Good Samaritan Liability

Following the Bible parable, a Good Samaritan is a person who reaches out and takes care of someone when he or she has no obligation to do so. Generally, Good Samaritans are to be praised, while those who pass on the other side of the road are to be condemned. The idea is that one should undertake to help one’s fellow person.

The Bumbling Samaritan
What about a Good-but-bumbling Samaritan? Suppose the Samaritan lifted the injured fellow up out of the ditch and then dropped him, breaking his tailbone? Do you suppose history would have treated the Samaritan so charitably even if he got the fellow to the inn?

Or, let’s transport ourselves 2,000 years, make the Good Samaritan a physician. Let’s have him give the fellow in the ditch a shot of some substance to which he is violently allergic. Let’s have the patient die in agony.

Or suppose the Good Samaritan is an insurance company—say, a boiler and machinery insurer (or, maybe, a workers’ comp carrier), which inspects premises and machinery before it insures it and during the period of coverage. Let’s further suppose that the B&M carrier fails to shut down a pressure vessel, when it realized that the low water controls are not functioning. Suppose further that the boiler blows up and kills a worker.

Should the Bumbling Samaritan be liable? Should the malpractice carrier for the negligent physician who was just trying to help have to pay? Should an insurance carrier that fouled up an inspection be immune from judgment?

The Supreme Court speaks
Recently, the Texas Supreme Court considered the issue of Good Samaritan liability in The Torrington Company vs. Stutzman. It issued an opinion on Dec. 21, 2000. The facts were rather complicated, and the high court handed down at least eight separate holdings on different matters involving tort law and civil procedure.

The case arose out of a lethal helicopter crash in which the problem was traced to certain bearings. Before the details of the crash and causes are described, it is necessary to configure the defendant parties.

Textron owned Bell Helicopter and Fafnir Bearings. Textron sold its Fafnir Division to Ingersoll-Rand in 1985. The purchasing company placed its new acquisition in Torrington, a wholly owned subsidiary. In purchasing Fafnir, I-R agreed to indemnify Textron for product liability claims based upon the bearings.

The bearings that caused the crash were manufactured in 1984 at Textron’s Connecticut plant. Two types of bearings could be used in the helicopter: The “03 regreasable bearing” and the “05 non-regreasable bearing”. The first bearing was to be used in civilian helicopters, while the later was primarily for military aircraft. It was an 05 bearing that failed. The Navy bought it during or before 1984, but it did not place the bearing in a chopper until 1990.

The incident
In 1991, a Bell civilian helicopter crashed. The crash was probably caused by an 03 bearing. An inspection revealed a number of problems with the manufacturing process, including a lack of shelf life control policy, adulterated bearing grease and some metal contamination of bearing components.

After this crash, Bell pulled all of its 03 and 05 bearings from its shelves and recalled all of the 03 and 05 bearings it sold the military that bore serial numbers. Bell asked Torrington to warn helicopter owners and operators about the problem. Torrington gave Bell all the serial numbers it needed to accomplish a recall, but it did not include any reference to bearings Textron had made at its Connecticut plant, which did not have serial numbers. Bell issued a service bulletin to bearing owners, but the bulletin said that bearings without serial numbers were not affected.

The Navy issued its own bulletin. It directed mechanics to remove and replace all bearings with serial numbers and to maintain normal vigilance in daily inspections of bearings without serial numbers.

Shortly before the crash, which resulted in this lawsuit, a Navy mechanic inspected the bearings involved. He did not remove and replace them, since it was not required. The 03 bearings inspected and to be involved in the crash did not have serial numbers.

Unfortunately, there were problems with the bearing assembly. The Navy determined there was spalling in an important place, which indicated misalignment. There may have also been contaminants in the grease. Perhaps the lubrication also broke down.

Moving through the courts
The lawsuit had a tortured history in both the trial court and the intermediate court of appeals. The plaintiffs employed many theories of recovery, and the defendants relied upon many theories to defeat recovery. The Texas Supreme Court, however, examined the heart of the case from the point of view of Good Samaritan law only.

Writing for all the members of the court on this point, Justice Harriet O’Neill analyzed Torrington’s liability under an “undertaking theory.” That phrase is legalese for the Good Samaritan theory. The idea of an “undertaking theory” is that if A undertakes to do something that affects B, A must execute its undertaking in a reasonable manner so as not to injure B.

If A performs the undertaking negligently, then he may be liable to B, even if he did not have an obligation to undertake the activity that he did.

In general, Texas law does not impose any duty on anyone to take any affirmative action to prevent harm to another, absent certain special relationships or circumstances. Being helpful to someone in distress may be laudable, noble, or even morally required, but it is usually not legally required. In fact, according to some political theories, this is one of the hallmarks of a free society.

