The absence of a generalized duty to rescue is a perennial feature of the first year of law school. Generations of law students have learned of the existence of the no-duty rule by reading hypothetical cases of babies who drowned in puddles while Olympic swimmers stood by and did nothing, and real cases, such as Yania v. Bigan and Kitty Genovese in which bystanders did not intervene or notify the police when someone required rescue -- with tragic results. The no-duty rule prevails in most of the United States, but it is not popular. As I noted in an 2006 article in the Texas Law Review, incidents of non-rescue seem to result in a predictable cascade of events:
When a case of non-rescue becomes public, newspaper editorials and television commentators will denounce the indifference of bystanders. If the non-rescuers can be identified, they will be held up to public scorn. The responsible district attorney will reluctantly acknowledge that the criminal law is powerless in such cases while condemning the non-rescuers on moral grounds. If a tort case is actually brought against a non-rescuer, the judge will throw it out, but note that the non-rescuer must answer to God for failing to act. Politicians will introduce legislation reversing the common law rule. Comparisons will be drawn to other infamous cases of non-rescue, such as Kitty Genovese.In short order, academic conferences and symposia will be held at which speakers will criticize the no-duty rule and the indifference of bystanders. Communitarians will suggest that Americans are insufficiently civic minded. Social meaning scholars will suggest that the no-duty rule is sending the wrong “expressive” message. Feminists will decry the “male” orientation of tort law, with its emphasis on individual autonomy and rule-based decision-making. Psychologists and evolutionary biologists will report the insights derived from research on altruism and collective inaction. Corrective justice scholars will argue that the law should enforce common moral intuitions. Comparative law scholars will suggest the United States should follow the rest of the civilized world in adopting a duty to rescue. Law and economics scholars will debate whether the no-duty rule is efficient. Doctrinal scholars will debate the relative merits of criminal and tort sanctions in dealing with future non-rescues. Law review articles and notes condemning the current state of the law will be published. The sequence will then terminate, to be repeated after the next instance of non-rescue.
Everyone involved in these serial exercises in ritual indignation behaves as if non-rescues occur frequently enough that a statutory solution is urgently required. Stated more concretely, the entire debate over the no-duty rule has proceeded based on the assumption that non-rescues are too common, meaning that rescues are too infrequent. Proponents of a duty to rescue have argued that a statutory solution can decrease the frequency of non-rescue and increase the frequency of rescue, without creating undue distortions or other difficulties. Opponents of a duty to rescue have argued that such statutes are ineffective, infringe on individual liberties, and are likely to be misused by politically ambitious prosecutors.
A recent incident, involving a lawyer, provides a striking counter-example to the usual framing of the debate over the no-duty rule.
Longtime Washington lawyer Charles Schulze collapsed and died this weekend in Florida after diving into the ocean to save two drowning children. When news of the 73-year-old’s death reached colleagues at his firm, Schulze & Pederson, they were dismayed, but not shocked. Somehow, the doomed act of heroism was exactly the sort of thing they expected from their boss, says one co-worker, Sherri Lahay Lasover. According to the South Florida Sun-Sentinel, the fatal incident occurred while Schulze was on vacation in Pompano Beach, Fla., with Helen Smith, his partner of 20 years. The two were walking along the shore when Schulze noticed two brothers, 9 and 12, struggling in the surf. He dashed into the water and grabbed the younger boy, before swimming out more than 40 yards to fetch the older child as well. Schulze collapsed as he brought the older boy to shore. By the time paramedics arrived on the scene, he had no pulse.
News coverage of this heroic rescue may be found here, and here, and here, with an obituary of Mr. Schulze in the Washington Post here.
Most discussions of the duty to rescue focus only on the victim of a non-rescue. Rescue is ignored, as are the consequences for a rescuer of "getting involved." However, rescue and non-rescue are two sides of the same coin – so in thinking about the costs and benefits of imposing a duty to rescue, it is useful to look into the frequency and consequences of non-rescue and rescue, and compare the experiences in states that do and don't have a generalized duty to rescue. More years ago than I am willing to admit, I started collecting data on those issues. My TLR article provides the first empirical assessment of some basic questions about rescue and non-rescue, including
- What is the provable frequency of rescue and non-rescue in the U.S.?
- How often are rescuers injured or killed?
- How often does non-rescue result in injury or death?
