Apollo and his parents or whether she was an underage drinker injured as a result of alcohol illegally provided to a companion underage drinker."

Emergency Care

The court next held that the trial court erred in granting summary judgment to the Switlicks under the Good Samaritan Law, which provides, "Any person who renders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for his or her acts or omissions in rendering such emergency care…"

At issue were three terms that have never been interpreted by a Wisconsin appellate court: "scene of any emergency or accident"; "emergency care"; and "good faith."

Finding all three terms ambiguous, the court looked to legislative history. Originally, the statute granted immunity only to professionals, such as doctors and nurses, who render care at the scene of an emergency. Scene of an emergency was defined as areas "not within a hospital … or physician’s office."

In 1977, the immunity was expanded to any person who provides such care, and the definition of "scene of an emergency" was removed.

From this history, the court concluded, "Wisconsin’s current Good Samaritan Law encourages all citizens to respond to emergency situations by protecting them from liability for most acts or omissions in rendering care that have bad consequences … when the samaritan is a layperson, the intervention protected will ordinarily be of short duration and of an interim sort. Nothing in the statute suggests any intention that an ordinary person should make care-giving decisions any longer than the emergency situation necessitates."

Applying the statute’s rationale, the court concluded that Stephani failed to provide emergency care, concluding, "Suggesting that a bloody and vomiting woman lie in a bed rather than on a floor, covering her with a quilt, leaving her alone in a dark room for six or more hours, and periodically asking if she felt all right does not, we conclude, constitute emergency care."

The court distinguished examples of emergency care from other jurisdictions finding immunity under Good Samaritan statutes, noting, "In those cases, individuals provided care either by transporting injured persons to a place where their injuries could be treated or by attempting to make medical help available."

Garaging

Finally, the court held that Van Loh’s ATV was not "garaged" on the Switlicks’ property, and therefore, their homeowner’s policy did not exclude coverage for Apollo’s use of it.

Like the three terms from the Good Samaritan statute, "garaged" has not previously been interpreted as that term is used in a homeowner’s policy. It has, however, been considered in the context of automobile policies that use the term, "principally garaged."

Finding those definitions persuasive, and concluding that a reasonable person would not believe that one "garages" a vehicle any place it happens to be parked, the court held, "To the extent that a homeowner’s policy is expected to provide coverage for an insured home, it would thus be reasonable to expect this exception to apply when that home is the permanent or regular place where the recreational vehicle is kept."

Noting that there was no evidence that Van Loh regularly left his ATV at the Switlicks’ shack for extended periods, the court wrote, "We do not determine exactly how long it would take to turn parking into garaging, but we conclude that casual, one-time use of a property that spans less than three weeks is not sufficient to accomplish that transformation."

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Accordingly, the court held that the Switlicks’ homeowner’s policy provides coverage for Mueller’s accident, and reversed.

The Concurrence

Judge Hoover wrote separately, to take issue with the lead opinion’s treatment of the immunity issue under the Good Samaritan Law.

Hoover wrote, "I am not entirely convinced that Stephani Switlick’s activities did not constitute providing ‘emergency care’ to Mueller. On the one hand, it could be plausibly argued that Stephani was not providing care in the sense that she was not addressing the root cause of Mueller’s symptoms. Rather, Stephani was arguably effectively preventing or delaying provision of care for an apparent traumatic head injury that caused nausea. On the other hand, while Mueller presented with a bloody nose and nausea, she was nevertheless able to ambulate and converse cogently with Stephani, until 6 a.m. Then, for the first time, Mueller responded inappropriately to the questions Stephani asked for the purpose of monitoring Mueller’s cognitive functioning. I am not fully persuaded that when dealing with a person the nature of whose injuries are such that the severity is not manifest, monitoring someone’s cognitive functioning on an hourly basis does not qualify as emergency care. However, I need not resolve this issue, because I would hold that even if Stephani provided emergency care to Mueller, she did not do so at ‘the scene of any emergency or accident.’"

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David Ziemer can be reached by email.

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