Good Samaritans Case Analysis

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In essence, this case holds that government contractors performing public improvements can be immune from liability for damage to third parties under the Good Samaritan Doctrine, if the improvement is necessary to protect safety or property. It is a radical holding and it is a good candidate for review by the Supreme Court.

The cases cited by the court for support are quite far removed from the case at bar. Myers v. U.S., 17 F.3d 890(6th Cir. 1994), as well as Ayala v U.S., 49 F.3d 607 (10th Cir. 1995), involved negligence by government mine inspectors. Thames Shipyard & Repair Co. v. U.S., 350 F.3d 247 (1st Cir. 2003), alleged Coast Guard negligence vis-a-vis a distressed fishing vessel. Application of Good Samaritan immunity to negligent government contractors hired to perform a service is not the norm, even in those jurisdictions whose cases the court of appeals cites for support.

The question is how the case will effect garden variety negligence actions against contractors hired to perform public improvements. Diversion of water from a landlocked lake to a nearby river is an unusual activity that most municipalities will never undertake, but if the decision becomes binding precedent, the framework will be applied to a host of other government activities.

Consider a more mundane activity that all cities engage in — snow removal.

Suppose a city contracts with a private contractor to remove snow from the streets and spread salt. The job is negligently performed, and an automobile crash results. An injured citizen sues the contractor, and the contractor seeks summary judgment, claiming it owed no duty of care under the Good Samaritan Doctrine.

The first inquiry is whether the contractor undertook to render services necessary for the protection of a third person or his things. This would be met, as snow removal is necessary for the safety of the city’s citizens, just as lowering the water level in Shell Lake was necessary to protect the property of those on the lake.

Thus, the contractor is immune from liability unless one of the three subsections in sec. 324A of the Restatement are met. The first — the failure to exercise reasonable care increases the risk of such harm — will rarely be met.

The standard adopted by the court was explained by the Sixth Circuit in Myers v. U.S., 17F.3d 890, 903 (6th Cir. 1994), as follows: the "test is not whether the risk was increased over what it would have been if the defendant had not been negligent, [but whether] the risk is increased over what it would have been had the defendant not engaged in the undertaking at all."

Thus, unless the snow plower made the streets more dangerous than they would be if nobody had plowed them at all, this subsection does not apply, and he is still immune.

Subsection (b) provides for liability if the defendant has undertaken a duty owed by another to the third person. This inquiry would turn on municipal duties. If a city is required to plow snow and salt the streets by state statute, then a negligent contractor performing that task can be held liable. If the city has no such duty, then the snow plower is still immune from liability as a Good Samaritan.

The third category would presumably not be satisfied. An injured party would have to prove that, if the city did not remove snow and salt the streets, the injured party would either have plowed the city streets himself, or made arrangements for someone else to. Any such assertion would be patently incredible.

Thus, in this hypothetical, the question of liability for a government contractor negligently plowing the streets turns on whether cities are required to remove snow by state statute.

One Wisconsin Supreme Court case addresses this very scenario, Sanem v Home Ins. Co., 119 Wis.2d 530, 350 N.W.2d 89 (1984). The court held that a municipality was not liable for negligent snow removal on public policy grounds.

However, the decision contains dicta discussing the Good Samaritan Doctrine (incorrectly using sec. 323 of the Restatement, which applies to two-party, rather than third-party actions), but the discussion is very cursory — only one paragraph — and suggests that the doctrine would not apply.

In the wake of this decision, negligence suits against government contractors may resemble suits against municipalities when municipal immunity is claimed, with liability turning on whether the government body is performing a ministerial duty or discretionary act.

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Ultimately, though, it should be assumed that the decision will be overruled by the Supreme Court. The decision rests upon a fundamental misunderstanding of sec. 324A and the Good Samaritan Doctrine. The doctrine is a means of imposing liability upon a person who normally would owe no duty to the injured party.

Thus, in Stephenson, the court held that a person who volunteered to drive an intoxicated person home assumed the duty to do so.

In Gritzner, the court applied the doctrine to impose liability on a person who failed to warn that the person to whom a child had been entrusted was a child molester. In these cases, the doctrine was used to impose a duty on a party who, normally would owe no duty to protect the injured party.

However, the doctrine is not a rule of immunity; it does not provide a means for a party who indisputably does owe a duty to use reasonable care in performing a task, such as a contractor performing a public improvement, to avoid liability.

– David Ziemer

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David Ziemer can be reached by email.