Duty to rescue

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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 who could face potential injury or death without being rescued. 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 and awarded civil penalties, there are also separate ethical arguments for a duty to rescue even where law does not punish failure to rescue.

Common law system[]

In the common law of most English-speaking 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 system[]

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 duty is usually limited to doing what is "reasonable". In particular, a helper does not have to substantially endanger themselves.[23]

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]

Shipping[]

A duty to rescue arises under international shipping law. A ship that is in a position to provide assistance to persons in distress at sea must do so. The requirement is found in the United Nations Convention on the Law of the Sea and represents customary international law.[24]

Regulations by country[]

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 several countries, including[1] Albania, Andorra,[25] Argentina,[26] Austria,[27] Belgium, Brazil, Bulgaria, Croatia,[28] Czech Republic, Denmark, Estonia,[29] Finland, France,[30] Germany,[31] Greece,[32] Hungary, Iceland, Israel, Italy, the Netherlands,[33] Norway,[34] Poland,[35] Portugal, Russia, Serbia, Spain, Switzerland and Tunisia.

Argentina[]

Argentina has legislation on "abandonment of persons", Articles 106–108 of the , 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].[36]

Brazil[]

In Brazil, the Article 135 ("Omission for help") of the Brazilian Penal Code states that: One who fails to provide medical assistance to an abandoned child (or lost) or invalid person (or harmed) who is in peril and no harm is present to himself (or herself), or does not call the public authority for help will be either imprisoned for a period ranging from one to six months or fined. The sentence is increased in half if the failure for help results in great personal injury and tripled if it results in death.

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."[37] 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.

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.[38] Before 2004, the maximum penalty for § 185 and § 253 was only 4 and 3 months, respectively.[39]

Outside hit-and-run incidents, § 253 is used only rarely, though a notable 2014 case saw a woman sentenced to a year in prison for abandoning another woman; the abandoned woman had become stuck in a bog and eventually died from exposure.[40]

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.[41]

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" (failing to provide assistance to a person in danger), which can be punished by up to 5 years of imprisonment and a fine of up to €75,000.

Germany[]

In Germany, unterlassene Hilfeleistung (failure to provide assistance) is a crime under section 323(c)[42] of the German Criminal Code: any person is obligated to provide assistance in case of an accident or general danger if necessary, and is normally immune from prosecution if assistance given in good faith and following the reasonable person's (aka ordinary prudent person's) understanding of required measures turns out to be harmful.[43][44] Moreover, any individual who hinders a person who is providing or willing to provide assistance to another person in need can also be punished under the same section. Also, the rescuer or responder may not be held liable if the action they should take in order to help is unacceptable for them and they are unable to act (for example when unable to act at the sight of blood). In Germany, knowledge of basic emergency measures and certified attendance of a first aid and CPR course are prerequisites for being granted a driving license.

Greece[]

In Greece, a citizen is required by law to provide help to anyone who asks for it in case of a tragedy or public danger, as long as providing help does not endanger him or her personally. According to article 288 of the criminal code, not providing help in those cases can impose a prison sentence of up to 6 months.

Israel[]

In 1998, Israel enacted the "Stand-not-idly-by-thy-neighbor's-blood Law", taking its name from Leviticus 19:16. It requires one to render assistance whenever one is in the presence of a person who, due to some sudden occurrence, is in severe and immediate danger to life, limb or health, provided that one can do so without placing oneself or a third party in danger. Notifying the authorities (e.g. the police or fire department, as relevant) or calling on others who can render assistance for aid is considered "rendering assistance" under the law. A person obliged to render assistance who fails to do so can be fined.

Netherlands[]

According to Article 450 of Dutch criminal law: "He who, being a witness to the instantaneous mortal danger of another, fails to provide or provide such help which he can afford or provide without reasonable danger to himself or others, if the death of the person in need punished with imprisonment of up to three months or a second category fine."[33]

Norway[]

In Norway, Section 287 of the Penal Code[45] states that "A penalty of a fine or imprisonment for a term not exceeding six months shall be applied to any person who fails to provide assistance to the best of his/her ability to a person at obvious risk of losing his/her life or suffering considerable harm to his/her body or health". This is applicable as long as providing help does not endanger him or her personally.

Poland[]

In Poland, Article 162 of the criminal code states that whoever does not render aid to a person in a situation posing an imminent danger of death or serious injury to health, and is able to do so without exposing himself or another person to a danger of loss of life or serious injury to health, shall be subject to the penalty of deprivation of liberty for up to 3 years.

A person who fails to render assistance for which it is necessary to undergo a medical procedure, or in circumstances in which immediate assistance from an institution or a person appointed for that purpose is possible, shall not commit an offence.[46]

Russia[]

In Russia, Article 125 of the criminal code prohibits knowingly abandoning people who are in life- or health-threatening situations when said people cannot 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.[47]

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.

Spain[]

In Spain, a citizen is required by law to provide or seek help to anyone in need as long as providing help does not endanger him or her personally. Not doing so is a criminal offence under Article 195 of the Spanish Criminal Code.[48]

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.[49] 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.[citation needed] 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 involved 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.[50]

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").[51] 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.[52] 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.[53]

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[]

United States[]

In an 1898 case, Buch v. Amory Mfg. Co., 69 N.H. 257, 44 A. 809, 1897 N.H. LEXIS 49 (N.H. 1898), 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.[54]

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.

