duty to rescue

Definition of duty to rescue

Further reading

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. However, in the United States, 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, there are also separate ethical arguments for a duty to rescue that may prevail even where law does not punish failure to rescue.

Common law

In the common law of the United States and other anglosphere countries, there is no general duty to come to the rescue of another. Generally, a person cannot be held liable for doing nothing while another person is in peril. 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.
• Such a duty also arises where a "special relationship" exists. For example:
  • Emergency workers (firefighters, emergency medical technicians, etc.) have a general duty to rescue the public within the scope of their employment. The Supreme Court of the United States ruled in Warren v. DC that the police have no duty to protect any citizen not in custody, and cannot be sued for their failure to protect.
  • Parents have a duty to rescue their minor children. This duty also applies to those acting in loco parentis, such as schools or babysitters.
  • Common carriers have a duty to rescue their patrons.
  • Employers have an obligation to rescue employees, under an implied contract theory.
  • Property owners have a duty to rescue invitees but not trespassers from all dangers on the property.
  • Spouses have a duty to rescue each other in all U.S. jurisdictions.
  • 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, Florida, Hawaii, Massachusetts, Minnesota, Ohio, Rhode Island, Vermont, Washington, and Wisconsin. 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. These laws are rarely applied, and are generally ignored by citizens and lawmakers.

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.

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.

Civil law

Many civil law systems, which are common in Continental Europe, Latin America and much of Africa impose a far more extensive duty to rescue. The only exclusion is that the person must not endanger her/his own life or that of others, while providing rescue.

This can mean that if a person finds someone in need of medical help, he or she 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. 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.

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 such as Albania, Austria, Belgium, Brazil, Bulgaria, Croatia, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Italy, the Netherlands, Norway, Portugal, Russia, Serbia, Spain, and Switzerland.

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 we saw a child drowning and could intervene to save him, we would do so, no matter the damage to our clothing or shoes or how late it might make us for a meeting. Singer goes on to say that we should also attempt to rescue distant strangers, not just nearby children, because globalization has made it possible for us to do so. Such general arguments for a duty to rescue also explain why after the 2010 Haiti earthquake, Haitians were digging family members, friends, and perfect strangers out of the rubble with their bare hands and carrying injured persons to whatever medical care was available. 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 uninvolved 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 Haitian earthquake.

Specific arguments for such a duty to rescue include, but are not limited to:

• The Golden Rule: treat others as you 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 emergent situations which this position assumes all humans would wish to be rescued from.
• Utilitarian ethics: utilitarianism posits that those actions are right which best maximize happiness and reduce suffering ("maximize the good"). 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 our 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 we have a duty to rescue to the best of our ability as long as doing so will not make things worse.
• Care Ethics: the ethics of care advise that the essence of morality and right behavior is tending to human relationships. Therefore, virtues (excellent character traits) such as compassion, sympathy, honesty, and fidelity are to be admired and developed. 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.