The absence of a generalized duty to rescue is a perennial feature of the first year of law school. Generations of law students have learned of the existence of the no-duty rule by reading hypothetical cases of babies who drowned in puddles while Olympic swimmers stood by and did nothing, and real cases, such as Yania v. Bigan and Kitty Genovese in which bystanders did not intervene or notify the police when someone required rescue -- with tragic results. The no-duty rule prevails in most of the United States, but it is not popular. As I noted in an 2006 article in the Texas Law Review, incidents of non-rescue seem to result in a predictable cascade of events:
When a case of non-rescue becomes public, newspaper editorials and television commentators will denounce the indifference of bystanders. If the non-rescuers can be identified, they will be held up to public scorn. The responsible district attorney will reluctantly acknowledge that the criminal law is powerless in such cases while condemning the non-rescuers on moral grounds. If a tort case is actually brought against a non-rescuer, the judge will throw it out, but note that the non-rescuer must answer to God for failing to act. Politicians will introduce legislation reversing the common law rule. Comparisons will be drawn to other infamous cases of non-rescue, such as Kitty Genovese.
In short order, academic conferences and symposia will be held at which speakers will criticize the no-duty rule and the indifference of bystanders. Communitarians will suggest that Americans are insufficiently civic minded. Social meaning scholars will suggest that the no-duty rule is sending the wrong "expressive" message. Feminists will decry the "male" orientation of tort law, with its emphasis on individual autonomy and rule-based decision-making. Psychologists and evolutionary biologists will report the insights derived from research on altruism and collective inaction. Corrective justice scholars will argue that the law should enforce common moral intuitions. Comparative law scholars will suggest the United States should follow the rest of the civilized world in adopting a duty to rescue. Law and economics scholars will debate whether the no-duty rule is efficient. Doctrinal scholars will debate the relative merits of criminal and tort sanctions in dealing with future non-rescues. Law review articles and notes condemning the current state of the law will be published. The sequence will then terminate, to be repeated after the next instance of non-rescue.
Everyone involved in these serial exercises in ritual indignation behaves as if non-rescues occur frequently enough that a statutory solution is urgently required. Stated more concretely, the entire debate over the no-duty rule has proceeded based on the assumption that non-rescues are too common, meaning that rescues are too infrequent. Proponents of a duty to rescue have argued that a statutory solution can decrease the frequency of non-rescue and increase the frequency of rescue, without creating undue distortions or other difficulties. Opponents of a duty to rescue have argued that such statutes are ineffective, infringe on individual liberties, and are likely to be misused by politically ambitious prosecutors.
A recent incident, involving a lawyer, provides a striking counter-example to the usual framing of the debate over the no-duty rule.
Longtime Washington lawyer Charles Schulze collapsed and died this weekend in Florida after diving into the ocean to save two drowning children. When news of the 73-year-old's death reached colleagues at his firm, Schulze & Pederson, they were dismayed, but not shocked. Somehow, the doomed act of heroism was exactly the sort of thing they expected from their boss, says one co-worker, Sherri Lahay Lasover. According to the South Florida Sun-Sentinel, the fatal incident occurred while Schulze was on vacation in Pompano Beach, Fla., with Helen Smith, his partner of 20 years. The two were walking along the shore when Schulze noticed two brothers, 9 and 12, struggling in the surf. He dashed into the water and grabbed the younger boy, before swimming out more than 40 yards to fetch the older child as well. Schulze collapsed as he brought the older boy to shore. By the time paramedics arrived on the scene, he had no pulse.
Most discussions of the duty to rescue focus only on the victim of a non-rescue. Rescue is ignored, as are the consequences for a rescuer of "getting involved." However, rescue and non-rescue are two sides of the same coin -- so in thinking about the costs and benefits of imposing a duty to rescue, it is useful to look into the frequency and consequences of non-rescue and rescue, and compare the experiences in states that do and don't have a generalized duty to rescue. More years ago than I am willing to admit, I started collecting data on those issues. My TLR article provides the first empirical assessment of some basic questions about rescue and non-rescue, including
- What is the provable frequency of rescue and non-rescue in the U.S.?
- How often are rescuers injured or killed?
- How often does non-rescue result in injury or death?
- Is there a difference in rates of rescue and non-rescue when comparing states with and without a duty to rescue?
- What motivated the three states that had a generalized duty to rescue at the time the article was published (Vermont, Rhode Island and Minnesota) to adopt a duty to rescue?
- To what extent is Mr. Schulze a representative case?
In subsequent posts I will address these issues. The article, Rescue Without Law: An Empirical Perspective on the Duty to Rescue," 84 Tex. L. Rev. 653-738 (2006) is here.