ANALYSIS OF DECEMBER 22, 2021 SUPREME COURT OPINIONS

(Posted December 22, 2021) As Christmas draws nigh and the Big Guy draws a bead on your chimney, the justices give you some leisure reading to pass the time. We get two published opinions from the Supreme Court of Virginia this morning.

Criminal law

Justice McCullough pens the court’s short opinion in Carter v. Commonwealth, a prosecution for battery of a police officer. This one comes to us from Lynchburg Circuit Court, by way of the Court of Appeals.

Late one night in January 2018, a police officer answered a dispatch for a disturbance in the City of the Seven Hills. He arrived at the scene and saw “several individuals screaming at each other” in front of a home. The primary contestants appear from today’s description to be a woman named Carter and a man named Penicks. The officer learned from Penicks that he lived at the home and needed to retrieve some of his property. “Carter yelled that Penicks had put his hands on her and needed to go.”

The officer, standing in the threshold of the open front door, heard Carter scream that Penicks “is not coming in here.” The officer pointed out the obvious: “I’m standing right in front of you,” presumably an indication that Penicks couldn’t get past the officer while he was investigating.

This wasn’t good enough for Carter; she cursed at the officer and repeatedly tried to slam the door shut, each time striking the officer’s foot in the doorway. Carter then backed into the home; the officer followed her. At that point she screamed at him; he placed her in handcuffs for an investigative detention. She elbowed him thrice but evidently didn’t do much damage …

… other than earning herself a felony prosecution for assault and battery of a police officer. At a bench trial, her defense was that the officer was a trespasser and she had a right to use force to expel him from her home. The judge wasn’t having any of it; Carter was convicted, and the Court of Appeals affirmed.

The Supreme Court unanimously affirms the conviction today. The court holds that the record doesn’t indicate that Carter ever told the officer to leave before she started ramming his foot with the door. One cannot be a trespasser until and unless the possessor of property conveys instructions to leave. And under prior caselaw, Carter can’t simply retreat into her home from the admittedly public space of her open doorway, and thereby insulate her from arrest for a crime committed in public.

Tort immunity

The justices take up the statutory immunity afforded by Virginia’s Good Samaritan statute in Stoots v. Marion Life Saving Crew, Inc. This is a wrongful-death claim against three rescue workers and the rescue squad for which they worked.

This appeal turns on the meaning of an advance medical directive. When two members of the rescue squad responded to a call for help, they found a 43-year-old diabetic who was experiencing breathing difficulties. They observed that he “was still breathing with a normal resting heart rate.” The patient’s sister handed the crew the advance directive; one member scanned it quickly and noticed that it directed “no extraordinary methods.” He concluded that the patient had signed a Do Not Resuscitate document and handed it back before taking the patient to the hospital. The crew didn’t administer any lifesaving means, though they did stop on the way to pick up a paramedic who could assist if necessary.

The patient died en route to the hospital. As for the directive, it didn’t contain the “no extraordinary methods” language; the staffer’s quick scan had given him the wrong impression. Instead, it called for treatment for two days to see if his condition improved.

The sister qualified as the patient’s personal representative and sued for wrongful death. The circuit court sustained a plea in bar, finding that the rescue workers were “clearly negligent, and probably grossly negligent,” but that they were immune from liability under the statute. Because the workers were immune, the court found that the rescue squad was immune, too, so it dismissed the case.

Justice Powell’s opinion for a unanimous court notes that at common law, a person who provided emergency services could be liable for ordinary negligence. Because this was a strong disincentive to provide such care, the legislature provided for statutory immunity. The criteria for the immunity at issue here include:

• A licensed EMS provider;
• Rendering emergency care in good faith;
• Without compensation;
• To any injured or ill person.

In this situation, the care-provider isn’t liable in damages for the services rendered. The personal rep argued that the immunity didn’t apply here for three reasons.

First, she contended that the EMS providers violated statutory duties, and the Good Samaritan statute only covers violations of Health Department regulations. The justices reject this argument because most of the statutes that she cited create no affirmative duty. As for the one that arguably does, the court observes that the act’s phrasing – “including but in no way limited to” regulations – means that it can apply to statutory violations.

Second, she argued that the gross negligence of the rescue workers meant that they didn’t deliver services in good faith. In what I see as a significant precedential ruling, the Supreme Court holds today that good faith and gross negligence can coexist. Because the General Assembly treated gross negligence differently in a separate subsection of the statute than here, the court rules that merely proving gross negligence doesn’t establish a lack of good faith. It also rejects the contention that the law judges the rescue workers’ actions by a standard of objective reasonableness. Doing that, the court rules today, would essentially wipe out the statute by reinstating the common-law liability standard.

Third, the justices agree with the trial court that the rescue workers weren’t paid for this work. The squad had a program that allowed volunteers to receive pay for each shift worked beyond the first three. Each could designate at the end of the month which shifts would be volunteer and which would be for pay. Two of the three individual defendants had designated this as an unpaid shift; the third didn’t participate in the program, so this issue didn’t apply to him.

The personal rep makes a plausible argument here: By allowing the members to designate which shifts were unpaid, they could game the system by electing not to receive pay for any problematic shifts, while getting paid for others where no problems arose. The Supreme Court rejects this contention, holding that the plain language of the statute grants immunity for any work that was actually unpaid; it doesn’t turn on whether the worker could be paid.

The justices thus affirm the dismissal of the claims against the rescue workers. The personal rep wins a lesser victory, as the court remands the case to determine whether the rescue squad itself was paid. It billed the patient’s insurer, which paid “an undisclosed amount” to the squad. The justices can’t determine on this record whether the insurance payment was for the rescue services (in which case it’s compensation, and would defeat the statutory immunity) or for reimbursement of costs (which isn’t compensation).

On remand, the circuit court will need to revisit one other issue: whether this is a medical-malpractice case. The personal rep didn’t plead it as one, and didn’t get the required certification for those claims. If this qualifies as a med-mal claim and the alleged negligence doesn’t “lay within the range of a jury’s common knowledge and experience,” that could be another tough hurdle for the remainder of the case.