HOW MANY PEOPLE DOES IT TAKE
TO SAVE A DROWNING BABY?


by Sungeeta Jain




Copyright (c) 1999 Washington Law Review
Washington Law Review

October, 1999

74 Wash. L. Rev. 1181

LENGTH: 13362 words

NOTES & COMMENTS: HOW MANY PEOPLE DOES IT TAKE TO SAVE A DROWNING BABY?: A GOOD SAMARITAN STATUTE IN WASHINGTON STATE

Sungeeta Jain

SUMMARY:
... This Comment argues that the bill is minimally intrusive and should be acceptable to autonomous individuals, because it requires a bystander merely to notify the appropriate authorities is if the bystander sees someone who is substantially injured. ... Interpreting the provision in the Vermont statute that the rescuer need not help if it would expose the rescuer to danger, the court held that a bystander need not "intervene in a fight." ... First, Minnesota limits the number of people with a duty to rescue to those who are"at the scene of an emergency"; the Vermont statute imposes the duty to rescue on anyone who "knows" of another in peril. ... Currently, Washington does not have a law creating a legal duty to rescue strangers in peril. ... The Joey Levick Bill is similar to the legislation in Minnesota and Wisconsin and unlike the Vermont statute in that it does not require the rescuer to attempt a physical rescue even when feasible. ... In addition, similar to the Vermont and Minnesota laws, the Joey Levick Bill imposes a duty to rescue those who are substantially injured, not only victims of crimes, as in Wisconsin. ... "The benefit in a dangerous rescue - saving the victim - is considerably less than certain; the burden - injury to the rescuer - is more than just possible." ... Defenders argue that even if prosecutors tried to enforce a duty-to-rescue law, it would be difficult. ...  

TEXT:
 [*1181] 


 
Abstract: For the past three years, the Washington legislature has considered a Good Samaritan bill, nicknamed the "Joey Levick Bill," that would impose a duty to summon assistance for those known to be substantially injured. This Comment argues that the bill is minimally intrusive and should be acceptable to autonomous individuals, because it requires a bystander merely to notify the appropriate authorities is if the bystander sees someone who is substantially injured. The bill also addresses the concerns about sinister abuse of the law by criminals feigning injury, by not requiring an individual to attempt a physical rescue. In addition, the bill will likely result in an increase in the number of rescues, regardless of whether the state actively enforces the bill. Most importantly, however, the lives saved by the bill will outweigh any costs of implementation. This Comment concludes that Washington should adopt the proposed Good Samaritan bill.
 
In the Bible, a lawyer asked Jesus, "Master, what shall I do to inherit eternal life?" n1 In response, Jesus told the lawyer the parable of the Good Samaritan:


 
A certain man went down from Jerusalem to Jericho, and fell among thieves, which stripped him of his raiment, and wounded him, and departed, leaving him half dead. And by chance there came down a certain priest that way: and when he saw him, he passed by on the other side. And likewise a Levite, when he was at that place, came and looked on him, and passed by on the other side. But a certain Samaritan, as he journeyed came where he was: and when he saw him, he had compassion on him. And went to him, and bound up his wounds, pouring in oil and wine, and set him on his own beast, and brought him to an inn and took care of him. And on the morrow when he departed, he took out two pence, and gave them to the host, and said unto him, Take care of him; and whatsoever thou spendest more, when I come again, I will repay thee. n2
 
Jesus ended by asking, "Which now of these three thinkest thou, was neighbor unto him that fell among the thieves?" n3

 [*1182]  "He that shewed mercy upon him," answered the lawyer. n4

"Go, and do thou likewise," Jesus replied. n5

Many civil law countries, as well as a few American states, have enacted Good Samaritan laws imposing a legal duty to rescue, requiring bystanders to come to the aid of those in peril. n6 Most American states, however, do not have Go od Samaritan laws. Instead, they follow the common law "no duty to rescue" rule that states that bystanders have no duty to come to the aid of those in peril. n7 The common law rule favors individual liberty over the value of life. n8 With narrow exceptions, the no-duty-to-rescue rule allows people to watch as others are in peril without so much as lifting a finger. n9

The drowning baby hypothetical is the traditional introduction law students have to this disconcerting rule. The hypothetical asks: If an Olympic swimmer sees a baby drowning in a pool of water, does the swimmer have a duty to rescue the baby if there is no potential for harm to the swimmer? The simple answer in most states is no; although there may be a moral duty, there is no legal duty to rescue. In Washington, there is a movement underway to change this rule. n10 As the result of one mother's outrage and dedication, a bill has been proposed in the Washington legislature that would impose a legal duty on people to summon assistance if they see someone who is substantially injured. n11

This Comment argues that Washington should adopt the "Joey Levick Bill" because it would save lives and because the arguments against a Good Samaritan law are unfounded, especially in light of the particulars of the proposed legislation in Washington. Part I of this Comment traces the history and development of the majority no-duty-to-rescue rule and the exceptions to the rule. Part II examines the duty-to-rescue rule and  [*1183]  the Good Samaritan statutes in Vermont, Minnesota, and Wisconsin. Part III discusses the current law in Washington and the details of the proposed legislation. Part IV evaluates the general arguments against Good Samaritan statutes and concludes that the arguments are unwarranted considering the provisions of the Washington proposal. This Comment concludes by urging the adoption of the proposed bill.

