Duty to rescue

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Lua error in package.lua at line 80: module 'strict' not found. Lua error in package.lua at line 80: module 'strict' not found. A duty to rescue is a concept in tort law that arises in a number of cases, describing a circumstance in which a party can be held liable for failing to come to the rescue of another party in peril. In common law systems, it is rarely formalized in statutes which would bring the penalty of law down upon those who fail to rescue. This does not necessarily obviate a moral duty to rescue: though law is binding and carries government-authorized sanctions, there are also separate ethical arguments for a duty to rescue that may prevail even where law does not punish failure to rescue.

Common law

In the common law of most anglosphere countries, there is no general duty to come to the rescue of another.[1] Generally, a person cannot be held liable for doing nothing while another person is in peril.[2][3] However, such a duty may arise in two situations:

  • A duty to rescue arises where a person creates a hazardous situation. If another person then falls into peril because of this hazardous situation, the creator of the hazard – who may not necessarily have been a negligent tortfeasor – has a duty to rescue the individual in peril.[4]
  • Such a duty may also arise where a "special relationship" exists. For example:
    • Parents have a duty to rescue their minor children. This duty also applies to those acting in loco parentis, such as schools or babysitters.[5]
    • Common carriers have a duty to rescue their patrons.[6]
    • Employers have an obligation to rescue employees, under an implied contract theory.[7]
    • In some U.S. jurisdictions, real property owners have a duty to rescue invitees but not trespassers from all reasonably foreseeable dangers on the property. Other jurisdictions, such as California, extend the duty to rescue to all persons who enter upon real property regardless whether they are classified as invitees, social guests or trespassers.[8]
    • Spouses have a duty to rescue each other in all U.S. jurisdictions.[9]
    • In the United States, as of 2009 ten states had laws on the books requiring that people at least notify law enforcement of and/or seek aid for strangers in peril under certain conditions: California,[10][11] Florida,[10][12][13] Hawaii,[10][14] Massachusetts,[10][15] Minnesota,[10][16] Ohio,[10][17] Rhode Island,[10][18] Vermont,[10][19] Washington,[10][20][21] and Wisconsin.[10][22] These laws are also referred to as Good Samaritan laws, despite their difference from laws of the same name that protect individuals who try to help another person.[1] These laws are rarely applied, and are generally ignored by citizens and lawmakers.[1]

Where a duty to rescue arises, the rescuer must generally act with reasonable care, and can be held liable for injuries caused by a reckless rescue attempt. However, many states have limited or removed liability from rescuers in such circumstances, particularly where the rescuer is an emergency worker. Furthermore, the rescuers need not endanger themselves in conducting the rescue.

Civil law

Many civil law systems, which are common in Continental Europe, Latin America and much of Africa, impose a far more extensive duty to rescue.[3] The only exclusion is that while providing rescue, the person must not endanger his or her own life or that of others.

This can mean that anyone who finds someone in need of medical help must take all reasonable steps to seek medical care and render best-effort first aid. Commonly, the situation arises on an event of a traffic accident: other drivers and passers-by must take an action to help the injured without regard to possible personal reasons not to help (e.g. having no time, being in a hurry) or ascertain that help has been requested from officials.[citation needed] In practice however, almost all cases of compulsory rescue simply require the rescuer to alert the relevant entity (police, fire brigade, ambulance) with a phone call.[citation needed]

Criminal law

In some countries, there exists a legal requirement for citizens to assist people in distress, unless doing so would put themselves or others in harm's way. Citizens are often required to, at minimum, call the local emergency number, unless doing so would be harmful, in which case the authorities should be contacted when the harmful situation has been removed. As of 2012, there were such laws in countries, including[1] Albania, Andorra,[23] Argentina,[24] Austria,[25] Belgium, Brazil, Bulgaria, Croatia,[26] Czech Republic, Denmark, Finland, France,[27] Germany,[28] Greece, Hungary, Iceland, Israel, Italy, the Netherlands, Norway, Poland,[29] Portugal, Russia, Serbia, Spain, Switzerland and Tunisia.

