Duty to rescue Information & Duty to rescue Links at HealthHaven.com

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.

[edit] United States common law

In the common law of the United States, 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:
- Emergency workers (police, firefighters, emergency medical technicians, etc.) have a general duty to rescue the public within the scope of their employment, but not a duty to specific individuals.^[5]
- Parents have a duty to rescue their minor children. This duty also applies to those acting in loco parentis, such as schools or babysitters.^[6]
- Common carriers have a duty to rescue their patrons.^[7]
- Employers have an obligation to rescue employees, under an implied contract theory.^[8]^{[unreliable source?]}
- Property owners have a duty to rescue invitees from all dangers on the property.
- Spouses have a duty to rescue each other in all U.S. jurisdictions.^[9]
- Contrary to common law, eight states have laws requiring people to help strangers in peril: Florida,^[10] Massachusetts,^[11] Minnesota,^[11] Ohio,^{[statute verification needed]} Rhode Island,^[11] Vermont,^[11] Washington,^[11] and Wisconsin.^{[statute verification needed]} These laws are also referred to as Good Samaritan laws, despite their difference from laws of the same name that protect individuals that 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 rescuer need not endanger himself in conducting the rescue.

[edit] 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.^[12]

[edit] European law

Unlike the United States, many European civil law systems provide 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.

In theory,^{[neutrality disputed]} this can mean that if a person finds someone in need of medical help, she/he must take all reasonable steps to seek medical care. 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]}

[edit] 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, Belgium, Bulgaria, Croatia,^[13] Czech Republic, Finland, France,^[14] Germany,^[15] Greece, Hungary, Italy, The Netherlands, Norway, Portugal, Russia, Serbia, Spain, and Switzerland.

[edit] 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 of jail time and a fine of up to €100,000.

[edit] Germany

In Germany, "Unterlassene Hilfeleistung" (neglect of duty to provide assistance) is an offense according to paragraph 323c of the Strafgesetzbuch; a citizen is obliged to provide first aid when necessary and is immune from prosecution if assistance given in good faith turns out to be harmful. 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 dealing with blood). In Germany, knowledge of basic emergency measures is a prerequisite for the granting of a driving license.

[edit] Canadian law

In Quebec, which falls under 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."^[16]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.

[edit] See also

[edit] References

^ ^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.
^ 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]
^ ^a ^b Peters (January 2001). "Torts II syllabus". University of Missouri-Columbia school of Law. http://law.missouri.edu/peters/t2syllabus.html.
^ Bayles, Michael; Bruce Chapman (1983). Ethical Issues in the Law of Tort. New York: Springer-Verlag. pp. 20–21. ISBN 9027716390.
^ Castle Rock v. Gonzales
^ 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)
^ See, e.g., De Vera v. Long Beach Public Transportation Co. 180 Cal. App. 3d 782, 225 Cal. Rptr. 789
^ 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."
^ Rosenbaum, Thane (2004). The Myth of Moral Justice. HarperCollins. p. 248. ISBN 9780060188160.
^ 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.
^ ^a ^b ^c ^d ^e 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.
^ 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
^ Croatian Criminal Code §104, §105 (Croatian)
^ French Criminal Code §63(2)
^ German Criminal Code §323c
^ Charte des droits et libertés de la personne, L.R.Q. c. C-12

[Rosenbaum-0] 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.

[1] 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]

[Peters-2] Peters (January 2001). "Torts II syllabus". University of Missouri-Columbia school of Law. http://law.missouri.edu/peters/t2syllabus.html.

[3] Bayles, Michael; Bruce Chapman (1983). Ethical Issues in the Law of Tort. New York: Springer-Verlag. pp. 20–21. ISBN 9027716390.

[4] Castle Rock v. Gonzales

[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] 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."

[8] Rosenbaum, Thane (2004). The Myth of Moral Justice. HarperCollins. p. 248. ISBN 9780060188160.

[316.062_Duty_to_give_information_and_render_aid.-9] 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.

[WashPressRelease-10] 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.

[11] 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

[12] Croatian Criminal Code §104, §105 (Croatian)

[13] French Criminal Code §63(2)

[14] German Criminal Code §323c

[15] Charte des droits et libertés de la personne, L.R.Q. c. C-12

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