I. THE MAJORITY RULE: NO DUTY TO RESCUE
 
"A number of people who stand round a shallow pond in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the pond, are, no doubt, shameful cowards, but they can hardly be said to have killed the child." n12 This hypothetical, written over one hundred years ago, sums up the current state of the law in most of the United States regarding the no-duty-to-rescue rule. n13 In general, people have no duty to aid or rescue an imperiled person even when they can perform the rescue without facing any risk. n14 A person who sees a stranger in distress has no duty to render aid or even to make a telephone call to the police. n15

Criminal law generally does not punish for a failure to act. Traditionally, criminal law requires that an affirmative act, or an actus reus, be present before imposing liability for the commission of certain acts. n16 For more serious crimes, there also must be a culpable mental state, or a mens rea. n17 The state generally cannot support a criminal prosecution absent these requirements. Because an actus reus is a strict requirement, it logically follows that traditionally the law has not punished an omission or inaction. n18 Therefore, the basic thrust of the no  [*1184]  duty-to-rescue doctrine is to absolve non-actors from legal responsibility for the consequences of their inaction. n19

A classic example of the no-duty-to-rescue rule is Pope v. State, n20 where the court held that a failure to act did not constitute a crime. n21 Joyce Pope took a homeless mother and her three-month-old infant to the Pope home for the weekend after Friday night church services. n22 The young mother was suffering from a serious mental illness and was prone to episodes of violent religious frenzy. n23 On Sunday, the mother went into a frenzy, claiming she was God and that Satan had hidden himself in the baby's body. n24 She savagely beat and ripped and tore at the baby. n25 Pope was present during the entire ordeal. n26 For undisclosed reasons, however, Pope made no attempt to protect the baby, to call the authorities, or to seek medical assistance. n27 Pope went to church that evening with the mother and brought the mother back to Pope's home, where the mother spent the night. n28 Sometime during that evening, the baby died from the beating. n29 In absolving Pope of all liability, the court stated that although Pope may have been morally obligated to help the infant, she was not legally obligated to do so. n30

A. Origins of the Majority Rule
 
Legal historians trace the origins of the no-duty-to-rescue rule to the Western value of individual autonomy. n31 The early common law was  [*1185]  largely individualistic; people feared that judicial intervention in social and economic affairs would drain them of their self-reliance and infringe upon their individual freedom. n32 Thus, courts were reluctant to compel people to aid others in trouble. n33 The emerging spirit of capitalism, which hinged on the belief that "the struggle of selfish individuals automatically produces the common good of all" n34 reinforced this reluctance. Stemming from a desire to limit the scope of judicial intervention, the common law developed with the underlying goal of preventing people from harming others, rather than forcing them to confer benefits on one another. Under the weight of stare decisis, the common law produced the no-duty-to-rescue rule. n35

B. Exceptions to the Majority Rule
 
Over the decades, judicial decisions have steadily eroded the no-duty-to-rescue rule by recognizing seven exceptions in which the law imposes an affirmative duty to aid those in distress. n36 An affirmative duty to aid generally arises where there is a significant relationship between the victims and the potential rescuers. n37 This duty can be based on: (1) a personal relationship, (2) a contract, (3) creation of risk, (4) voluntary assumption of care, (5) statute, (6) control over the conduct of others, and (7) being a landowner. n38 The rationale behind these exceptions is that these relationships involve rescuers who have the ability to rescue and victims in peril who are in some way dependent on them. n39

1. Duty Based on a Personal Relationship
 
Individuals in personal relationships have a duty to rescue one another. n40 The reasoning behind this exception is that these relationships  [*1186]  should alert both potential rescuers and victims to the victims' right to depend on the rescuers. n41 A commonly used illustration of a relationship that falls under this exception is the parent-child relationship. Courts have long held that parents who fail to aid or protect their children are criminally liable for their inaction. n42 Some courts have imposed a similar, but less stringent, duty between husband and wife. n43 At least one court has held, however, that the couple must be legally married for the spousal duty to apply. n44 Other relationships that courts have held worthy of imposing a duty to act include masters to their servants n45 and ship captains to their crews. n46

