Duty to rescue


Duty to rescue

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. However, in the United States, 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.

Contents

Common law

In the common law of the United States and other 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 also arises where a "special relationship" exists. For example:

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 rescuer need not endanger himself in conducting the rescue.

U.S. example

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.[23]

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 the person must not endanger her/his own life or that of others, while providing rescue.

This can mean that if a person finds someone in need of medical help, he or she 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. Such laws currently exist in several countries[1] such as Albania, Austria,[24] Belgium, Bulgaria, Croatia,[25] Czech Republic, Denmark, Finland, France,[26] Germany,[27] Greece, Hungary, Iceland, Italy, the Netherlands, Norway, Portugal, Russia, Serbia, Spain, and Switzerland.

France

The photographers at the scene of Princess Diana's fatal car accident 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" (neglect to provide assistance) is an offense according to paragraph 323c[28] 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[29][30]. 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.

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 personally. Serbian criminal code Articles 126 and 127 state that should one abandon a helpless person and/or does 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 provided by the bystander, one can receive a sentence of up to 8 years in prison.


Brazil

In Brazil, a citizen is required by law to provide help to anyone under grave and imminent danger, the injured and disabled and abandoned children as long as it is safe to do so. Brazilian criminal code Article 135 establishes a prison sentence of 6 months to a year (doubled should the victim suffer serious bodily harm or death) for withholding help.

Canadian law

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 unless that 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 yourself and your aircraft available to aid search and rescue efforts if you are in the immediate area a distress signal is received.[citation needed]

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 we saw a child drowning and could intervene to save him, we would do so, no matter the damage to our clothing or shoes or how late it might make us for a meeting. Singer goes on to say that we should also attempt to rescue distant strangers, not just nearby children, because globalization has made it possible for us to do so.[32] Such general arguments for a duty to rescue also explain why after the 2010 Haiti earthquake, Haitians were digging family members, friends, and perfect strangers out of the rubble with their bare hands and carrying injured persons to whatever medical care was available.[33] 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 Haitian earthquake.[34]

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

  • The Golden Rule: treat others as you 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 emergent situations which this position assumes all humans would wish to be rescued from.
  • Utilitarian ethics: utilitarianism posits that those actions are right which best maximize happiness and reduce suffering ("maximize the good").[35] 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 our 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 we have a duty to rescue to the best of our ability as long as doing so will not make things worse.
  • Care Ethics: the ethics of care advise that the essence of morality and right behavior is tending to human relationships. Therefore, virtues (excellent character traits) such as compassion, sympathy, honesty, and fidelity are to be admired and developed.[36] 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 under the discussion of U.S. Common Law, above. 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.[37]

These are just some of the many 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.

See also

References

  1. ^ a b c d Rosenbaum, Thane (2004). The Myth of Moral Justice. HarperCollins. pp. 247–248. ISBN 9780060188160. http://books.google.com/books?id=jt2FMMu4JakC&pg=PA248&lpg=PA248&dq=duty+to+rescue+spouse&source=web&ots=5QsbxTo_Fi&sig=MpS0Ys_Wh1qXpgn24LewAKkjRtU&hl=en#PPA248,M1. Retrieved 2008-03-15. 
  2. ^ See Yania v. Bigan 155 A.2d 343 (Penn. 1959). Bigan and Yania were strip mining coal. Bigan was working next to a 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. ^ a b Peters (January 2001). "Torts II syllabus". University of Missouri-Columbia school of Law. http://law.missouri.edu/peters/t2syllabus.html. 
  4. ^ Bayles, Michael; Bruce Chapman (1983). Ethical Issues in the Law of Tort. New York: Springer-Verlag. pp. 20–21. ISBN 9027716390. 
  5. ^ Castle Rock v. Gonzales
  6. ^ 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)
  7. ^ See, e.g., De Vera v. Long Beach Public Transportation Co. 180 Cal. App. 3d 782, 225 Cal. Rptr. 789
  8. ^ See generally An Argument Against a Legal Duty to Rescue, "Along such lines, for instance, we can argue that a special duty to rescue applies to employers, even when they do not cause the injuries that occasion the need for help. Because no one would ordinarily accept an employment agreement in which the employer states that no attempt will be made to get the employee to a hospital in the event of an injury on the job, a clause promising such help can usually be assumed to be part of the agreement."
  9. ^ Rosenbaum, Thane (2004). The Myth of Moral Justice. HarperCollins. p. 248. ISBN 9780060188160. 
  10. ^ a b c d e f g h i j Volokh, Eugene. "Duty to Rescue/Report Statutes." November 3, 2009. Accessed December 17, 2010.
  11. ^ California Penal Code § 152.3
  12. ^ Copyright © 1995-2009 The Florida Legislature (2009-09-04). "The 2009 Florida Statutes 316.062 Duty to give information and render aid.". http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0316/SEC062.HTM&Title=-%3E2009-%3ECh0316-%3ESection%20062#0316.062. Retrieved 2009-09-04. 
  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. ^ Office of Governor Chris Gregoire (2008-04-28). "Gov. Gregoire signs Good Samaritan Law, approves Sunday liquor sales and signs bill promoting Native American studies". http://www.governor.wa.gov/news/news-view.asp?pressRelease=67&newsType=1. Retrieved 2008-10-10. 
  21. ^ Washington Rev. Code Ann. § 9.69.100(1)
  22. ^ Wisconsin Stat. Ann. § 940.34
  23. ^ 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
  24. ^ Austrian Criminal Code § 95 StGB
  25. ^ Croatian Criminal Code §104, §105 (Croatian)
  26. ^ French Criminal Code §63(2)
  27. ^ German Criminal Code §323c
  28. ^ http://www.gesetze-im-internet.de/stgb/__323c.html
  29. ^ http://www.gesetze-im-internet.de/stgb/__34.html
  30. ^ http://www.gesetze-im-internet.de/stgb/__17.html
  31. ^ Charte des droits et libertés de la personne, L.R.Q. c. C-12
  32. ^ Peter Singer, "The Drowning Child and the Expanding Circle", New Internationalist, April, 1997; http://www.utilitarian.net/singer/by/199704--.htm
  33. ^ 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
  34. ^ 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
  35. ^ John Stuart Mill, Utilitarianism available from many publishers and on-line, first published in 1863
  36. ^ 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
  37. ^ 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.

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