Some states such as Minnesota, Vermont, and Rhode Island make it a misdemeanor offence if it is known that someone is in serious danger and someone can intervene safely or call 911 and they do not.[55]

Germany[]

In 2016, an 83-year-old man collapsed in a bank lobby in Essen and later died. Several customers stepped over him without providing assistance. With the help of security camera footage, these customers were identified and sentenced to fines of several thousand euro each for failing to provide assistance. A customer who phoned emergency services was not indicted, as he was considered to have provided sufficient assistance.[56]

See also[]

References[]

  1. ^ Jump up to: a b c d Rosenbaum, Thane (2004). The Myth of Moral Justice. HarperCollins. pp. 247–248. ISBN 978-0-06-018816-0. Retrieved 2008-03-15. duty to rescue spouse.
  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. ^ Jump up to: a b Peters (January 2001). "Torts II syllabus". University of Missouri-Columbia school of Law. Archived from the original on 2012-12-11.
  4. ^ Bayles, Michael; Bruce Chapman (1983). Ethical Issues in the Law of Tort. New York: Springer-Verlag. pp. 20–21. ISBN 978-90-277-1639-2.
  5. ^ See, for example, Aba Sheikh v. Choe Archived 2011-07-21 at the Wayback Machine, 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. ^ "Rowland v. Christian, 69 Cal. 2d 108 (1968)". Retrieved April 19, 2014.
  9. ^ Rosenbaum, Thane (2004). The Myth of Moral Justice. HarperCollins. p. 248. ISBN 978-0-06-018816-0.
  10. ^ Jump up to: 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. ^ Florida Legislature. "316.062 Duty to give information and render aid". Retrieved 2 February 2019.
  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". Archived from the original on 2009-04-30. Retrieved 2008-10-10.
  21. ^ Washington Rev. Code Ann. § 9.69.100(1)
  22. ^ Wisconsin Stat. Ann. § 940.34
  23. ^ "German Criminal Code, Section 323c Omission to effect an easy rescue".
  24. ^ See article 98(2) UNCLOS, article 12(2) High Seas Convention, and https://www.icrc.org/en/download/file/56144/irc98_7.pdf
  25. ^ articles 199, 278, 279, 310 of Andorran Criminal Code
  26. ^ Argentine Penal Code laws regarding crimes against the person (in Spanish)
  27. ^ Austrian Criminal Code § 95 StGB
  28. ^ Croatian Criminal Code art. 123
  29. ^ Estonian Criminal Code §124
  30. ^ French Criminal Code §63(2)
  31. ^ German Criminal Code §323c
  32. ^ Greek Criminal Code Article 288 paragraph 2
  33. ^ Jump up to: a b Koninkrijksrelaties, Ministerie van Binnenlandse Zaken en. "Wetboek van Strafrecht". wetten.overheid.nl (in Dutch). Retrieved 2020-07-10.
  34. ^ "The Penal Code". Lovdata. Retrieved 8 July 2021.
  35. ^ Polish Criminal Code §162
  36. ^ Argentine Penal Code laws regarding crimes against the person (in 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".
  37. ^ Charte des droits et libertés de la personne, L.R.Q. c. C-12
  38. ^ "Bekendtgørelse af straffeloven" [Promulgation of the penal code]. retsinformation.dk (in Danish). The Danish Ministry of Justice. 2015-07-09. Retrieved 2016-03-20.
  39. ^ "Bekendtgørelse af straffeloven (2003)" [Promulgation of the penal code]. retsinformation.dk (in Danish). The Danish Ministry of Justice. 2003-09-30. Retrieved 2021-05-13.
  40. ^ Bech Jessen, Freja (2014-06-19). "Anklaget i sag om pligt til at hjælpe fik nedsat straf i landsretten" [Defendant in duty to rescue case has sentence reduced in superior court]. Kristeligt Dagblad (in Danish). Archived from the original on 2016-08-06. Retrieved 2021-05-13.
  41. ^ Audrey Laur Liabilities of Doctors on Aircraft Med Leg J March 2013 81:31–35 http://mlj.rsmjournals.com/content/81/1/31.extract[permanent dead link]
  42. ^ "§ 323c StGB – Einzelnorm".
  43. ^ "§ 34 StGB – Einzelnorm".
  44. ^ "§ 17 StGB – Einzelnorm".
  45. ^ "Section 287. Neglect of duty to assist". Lovdata.no. Retrieved 8 July 2021.
  46. ^ "Ustawa z dnia 6 czerwca 1997 r. - Kodeks karny".
  47. ^ "Статья 125 УК РФ. Оставление в опасности".
  48. ^ "Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal". Retrieved 6 February 2019.
  49. ^ Peter Singer, "The Drowning Child and the Expanding Circle", New Internationalist, April, 1997; http://www.utilitarian.net/singer/by/199704--.htm
  50. ^ David Folkenflik, "Reporters Who Are MDs Find Lines Blurred in Haiti", National Public Radio, January 20, 2010, https://www.npr.org/templates/story/story.php?storyId=122784322
  51. ^ John Stuart Mill, Utilitarianism available from many publishers and on-line, first published in 1863
  52. ^ 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
  53. ^ 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.
  54. ^ 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
  55. ^ In Which States do I Have a Duty to Help? Trinh, Li. Findlaw.com. 15 May 2015. Retrieved 6 February 2019.
  56. ^ "Unterlassene Hilfeleistung für Rentner in Bank – Angeklagte müssen Geldstrafen zahlen" [Failure to provide assistance to pensioner in bank – suspects must pay fines]. Spiegel Online (in German). 2017-09-18.
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