2. Duty Based on Contract
 
A contractual relationship can also be the basis for imposing a duty to rescue. This is especially true in cases where the rescuers have contracted to protect the people in peril. n47 For example, physicians have a duty to their patients, n48 baby-sitters have a duty to the children for whom they are caring, n49 and lifeguards have a duty to the swimmers at the beach they are patrolling. n50

3. Duty Based on Creating the Risk
 
Even under the no-duty-to-rescue rule, the law charges people who create risks or cause dangerous situations for others with a reasonable duty to rescue. This is true regardless of whether the endangering acts  [*1187]  were intentional or negligent. n51 Courts have gone so far as to hold that a duty to rescue arises even if the endangering acts were completely innocent. n52 Thus, where people have created risks, the law no longer considers them to be mere bystanders and imposes on them a duty to rescue.

4. Duty Based upon Voluntary Assumption of Care
 
People who voluntarily begin a rescue must continue helping the victim if ending the rescue effort would put the victim in a worse position than if the rescuers had not attempted the rescue in the first place. n53 A victim is put in a worse position not only if the risk of injury is heightened because of the ineffective rescue, but also if the attempted rescue dissuaded others from rendering aid. n54 The purpose of the no-duty-to-rescue rule is to protect bystanders from being punished for their inaction. n55 People who begin rescues, however, are no longer just passive bystanders; they have become actors. Therefore, the law may punish them for the results of their actions.

5. Duty Based on Statute
 
Many states have passed statutes requiring bystanders to render aid in specific circumstances. For example, most states have statutes requiring bystanders to assist the police on request. n56 Within constitutional limitations, state legislatures may impose a duty to rescue others even when there is no relationship between the rescuers and the victims. n57

 [*1188] 

6. Duty to Control the Conduct of Others
 
Another exception to the no-duty-to-rescue rule exists where the non-actor has control over the person causing the injury. Where the non-actor has the ability to control the person causing the danger or injury, the court looks to the relationship between the non-actor and the person causing the danger or injury in imposing a duty on the non-actor to aid the victim. n58 Courts have even imposed a duty upon psychologists to warn third persons of the potential danger posed by the psychologists' patients. n59

7. Duty Based on Being a Landowner
 
Courts have held that landowners owe a duty to aid and ensure the safety of guests on their land. n60 For example, courts have held landowners who fail to use proper fire precautions on their land criminally liable in the event that guests are injured as a result of the failure. n61

C. Hypothetical Illustrating the Exceptions
 
To illustrate these exceptions to the no-duty-to-rescue rule, imagine four adults standing near a baby about to crawl into an open manhole. Each adult could easily protect the child without risk. One of the adults is the child's babysitter. The second adult is the one who removed the lid from the manhole. The third adult tried to cover the manhole, but gave up the effort upon discovering the lid was too heavy. The fourth adult is a pure bystander and is in the best position to restrain the baby, but has chosen to stand passively on the sidewalk, watching the events unfold. Even under the exceptions to the no-duty-to-rescue rule, the pure bystander would escape all liability despite inaction. The babysitter may be liable because of the contractual relationship to watch the child. The bystander who removed the lid from the manhole may be liable because  [*1189]  of creating the risk. The adult who attempted to cover the manhole may be liable under the voluntary-assumption-of-care exception if, relying upon this attempt to rescue, other potential rescuers failed to act.

II. THE MINORITY RULE: GOOD SAMARITAN STATUTES
 
In the past thirty-five years, a handful of states, including Vermont, Minnesota, and Wisconsin, have enacted statutes diverging from the majority no-duty-to-rescue rule. n62 These statutes impose on all persons a duty to assist, regardless of their relationship to the victim or perpetrator and regardless of whether they acted to create the situation. n63 In general, these statutes penalize people who fail to undertake "easy rescues," which are rescues that involve no danger to the rescuer and do not interfere with duties the rescuer owes to others. n64

A. Vermont
 
In 1967, Vermont became the first state to adopt a Good Samaritan statute. n65 Vermont adopted the law shortly after the brutal New York murder of Catherine "Kitty" Genovese. In an attack that lasted approximately thirty-five minutes, Genovese's assailant stabbed her to death. n66 The attack took place in the open, on the street in a middle-class neighborhood. n67 The assailant followed Genovese home in the early hours of the morning. n68 He began stabbing her but fled when she began yelling for help. n69 When her calls went unheeded, however, the assailant returned to strike again and then fled. n70 Alone, Genovese tried to crawl to her apartment. Unfortunately, the assailant returned a third time, this time killing his victim. n71 Although thirty-eight neighbors either heard or saw the assailant attacking Genovese, no one responded to her pleas for  [*1190]  help. n72 No one came to her aid. n73 No one called the police until thirty-five minutes after the first attack, by which time Genovese was already dead. n74 The public was stunned to discover that none of the spectators had violated any laws. n75