- Is there a difference in rates of rescue and non-rescue when comparing states with and without a duty to rescue?
- What motivated the three states that had a generalized duty to rescue at the time the article was published (Vermont, Rhode Island and Minnesota) to adopt a duty to rescue?
- To what extent is Mr. Schulze a representative case?
In subsequent posts I will address these issues. The article, Rescue Without Law: An Empirical Perspective on the Duty to Rescue,” 84 Tex. L. Rev. 653-738 (2006) is here.
7. How often are rescuers sued?
After Van Horn v. Torti came down from the California Supreme Court, prospective rescuers have another reason not to go to the rescue of someone whom they are not obligated to rescue.
Personally, unless I was CERTAIN that there was NO risk of being sued for rescuing a stranger I would not intervene. I am not prepared to put all that I have accumulated over a lifetime of work at the mercy of the plaintiff's bar. Sorry, but in my view the greed of the plaintiff's bar has brought society to this state.
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I think there is a significant intersection between that sentiment (I share it) and the fact that policies that liberalize the carrying of concealed firearms don't result in more shootings (especially by those who are able to intervene).
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The state pays and indemnifies professionals to intervene for strangers.
Doubly so, since with CCW intervening can get you charged criminally, or even shot, not just sued.
My life insurance likely doesn't pay off if I take a calculated risk to help another and lose.
Police have no responsibility to an individual person. How then can the state impose a duty to rescue on a (possibly) untrained or ill-equipped citizen?
Gun contol advocates always poo on the ability of citizens to handle firearms as well as police, as a canard to argue against concealed carry law and generally for citizen disarmament.
So I guess a "duty to rescue" law has to recognize the "monopoly on use of force" by the state (and is shared with criminals, who carry weapons and use force as needed, citizens being in the middle) and release citizens from the duty in some situations.
Intersting contrast in assigning a duty and perhaps not limiting to reflect limits imposed by the state to accomplish the duty, or a higher duty than the state's law enforcement officers.
A lawyer can't sue someone without a client. I would say it's the greed of the plaintiffs and politicians that has brought society to this state.
This is important. Even if you win the lawsuit, no rescuer wants to go through being sued.
Now, if I'm not supposed to protect my own life, what possible duty can I have to protect someone else's?
How's that for adding insult to injury? Drown, and then get sued by your would be rescuer?
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Assuming the situation clearly admits the use of deadly force to save a stranger, there is little risk of criminal liability. But the risk of civil liability is everpresent. The Kitty Genovese case comes to mind, where an armed intervenor could have helped; an unarmed intervenor would be crazy to go up against a man wielding a knife.
No, not unless the claim is frivolous. Penalties are only imposed on attorneys who bring frivolous claims and defenses. For example, there are no penalties imposed on a lawyer asserting the rescue defense, merely because it is ultimately unsuccessful.
As I write, 5/7 of the responses are about being sued. I don't want to be sued either, but it's last on my list. My worries go something like:
1)I will fail
2)I will do more harm than good
3)I will die
4)I will blame myself for the rest of my life for not
doing all I could
5)I will get sued
If I do the right thing but get sued anyway, that's what insurance companies are for.
At any rate, hasn't the Kitty Genovese story been at least partially discredited over the years (if not in some minds, thoroughly debunked as more of a NYT hyper-sensationalism as opposed to true fact?
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Rescuer's insurance?
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I wouldn't stand by and watch somebody drown if there was a way I could help, and I'd pull a kid off the highway, I'd staung an arterial bleed, etc. But at some point a rescue situation calls for professionals, and I'd just "move on."
It isn't that your concerns aren't shared by us, but they aren't very controversial. Your 1, 3 and possibly 2 would likely keep a person from being prosecuted under a duty to rescue law. Also, your 2 is closely related to 5. For example, we aren't worried that we are going to get sued for invading someone's personal space, but that some negative consequence either because or in spite of our efforts are going to have negative consequences for us.
Even though I am curious about which combinations are more likely, that does not mean that I will never help anyone, I will just do so when I am pretty sure I can help without hurting.
What do you expect? This is a legal blog, after all.
http://tinyurl.com/ct7jhj
"bus matron who left a disabled student on a bus was sentenced to community service and three years' probation Thursday, even as the case against her own son's killer goes to court Friday.