On the other hand, if a bystander who does not create a dangerous situation does try—or undertake—to prevent injury to (or mitigate already existing injury to) another, he must do so in a reasonable manner. Under Texas law, there is no duty to become a Good Samaritan; however, said the Supreme Court in Torrington, “a duty to use reasonable care may arise when a person undertakes to provide services to another, either gratuitously or for compensation.” The plaintiffs contended that Torrington assumed a duty towards them by investigating and identifying potentially defective bearings, and it did a bad job of it.

Here is what Torrington did, according to the proof the court reviewed. After Bell issued its service bulletin to bearing owners, the president of Torrington wrote to Bell. He took issue with the bulletin’s reference to bearing contamination. He further stated that Torrington was “most anxious to participate in any evaluation you are currently performing.” This letter went on to say that Torrington intended to “continue to actively participate in the [National Transportation Safety Board] in their investigation [of the first helicopter crash and that Torrington feels] that it is important to investigate all possible causes of the incident to insure the continued air worthiness of the Bell Helicopter.”

Think about what the phrase “continue actively to participate” means.

The crux of the issue
The crucial issue before the Texas Supreme Court was whether this letter, plus Bell’s attendant actual conduct, created Good Samaritan liability. In order to answer this question, the court had to ask itself, in general, the following question: What creates Good Samaritan liability? Either of two factors will do the trick, it said.

First, a Good Samaritan may have liability if his failure to exercise reasonable care in executing his undertaking increases the risk of harm to some relevant person. Alternatively, a Good Samaritan may have liability if the person he is trying to help suffers harm because of the reliance of person he is trying to help upon the undertaking of the Good Samaritan. In other words, in order to recover, an injured plaintiff must prove that the helpful bystander made things worse, made it more probable that something bad would happen, or encouraged reliance so that the person injured did not take care of himself.

The trial court did not properly instruct the jury as to the nature of Good Samaritan liability. Consequently, seven justices out of nine sent the case back for a retrial. Torrington’s role in the case will have to be retried by a jury. The two dissenting judges would have ended the case as to Torrington by reversing and rendering.

The indemnity agreement
What was the role of the indemnity agreement? Remember, I-R indemnified Textron against liability. I-R tried to defeat the indemnity agreement on the grounds that Textron assisted the plaintiffs in pursuing the lawsuit against it. The problem here involves exquisite intricacies of civil procedure only lawyers could love.

The upshot is that the Supreme Court basically said two things. First, it observed that I-R may have provoked Textron’s counterattack by trying to blame everything on it. Second, the evidence that Textron deviously and improperly assisted the plaintiffs against I-R and Torrington was weak. The first point is probably right. The second point does not seem right, and it will cause untold difficulties in insurance litigation.

Unfortunately for I-R, and unfortunately for the plaintiffs, at least in the short run, the judgment against Textron was a relatively small one. I-R now must to write a check for that sum. Torrington also now has to go back and face trial. In the first trial, the jury awarded actual damages totaling something over $35 million, although the trial court remitted it to $29 million. The jury also awarded huge punitive damages, but those are now gone from the case.

Good Samaritans in general
Good Samaritan cases involving business entities are dangerous ones. They come in several variations. What if the Good Samaritan of Biblical lore fouled up his rescue of the fellow in the ditch by injuring a third party.

Imagine the Good Samaritan putting the beaten hulk he found into the back of his donkey wagon, hurrying to the inn at breakneck speed (not being careful on the byway) and ran over the foot of a hapless pedestrian, crushing it. In this situation, the Good Samaritan would be guilty of a negligent rescue wherein he hurt someone else.

Also, sometimes, undertakings are executed in such a way that they adversely affect innocent bystanders indirectly. Some years ago, an insurance company that performed mechanical inspections got hit pretty hard when its inspection and report thereon was inept. The inspector knew there was a problem but let it ride based upon an assurance from the insured that the problem would be fixed at the end of the shift. The item inspected did not make it to the end of the shift, and someone was badly injured.

First party insurers worry that courts will not enforce the language in their contracts which declares that their inspections are really for the benefit of the insurer only and are not undertaken to benefit the insured. Obviously, the contractual provisions are designed to say that there is no undertaking.

It is no wonder insurance companies worry about this. The truth is they do undertake to do something, and then contractually declare that what they do is not an undertaking. Moreover, insurers train their inspectors that the work they do is extremely important to industrial and public safety, and then by contract try to say that they are not performing any kind of activities on the basis of which they should be judged or called to account.

Insurers try to say that their inspections are completely gratuitous and that the price of the insurance is for coverage only and not for the inspection. At the same time, much insurance literature extols the economic and social value of the inspections. Indeed, that is the way many first-party insurers sell their insurance product. No wonder they worry that courts will not enforce their contracts.

Quinn is an Austin shareholder in the law firm of Sheinfeld, Maley & Kay. He litigates and testifies on insurance related problems and is currently the chair of the Insurance Section of the State Bar of Texas. He also is a Visiting Professor of Law at the University of Texas-Austin.

Topics Carriers Texas Manufacturing