Vermont was the only state that acted in response to the Kitty Genovese tragedy by passing a Good Samaritan law. It passed the "Duty to Aid the Endangered" Act, n76 which requires that:


 
A 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 owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others. n77
 
The statute sets the maximum penalty for failure to comply at $ 100. n78 The statute goes on to absolve the rescuer of all civil liability unless "his acts constitute gross negligence or unless he will receive or expects to receive remuneration." n79

Vermont has seldom utilized its Duty to Aid the Endangered Act. The state's supreme court has interpreted the statute on only one occasion. n80 In State v. Joyce, n81 the Vermont Supreme Court narrowly construed the statute. The case involved a defendant who beat and kicked his son in the presence of several passive onlookers. n82 The defendant argued that because the law required intervention if the beating exposed his son to grave danger, the lack of intervention on the part of the observers was tacit approval of the defendant's conduct, or at least an indication that he was not beating his son too badly. n83 Interpreting the provision in the Vermont statute that the rescuer need not help if it would expose the  [*1191]  rescuer to danger, the court held that a bystander need not "intervene in a fight." n84

B. Minnesota
 
In 1983, Minnesota adopted a Good Samaritan Law n85 similar to the Vermont statute n86 in response to a group rape that occurred in a bar near Boston. n87 The incident, which was the basis for the movie The Accused, n88 took place in 1983 in a Massachusetts bar. n89 Six patrons of the bar raped and sodomized a twenty-two-year-old woman as other patrons cheered. n90 The assailants dragged their victim, who was kicking and screaming, across the bar and raped her on a pool table. n91 The victim screamed, cried, and begged for someone to help her. n92 No one did. n93 Instead, the bar patrons cheered on the attackers. Barely clothed, the victim finally escaped and flagged down a truck for help. n94 Due to the absence of a Good Samaritan law in Massachusetts, prosecutors could not charge any of the spectators, not even the bartender, with a crime. n95

The Minnesota Good Samaritan statute, which the state legislature passed the same year as the Massachusetts rape, states:


 
A person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel. n96
 
 [*1192]  Like the Vermont statute, the Minnesota statute absolves rescuers of civil liability unless the rescuer acts in a "willful and wanton or reckless manner." n97 A person who violates the statute may be found guilty of a petty misdemeanor and fined up to $ 100. n98

Minnesota's statute differs from Vermont's Duty to Aid the Endangered Act in three significant respects. First, Minnesota limits the number of people with a duty to rescue to those who are "at the scene of an emergency"; n99 the Vermont statute imposes the duty to rescue on anyone who "knows" of another in peril. n100 Second, Minnesota's statute does not explicitly alleviate the duty when others are rescuing the victim. n101 Third, the statute explicitly allows rescuers to call for medical assistance rather than physically attempt the rescue themselves. n102

According to one news reporter, Minnesota law enforcement officials have never actually used the statute to arrest or convict anyone. n103 An original sponsor of the bill has indicated that the purpose of the legislation was largely symbolic, to set a moral standard for society. n104

C. Wisconsin
 
In the mid 1980s, shortly after the rape in the New Bedford bar, Wisconsin also passed a Good Samaritan statute. n105 The statute states:


 
Any person who knows that a crime is being committed and that a victim is exposed to bodily harm shall summon law enforcement officers or other assistance or shall provide assistance to the victim. n106
 
The statute absolves potential rescuers of their duty to rescue if (1) complying with the statute would endanger the rescuers or interfere  [*1193]  with duties the rescuers owe others, (2) others are providing or summoning assistance, or (3) others have reported the alleged crime to law enforcement personnel. n107 The statute further absolves from civil liability any person who provides reasonable assistance to the victim of a crime. n108

The Wisconsin statute differs from the Minnesota and Vermont statutes in that it imposes a duty to aid only persons who are victims of crime. Therefore, in Wisconsin, for example, there would be no duty to aid a drowning baby or a stranger having a heart attack. In addition, the Wisconsin statute is narrower than the other statutes because it alleviates the burden to rescue if others have already summoned medical aid.