Linda Hockaday, 51, whose 19-year-old son was shot dead on a Brooklyn street five years ago, told the Daily News that she was "buddies" with cerebral palsy victim Ed Wynn Rivera, 22, who spent 17 hours strapped into a bus last New Year's Eve.....
...."We were like buddies," she said of Rivera. "There's not a day I don't think about that kid. But I wasn't the last one to see him; the bus driver was. They made me look like the scapegoat." .....
The bus driver wasn't charged because it was Hockaday's job to see that all the riders were off the bus, said a spokesman for the Brooklyn district attorney's office."
She was prosecuted because it was her JOB to get everyone off - not to leave before. That imposed on her a duty. The bus driver did not have a duty to rescue. He was actually a very new employee, turned out to have a criminal record and was fired.
that those scholars were correctly stating much of the civilized world's laws. There have been a few recent incidents in the UK where "professionals", ie. bobbies and firefighters, have been criticized by family members and the press in the manner you describe because they "stood by" whilst persons died. It seems their work rules call for them not to risk their own lives during rescue attempts. Maybe this issue needs to be rethought.
I have to laugh at the commentators mentioning turning things over to "professionals". Sounds somewhat wimpish, to me. [sorry] Unless, of course, one is not physically fit enough to take appropriate action. But professional training does not truly prepare one for taking fast action in emergencies. One either has that ability or doesn't.
Mr. Schulze is a hero, and thus an example to follow.
Sure, it's just that getting sued seems like the smallest of consequences. I'm in the overturned car, gas everywhere, unconscious passenger. I worried a LOT about the relative risks of fire and hurting the passenger by moving them. Getting sued later just didn't seem very important at the time. Or one woman assaulting another - not a particularly serious assault, except the victim almost went under a bus trying to escape. I pulled the attacker off, who immediately started screaming 'how dare you put your hands on a WOMAN!', at which point everyone turns around to look. I was hoping at least some of the witnesses had seen the whole incident, but again, being sued just wasn't on the worry list.
Let's say I guess wrong on a first aid decision, and kill someone who would have lived without my 'help'. My problem then would be living with myself, not getting sued.
Not having a legal duty to help is a cold comfort to me; the law might not be unhappy with me, but I would be unhappy with myself. Waking up at night thinking 'that person would be alive if only I had ...' scares me a lot more than frivolous lawsuits.
In 1994, Dr. Jack B. McConnell founded the first VIM clinic on Hilton Head Island, South Carolina. Soon after relocating to Hilton Head, he learned that one-third of the local residents (twice the national average) had no health insurance or access to quality health care. As a result, Dr. McConnell lead the community initiative that built the first VIM clinic, ensured that malpractice insurance premiums for retired physicians were covered under a state ?Good Samaritan? law, and worked behind the scenes with SC legislative leaders to create a special volunteer license for physicians licensed in other states so they could volunteer in SC free clinics. Two years later, the VIM Institute was established as a separate non- profit corporation to assist communities throughout the country with the development of a VIM clinic.
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FWIW, I had a subset of rescue situations in mind, where the rescue involved the use of deadly force.
I live in the area of the recent multiple fatal tour bus accident involving a group of French tourists. The day [and days] following the accident the local paper, local TV stations and my internet browser were lit up with ads for law firms specializing in handling Tour Bus Accident litigation. Most from far out-of-state. Could this have been a coincidence? Is there a shortage of qualified litigators in California? I'm not saying these lawyers were being greedy, but they were certainly not shy about converting another's grief into an opportunity for mutual benefit. So I'm disagreeing with your defense of the "plaintiff's bar" meme. There is a certain truth to that, I'm afraid.
Do I have an answer? No.
How about some tort reform where contingency fees are outlawed?
(Shhhhh! Listen to the sharks howling!)
I'm going to go out on a limb and speculate that very few laypersons, and probably not even most lawyers, think of tort liability when they're confronted with an emergency rescue situation. Based on my own extremely limited experience, the basic thought process I had in such an emergency was limited to:
#1 can I do any good?
#2 will I get hurt myself?
#3 is anybody else in a better position to help?
Before the rather simplistic conclusion "somebody needs help NOW and nobody else is doing anything, so I have to" kicked in.
