Thinking About the Lack of a Duty to Rescue

I participated in a panel discussion at a local high school a week or so ago.  The attendees were high school students and their parents.  The other participants on the panel included a local juvenile court judge, a police officer, and an assistant district attorney.

Some of the questions included the potential liability of parents for furnishing alcohol to minors and various, easy-to-imagine spin-off questions.  One question was the liability of an adult who comes upon a drunken minor but did not nothing to furnish alcohol to the minor, did not own or occupy the site where the alcohol was given to the minor, and had no relationship with the minor.  If the adult simply ignores the minor and watches him get into a car and drive away, does the adult have any liability if the minor dies in a one-car wreck a block down the road?

This is a moral and a legal question – and I informed the group that I would leave  the moral question to" pillow test."  Legally, there is no liability on the adult because there is no duty on the adult to rescue another from the potential for harm or to otherwise come to the aid of a stranger.  We had a nice discussion about it, and also about the consequences of deciding to lend aid under such circumstances.

Then, last weekend, I came across a paper that does a fine job explaining the entire concept.  The article,   "Understanding the Absence of Duty to Reasonably Rescue in American Tort Law" was written by Marin Roger Scordato, a professor at the Columbus School of Law, and published in the Tulane Law Review.  Here is an abstract of the article:

The absence in American tort law of a duty to reasonably aid a stranger in peril is
perplexing. It is an odd gap in the otherwise nearly pervasive presence of a duty of reasonable care in the modern law of negligence. It utterly fails to accurately articulate our conventional sense of morality and appropriate social behavior. It stands in stark contrast to the treatment of this issue throughout the rest of the world. It is a rule of tort law for which very few commentators have had a kind word.

This Article sets forth a spirited defense of the traditional no-duty-to-rescue rule. It offers a thoroughgoing justification for the doctrine and establishes an understanding of the practical wisdom behind its seemingly amoral veneer. It is a unique attempt in the existing legal literature to develop a clear and unapologetic rationale for this much maligned aspect of tort law.

The argument begins by analyzing the likely benefits available from the adoption of a tort duty to affirmatively aid. It then identifies and describes the probable costs that would accompany such a rule, including the lowering of the quality of rescue effort experienced by those in peril, the discounting of altruism, greater intrusiveness of negligence regulation, an increased risk of harm to rescuers, the creation of a disincentive to cooperate in subsequent investigations and a deterrence to provide delayed aid. In addition, the many problems attendant to the actual operation of a duty to affirmatively aid within the negligence cause of action are considered.

The question of whether a limited version of a duty to affirmatively aid that would apply only to persons who possess special expertise or experience in providing aid is also analyzed, as is the role of Good Samaritan statutes in creating appropriate incentives for such individuals. Finally, the characteristics of a criminal law duty to rescue are compared to those of a tort law duty and both the relative desirability of a criminal law duty and the superfluous nature of a subsequent tort law duty are demonstrated.

Download the article here.