Tuesday, July 14, 2020

The Duty to Rescue (Sample Class)




[What follows is the text for a sample “introduction to law”/“critical thinking and law” class that I sometimes run. It is about the duty of rescue and some of the competing intuitions people have about whether such a duty should be recognised in law. The class is basic and is intended for new students or students thinking about studying law. I typically run this class by getting students to vote on their answers to each of the hypothetical questions, discussing their votes with their peers, and then facilitating a class discussion about these votes. This often ends up with me posing multiple variations on the hypotheticals presented below. The class can be expanded or contracted by increasing/decreasing the number of hypotheticals or case studies and by increasing/decreasing the number of student activities within the class. The minimalist version would just cover the initial hypotheticals and the mock jury/judge exercise]

One of the distinctive features of our legal system — like all legal systems inherited from the United Kingdom — is that it is based on the common law. In a common law system, legal rules are extracted from cases. People come to court with stories. They tell these stories to judges (and sometimes juries). The judges determine what the ruling should be, sometimes creating new rules but more often by basing their judgment on rules derived from older cases. In legal parlance, we call this “following the precedent” (i.e. following the rule set down in older cases). A judge’s ability to apply such old rules depends on whether the new cases are sufficiently similar to the older cases (i.e. are they analogous?)

There is a basic form to all such precedential reasoning. Although it is rarely explicitly stated, what is typically happening here is that judges are following this reasoning process:


  • (Premise) An older case — Case A — stipulates a rule that “if x happens, then legal consequence y should follow”.
  • (Premise) The present case — Case B — is similar to Case A in all important respects.
  • (Conclusion) Therefore, the rule in Case A should apply to case B.


But where do the old rules come from in the first place and what justifies them? Usually, there is some rationale underlying the old rules. There is some reason for thinking that they are a good thing. This is either because they are consistent with basic moral principles or they help to maintain social order or economic prosperity. Oftentimes, judges don’t reflect too much on these underlying rationales. But sometimes they do. Sometimes the cases they are confronted with are not all that similar to the old cases. It would be a stretch to say that they are analogous. In those cases, judges have to decide whether the old rules should be extended to cover the new cases. This is often not a straightforward issue and requires some examination of the rationales underlying the old rules.

In the remainder of this class, we are going to consider how this problem arises in practice by considering some hypothetical and real cases involving the so-called “duty to rescue”.


1. Duty to Rescue - Hypothetical Cases
By a “duty to rescue”, I mean a duty to come to the assistance of someone who is in trouble. Ultimately, we will be considering this duty from the perspective of tort law. This means we will be considering whether or not you have a right to sue someone who fails to come to your rescue. First, however, let’s consider what our basic moral intuitions tell us about the duty to rescue.

Consider, first, the following case:

Case 1: You and your friend are out walking in the park one day. You chance upon a lake. For devilment, you decide to push your friend into the lake. Unfortunately, your friend can’t swim. He starts to flail about in the water and calls for help. You are a good swimmer and could easily come to his rescue. Do you have a duty to rescue your friend in this case?

[Instruction to students: Think about it for a minute, vote on your answer, and, if possible, discuss the reasons for your vote with a peer. This is not a knowledge test. What does your “gut” tell you should happen in this case?]

If you are like most people, you probably think you do have a duty to rescue your friend in this case. Why? Because you are the one who endangered his life and you could easily save him. Letting him die would be dreadful. Presumably, friends drowning in lakes like this are just one example of a more general class of cases in which your actions endanger another person’s life and you could easily eliminate this endangerment. What’s the rule that should apply to all these cases? If you were asked to set this rule down in a legal code how would you do it? Perhaps your answer would look something like this:

Rule 1: If person A, through their actions, causes a potential injury to person B, and if person A could easily rescue person B from that potential injury, then person A has a duty to rescue person B.

That’s a bit cumbersome but get used to it. Legal rules are often formulated in cumbersome ways.

Now consider a second case:

Case 2: You are out walking in the park one day. You chance upon a lake. There is a child drowning in the lake, flailing its arms and asking for help. You are a good swimmer and could easily rescue the child. Do you have a duty to rescue the child?

