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HAND-OUTS
SPRING 2003





Omissions and Duty To Rescue



Buch v. Amory Mfg. Co., 44 A. 809 (1897) expanded

Actionable negligence is the neglect of a legal duty. The defendants are not liable unless they owed to the plaintiff a legal duty which they neglected to perform. 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; between protecting him against injury by another and guarding him from injury that may accrue to him from the condition of the premises which he has unlawfully invaded. The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognized or enforced by law.


The Ruling in Depue v. Flateau (1907)

The court, ruling in favor of Depue, put the matter as follows: "Whenever a person is placed in such a position with regard to another that it is obvious that, if he does not use due care in his own conduct, he will cause injury to that person, the duty at once arises to exercise care commensurate with the situation in which he thus finds himself . . . to avoid such danger." Should the law incorporate this language as stating a general duty to rescue?


A Lawyer's Primer on Feminist Theory and Tort

Rather than appeal to the duties of "the reasonable man," it has been suggested that the law "measure the conduct of a tortfeasor [one who commits a tort] by the care that would be taken by a . . . responsible person with conscious care and concern for another's safety," the way one would act "out of care for a neighbor or friend." The existing doctrine and language of negligence law with its talk of "standards of care" and "reasonable men" focuses upon abstract categories in a way that is unresponsive to real human needs. The present categories of negligent law, it is contended, fail to show respect for persons or to acknowledge the human suffering and the caring human response that the plight of persons in situations like that of Sarah Tobias tends to evoke. The duty to act with the conscious care and concern of a responsible neighbor would require an affirmative duty to rescue "under appropriate circumstances," balanced by one's "ability to aid and one's proximity to the need." Does this state a workable standard? Does it represent an improvement over the existing "reasonable man" standard? Is it, perhaps, simply a fuller understanding of the "reasonable man" standard, a perfectly natural extension of it?


Action and Non-action

"Unless the defendant has a duty to act, an omission is not culpable. Of course, the line between omissions and commissions is blurry. There is considerable circularity in claiming that a defendant can be culpable only if he committed an act, when we often describe an event in active conduct terms rather than passively if we have already (somehow) determined that the party is culpable. For instance, a parent who does not feed a child (omission) may readily be said to starve the child, i.e., to commit an act." - Mark Kelman, "Interpretive Construction in the Substantive Criminal Law," Stanford Law Review, Vol. 33 (1981), p. 637.








Prepared: February 4, 2003 - 5:02:29 PM
Edited and Updated, February 5, 2003


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