Similar to Vermont and Minnesota, Wisconsin law enforcement officials have seldom enforced Wisconsin's Good Samaritan statute. n109 The Wisconsin Supreme Court, however, upheld the first reported conviction under the statute in State v. LaPlante. n110 In LaPlante, a party hostess's failure to aid or summon help for a guest who was severely beaten by another guest in her presence violated the statute. n111 The court rejected LaPlante's challenge that Wisconsin's Good Samaritan statute was unconstitutionally vague. n112 LaPlante illustrates two major themes in the Good Samaritan law debate. First, it is constitutional to expand a duty to aid into the area of protecting strangers who are considered victims. Second, given the appropriate factual circumstances, a Good Samaritan statute can be successfully enforced. n113

III. THE PROPOSED WASHINGTON LAW
 
Currently, Washington does not have a law creating a legal duty to rescue strangers in peril. n114 Instead, Washington follows the common law  [*1194]  no-duty-to-rescue rule. In 1997 and 1998, the state House of Representatives passed a bill imposing a duty to summon assistance if a person knows of someone who is severely injured. However, both years the bill stalled in the Senate. n115 Once again, in 1999, the bill was proposed in the House of Representatives. n116

The bill is nicknamed the "Joey Levick Bill," in memory of Joey Levick, a twenty-one-year-old student who was killed on June 2, 1994. n117 Joey was getting a ride home from a party with some friends when a fight broke out between Joey and his friends. n118 Several punches were thrown. n119 The friends, believing they had killed Joey, left him on the side of the road and fled the scene. n120 Joey, although badly hurt, was not yet dead. n121 The friends told several people what had happened and even took some of them to the scene, n122 where they discovered Joey was not dead. n123 No one did anything to help the dying man. n124 No one called 911. n125 The friends visited the scene once or twice more during the day. n126 Still, no one did anything to help Joey. n127 Finally, approximately fifteen hours after the fight had started, the mother of one of the friends called 911. n128 The authorities dispatched a police car to the scene, but it was too  [*1195]  late. n129 Joey Levick was already dead. n130 If someone had called 911 earlier, perhaps Joey would have lived. n131

Prosecutors charged and tried Joey's friends for his murder. n132 Jason Soler and Jason Twyman, Joey's assailants, were convicted of second-degree murder. n133 Twyman is serving a twenty-five-year jail sentence. n134 The trial court, however, set aside Soler's conviction because of improper remarks made by the prosecutor in closing arguments. n135 Soler subsequently entered an Alford plea to first-degree manslaughter. n136

After the trial of the two friends, many of the jurors approached the prosecutor, inquiring whether he could charge with a crime the four people who knew that Joey was hurt on the side of the road but had done nothing to help him. n137 Under the no-duty-to-rescue common law rule, however, the simple answer was "No." n138

Upon learning that the bystanders could not be prosecuted, Joey Levick's mother started a grass-roots campaign to pass legislation that would impose upon those who see others who are substantially injured a criminal law duty to summon assistance. n139

Although the proposed bill does not require a person physically to assist another in peril, it does require a person to summon assistance if


 
(a) He or she knows that another person has suffered substantial bodily harm and is in need of assistance;
 
 [*1196] 
 
(b) He or she could reasonably summon assistance for the person in need without danger to himself or herself and without interference with an important duty owed to a third party;
 

 
... and
 

 
(d) Another person is not summoning assistance for the person in need. n140
 
The rescuer would satisfy the duty to summon assistance by making reasonable efforts to summon medical, fire, or law enforcement authorities and identify the location of the victim. n141 Failure to adhere to the proposed bill would be a misdemeanor. n142

The Washington bill combines many of the aspects of the Good Samaritan statutes existing in other states. The Joey Levick Bill is similar to the legislation in Minnesota and Wisconsin and unlike the Vermont statute in that it does not require the rescuer to attempt a physical rescue even when feasible. The Washington bill specifically states that the rescuer need only summon assistance. Like the Wisconsin and Vermont statutes, the bill does not create a duty if someone else is rendering the requisite assistance. In addition, similar to the Vermont and Minnesota laws, the Joey Levick Bill imposes a duty to rescue those who are substantially injured, not only victims of crimes, as in Wisconsin. The proposed legislation in Washington is also similar to the existing laws in Minnesota, Wisconsin, and Vermont in that it requires rescue only when the rescuers can do so without endangering themselves.

Had a Good Samaritan statute like the one proposed in Washington existed prior to 1994, it may have compelled the bystanders who had seen Joey Levick lying in the ditch to summon assistance earlier, perhaps saving Joey's life. A similar law in Maryland at the time of the Pope case might have compelled Pope to call 911 after the infant's mother had assaulted the infant, perhaps resulting in emergency medical personnel rendering life-saving medical aid to the child. Similarly, had a Good Samaritan law been in effect in New York, it might have compelled  [*1197]  Genovese's neighbors to call police after the first attack, possibly resulting in the assailant's apprehension before he returned a second and third time.