[Instruction to students: Think about it for a minute, vote on your answer, and, if possible, discuss the reasons for your vote with a peer. Again, it is not a knowledge test. What does your “gut” tell you?]

Views can vary on this case but, in my experience, most people think you probably do have a duty to rescue in this case. True, you didn’t cause the child to get into trouble, but it costs you relatively little to get them out of trouble. You would have to be some kind of moral monster to just walk on by without a care in the world. And, again, presumably rescuing children from lakes is just one instance of a general class of cases where rescuing someone is relatively easy. What’s the rule that should apply to all these cases? It might look something like this:

Rule 2: If person B is in trouble (i.e. there is a serious risk to them of injury or death), and if person A is in a position to rescue them with minimal cost to themselves, then A has a duty to rescue B.

Do you like this rule? If you are like me, you might feel a bit uneasy. This rule covers scenarios like Case 2 but maybe that it covers a lot more too? Consider the following case:

Case 3: You are a doctor. You receive a phone call from a colleague in a neighbouring town. A patient of theirs is suffering from a serious illness. You are one of only a handful of doctors in the region who can perform the surgery that this patient needs to survive. The surgery is relatively simple (from your perspective). It would take 10 minutes and you have performed it thousands of times before. It would take a couple of hours to travel back and forth to the neighbouring town. Your colleague has promised to reimburse you for all your expenses. Do you have a duty to perform the surgery?

[Instruction to students: Think about it for a minute, vote on your answer, and, if possible, discuss the reasons for your vote with a peer]

Hmmm….Not so sure about this? Some of you might resolutely stick with the view that you do have a duty to perform the surgery. I suspect, however, that many of you will not share that view. Surely doctors don’t have a duty to perform surgeries on anyone that needs them? That seems to demand too much. You might be asking yourself some questions about the story too. Would it matter if the town was further away? Or if the surgery was a bit more difficult to perform (e.g. took more time or had a less certain result)? If those things matter, why do they matter? Is it not unprincipled or inconsistent to claim that they do? Maybe we should stick with Rule 2 even if it does demand too much?

Do you see what has happened here? We started with a case in which there seemed to be clearcut duty of rescue. We formulated a rule based on this case then proceeded to a case that was similar, but slightly different. This case also involved a duty to rescue but required a modification to the original rule. We then looked at a third case in which this rule should, by rights, apply but in which we don’t feel comfortable with its application. We now think there should be some limits to the duty to rescue.

We encounter this phenomenon over and over again in common law.


2. Tort Law and the Duty to Rescue
Let’s now consider some law. I mentioned at the outset that I am going to look at the duty to rescue from the perspective of tort law. What does that mean? Tort law is concerned with the right to sue people for compensation. If I visit your house, slip on your wet floor and injure myself, that’s (potentially) a private wrong. Under the rules of tort law, I (might) have the right to sue you for compensation. If I am successful, the compensation I receive should correct the wrong done to me (e.g. pay for my medical bills, give me some financial benefit to ameliorate the physical harm).

Tort law is different from criminal law. Tort law involves legal actions brought by one private individual against another for breach of some duty of care. Criminal law involves legal actions brought by the state (or public) against someone for breach of the criminal law.* Tort law ends with compensation being paid to the victim of the breach of the duty of care. Criminal law ends with the guilty party being punished for their wrongdoing.

Tort law is also different from contract law, though the two are more closely related than either is to criminal law. Contract law involves legal actions being brought by private parties for breach of contract. In order to sue in contract, you must have a contractual relationship with the other party. In tort law, you don’t have to have a contractual relationship with the other side. You just have to have a relationship with them such that they owe you a legally recognised duty of care.

What kind of relationship is that? This turns out to be the critical question. The most famous case in tort law is Donoghue v Stevenson. This is an English case from 1932. The facts of the case are that Mrs Donoghue bought a bottle of ginger beer at a cafe. She downed it and discovered that there was a dead snail at the bottom of the bottle. She then fell ill and sued the manufacturer of the beer, Mr Stevenson. The central issue in the case was whether Mr Stevenson owed her a duty of care.

