Court limits Good Samaritan immunity

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Wisconsin’s Good Samaritan Law only gives immunity to those providing emergency care “until professional medical attention is available.”

The Wisconsin Supreme Court on May 25, affirming a published decision of the court of appeals, Mueller v. Mc-Millian Warner Ins. Co., 2005 WI App 210, 704 N.W.2d 613, held that, where the defendant merely monitored an injured person for six or seven hours, without making any attempt to obtain professional care, the defendant did not render “emergency care” and is not immune from suit alleging negligence.

Merlin and Stephani Switlick are the parents of Apollo Switlick. The Switlicks were hosting a party on property they owned in Lincoln County, when Apollo and his girlfriend, Lina M. Mueller, were injured in an ATV accident around 11 p.m.

Both were bleeding and both vomited. Mueller went inside the house and wanted to lie down on the bathroom floor. Ms. Switlick persuaded her to lie down on a bed in one of the bedrooms instead. Ms. Switlick testified she awoke her approximately every hour to check on her.

Throughout the night, Mueller was able to respond coherently to Ms. Switlick’s questions, but in the morning, after she had been in bed for approximately six to seven hours, Mueller was disoriented and responded to Ms. Switlick’s questions by addressing her as “mom.”

As a result of Mueller’s confusion, Ms. Switlick called for an ambulance. Mueller suffered serious, continuing injuries.

Mueller sued the Switlicks, alleging they were negligent in providing alcohol to their minor son, in failing to convey her to a hospital, in preventing her from obtaining medical treatment, and in failing to seek help for her.

Marathon County Circuit Court Judge Vincent K. Howard entered judgment in favor of the defendants, ruling that the Good Samaritan Law, sec. 895.48(1), confers immunity on them for their actions.

Mueller appealed, and the court of appeals reversed. The Supreme Court granted review, and affirmed the court of appeals in a decision by Chief Justice Shirley S. Abrahamson.

Sec. 895.48(1)

The statute provides in relevant part: “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.”

The three elements of the defense are:

(1) Emergency care must be rendered at the scene of the emergency;

(2) The care rendered must be emergency care; and

(3) Any emergency care must be rendered in good faith.

The court concluded that the first element was met, but the second was not, and thus, did not address the third.

Scene of Emergency

Neither the statute nor any prior cases define, “scene of any emergency or accident,” and the court declined to define it precisely, but the court held that the term is broad enough to include the Switlicks’ house.

The court found that the term cannot be limited to the scene of an accident, lest the inclusion of the word, “emergency” would be superfluous.

The court wrote, “whatever the precise scope of ‘scene of any emergency or accident,’ the phrase ‘scene of any emergency’ is sufficiently broad to include the Switlicks’ home where the injured, bleeding plaintiff arrived after the ATV incident.”

Accordingly, the court held that the Switlicks’ actions occurred at the scene of an emergency.

Emergency Care

Like “scene of any emergency or accident,” the term “emergency care” is not defined in the statute either.

Just as with the former term, the court declined to adopt a bright-line rule. Instead, the court adopted what it called a “flexible, broad working definition.”

The definition the court adopted for “emergency care” is as follows: “care rendered by a layperson in a sudden, unexpected happening, occurrence or situation that demands immediate action until professional medical attention is available. ‘Care’ includes the evaluation, intervention, assistance, and treatment of, or intervention on behalf of the injured person, or response to medical conditions caused by an accident, trauma, or sudden illness.”

Reviewing legislative history and commentary, the court concluded that this definition serves the purpose of the statute, observing, “The decision to extend Good Samaritan immunity beyond medical professionals reflects the legislative determinatio
n that the removal of potential tort liability would encourage more individuals to provide immediate assistance when professional medical assistance is not available. This emphasis on immunity for initial and immediate care reflects the legislative purpose to encourage such services as are necessary to stabilize an injured individual’s health or impede an impending tragedy during the period before care can be transferred to professional medical personnel.”

Application

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Applying the definition, the court held that it did not extend to the Switlicks’ conduct, other than possibly, their immediate assistance, treatment, and intervention.

Because the Switlicks did not summon professional assistance, and instead provided ongoing care themselves, the court concluded that their actions changed from emergency care to non-emergency care, and they are therefore subject to a negligence action.

The court explained, “the legislature has balanced the public policy of encouraging individuals to provide assistance to those in need of immediate help with the competing public policy of encouraging caregivers to seek professional medical assistance.

Accordingly, the court affirmed the court of appeals, concluding, “When the Switlicks did not seek professional medical assistance after the initial evaluation and immediate evaluation, assistance, treatment, and intervention, emergency care ceased and non-emergency care began. The Switlicks have not asserted a valid Good Samaritan defense to the plaintiff’s negligence claims against them for non-emergency care.”

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David Ziemer can be reached by email.