Argentina

Argentina has legislation on "abandonment of persons", Articles 106-108 of the Argentine Penal Code, which includes the provision in Article 106 that "a person who endangers the life or health of another, either by putting a person in jeopardy or abandoning to their fate a person unable to cope alone who must be cared for ... will be imprisoned for between 2 and 6 years" [emphasis added].[30]

Canada

In Quebec, which makes use of civil law, there is a general duty to rescue in its Charter of Rights: "Every human being whose life is in peril has a right to assistance...Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason."[31] Criminal law in Canada is under the exclusive jurisdiction of the federal government, so failure to comply with an article of the Charter in Quebec does not constitute a criminal offence except if by doing so a party also violates the Criminal Code of Canada.

Other provinces follow common law.

In Canadian air law, it is mandatory to make oneself and one's aircraft available to aid search-and-rescue efforts if the aircraft is in the immediate area and a distress signal is received.[citation needed]

Denmark

Under the Danish penal code, all persons must provide aid to the best of their ability to any person who appears to be lifeless or in mortal danger (§ 253), must alert authorities or take similar steps to prevent impending disasters that could cause loss of life (§ 185), must comply with all reasonable requests of assistance by a public authority when a person's life, health or well-being is at stake (§ 142), and must, if they learn of a planned crime against the state, human life or well-being, or significant public goods, do everything in their power to prevent or mitigate the crime, including but not limited to reporting it to authorities (§ 141), in all cases provided that acting would not incur particular danger or personal sacrifice. Violations are punishable by up to three months (§ 142), two years (§ 185 and § 253) or three years (§ 141) in prison.[32]

France

Anyone who fails to render assistance to a person in danger will be found liable before French Courts (civil and criminal liability). The penalty for this offence in criminal courts is imprisonment and a fine (under article 223–6 of the Criminal Code) while in civil courts judges will order payment of pecuniary compensation to the victims.[33]

The photographers at the scene of the fatal car collision of Diana, Princess of Wales, were investigated for violation of the French law of "non-assistance à personne en danger" (deliberately failing to provide assistance to a person in danger), which can be punished by up to 5 years imprisonment and a fine of up to $100,000.

Germany

In Germany, "Unterlassene Hilfeleistung" (failure to provide assistance) is an offense according to section 323c[34] of the Strafgesetzbuch; a citizen is obliged to provide help in case of accident or general danger if necessary, and is normally immune from prosecution if assistance given in good faith and following the average reasonable person's understanding of required measures turns out to be harmful.[35][36] Also the helper may not be held responsible if the action he should take in order to help is unacceptable for him and he is unable to act (for example when unable to act at the sight of blood). In Germany, knowledge of basic emergency measures and First Aid and CPR Certification is a prerequisite for the granting of a driving license.

Russia

In Russia, Article 125 of the criminal code prohibits knowingly abandoning people who are in life- or health-threatening situations when said people can't help themselves. However it binds only those who are either legally obligated to care for said people or who themselves have put said people into life or health threatening situation. The maximum penalty is 1 year in prison.[37]

Serbia

In Serbia, a citizen is required by law to provide help to anyone in need (after for example a major car accident) as long as providing help does not endanger him or her personally. Serbian criminal code Articles 126 and 127 state that should one abandon a helpless person and/or not provide aid to a person in need, one could receive a prison sentence of up to one year. If the person dies of injuries due to no aid having been provided by the bystander, a sentence up to 8 years in prison can be imposed.

Ethical justifications

Legal requirements for a duty to rescue do not pertain in all nations, states, or localities. However, a moral or ethical duty to rescue may exist even where there is no legal duty to rescue. There are a number of potential justifications for such a duty.

One sort of justification is general and applies regardless of role-related relationships (doctor to patient; firefighter to citizen, etc.). Under this general justification, persons have a duty to rescue other persons in distress by virtue of their common humanity, regardless of the specific skills of the rescuer or the nature of the victim's distress.

These would justify cases of rescue and in fact make such rescue a duty even between strangers. They explain why philosopher Peter Singer suggests that if one saw a child drowning and could intervene to save him, they should do so, if the cost is moderate to themselves. Damage to their clothing or shoes or how late it might make them for a meeting would be insufficient excuse to avoid assistance. Singer goes on to say that one should also attempt to rescue distant strangers, not just nearby children, because globalization has made it possible to do so.[38] Such general arguments for a duty to rescue also explain why after the 2010 Haiti earthquake, Haitians were digging family members, friends, and strangers out of the rubble with their bare hands and carrying injured persons to whatever medical care was available.[39] They also explain why, while covering that same earthquake, journalist and physician Sanjay Gupta and a number of other MD-journalists began acting as physicians to treat injuries rather than remaining uninvolved in their journalistic roles. Similarly, they justify journalist Anderson Cooper's attempt to shepherd an injured young boy away from some "toughs" nearby in the aftermath of the Haiti earthquake.[40]

