Is There a “Duty to Rescue”?
Among scholars of law there is some degree of disagreement regarding the
responsibility of an individual to render aid to an accident victim. One
school of thought holds that an individual is not obligated, and cannot
be compelled by force of law, to give assistance to another under emergency
conditions. Another line of thought holds that everyone is obligated to
render aid so long as they act within the bounds of their training and
experience. In today’s post a drowning accident lawyer will discuss
the issue of whether or not a “duty to rescue” exists and
how such a duty, if it exists, could lead to liability in cases involving
accidental drowning or near-drowning.
The legal “duty to rescue”
One of the foundational principles of common law holds that if someone,
by either their action or inaction, creates a hazard then that person
has created a duty to warn others of the hazard’s existence and
also creates a duty to rescue anyone that falls victim to that hazard.
Although there is no law that specifically creates and defines the type
of precautions that must be taken, the common law clearly holds that “creating
a danger also creates the responsibility to protect.”
There are a number of situations arising outside common law where there
is a legal requirement that certain groups or organizations are bound
by a duty to rescue. As examples, the employees of an airline have the
legal duty to rescue passengers in the event of an accident or the driver
of a truck transporting chemicals has the duty to warn others of the danger
of exposure to a toxic substance following an accident.
In the United States, less than a dozen states have enacted laws requiring
that an individual render aid to an accident victim. As you might imagine,
these laws are rarely applied and it is unlikely that a conviction under
such a law would survive an appeal. Since we can safely ignore such laws
we can turn our attention to the question of one’s moral duty to
render aid in emergency situations.
The moral “duty to rescue”
The strongest arguments supporting the concept of a duty to rescue are
based on the notion that we have a “moral” or “humanitarian”
obligation to assist others in times of emergency. Two of the more commonly-cited
arguments are discussed in the following paragraphs.
This argument is probably the most common reason to be advanced in favor
of a duty to rescue. In its simplest form, this position is based on the
fact that practically every system of religious belief or philosophy maintains
that we should act in a manner that, if the situation were reversed, we
would want others to act if it was ourselves who were in danger. Restated,
“If I’m drowning I want you to rescue me because I would do
the same for you.”
The counter-argument to this position is based on the belief that an individual
cannot be compelled to act in a manner that would place them in a situation
that exposes them to the same, or greater, risk of injury that they are
attempting to prevent.
- “The greatest good for the greatest number…”
The philosophy of
utilitarianism holds that any action that benefits the greater number of individuals
is “good” so long as that action does not cause undue harm
to others. Utilitarianism thus holds that we have a moral duty to rescue
since, by doing so, we have prevented the unnecessary loss of a life and
removed the “downstream” harm that would have resulted from
a loss of life such as the loss of earnings from a family’s breadwinner.
This argument will, of course, fail if an individual
does not feel that intervention is necessary or if he or she does not feel an obligation
to respond regardless of the degree of danger.
In the absence of a statutory law requiring a bystander to render aid or,
at a minimum, to assure that professional emergency response personnel
have been summoned, it is unlikely that an individual could be prosecuted
for failing to render assistance to a drowning accident victim. However,
since it can easily be shown that there is a moral duty to render assistance
in situations where another is obviously in danger, it is at least conceivable
that the failure to render assistance in an emergency could result in
a civil judgement against a “not-so-innocent” bystander.
As always, questions related to the possible liability of witnesses to
a drowning or near-drowning accident should be discussed with a drowning
accident attorney and only after all issues of fact regarding such an
accident are known.