In Wait, What?, our law student contributors share unexpected lessons from law school. Here, Gilad Edelman writes on the duty to rescue (spoiler alert: there is no such thing).
A pillar of every first-year law curriculum is the subject of torts, the area of law covering
suits over harm to people and property. For a lot of Americans, tort suits have a lot to do
with why they hate lawyers. It’s a cliché that we live in a litigious society, and Americans
like to gripe about how vulnerable we’ve become to being sued.
And yet, the most surprising thing I learned in first-year Torts concerns a limitation on
liability where I didn’t expect it: generally speaking, you can’t be sued for failing to help
someone in distress. Forget the Seinfeld finale; in America, with few exceptions, if you
see someone in danger—a kid diving into the shallow end, George Bush choking on a
pretzel, James Bond with a laser headed for his crotch—you can stand by and do nothing.
You may be a bad person, but you won’t be liable in court.
Learning this felt especially counterintuitive because the topic we started the course with
was the “standard of care,” which refers to how you have to behave to avoid being held
liable in court. Generally speaking, the question of whether someone is liable (whether
she’s breached the standard of care) for harm caused unintentionally comes down to the
question of negligence—and that ultimately comes down to questions of reasonableness.
The general idea is that if you’ve acted as we expect a reasonable person to in a given
situation, then (1) you’re morally blameless and shouldn’t be punished, and (2) liability
wouldn’t influence behavior, since you were already taking reasonable care—or put
another way, it would make people become more cautious than we think desirable.
So why am I not liable for failure to rescue? Suppose, for instance, that I’m walking
by a pond and see a baby drowning in two feet of water. It would pose no risk to me
to save her life by bending over to pick her up. Yet if I don’t, her parents can’t sue me
for wrongful death. But how can that be true, since most people would agree that my
behavior fails the test of reasonableness (and of basic humanity)?
The law’s answer is that I didn’t owe the baby any duty of care. And if I don’t owe a duty
of care, it doesn’t matter whether my inaction was reasonable.
In the case of actions, the question of duty is usually pretty simple: we owe a duty of
care to the people our actions affect. But when it comes to inaction, the law is hesitant to
impose a duty outside of certain special situations.
I should say, judges are hesitant, because in our legal tradition duty is mostly judge-
made law. When we talk about whether a duty exists in a certain context, we’re almost
always talking about whether judges have decided it’s a good idea from a public policy
perspective to hold people liable for harms caused in those contexts. As Oliver Wendell
Holmes put it in 1897, “a legal duty so called is nothing but a prediction that if a man
does or omits certain things he will be made to suffer in this or that way by judgment of
(Legislatures sometimes step in and create legal duties through statutes. A few states
have passed laws imposing versions of a duty to help under threat of modest criminal
penalties. Usually the duty is limited to calling the police, and imposed only where the situation is sufficiently grave.)
There are some situations where judges have decided you do have an affirmative duty to
act. These vary somewhat from state to state, but the main categories are: (1) you have
some special fiduciary obligation to the victim, like a teacher to a student; (2) a special
relationship with the perpetrator (or “tortfeasor,” if you want to get fancy, lawyer-style)
as a parent whose child causes harm; (3) you yourself created the risk, though innocently;
and (4) you have already started trying to help the person.
That’s right: you may be more exposed to tort liability if you do help than if you don’t.
This is the extra-weird caramel center of the no-duty-to-rescue doctrine. In many states, if
you do pick up that drowning baby, you now have a duty of reasonable care, and can be
sued if you negligently cause harm in helping her.
So there are exceptions to the no-duty-to-rescue rule. But in your bread and butter, see-
someone-walking-into-open-sewer-and-don’t-say-anything situation, judges in most
states have historically declined to impose a duty to rescue. Partly this stems from
autonomy interests. Although we’re fine mandating that people play by the rules when
choosing to undertake a given activity, we’re pretty uncomfortable requiring people to
take action in the first place. (This distinction is often referred to as “misfeasance” versus
“nonfeasance”: you’re liable for doing something the wrong way, but not for doing
nothing at all.)
There are also causation issues: does it make sense, philosophically, to say that my failing
to rescue the baby caused it to drown? Then there are what we might call administrative
issues: how do we draw the boundaries of liability? How far out of our way should we be
expected to go to save someone? Do we have to balance the cost to ourselves against the
cost to the person in peril? If there are ten people in position to rescue someone, do they
all have a duty? Is it the same duty? Does the ablest person have the greatest duty?
It’s the stickiness of questions like these that have led judges to avoid imposing a duty to
rescue in most cases. Although our legal rules tend to reflect society’s moral preferences,
there are limits to the extent to which the law can enforce morality. The impracticality of
imposing a duty to rescue is one such limitation.
That’s what our reactions to situations of seeming excessive liability and to this seeming
lack of liability have in common: a sense that the law is not lining up with our feelings
about moral right and wrong. On the other hand, having read this, the next time you go
out of your way to rescue someone you’ll know you did it out of moral goodness, not
because you thought you had to. Maybe that’s worth something to us, too.