On my #3 consideration as an excuse for inaction, a story about Michigan Law Professor Yale Kamisar from many years ago (possibly even true, since I heard Kamisar tell it himself): He was teaching the Kitty Genovese case in 1L Criminal Law. Several self-righteous Midwestern students opined that something like that would NEVER happen in The Heartland, and Ms. Genovese's predicament was solely the fault of cold, uncaring New Yorkers. Native Brooklynite Kamisar was a tad offended by this upper-Midwest hubris, so he set up an experiment in the next class. He conspired with a student from New York for the student to (a) put his head down on the desk, (b) one minute later slowly crumple to the floor, and (c) play dead, to see how long it took for someone to do something. The "victim" played his part perfectly. Kamisar continued his usual high-decibel pseudo-Socratic ranting for several minutes while the "victim" lay on the floor. The student seated next to the victim and the students in the row behind all looked perplexed, but none assisted the victim nor interrupted class to get help. Eventually Kamisar stopped class and triumphantly called out the students for being just like the Genovese bystanders.
Punch line: the surrounding students got a lot of grief from other students. However, the folks in the row behind justified their inaction by pointing out the student seated next to the victim was a lot closer and had a "greater duty" to rescue. The poor schmuck next to the victim got so much grief from others and became infamous enough around Hutchins Hall that he eventually dropped out of law school.
There are many duties without laws to back them up, that can't have laws to back them up. The duty to stick by a buddy when he's in trouble, to bring food to and express condolences to the bereaved, to not sever a relationship during certain kinds of crisis, to perform the necessary offices after a relative dies, are all perceived as duties of a strong kind, over which no one wants there to be a statute. You shun someone who bails on his significant during her chemo; beyond marital law, if it applies, you don't expect a law.
Rendering assistance when you are (a) right on the spot and can and (b) time does not allow any alternatives, is a very strong and separate duty. It is a recognition that when burden sharing and prior preparation are simply not in play, common humanity requires you to help if you can. If the child is drowning in the waves and you can't swim, you can't help. If the child is stuck on a rock after the tide started coming in and will drown if nobody helps in the next four hours, you don't have to swim out ... you can call the Coast Guard. If the kid is in trouble and the surf is a little rough and there is a large rowboat nearby, you can demand that the other people with you help row. But if you're the only one there, you're expected to do what you can. Failure to live up to it shocks the conscience; all the legal arguing comes after the fact.
This by the way is why I find all the "Bugatti versus child on the train tracks" line of moral argument so unpersuasive. It is used to argue that we must all beggar ourselves if there is a hungry child anywhere on earth, but confuses two duties. One to help people in a general way, where arguments about effectiveness, burden sharing, the right to one's own property, collective and individual responsibility all come in, and another where the need is urgent and particular.
Its a policy discussion about what people should do and how the law is structured around it. If you have an impulse to help, then you should be pushing for good Samaritan laws and possibly duty to rescue laws. If you think having a bunch of untrained people doing whatever pops into their heads is a bad idea, then you probably don't want those laws.
In the heat of the moment, the risk averse people here are most likely not thinking specifically about lawsuits per se, but what if something goes wrong and it is their fault. Later, they may say that their concern was a lawsuit, but it wouldn't surprise me if the actual thought of lawsuit didn't happen at all.
There has to be a clear distinction between obligations that one accepts for oneself, that we would disapprove of others for failing to meet, versus obligations that can be legally imposed. Or else you have a monumental can of worms.
The erosion seems to have begun with the advent of official call-ups and legal penalties for failing to respond to those, but omitting unofficial call-ups or the equivalent.
It is all part of an "officialization" of civic action, hiring "public servants" to do things and discouraging civilians. The end of that road is that those public servants become the masters.
As I have reported in a previous comment some months ago, I was once in a courthouse when an assistant county attorney got knifed by an irate dad in a family law case. I rushed over to give him first aid while everyone else in the courthouse stood by or even ducked out of the area to avoid being seen to stand by. I can't take credit for saving his life: the knife only knicked his heart and internal bleeding wasn't that great, at least after I positioned his body to minimize if.
I never worried about being sued. Just did what I do.
Met the victim in court a few years later. He had advanced to judge. He didn't recognize me and I didn't bring it up.
The classic example of this comes from the numerous multiple fatality case arising in "confined spaces". Worker #1 goes into the space and is overcome by fumes which are present. One after another, co-workers rush in to attempt a rescue and succumb to the same toxic fumes.
