Consider you are a witness to an emergency situation and you make the decision to help the injured party. Despite your good intentions, things go poorly and you contribute to their injuries/damages, which they then sue you for, citing negligence. Can you be held liable if you were just trying to help?

On the other hand, can you be held liable if you decided not to help? What responsibility does a bystander have to a perfect stranger in peril? In the above episode of On Subrogation: Emergency Response – Bystander Liability, Rathbone Group partner and insurance attorney Jason Sullivan discusses the pitfalls of deciding to be a hero.

This is part one of a three-part series on liability and potential liability of individuals who witness an emergency and decide to intervene. You can find parts two and three on our YouTube channel:

• On Subrogation: Emergency Response – Alarm Company Liability
• On Subrogation: Emergency Response – Fire Department Liability

When Helping Hurts: The Legal Maze of Bystander Liability

Jason poses an initial hypothetical that will serve as a fact pattern through the series: you have an insured whose house burns down. There series will look at three different situations where a fire subrogation claim may arise; this part discusses the responsibility (if any) of a witness. Consider someone is walking down the street and sees smoke coming out the windows of the house, flames are already visible from the road. What duty does that bystander have?

This answer to this question, like many subrogation topics, varies by state. Most states say no – a bystander has no responsibility to do anything like call 911 or yell for help. Some state laws actually encourage bystanders not to intervene, lest they make things worse and be held liable.

However, this is changing. It has become more and more common that bystanders will do nothing, pull out their phone, and record or live stream a perilous event, allowing it to go on while they record. But at what point does a witness become a liable party in a subrogation claim?

Emergency Subrogation: When Spectators Become Tortfeasors

Naturally, there has been public outrage about the callousness of such a behavior. But in most states, there are not laws that deter bystanders from deciding to be a spectator instead of intervening. Recently, though, we have seen a minority of states pass new laws penalizing bystanders for not taking action.

For instance, a subrogation lawyer in Minnesota, Vermont, Ohio, or Rhode Island can look to bystander liability in pursuing their property and injury subrogation claims:

• MN, RI, VT: liability if someone is in grave physical harm
• OH: liability if they suspect there is an ongoing crime

Other states have similar statutes, but with one or more caveats like:

• The crime must result in a serious physical injury.
• The crime must reach a certain level of severity, like a felony.

If a condition is true, the bystander has a duty to reach out to authorities.

In none of these situations is a witness expected to put themselves in peril in order to intervene; legal liability is limited to contacting the proper authorities.

Can You Subrogate Against a Witness with Good Intentions?

There is another side to this issue: what if a bystander does decide to take action? Are they protected if it goes awry? While most states have no laws requiring a bystander to act, many have laws to protect those who do. These are referred to as Good Samaritan laws; they state that someone who comes to the aid of someone else cannot be found liable for any negligence.

Let’s go back to the example of someone walking down the street when they see smoke coming out the windows. They decide to bust the door in, where they see a raging fire on the stovetop in the kitchen. They pour water on it to try and put it out, but it’s a grease fire, so instead of putting the fire out, the water makes everything much worse.

Most states will protect the bystander from liability. They were trying to help; if they could then be punished for their efforts failing, it would dis-incentivize people to help others in emergencies. Good Samaritan laws waive all liability so long as the bystander (1) does not act recklessly and (2) does not cause intentional harm.

A Closer Look at Good Samaritan Laws

Good Samaritan laws are a little more complex than: if you meant well then, you’re safe now. In fact, these laws were never originally designed as a blanket defense, but only for those with medical training. Originally, Good Samaritan laws were only meant for physicians, nurses, or other medical professionals who intervened in an emergency.

In most states, Good Samaritan laws have organically expanded to include people without medical training. This has resulted in different interpretations and limitations on how help is rendered. The volunteer should not be anticipating payment or reward from intervening, and they should exercise reasonable care within their level of skill.

We see a similar theory play out in Sovereign Immunity for first responders, like the fire fighters the bystander should call to the scene they witness. Sovereign Immunity protects fire fighters from liability because they are putting their lives on the line when they enter a burning building. Likewise, Good Samaritan laws are meant to protect people who accidentally commit negligence in the course of trying to help someone.

Subrogation in Different States: What Makes a Good Samaritan?

The terminology of a state’s Good Samaritan and bystander liability laws are important, including when arguing liability in a subrogation claim. Most states apply the criteria already discussed while others have amended or added to it.

Considering how state laws vary on how fault affects potential subrogation recovery, attorneys and insurers need an understanding of courts’ conflicting views. A few examples of state adjustments to bystander protections include:

• NY protects medical professionals and lay people and requires certain medical professionals to intervene in some way.
• VT  has a “duty to rescue”, where everyone is expected to intervene by helping or reporting to the authorities.
• TX laws include detailed conditions for AED use in emergencies and, in general, broadly protect bystanders acting in good faith.

Most states include and/or highlight the condition of the bystander acting within the scope of their training/skill. A subrogation team trying to establish negligence should look to the severity of the intervention vs the bystander’s skill level. For instance, a lay person who performs an emergency airway puncture with an ink pen, as opposed to simply administering CPR or following directions given by 911, would likely not be covered under a Good Samaritan law.

RG: Maximizing Subrogation Recovery & Minimizing Cost of Pursuit

Knowing whether or not bystander liability arguments apply in a subrogation claim involves several different factors. State laws affect subrogation potential, whether arguing for or against its application. Rathbone Group serves clients across the country with experience navigating the dissimilarities between how jurisdictions define liability, negligence, and fault in a subrogation lawsuit.

For more on liability in emergency responses, visit the links at the beginning of this article for parts two and three. And for more education on subrogation, browse our YouTube channel and podcast library for discussions on important topics in subrogation and insurance law. Questions or suggestions for a new episode? Reach out to Rathbone Group at video@rathbonegroup.com or podcast@rathbonegroup.com.