IV. WASHINGTON SHOULD ADOPT A GOOD SAMARITAN STATUTE
 
Washington should adopt the Joey Levick bill because it is minimally intrusive and thus falls within the purview of laws reasonably acceptable to autonomous individuals. The bill will not lead to sinister abuse by criminals feigning injury and will likely result in an increase in the number of rescues and the number of lives saved. In recent years, scholars have rekindled and brought to the forefront the debate over the duty to rescue. n143 Proponents on both sides of the debate have taken their pens in hand and scrawled pages of arguments, supporting their stance on whether or not there should be a Good Samaritan duty to rescue in the United States. Defenders of the no-duty-to-rescue rule (defenders) have put forth several arguments. The four most common arguments are (1) a desire for individual autonomy, n144 (2) a concern about "sinister abuse" of Good Samaritan laws, n145 (3) a skepticism regarding the actual effectiveness of a duty-to-rescue law, n146 and (4) the high cost involved in implementing an effective Good Samaritan law. n147 Although each of these arguments presents legitimate concerns, the arguments are ultimately unconvincing in the face of the proposed Washington rule.  [*1198]  Because the Washington bill withstands these arguments and may save lives, Washington should adopt the Joey Levick Bill.

A. The Good Samaritan Law Proposed in Washington Does Not Stifle Individual Autonomy
 
The Washington law, by limiting the duty to a simple phone call, promotes individual freedom; it does not detract from it. Individualists argue, however, that Good Samaritan laws are undesirable because they take away from individual liberty.

Individualists argue that a no-duty-to-rescue rule allows for greater individual liberty. n148 The individual's desire to live free from government interference is deeply ingrained in the American psyche. n149 Accordingly, American lawmakers have long respected the autonomy of the individual and have been reluctant to punish for failure to rescue. n150 The individualist objection to a duty to rescue is that such a duty deprives people of their freedom to choose whether or not to rescue victims. n151 Individualists believe that requiring the performance of affirmative acts is unduly coercive and beyond the legitimate scope of government. n152 If people choose not to aid victims, society may label them "moral monsters," but under an individualist system, that is solely their concern. n153

Consent is the hallmark of individualist political theories. Individualists believe that the consent of the governed is the basis of the state's legitimacy. n154 Individualism, however, does not require that a person's autonomy may never be abridged. n155 Clearly, laws proscribing misfeasance restrict a person's autonomy. Individualists believe that autonomous individuals are willing to accept certain limitations on their freedom as long as they receive commensurate benefits. n156 For example, autonomous individuals are willing to allow the law to prohibit them  [*1199]  from interfering with or injuring others, on the condition that the law prohibits others from interfering with or injuring them. n157 The benefit gained by giving up this freedom is the assurance that within a certain realm of activities, individuals will be able to formulate, implement, and achieve their goals undisturbed. n158 This reasoning suggests that under the individualist theory, legal principles are acceptable if individuals balancing the desire for autonomy with self-interest would freely adopt them. n159

Individualists use this balance to reject a general duty to rescue that would require people to render physical aid to those in distress in all situations. Because a general duty-to-rescue law would require rescue even where it poses a danger to the rescuer, the balance under such a law would be the risk of loss of life and permanent injury in exchange for the knowledge that the law will in turn require others to do the same on the individualist's behalf. n160 "The benefit in a dangerous rescue - saving the victim - is considerably less than certain; the burden - injury to the rescuer - is more than just possible." n161 Autonomous individuals may reasonably disagree whether a general duty to rescue in all circumstances is desirable. Therefore, such a duty is not justifiable on individualist grounds. n162

The same individualist balance that supports legally proscribing misfeasance and rejects a general duty to rescue is not inconsistent with recognizing a duty to call 911 as proposed by the Joey Levick Bill. The simple phone call required by the Washington bill involves no danger and little time and effort. Individualists receive two kinds of benefits from a law like the one proposed in Washington. First, such a law increases the likelihood that bystanders will rescue individualists in need. Second, even if individualists never need rescue, the law gives them reason to believe that, should they need rescue, the law requires action on their behalf. This assurance helps individualists plan their activities, thereby enhancing their freedom. In exchange for this, individualists suffer only the minor inconvenience of making a toll-free call should the law ever require them to rescue others. Balancing the infringement on  [*1200]  liberty against the benefits to the individual, the proposed legislation in Washington is consistent with the goals of individualism.

B. The Proposed Washington Law Will Not Lead to "Sinister Abuse" of a Duty to Rescue
 
Defenders also express concern that if states impose a duty to rescue, criminals may wrongly use the opportunity to lure unsuspecting rescuers into traps. n163 The Washington bill addresses this concern by limiting the duty to rescue to a phone call, as opposed to requiring physical assistance.

A hypothetical scenario illustrating the possible abuse of a duty to rescue depicts a thief lying in the middle of the road, feigning an injury. An unsuspecting Good Samaritan, Anne, happens upon the scene and, compelled by legal duty, approaches the "injured" thief. Just as Anne gets close, the feigning thief jumps up and robs Anne of her purse, her belief in humanity, and her sense of security.