Previous case law recognised a duty of care in some cases but not in cases like that of Mrs Donoghue. In the House of Lords, Lord Justice Atkin considered this issue at length. He accepted that there had to be limits to how extensive the duty of care was in tort law, otherwise we could all sue each other all the time for failing to make one another’s lives better. On the other hand, he felt that the duty should extend to cases like those of Mrs Donoghue. So, appealing directly to the Biblical parable of the Good Samaritan, he came up with the following ’Neighbour Principle’:

…rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

The case of Donoghue v Stevenson is, consequently, authority (precedent) for the idea that we have a duty to protect anyone from an injury that is reasonably foreseeable from either an act or an omission.

That said, subsequent case law suggests that the neighbour principle may be too extensive and there have been attempts to add additional restrictions to the concept. Furthermore, the facts of the case do not really line up with our duty of rescue cases. In Donoghue, the beer manufacturer is creating a product that they are selling to the world. They are actively taking steps to bring that product to the market. It stands to reason that they have a duty to check that their product won’t cause injuries to the people that might consume it. What about rescuing someone from some ill fate of their own doing?

There are many tort law cases that seem to explicitly reject the idea that there is a legally recognised duty to rescue someone in distress. Some of these cases are very similar to the hypothetical cases we discussed earlier. Consider the following US examples:

Buch v Amory Manufacturing Co. (1898): The plaintiff was an 8 year old boy who trespassed into the defendant’s mill. While there, his hand was crushed in a machine. The plaintiff claimed that the defendant had a duty to protect him from potential harms while on his property (which could have been discharged, in this case, by simply removing him from the property). The court disagreed. There was no duty to protect the 8 year old trespasser.

Hurley v Eddingfield (1901): The defendant was the plaintiff’s doctor. The plaintiff rang the doctor in serious distress and asked for help. For no apparent reason, the doctor refused to come to his aid. The plaintiff subsequently died and his estate sued the doctor for failing to come to his rescue. The court sided with the doctor. They held that licensed physicians are not under a legal obligation to accept patients in distress. If there is such an obligation, it is a moral one not a legal one.

Osterlind v Hill (1928): The plaintiff hired a canoe from the defendant whilst intoxicated. The canoe capsized and the plaintiff clung to the edge of it calling out for help. The defendant did not come to his rescue. The plaintiff subsequently drowned and his estate sued the defendant. There were several grounds for their claim, including that the defendant should not have hired the canoe to the plaintiff in his condition and that the defendant should have come to his rescue when he was calling out for help. The court rejected them all. The canoe was hired out legally and the defendant was under no obligation to rescue the plaintiff in these circumstances.

These are old cases, and they are from another jurisdiction, but they are nevertheless often cited to support the idea that tort law does not recognise a general duty of rescue. Indeed, whenever confronted with a scenario like this, courts tend to be very reluctant to expand the concept of a duty of care to include a duty to rescue. Why might this be?


3. Against the Duty of Rescue
[If this has not already come up in the discussion of Cases 1, 2 and 2, ask students to come up with arguments against recognising a duty of rescue. This can be done in general, plenary discussion or in breakout groups, depending on time and previous engagement from the group]

There are few reasons to be sceptical about a legally recognised duty of rescue. One of the most common arguments against it is the slippery slope argument. This isn’t so much a specific argument against the duty of rescue as it is a general style of argument against certain policies or rules. It crops up over and over in tort law. Whenever you read judgments in which courts worry about “opening the floodgates” of litigation, you know they are making a slippery slope argument.

How does this argument work? Go back to the earlier hypothetical cases and compare cases 2 and 3. While most people agree that recognising a duty of rescue in Case 2 is desirable the worry is that if you recognise it there, then you also have to recognise it in Case 3, which seems much less desirable. In other words, if we apply Rule 2 in Case 2 then we must, by logical necessity, slide down the slope and apply Rule 2 to Case 3. Since we don’t want to do that, it follows that we shouldn’t apply Rule 2 to Case 2, no matter how desirable it might seem.




It could be that courts, when confronted with cases like Hurley v Eddingfield recognise that although the doctor did something wrong and, in an ideal world, he should be reprimanded for it, if they recognised a right to sue in that case they would have to recognise it in a bunch of other cases where it would be less desirable. So, even if it seems harsh, they should stop the slide down the slippery slope and hold tough on the idea that there is no duty of rescue.

