Thanks for joining this episode of the No. 86 lecture series, where we discuss basic principles and applications of Tort Law along with landmark cases. Today's episode features Greg Dickinson, who is an Assistant Professor of Law at the University of Nebraska, where he teaches Contracts, Business Torts and Unfair Competition, and Remedies. He is also a fellow with the Stanford Law School Program in Law, Science and Technology. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Professor Dickinson, could you explain the basic principle behind affirmative duties in negligence law? When are we legally required to help others? GREG DICKINSON: In order to think about affirmative duties, the first thing you need to do is understand the, the background principle of negligence law. That you don't have an affirmative duty to take action to help people. And so there's a famous case, involving a fellow who rented a canoe. And he, he goes out, and he's, he's out in the middle of the water by himself, and he ends up, falling in the water and he's calling for help for quite an extended period of time. I wanna say he's in the water, for maybe 30 minutes. Could even be more, calling for help. And nobody comes to his aid and, eventually he dies, and there's a lawsuit later that says, hey, you know, why didn't you do something to help this guy, out there calling for help? And if you very straightforwardly applied a negligence analysis, you'd say, well, maybe that is a breach. You have a duty of reasonable care. The, the reasonable person requirement - wouldn't a reasonable person rescue someone? Isn't that something a reasonable person would do? But the law historically has drawn a line and said, when you act, when you take an action, you have a duty to to do it carefully. You have a duty to behave as a reasonably prudent person when you take an action. But, the law says, you don't have any duty to act, you don't have to do anything, but when you do something, do it carefully. And so the issue with this guy in the boat is well, nobody was obligated to act, to help him. There's no obligation to act. There's no duty to rescue. There's just a duty that if you're doing something, you have to do it carefully. And so that's how the law historically has resolved cases like this. It said, look, you don't have to help people out; but if you're acting, if you're driving your car, if you're taking an action, if you're doing something that could hurt people, do it carefully. PUBLIUS: Are there any exceptions to this general rule? Times when individuals do have an affirmative duty to act? GREG DICKINSON: You don't have to help people, if, if you're not the one that caused them a problem. Now, if you throw them into the water, if you throw somebody into the water, kind of intentionally, and then refuse to help them, that's a different story cuz you, you've kind of done something to get the whole thing started. But, in principle, at at base, there's no duty to take affirmative actions. There's just a duty once you are acting to be careful about it. And so that's the baseline principle . And then on top of that, the question becomes, well, are there exceptions to that? Are there instances where despite the fact that I don't generally have a duty to rescue or a duty to act affirmatively, I nonetheless do have to do something? And there are a few instances where this comes up. One is if you're a, a store or some sort of commercial entity, and one of your customers needs, kind of emergency medical care. There's a case that I teach involving a guy who, who goes up to a Taco Bell. He's making an order and, and all of a sudden he has a seizure. He falls down, has a seizure, and he is in dire need of help. He's assisted a little bit. Somebody comes over and asks him if he's okay, or, or maybe they don't. The facts are disputed. But what's undisputed is then he stands up, starts to go about his business and has another seizure, and then falls down and, and, hits his head and really gets hurt, much more seriously. And, facing a lawsuit, the Taco Bell said, well, we don't have any duty to help you. We don't have any duty to take affirmative action to help. This is just a case of you having an accident in our store. this isn't our responsibility to help you. Maybe it would've been nice, but we don't have to. And we didn't do anything careless. All we did is not do anything at all. Tort law is about careless actions, not about people who don't do things. And so that was Taco Bell's argument. And the, the court says, no, that's not how it works. There's a, a special sort of relationship between commercial entities and their patrons, and their customers. Where if you have invited people onto your premises and said, Hey, we want to do business with you, you then have a duty to do something. You don't have to be expert doctors. You don't have to keep like emergency staff on site, but you have to at least do what a reasonable person can do. And that's probably to provide basic first aid and call 911 or something. And so, says the court, you should have at least done that. You don't have a duty to be doctors or have doctors around, but you do have a duty to do what a reasonable person would do, to administer basic first aid and provide basic help. So that's one exception is the relationship between commercial entities and their customers. So they have this heightened duty, PUBLIUS: That's interesting about commercial relationships. Are there other types of special relationships that create affirmative duties? GREG DICKINSON: Another famous example, a slightly more controversial example, is there's a case, called Tarasoff, out of, California several decades back now, but the, the case involved, a therapist who was talking with a patient of hers and in the course of their meetings, it came up, that, he was, considering killing someone. And, he didn't give a name, but it was clear to the therapist who he was talking about. the therapist knew, oh, okay, I see. He's thinking about killing this girl that he's fascinated with. Long story short, it turns out that he does end up killing her. He does, sometime later he ends up killing her, and the family sues her and says, you should have done something about this. you should have warned us. and she responds with, what is a pretty, reasonable sounding argument is, look, I don't have any, duty to you to take affirmative action. This isn't my responsibility to control the actions of this guy, I'm not responsible for controlling him. He's kind of a free actor. It's not my fault he killed your daughter, even though I'm sad that he did. And the court says, well, in certain circumstances, you are liable for the conduct of others, and the, the court thinks, for instance, of, maybe a prisoner being escorted by a jail or something. If you got attacked by a prisoner that was being escorted by a police officer or somebody at a jail, you'd say, hey, you're escorting him around. You ought to take care, to make sure he doesn't attack people like me. And so, so the court, in this Tarosoff case involving the therapist looked to some cases like that involving people, held in custody or being moved around and said, well, this is at least a little bit like that. The court