In today's society, such scenarios actually occur. In 1994, a Seattle deliveryman interrupted his last St. Patrick's Day delivery to stop a man from abusing his girlfriend. Unfortunately, the Good Samaritan's selfless gesture was met with four bullets from a handgun. n164 In the same year, a middle-school teacher who stopped to help a "distressed motorist" while driving to her first day of work was robbed by the man and thrown in front of moving traffic. The new teacher vowed that she would "never again" aid someone she did not know. n165 In these instances, the Good Samaritans acted out of a sense of moral duty - not legal duty - and defenders argue that imposing a legal duty to aid would only increase the number of such incidents. n166 Therefore, they urge that for reasons concerning the safety and well-being of everybody, laws imposing a duty to rescue strangers are undesirable. n167

The Washington bill addresses this concern by allowing the Good Samaritan merely to place a phone call to the appropriate authorities  [*1201]  instead of physically helping the person in distress. n168 Under the Washington bill, those who happen upon a person lying injured in the middle of the road need not approach the "victim." Instead, the potential rescuers need only call 911 whenever it is reasonably feasible to do so. n169

In addition, the Washington bill requires a person to act as a Good Samaritan only if "he or she knows that another person has suffered substantial bodily harm and is in need of assistance." n170 The Washington bill also limits the instances where the law would require rescuers to render aid to those occasions when the rescuer can do so "without danger to himself or herself and without interference with an important duty owed to a third party." n171 Therefore, the bill would not require a person to approach the feigning thief lying in the middle of the road. Instead, the Good Samaritan could simply call the proper authorities and continue on his or her way.

The Washington bill would not require a person to act at all in the case of the delivery driver on St. Patrick's Day who stopped to break up a fight, because no one was injured at the time the Good Samaritan attempted to intervene. n172 Similarly, the bill would not have compelled the school teacher to aid the "distressed motorist" who then assaulted her, because the "victim" was not injured at the time she attempted to render aid. n173 The proposed bill in Washington would leave the decision to the actor's sense of moral duty. In addition, the Joey Levick Bill requires only a phone call; it does not require physical intervention. Therefore, even in instances where the law compels bystanders to render aid, they may do so without physical intervention, thus reducing the potential of harm to themselves. Thus, the Joey Levick Bill would not result in "sinister abuse" of the duty to rescue, because the bill limits the necessary assistance to a 911 phone call and limits the instances in which a rescuer is required to make the phone call.

 [*1202] 

C. The Good Samaritan Law Will Effectively Change Behavior
 
Defenders argue that Good Samaritan statutes are ineffective and states should not adopt them because states rarely enforce these statutes. n174 Defenders contend that laws that states seldom enforce simply clutter the books without achieving significant positive goals; therefore, states should not enact these statutes. n175 First, there is no concrete evidence to support the presumption that Washington would not enforce such a law. Second, if Washington were to enforce such a law, it would result in a change of behavior. Finally, even if Washington does not enforce the Good Samaritan law, a study has shown that the mere presence of such a law on the books will result in an increa se in rescues byincreasing people's sense of moral responsibility.

Defenders point to the infrequent enforcement of the existing Good Samaritan statutes in states such as Vermont, Minnesota, and Wisconsin to support the argument that even if a state did adopt a Good Samaritan statute, the statute would be ineffective because of lack of enforcement. n176 Defenders claim that bystanders fail to act for various reasons that imposing a legal duty may not address. The reasons for inaction range from fear of danger to not knowing how to help. n177 Some people may not help because they want to respect the privacy of others. Other bystanders may not rescue, as in the Genovese case, because they do not want to take the trouble to get involved in others' affairs. n178 Defenders argue that because Good Samaritan statutes are not enforced, the statutes do not provide the requisite incentive to turn bystanders into rescuers. n179

The argument is that if people who are not otherwise inclined to rescue have to choose between either following the law by going out of their way to help strangers in need or continuing on with their daily business, thus breaking a law that states rarely enforce, people may not feel a strong enough urge to break from their daily routines. For example, most people know that there is a law against jaywalking, yet because they know that law enforcement officials do not actively enforce the law,  [*1203]  few people actually adhere to the law. Many people simply look both ways, and when it is safe to cross, they do so. Thus, defenders argue that if a state does not enforce a Good Samaritan law, the law will be ineffective in changing behavior and the state should not enact the law because it would simply clutter the books. n180

In the context of the Washington bill, however, this argument is deficient. There is no basis for concluding that Washington will not actively enforce the Joey Levick Bill, if passed. The Washington courts and legislature have enunciated a strong societal policy in favor of the protection of human life. n181 Given this policy, it is likely that Washington will enforce a statute that would help save lives by requiring witnesses to call proper authorities when they see others who are substantially injured.

