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Spring 2000


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17. John, the Abandoned Baby, and the Not-So-Rapidily Approaching Train.
John is standing close by a railroad and sees a two-year-old baby on the tracks. He can easily rescue the baby without endangering himself and the instincts of humanity require him to do so. John, however, has other things on his mind. John stays where he is. Eventually, a train comes along and crushes the child. Clearly, John is a lousy person, perhaps even a moral monster, but is he liable in damages for the child's injury or indictable under the law for its death?



Commentary. In the commentary following the fifteenth puzzler there was speculation about the difference between killing and letting die and it was suggested that there may not be that great a difference in John's decision to let the trolley continue on its path or to turn it onto a side-track. Here we have a somewhat different case in that John is not in a situation such that whichever way he chooses lives will be lost. The question here is simply whether John ought to be liable or punishable for failing to rescue the child. This puzzler is adapted from an imaginary case put forward by a Judge at the turn of the century to illustrate a principle of our present criminal justice system: few states require citizens to aid others unless they have a legal duty to do so. Here is how the Judge put the matter in 1897:

Buch v. Amory (1897)
With purely moral obligations the law does not deal. For example, the priest and the Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might and morally ought to have prevented or relieved. Suppose A, standing close by a railroad, sees a two year old babe on the track and a [train] approaching. He can easily rescue the child with entire safety to himself, and the instincts of humaity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster, but he's not liable in damages for the child's injury, or indictable under the statute for its death . . . There is a wide difference ‹ a broad gulf ‹ both in reason and in law, between causing and preventing an injury; between doing by negligence or otherwise a wrong to one's neighbor, and preventing him from injuring himself . . .

Case law suggests that there are four sets of circumstances in which courts have decided that persons have a duty to rescue: "First, where a statute imposes a duty of care to another; second where one stands in a certain [special] status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid." John's situation above fits none of these situations readily.

Every European country has a duty to rescue law on its books. Most recently, these laws have been the subject of some interest in the international press because the photographers who pursued Princess Diana's car through the streets of Paris were threatened with prosecution under France's "duty to rescue" law for their failure to aid Princess Diana and the others involved in the accident.

Some of you, too, may have watched the final episode of Seinfeld where the entire cast was arrested for their failure to respond to a mugging which took place right under their noses. The premise of the episode was to highlight Jerry's, George's, Elaine's and Kramer's indifference to the plight of others in episode after episode throughout the entire nine years of the series. The final episode was long on premise and somewhat short on substance, but its poking fun at Good Samaritanism was anything but Un-american. Only five states (Massachustts, Rhode Island, Vermont, Minnesota and Hawaii) have enacted "Good Samaritan" laws. Vermont's law reads in part as follows:

Any person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others

The Minnesota statute notes that "Śreasonable assistance' may include obtaining or attempting to obtain aid from law enforcement or medical personnel." Massachusetts and Rhode Island enacted their "Good Samaritan" laws, one year after an incident that took place in Big Dan's Tavern in New Bedford, Massachusetts, in March 1983 where more than ten bystanders were witnesses to a rape at the Tavern, but none of the bystanders made an effort to stop it or call the police, although a public phone was only a few feet away. You may recall that a film was made based on this case with Kelly McGillis and Jodie Foster, called The Accused. You may have seen it. In the actual New Bedford case two of the onlookers were charged as accessories to rape and were acquitted, prompting the Massachusetts and Rhode Island legislatures to enact "duty to rescue" statutes requiring citizens of those states who witness a crime to telephone the police. What do you think? Should more states enact "duty to rescue" laws?

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