says, I, I realize that the therapist doesn't have a duty to the family of this victim. But, the therapist is kind of partially responsible for this guy's actions, at least a little bit. She has a special relationship with him, and so kind of like the store had a special relationship with the customer who got hurt, the therapist has a special relationship with the patient. A special relationship that the Tarosoff court said required her to warn specifically identifiable potential victims. And so it's not that she has a duty anytime something dangerous comes up to like warn the whole world that I've got this dangerous guy. But, if a, a particular person comes up, as maybe being threatened in the therapy sessions, you have a duty because of your relationship with this patient to warn the, the particular identifiable victims, that this might, this might be a danger to them. And so, two, two main cases, both based on special relationships. Generally speaking, you don't have a duty, to take affirmative action. But, if there's some sort of special relationship, maybe because, it's your customer and they're on your premises, or maybe because this is, this is a patient of yours, kind of like being in, in your custody, those sorts of special relationships can create duties, to act, even where we as a baseline rule, don't have a duty to act in a certain way. PUBLIUS: You mentioned the duty to take care. What happens if someone starts to help but does a poor job? Are they liable then? GREG DICKINSON: The basic default rule, in torts is that you don't have a duty to act affirmatively. You don't have a duty to rescue people. The only duty you have is to avoid acting carelessly when you do act. One important caveat to that is, you don't have a duty to rescue. But, under the common law, suppose you start rescuing somebody. Say you see somebody, having a heart attack, they're grabbing their chest. and you think, well, I'll go rescue them. and then what you do is you pull out a hammer and you start pounding on their chest. And, you think you're administering CPR. Well, I imagine the family members would be pretty unhappy. The guy getting hit with the hammer would be pretty unhappy because you've done a lousy job of rescuing this guy. And the way the common law at least dealt with cases like this was to say, yeah, you don't have a duty to rescue. But, you do have a duty to act carefully, and so once you transition from not acting at all to acting, once you start rescuing, you do have a duty. You have a duty to do it carefully. And so you'd say hammer CPR guy, that is not a careful way at all. A reasonable person, even who isn't trained in CPR knows that that's not how you do CPR. And so you have attempted to rescue and you have not done so as a reasonably prudent person. And so you could get sued. If hammer CPR guy goes and, and does that to somebody, he's gonna get sued, or could get sued under the common law rule. not because he had a duty to rescue, but once he started rescuing, he had a duty to do so carefully, and that's not a careful rescue. Not a careful administration or a reasonably careful administration of CPR. PUBLIUS: It seems like the common law rule might discourage Good Samaritans. Have any states modified the rule to encourage people to help others? GREG DICKINSON: Now some states have modified this. The worry is, and this is somewhat justified, the worry is, well, if you can have liability when you try to rescue somebody, maybe it's a better idea never to rescue anybody at all. That way you can't get sued. And so maybe, especially if you're a doctor, you kind of know of the risks. You think of some spine injuries, for instance, where moving somebody can actually hurt them. And so you say, you know what, I'm just gonna stay out of this. I'm never going to attempt to rescue anybody at all. And so some states we're worried about this and they're worried that the common law rule that says you have a duty to rescue carefully. Could deter people from even attempting rescues. And because of that, many states have enacted good Samaritan statutes that say if you do try to rescue, you can't be sued. And the details vary from state to state. And so we, we can't really cover all of the, the details, but it's important to be aware both what the common law rule. That you don't have a duty to rescue, but upon doing so, you have to do so carefully. And then what some states have modified that rule to be, which is, in some circumstances, no liability. Even if a plaintiff thinks that your rescue is not as careful as it should have been. PUBLIUS: Are there any other exceptions to the reasonable person standard we should know about? GREG DICKINSON: There are some exceptions to the reasonably prudent person standard. and, some of those, are for instance, to do with age. Jurisdictions vary a little bit on exactly how they take account of age, but all jurisdictions account for it in some way. In the case of a child, for instance, a five year old child, you think of what, what they're capable of doing and holding them to the standard of a reasonably prudent person, you know, the average, adult human. That's not what the law expects of children. The law expects children to behave as reasonably prudent children. And so, the law takes special exception for children. There are a lot of nuances here. For instance, children who are engaged in adult activities, And so if you're a child who for some reason, even though you're five years old, is driving a car, you're held to the adult standard of care because what you were doing was such a grown up adult dangerous thing. But generally speaking, children are treated under a special standard where they're held to the standard of reasonable children of like, age and experience is the legal language that's used. So you take it into account, any training they have, what they know, how mature they individually are and how old they are. And you hold them up to that standard and say, what would a kid, a reasonable kid like this, do if they were being reasonable? So, in the case of professionals, professionals like, I think lawyers and doctors and accountants, they have a, a slightly tweaked version of their duty. So they, they have, not the duty to act as a reasonably prudent person. You know, you want your lawyer to act not as a reasonably prudent person. You want them to act like a reasonably prudent lawyer. You know, the average person maybe doesn't know much at all about the law. And so the professions have a standard of care where you look to the reasonable member of the profession. You look to industry custom and say, well, what would a reasonable lawyer do? Or What would a reasonable doctor do? What do doctors do in this context? What do lawyers do in this context? And that's how you judge their conduct. you ask what a, a lawyer typically does, what a reasonable lawyer does in this circumstance, not what a reasonable person would do. Thank you for listening to this episode of the No. 86 Lecture series on Tort Law. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it's released. You can also go to no86.fedsoc.org for lectures and videos on Federalism, Contracts, Jurisprudence and more. Thanks for listening. See you in class!