This argument isn’t entirely satisfying. Although slippery slope arguments are common in tort law, they are, by themselves, incomplete. We cannot object to sliding down the slippery slope unless we can something about why the thing that lies at the bottom of the slope is so bad. What is it that worries courts so much? It could be a purely selfish worry. They might worry that if they expanded the scope of tort law they would have more work to do and they wouldn’t be able to cope. But let’s assume their motives are more genuine and they have some reasons for thinking that sliding down the slope would be a bad thing. Here are three reasons that might be motivating them:

The Overdemandingness Reason: They might worry that if they recognised a general duty of rescue (even just in cases where rescue is easy and relatively costless) it would be too demanding. People would be expected to go to great lengths to help others. Doctors would be legally obliged to run to the aid of anyone they could assist and so on. People would buckle under the pressure and life would become very unpleasant.

The Supererogation Reason: There are some things that we are obliged to do, as a matter of duty. There are other things that we are not obliged to do but would be good if we did them. These things are above and beyond the call of duty. In philosophy, these are referred to as “supererogatory” acts (from the Latin for “paying in excess”). Some people argue that we need to leave room for this type of act so that people can demonstrate their moral virtue. Not everything that is morally good ought to be legally obliged. Not recognising a duty of rescue in tort law is one way of leaving room for the supererogratory.

The Freedom Reason: If we recognised a general duty of rescue, it would impinge on people’s freedom. They would find their actions and choices constrained by new legal obligations. In general, we want people to be free to live their lives as they see fit, with minimal intrusions into their freedom. Recognising a duty of rescue would be a step too far.

Are any of these persuasive? I’m not sure but it is worth noting, in relation to the supererogation point, that many jurisdictions, including Ireland, have introduced so-called “Good Samaritan” laws that ensure that people who do come to the rescue of others cannot be sued for their good faith efforts to provide assistance. This kind of law removes any disincentive to be a good samaritan and thus could be seen as an effort to allow for supererogatory acts in social life.


4. Mock Trial Exercise: Yania v Bigan
Let’s close with another class exercise. As noted above, one distinction that is sometimes made is between cases in which a person takes steps that actively endanger another person’s life and cases where no such steps have been taken but the person is, nevertheless, in danger. This is the difference between Case 1 and Case 2 in our original set of hypotheticals. The general consensus seems to be that there is a duty of rescue in the first kind of case but not in the second. The reason for this is that you can create a principled distinction between the two cases that prevents any slide down the slippery slope to a general duty of rescue. The first type of case has to involve some active intervention that endangers another person.

But what does it mean to actively endanger another person? Consider the following (real) case:

Yania v Bigan (1959): The plaintiff and defendant were running rival coal strip-mining operations. Coal strip-mining involves digging trenches to remove coal deposits. The defendant had placed a pump in the bottom of one of his trenches in order to remove water. At the time of the incident in this case, there were several feet of water in the trench. The defendant asked the plaintiff to assist him in removing the water pump. Apparently, he started to taunt the plaintiff and urged him to jump into the trench to remove the pump. The plaintiff succumbed to the taunts, jumped in, and subsequently drowned. The defendant did nothing to help him out. The plaintiff’s estate then sued the defendant for a failure to rescue him.
Imagine that you are the judge or jury in this case. What do you think should happen? Should the court recognise a duty of rescue in this scenario or not?

[Allow students to consider and discuss this for several minutes. Get them to feed back their verdicts to the class as a whole. Discuss for as long as seems appropriate]

So what actually happened in this case? Well, the Pennsylvania Court of Appeal held that there was no duty to rescue. They held that Yania was a competent adult who should have been able to resist Bigan’s insults and taunts. Consequently, his decision to jump in the trench was his own free choice and he had to bear the consequences of it. The verdict might have been different if Yania was a child or suffered from some mental disability.

* This isn’t strictly true. There can be private criminal actions. In general, the attempt to find bright line distinctions between tort law and criminal law is never perfect. The best we can do is say that some actions count as crimes and some actions count as torts and lawyers think they know the difference.


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