Reasonableness, Justice and the No-Duty-To-Rescue Rule of Torts
Southwestern Law School Working Paper No. 0711
19 Pages Posted: 16 Jun 2007 Last revised: 4 Nov 2007
Date Written: November 1, 2007
The no-duty-to-rescue rule says that people are not required to rescue others in distress. Thus, someone who fails to offer aid cannot be held civilly liable if the victim later succumbs to the danger. This liability exemption applies no matter how grave the risk facing the victim, and no matter how simple, easy and safe the rescue opportunity for the bystander.
To most people, the no-duty-to-rescue rule seems clearly at odds with the concept of moral fault. Instinctively, it feels wrong to stand idly by as another human being suffers harm. This instinct could be rooted in a number of possible sources. Many societies embrace values of benevolence and altruism. Most religions preach good samaritanism and denounce selfishness. Whatever their source, our sensibilities tell us that one who fails to rescue others is morally deficient.
Because of its apparent immorality, the no-duty-to-rescue rule also seems unreasonable. However, as I will attempt to show in this brief essay, such a conclusion is by no means inescapable. In fact, I shall argue that reasonableness fully supports the rule as currently formulated. My thesis will unfold in two parts. First, I shall demonstrate that the no-duty-to-rescue rule is actually a reasonable exception to a broader principle of cooperation, which forces people to make sacrifices for parties who take affirmative measures to defend their interests in emergencies. Second, I show how the rule satisfies the reasonable requirements of distributive and corrective justice, deftly balancing the interests of the parties and the state, while maintaining the integrity of the liberal value system of which it is a part.
Keywords: torts, reasonableness, duty, duty to rescue, corrective justice, distributive justice, self-defense, necessity, emergency, risk, agency
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