Specific arguments for such a duty to rescue include, but are not limited to:

  • The Golden Rule: treat others as one would wish to be treated. This assumes that all persons would wish to be rescued if they were in distress, and so they should in turn rescue those in distress to the best of their abilities. What counts as distress requiring rescue may, of course, differ from person to person, but being trapped or at risk of drowning are emergency situations which this position assumes all humans would wish to be rescued from.
  • Utilitarianism: utilitarianism posits that those actions are right which best maximize happiness and reduce suffering ("maximize the good").[41] Utilitarian reasoning generally supports acts of rescue which contribute to overall happiness and reduced suffering. Rule utilitarianism would look not just at whether individual acts of rescue maximize the good, but whether certain types of acts do so. It then becomes one's duty to perform those types of actions. Generally, having strangers rescue those in distress maximizes good so long as the rescue attempt does not make things worse, so one has a duty to rescue to the best of her or his ability as long as doing so will not make things worse.
  • Humanity: the rules of humanity advise that the essence of morality and right behavior is tending to human relationships. Therefore, virtues (desirable character traits) such as compassion, sympathy, honesty, and fidelity are to be admired and developed.[42] Acting out of compassion and sympathy will often require rescue where someone is in need. Indeed, it would not be compassionate to ignore someone's need, though the way one fulfills that need may vary. In cases of emergency, rescue would be the most compassionate act compared with allowing a person to remain trapped in rubble.

There are also ethical justifications for role-specific or skill-specific duties of rescue such as those described above under the discussion of U.S. Common Law. Generally, these justifications are rooted in the idea that the best rescues, the most effective rescues, are done by those with special skills. Such persons, when available to rescue, are thus even more required to do so ethically than regular persons who might simply make things worse (for a utilitarian, rescue by a skilled professional in a relevant field would maximize the good even better than rescue by a regular stranger). This particular ethical argument makes sense when considering the ability firefighters to get both themselves and victims safely out of a burning building, or of health care personnel such as physicians, nurses, physician's assistants, and EMTs to provide medical rescue.[43]

These are some of the ethical justifications for a duty to rescue, and they may hold true for both regular citizens and skilled professionals even in the absence of legal requirements to render aid.

Case law

In an 1898 case, the New Hampshire Supreme Court unanimously held that after an eight-year-old boy negligently placed his hand in the defendant's machinery, the boy had no right to be rescued by the defendant. Beyond that, the trespassing boy could be held liable for damages to the defendant's machine.[44]

In the 1907 case People v. Beardsley, Beardsley's mistress, Blanche Burns, passed out after overdosing on morphine. Rather than seek medical attention, Beardsley instead had a friend hide her in the basement, and Burns died a few hours later. Beardsley was tried and convicted of manslaughter for his negligence. However, his conviction was reversed by the Supreme Court of Michigan saying that Beardsley had no legal obligation to her.

See also

References

  1. ↑ 1.0 1.1 1.2 1.3 Lua error in package.lua at line 80: module 'strict' not found.
  2. ↑ See Yania v. Bigan 155 A.2d 343 (Penn. 1959). Bigan and Yania were strip mining coal. Bigan was working next to an 18' deep pit with water in it. He asked Yania and Ross to help him with a pump. Bigan and Ross told Yania to jump over the pit. He did, fell in, and drowned. Yania's widow had argued that Bigan and Ross had a legal obligation to assist Yania to prevent his drowning. However, the Appellate Court found that the law imposes no duty to rescue.[1]
  3. ↑ 3.0 3.1 Lua error in package.lua at line 80: module 'strict' not found.
  4. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  5. ↑ See, for example, Aba Sheikh v. Choe, 156 Wn.2d 441, 457, 128 P.3d 574 (Wash. 2006), which discusses Restatement (Second) of Torts sec. 315 and 319, stating:

    As a general rule, our common law imposes no duty to prevent a third person from causing physical injury to another... Additionally, under the public duty doctrine, the State is not liable for its negligent conduct even where a duty does exist unless the duty was owed to the injured person and not merely the public in general... However, this court recognizes an exception to both these general rules. [A] duty arises where 'a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct.' [Therefore,] we have adopted one class of these 'special relation' cases as described in section 319: "One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm."