This is not to say that people should do nothing, but in some cases the best action may be to call for help rather than being know at your funeral as victim #2.
That said, if I'm going to be prosecuted for not risking my life in a rescue, what assurance do I have that my family will be compensated for my death or disability resulting from the attempt?
"A lawyer can't sue someone without a client."
Boy, are they out there looking for them. Hard.
does anybody disagree with this?
clearly, not rescuing somebody, when it would be easy and not a risk to do so is immoral.
clearly, if you see a person bleeding out from a chest wound and you don't call 911 for them with your cell phone, you are immoral.
but generally speaking, we are not (legally speaking) our brother's keepers. we have a duty not to hurt others. we do NOT have a *legal* duty to help our fellow man.
it's that simple.
those of us who have chosen certain careers (firefigher, cop, etc.) DO have such a duty.
Pretty much.
http://kewgardenshistory.com/ss-nytimes-3.html
Actually it took place on a sound stage in Burbank, CA.
"You shun someone who bails on his significant during her chemo..."
Has John Edwards been "shunned?" Sure, but some of us, but by society in general?
I think not. The press is already talking about his rehabilitation.
That wording scares me to some extent for a couple of reasons:
1) Hazards of rescue are often underestimated.
2) Although Minnesota and California don't have the same legal tradition, the fact that the latter restricted good sameritan protections to those who provide medical assistance really SHOULD make someone worry that one might be sued WHETHER OR NOT one is involved in a rescue attempt if the other person is injured at the end.
Now, I usually DO stop to try to help in many cases. However, I oppose the idea that I should have a legal duty to do so.
Scenario: You're driving on a lonely country road after dark. You see a car stopped at the side of the road, and a young woman next to it waving her arms. You stop to offer assistance ... and two large, armed men emerge from the bushes. They want your wallet and your car.
How does a society with Duty to Rescue laws handle this?
I am a member of the US Coast Guard Auxiliary, uniformed civilian volunteers who assist the Coast Guard with its non-military, non-law enforcement missions. (By statute the auxiliary cannot take part in those missions.) We are instructed not to go into the water to rescue someone. The chances of both the rescuee and the potential rescuer needing rescue are too great. That is official policy, and I adhere to official policy. The old motto from the USLSS - You Got To Go Out, You Don't Got To Come Back - is not to be done. That is official policy.
If someone from the Coast Guard - regular, reserve, or auxiliary - saw a child struggling in the water I would not bet on official policy.
There is a real reason for the official policy, it isn't callousness. And, IIRC, many states have passed 'Good Samaritan' statutes to protect inept rescuers from tort, to protect those citizens who choose to answer the call when the situation taps them on the shoulder and says "Who are you? What sort of man are you? Will you go?"
I also was an instructor for American Red Cross First Aid/CPR for a number of years. My state has a "Good Samaritan" law, and has not yet pulled a California. However, we have a Democrat governor, legislature [both houses], and most definitely a very liberal Democrat judiciary. Therefore, the issue is in doubt. As an instructor, I was required by the curriculum to emphasize the legal safety of acting as a first aider.
Given the California decision, I would not today make that same recommendation. When things happen, the first driver of events is the psychological state of the would be rescuer. Some of us are Sheepdogs, some are not. Military, police, EMT's, martial artists tend to have the impulse to act; as do some civilians. The rest tend to hang back until they see an example of action or receive direction from someone taking charge.
Assuming someone does act, hopefully they have the skills and situational awareness to accurately analyse the situation and choose a course of action. That situational awareness includes an instantaneous evaluation of risks.
Right now, with the legal profession tending to eliminate protections for rescuers [what happens in California tends not to stay in California], the addition of a civilian "duty to rescue" places the potential rescuer in an untenable situation. When you are doing something like that, an individual may make a choice to risk themself, for a limited period of time where the goal is perceived as being worth the personal risk. That evaluation changes when the risk is not for a limited duration, and now involves your entire family and future.
The rational person will have that in the back of his mind as part of the situation he is evaluating. There is a reason that I was required to emphasize "Good Samaritan". Because unjustified lawsuits are a very real fear in the minds of people, even if they do everything right. After all, our tort system has become the equivalent of a casino, with no surety of a just or fair outcome. If they cannot be sure of the protections, and they know that they will be prosecuted if they don't act, the only safe and rational response will be creative blindness to a crisis. That will quickly become the standard response.
