[Jamo]

Terry...yes, under several theories associated with common law tort theories of reckless disgrard and general negilgence, but there has to be proof of ability to provide assistence and lack of threatened harm to the person who allegedly failed to take action. Tough case to prove though...can't require folks to put themselves in peril.

California (and a few other states) have actually looked into passing legislation requiring folks to take action in emergencies, but as you might imagine, requiring affirmative actions rather than prohibiting actions is a tough sell.

Personally, I think Justice Baxter (an old friend, by the way...former Fresno attorney, appellate judge and Dukemajian's appointments secretary) had it right in his opinion wherein he dissented with the majority in limiting the statute's protection to medical care, but concurred in ruling that the summary judgement was unfounded based on the facts in this case given the intoxication and the lack of any other witness indicating there was smoke/fluids coming from the car to indicate there was indeed an "emergency." As with any immunity statute, exceptions can always be drawn from the facts to insure it is not used in the wrong way...Baxter said there was a question of whether the defendant's actions...based on the facts taken as true in a summary judgement motion (as they must be)...should be afforded the immunity protections.

That being said...the statute should be in the Civil Code to make it clear it is of general application, rather than the Health and Safety Code which implies (at least enough for the majority) that is applies to emergency medical care only.