    (links added, citations removed)
  6. ↑ See, e.g., De Vera v. Long Beach Public Transportation Co. 180 Cal. App. 3d 782, 225 Cal. Rptr. 789
  7. ↑ [2] p425
  8. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  9. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  10. ↑ 10.0 10.1 10.2 10.3 10.4 10.5 10.6 10.7 10.8 10.9 Volokh, Eugene. "Duty to Rescue/Report Statutes." November 3, 2009. Accessed December 17, 2010.
  11. ↑ California Penal Code § 152.3
  12. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  13. ↑ Florida Stat. Ann. ch. 794.027
  14. ↑ Hawaii Rev. Stat. § 663–1.6
  15. ↑ Massachusetts Gen. Laws Ann. ch. 268, § 40, ch. 269, § 18
  16. ↑ Minnesota Stat. Ann. § 604A.01
  17. ↑ Ohio Rev. Code § 2921.22
  18. ↑ Rhode Island Stat. §§ 11–1-5.1, 11–56-1
  19. ↑ Vermont Stat. Ann. tit. 12, § 519
  20. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  21. ↑ Washington Rev. Code Ann. § 9.69.100(1)
  22. ↑ Wisconsin Stat. Ann. § 940.34
  23. ↑ articles 199, 278, 279, 310 of Andorran Criminal Code
  24. ↑ Argentine Penal Code laws regarding crimes against the person (Spanish)
  25. ↑ Austrian Criminal Code § 95 StGB
  26. ↑ Croatian Criminal Code §104, §105 (Croatian)
  27. ↑ French Criminal Code §63(2)
  28. ↑ German Criminal Code §323c
  29. ↑ Polish Criminal Code §162
  30. ↑ Argentine Penal Code laws regarding crimes against the person (Spanish) Original of text translated in the article: "el que pusiere en peligro la vida o la salud de otro, sea colocándolo en situación de desamparo, sea abandonando a su suerte a una persona incapaz de valerse y a la que deba mantener o cuidar o a la que el mismo autor haya incapacitado, será reprimido con prisión de 2 a 6 años".
  31. ↑ Charte des droits et libertés de la personne, L.R.Q. c. C-12
  32. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  33. ↑ Audrey Laur Liabilities of Doctors on Aircraft Med Leg J March 2013 81:31—35 http://mlj.rsmjournals.com/content/81/1/31.extract
  34. ↑ http://www.gesetze-im-internet.de/stgb/__323c.html
  35. ↑ http://www.gesetze-im-internet.de/stgb/__34.html
  36. ↑ http://www.gesetze-im-internet.de/stgb/__17.html
  37. ↑ http://www.zakonrf.info/uk/125/
  38. ↑ Peter Singer, "The Drowning Child and the Expanding Circle", New Internationalist, April, 1997; http://www.utilitarian.net/singer/by/199704--.htm
  39. ↑ David Gardner and Liz Hazelton, "Haiti earthquake: Bodies piled up on the streets as disaster leaves 'thousands' dead", The Guardian, January 14, 2010, http://www.dailymail.co.uk/news/worldnews/article-1242885/Haiti-earthquake-Victims-forced-dig-rubble-bare-hands-free-surivors.html
  40. ↑ David Folkenflik, "Reporters Who Are MDs Find Lines Blurred in Haiti", National Public Radio, January 20, 2010, http://www.npr.org/templates/story/story.php?storyId=122784322
  41. ↑ John Stuart Mill, Utilitarianism available from many publishers and on-line, first published in 1863
  42. ↑ page 19-20 in Tom L. Beauchamp, LeRoy Walters, Jeffrey P. Kahn, and Anna C. Mastroianni, Contemporary Issues in Bioethics, 7th edition, Wadsworth: Belmont, CA, 2008
  43. ↑ Kevin Williams, "Medical Samaritans: Is There A Duty To Treat?", Oxford Journal of Legal Studies 21(3): 393-413. 2001. Williams argues that medical personnel have a duty of medical rescue even when there is no prior patient-provider relationship, as when a provider happens to pass an accident site with no EMTs to hand.
  44. ↑ Buch v. Amory Mfg. Co., 69 N. H. 257, 44 A. 809 (1898), p, 262., cited at An Argument Against a Legal Duty to Rescue
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