If I happen on to a situation, even with the voiding of "Good Samaritan", I probably will respond because that is the way I am built. I am no longer required to since I retired. If I find myself suddenly placed in a position where no matter what I do, successful or not, I and my family are at the mercy of lawyers; ... well they have not yet found a way to equate ignorance of a situation with mens rea.
Subotai Bahadur
If the water temps are too low we wear 'mustang suits' full body suits that are also PFDs to keep us from hypothermia. And we have throwable devices on board (life rings). Otherwise we wear the ODU and a PFD when on the water. And yes, we are trained to assess the situation before doing anything, TCT.
I wouldn't stop if I saw a car stranded. I'd assume the occupants have a mobile phone and have already called for assistance.
If it were an accident scene with no visible injuries, I'd take out my own phone and call 112/911 to send assistance.
If there were visible injuries, I might stop and try to offer assistance.
But given that police here are getting ever more inventive in hiding speedtraps, it's more likely the scene is a masked speedtrap than an actual accident, and people have been arrested for tampering with a police investigation for trying to assist in such cases.
For example last year a person spotted an illegally positioned dumpster. He stopped to move it out of the roadway, at which point several uniformed police officers ran up and cuffed him for interfering with a police investigation. The dumpster had been hiding a speedtrap.
I'd also be extremely wary if any women or children were involved.
Being a single man, even looking at a women or child is likely to get me branded a sexual deviant. Touching one, even if it is to save their lives, is almost certain to get me arrested for molestation and put on a sex offenders' registry.
* Not everyone is competent to every rescue situation. As with your example, rescue efforts often risk life and limb and compound the problem for arriving trained rescuers.
* Impulsive or misguided rescue efforts often cause more harm than no effort.
* Even trained officers often have difficulty assessing perp and victim in aggression situations.
* Good Samaritan situations are already used to lure crime victims.
That may sound like I'm not willing to come to someone's aid; just the opposite. But I like to do it with eyes open. Still, I found myself urging caution of many types when one of my sons knocked out a 6'4 athlete groping a classmate of his against her will in an alleyway behind a club as the two bouncers studied the situation from a distance. He could've been the one knocked out. He could've broken his hand. Perhaps worst of all, he could've been sued. I was proud as hell, though.
It is precisely these tort actions against people who make a good-faith effort to help that are the real problem.
Let's think about which results we would want in an optimal situation, and then what policies would be necessary to encourage that situation. Obviously we want people to help others who are in danger. We don't want them to do it stupidly - if someone is getting mugged by a man with a gun, attacking him with bare hands is not really helping, nor would jumping in the flood-swollen river to save a drowning man when you yourself can't swim. We definitely don't want trained would-be rescuers to fail to offer aid because of concerns of legal liability, however.
To produce such a situation, it's not unreasonable to have strong Good Samaritan protections and a weak duty to rescue. One of the keys is to make sure that hero-rescuers are absolutely not liable for anything caused by the original accident, or extreme measures that were necessary to rescue the victim. (Compounding an arm fracture is bad, but doing it while pulling someone from a burning vehicle...) Nor should would-be rescuers be liable for a failure of rescue - sometimes the victim is going to die regardless, but we don't want that holding back the efforts of a rescuer.
On the flip side, the important thing to remember with respect to duty-to-rescue law is that rescuers can place themselves at risk, possibly compounding the original rescue. People who can't swim should not jump in the river to save a drowning man! But it doesn't necessarily follow that even such a person has no constructive action they could take. It might be reasonable to require people to render what aid they can - go looking for a line to throw, call 911, what have you. It's important to keep in mind, though, that it's very easy to second-guess additional things that could have been done to rescue someone after the fact, whereas many steps simply might not occur to the observer; there's no societal benefit in suing someone who just happened to be passing by because a combination of actions that might have saved a life didn't occur to them.
I'd also be very careful regarding any requirement to stop a motor vehicle, in light of situations described by earlier commenters. If you're involved in an accident, sure, but if you're a passing motorist, you're more likely to be in danger from someone using an apparent emergency situation as a trap (or from being struck by another vehicle, which happens to plenty of police officers even though they're trained on how to avoid it) than the putative victim is from the situation they're in.
