“applying the reasoning of Lutz,” to determine that a “comparable security regulation” imposed a “specific military duty” that did “not reach off-base conduct”
How later courts described this case
- “applying the reasoning of Lutz,” to determine that a “comparable security regulation” imposed a “specific military duty” that did “not reach off-base conduct”
Written by the judges who cited it.
The opinion
TANG, Circuit Judge,
dissenting in part:
I respectfully dissent from my colleagues’ application of the good Samaritan doctrine in section 3.b. Although I agree that Sheridan v. United States, — U.S. -, 108 S.Ct. 2449 , 101 L.Ed.2d 352 (1988), suggests a possibility that this doc *567 trine might apply to the petty officers, I do not think that we can make this determination as a matter of law. A good Samaritan duty does not arise merely through the adoption of a regulation. The only way a regulation can create a duty under California law is that discussed in our analysis of the potential liability of the security guard in section B.2., a liability predicated on the liability of public entities for injuries caused by noncompliance with mandatory enactments.
It is hornbook law that the good Samaritan duty arises with the performance of specific acts of rescue which induce reliance on the aid of the actor. I do not read Sheridan as modifying the traditional concept of good Samaritan duty so that all it requires is the voluntary adoption of regulations. Rather the Court says that by the voluntary adoption of a regulation and by further voluntarily undertaking to provide care the government assumed the good Samaritan duty.
I reject the approach of the majority because it would transform the historical meaning of the good Samaritan duty as arising from the voluntary undertaking of a rescue, and, more importantly, because it would circumvent the California legislative scheme narrowly defining the types of enactments that give rise to statutory duties. It would, in effect, make Samaritanism the product of statute rather than of a voluntary undertaking.
I would remand to allow the district court to determine whether Gorman’s companions undertook to provide any care to him and thus met the second prong of the Sheridan test.