57 Pages Posted: 30 May 2008 Last revised: 5 Oct 2008
The absence in American tort law of a duty to reasonably aid a stranger in peril is perplexing. It is an odd gap in the otherwise nearly pervasive presence of a duty of reasonable care in the modern law of negligence. It utterly fails to accurately articulate our conventional sense of morality and appropriate social behavior. It stands in stark contrast to the treatment of this issue throughout the rest of the world. It is a rule of tort law for which very few commentators have had a kind word.
This Article sets forth a spirited defense of the traditional no-duty-to-rescue rule. It offers a thoroughgoing justification for the doctrine and establishes an understanding of the practical wisdom behind its seemingly amoral veneer. It is a unique attempt in the existing legal literature to develop a clear and unapologetic rationale for this much maligned aspect of tort law.
The argument begins by analyzing the likely benefits available from the adoption of a tort duty to affirmatively aid. It then identifies and describes the probable costs that would accompany such a rule, including the lowering of the quality of rescue effort experienced by those in peril, the discounting of altruism, greater intrusiveness of negligence regulation, an increased risk of harm to rescuers, the creation of a disincentive to cooperate in subsequent investigations and a deterrence to provide delayed aid. In addition, the many problems attendant to the actual operation of a duty to affirmatively aid within the negligence cause of action are considered.
The question of whether a limited version of a duty to affirmatively aid that would apply only to persons who possess special expertise or experience in providing aid is also analyzed, as is the role of Good Samaritan statutes in creating appropriate incentives for such individuals. Finally, the characteristics of a criminal law duty to rescue are compared to those of a tort law duty and both the relative desirability of a criminal law duty and the superfluous nature of a subsequent tort law duty are demonstrated.
Keywords: tort law, negligence, duty, breach, duty of reasonable care, duty to rescue, duty to affirmatively aid, nonfeasance, good samaritans, good samaritan statutes, criminal law duty to aid
JEL Classification: K13, K10, K14
Suggested Citation: Suggested Citation
Scordato, Marin Roger, Understanding the Absence of a Duty to Reasonably Rescue in American Tort Law. Tulane Law Review, Vol. 82, No. 4, 2008; CUA Columbus School of Law Legal Studies Research Paper No. 2008-27. Available at SSRN: https://ssrn.com/abstract=1139243