• Video

Is There a Duty to Rescue Someone?

Explore the two fundamental sources of affirmative duties in tort law - arising either from who you are or what you do. Professor Robert Leider examines how relationships and actions create legal obligations, with special focus on the fascinating paradox of rescue law. Learn how Good Samaritan statutes evolved to encourage rescue attempts by modifying traditional common law liability, and discover how these protections vary across jurisdictions. Robert Leider is Associate Professor at Antonin Scalia Law School at George Mason University. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. https://youtube.com/watch?v=blZwLTbvl3s

Transcript

There are two roots of an affirmative duty. Either who you are or what you did. So, it can be in some cases who you are. You are the common carrier, the operator of a hotel, the owner of land, the spouse or the parent. So in all these cases the relationship creates the duty. In some cases it is what you did. You caused an accident that injured somebody, you initiated a rescue. In those cases, the affirmative duty comes from the actions that you undertook as opposed to the relationship that you have. Although in general you are not required to come to somebody's aid, once you initiate a rescue, you are not allowed to simply abandon the rescue. You have to act as a reasonable and prudent person would in the circumstances. Now that's never just, that's not to say that you are never allowed to discontinue a rescue. You could discontinue a rescue, for example, if it became extremely dangerous for you to continue and a reasonable and prudent person would cease the rescue under those circumstances. But once you start the rescue, you can't simply abandon somebody or leave them in a worse off position. Now, that rule, of course, incentivizes individuals never to rescue because if you don't initiate the rescue, and you don't have a special relationship, then you cannot be held liable. But once you initiate the rescue, you can be held liable. So once you affirmatively act, you trigger a set of obligations on how you have to act. And because it is prudentially irrational for anyone to rescue somebody with whom they don't have a special relationship, state legislatures have mitigated the problem by creating Good Samaritan Statutes. And what these statues say is that under certain circumstances, individuals are not going to be liable if they initiate a rescue unless their conduct meets some heightened culpability. Like they were grossly negligent or reckless or intentionally injured somebody. These are statutory exceptions to general common law liability, and for that reason, the particular requirements are governed by separate statutory requirements in each jurisdiction. And so, for example, if a medical professional gratuitously rescues somebody off duty, he may be able to avail himself of a good Samaritan statute, provided he doesn't receive compensation for the rescue. On the other hand, if the medical professional rescues somebody and then seeks to recover as a quasi contract for the rescue, then he may very well trigger the standard of care in that jurisdiction and then not be able to abide by the Good Samaritan Statutes. There are some restrictions in these Good Samaritan Statutes on who can benefit from them, and that will vary a bit from jurisdiction to jurisdiction, but what is important to note is that the traditional rule of simple negligence does not generally apply to somebody who gratuitously rescues someone, that by statute in many of these jurisdictions or by statute in most jurisdictions, individuals are not liable when they initiate a rescue unless they are grossly negligent or reckless or some standard of culpability above simple negligence.

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