I'd also have an iron-clad rule about the defendant's legal costs being paid by the plaintiff in Good Samaritan cases. For that matter, I would fund the defense at public expense, if I could, even in cases where the defendant lost. Encouraging heroics is a public good!
Finally, since we have a balance of interests here, put that in the law too. If you incur legal liability by acting as a rescuer, that needs to figure directly on whether you actually have a duty to rescue. On the flip side, if the rescuer has total protection against liability, it's reasonable to assign a greater duty to rescue.
Frankly, any person I rescued from mortal danger who turned around and sued me afterward should be concerned that I would retroactively revoke my assistance.
... One of the keys is to make sure that hero-rescuers are absolutely not liable for anything caused by the original accident, or extreme measures that were necessary to rescue the victim. (Compounding an arm fracture is bad, but doing it while pulling someone from a burning vehicle...)
On the other hand, just about everyone knows -- and should know -- that you should not move an unmoving accident victim unless there's a damned good reason to do so, because of the potential for spinal-cord injury.
There are times when "assistance," however well-intentioned, does far more harm than good. If the would-be Good Samaritan renders aid that harms the victim, and IF the Good Samaritan knew or reasonably should have known that the risk far outweighed the benefit but does it anyway, then I say go ahead and sue the reckless idiot.
1. All persons should be trained in militia, including military defense, law enforcement, and disaster response, so that when they perform their duty to respond they also have the skills to do so competently.
2. We need to institute some filtering process to protect defenders from meritless suits, such as requiring consent from a grand jury, which could deny the complaint or decide the defendant should be defended at public expense.
3. Duty to defend and good Samaritan laws need to be combined, not adopted separately (or not) in each state, and there needs to be one, part of a militia statute, at the federal level. This would not be just a duty to "rescue", but to defend from all manner of threats to life and health. If one is aware of a toxic waste spill and doesn't report it he should be prosecuted, as he should if he becomes aware of a threat requiring a public response and fails to issue a call-up. It should also extend to the protection of investigative journalists and whistleblowers.
4. It should be an offense to fail to respond to a call-up issued by any credible person of a threat requiring a response, as well as to fail to issue one. That includes issuing a call-up to oneself.
Many of the things Congress has been attempting to do, unconstitutionally, under the alleged authority of the Commerce Clause can be constitutionally done under the authority of the militia clauses. But there must always be a nexus to an imminent threat to public safety, and response does not extend to ongoing regulatory intervention, other than for things like organizing and training.
Shakespeare would have made an exception for Mr Schulze.
Morality is necessarily a personal choice. “Requiring” a person to make a certain “moral” decision takes away the decision, thus preventing the person from acting morally, in the same way you cannot require someone to volunteer. Various U.S. courts, all the way to SCOTUS, have repeatedly held that law enforcement officers have no duty to protect any individual not in their custody.
How will it be determined that a person with a duty to rescue had the capacity (physical, mental) to attempt a rescue with a good enough chance of success?
How is the chance of success determined?
Some of my heros are those folks that dare to swim right into a shark attacks to rescue the subject of the sharrk;s attention.
901.18 Officer may summon assistance.--A peace officer making a lawful arrest may command the aid of persons she or he deems necessary to make the arrest. A person commanded to aid shall render assistance as directed by the officer. A person commanded to aid a peace officer shall have the same authority to arrest as that peace officer and shall not be civilly liable for any reasonable conduct in rendering assistance to that officer.
On first reading it sounds like the statute is criminalizing failing to aid a police officer when so commanded. However, there is no "it shall be unlawful" phrase, nor any penalty provided for failing to respond to such command. Given that, it would appear the only purpose of the statute is to (attempt to) immunize bystanders who respond to the command for assistance from liability for false arrest, injuries sustained by the arrestee, etc.
Just thought I'd throw it out there. Don't know if it is a Florida oddity or if this is common.
Most states have comparable statutes. What are more interesting are statutes on arrests by civilians without a "peace officer" involved.
This is, I believe, an instinctual reaction. I expect a lot of people will run over and involve themselves in a foolish attempt to help. I firmly believe that those stories of crowds of people doing nothing -- the Kitty Genovese sotry from thirty years ago leaps to mind -- were a matter of "Well, some one else has probably already taken care of it." But when it's clear that no one else is taking care of it, then a lot of people go in to help -- and damn the consequences.
Bob
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