If Washington were to enact and enforce the Good Samaritan statute, the state will encourage rescue by setting the standard for appropriate behavior. n182 Although people may fail to act for various reasons, n183 many believe that people will act when it is in their self-interest. n184 Therefore, if inaction could result in incarceration or a fine, the law will encourage people to act in order to avoid incurring these penalties. In particular, a Good Samaritan statute will encourage action in at least three ways. First, the law will motivate bystanders to help if a police officer is in the vicinity. n185 Second, a bystander will be more inclined to render assistance if there are other witnesses around who can later testify in court against the bystander. n186 Third, even if the bystander and the victim are alone, the bystander will feel compelled to render assistance under the statute  [*1204]  because if the victim escapes with his or her life, the victim can later report the bystander's violation to the authorities. n187

Defenders argue that even if prosecutors tried to enforce a duty-to-rescue law, it would be difficult. Nonrescuers would be hard to trace, especially when the victim dies and there are no other witnesses. n188 It would also be difficult to establish whether the passive bystander actually knew of the injury or peril. n189 Prosecutors, however, face similar obstacles in enforcing other criminal laws. For example, murderers or thieves who commit their crimes without witnesses can also be difficult to trace. Also, refuting a claim of self-defense or proving mens rea can be as challenging as determining whether the passive bystander had actual knowledge of the injury or peril.

Even if Washington does not actively enforce the statute, the mere fact that a Good Samaritan statute exists will likely result in a change of behavior. n190 The passage of a Good Samaritan law would articulate a community standard of rescue. Some people may not help because they do not know how to help. n191 However, a legal duty to aid, even if not enforced, would likely result in an increase in helping behavior; it would decrease the ambiguity surrounding perilous situations by providing a norm for appropriate conduct. n192 In this vein, the Joey Levick bill, if passed,would inform people who might not take any action because they are unsure of what to do, what the acceptable level of action is, thus enabling them to rescue.

In addition, research demonstrates that when individuals know that they have a legal duty, they are more likely to act positively. n193 "There exists a symbiotic relationship between legal and moral rules[;] accordingly, creating a legal duty to rescue would increase the number of  [*1205]  people who felt morally obligated to do so." n194 Therefore, regardless of whether the state enforces the statute, the law may foster a sense of moral responsibility and encourage people to render aid even though they want to respect other people's privacy or do not want to bother with other people's problems

Defenders argue that it is not the government's purpose to legislate morality. They argue that while morality may require altruism from the individual, it is not the purpose of the law to be a thread holding together the fabric of morality. n195 These defenders support their contentions by citing the early common law. n196 The early law asked merely whether the defendant had committed an act that damaged the plaintiff; it did not inquire into the blameworthiness of the defendant. n197 For example, under the early law, all killings were treated equally regardless of whether the killer had murdered in cold blood or in self-defense. n198 Under the early law, people acted at their own peril because regardless of moral culpability, courts would hold people who damaged others criminally and civilly liable.

Over time, the morally ambiguous standard of acting at one's peril has been gradually replaced by the more ethical standard of reasonable conduct. n199 Both civil and criminal laws have gradually changed so as to bring them more in harmony with ethical principles. n200 The law is no longer just a set of formal rules; it is also an expression of a society's values and concerns, and it can and ought to be used to improve those values and concerns. n201 For example, the Civil Rights Act of 1964, n202 one of the most famous reform statutes of the twentieth century, is a strong example of legal reform that was intended to make social change. n203 The Act put forth essentially two new ideas about everyday relations between  [*1206]  individuals: (1) at least in the public realm, each person has rights equal to those of any other person, and (2) racial segregation is wrong. n204 These ideas created an entirely new model of conduct that deliberately overturned doctrines that had been rooted in American culture for several centuries. n205

This is not to say that subjective moral culpability is a prerequisite to criminality. n206 Courts may punish defendants even if they did not act in a subjectively blameworthy manner because of a nonculpable factual mistake. n207 For example, bigamy and statutory rape laws both impose severe prison sentences, yet neither has conventionally required a culpable state of mind. n208 The prohibition on bigamy has traditionally punished transgressors for simultaneous marriages even if they honestly believed that the first marriage had legally terminated. n209 Statutory rape has similarly punished an adult for sexual intercourse with a minor even if the adult reasonably believed the minor was old enough to consent. n210 Even in these cases, while subjective morality is not a prerequisite, an underlying purpose of these laws is to punish the inherent immorality involved in having multiple spouses or having sexual intercourse with a minor. n211 Examples such as these show that morality and legislation are not on separate ends of the spectrum, but are closely interrelated. It is not inconsistent with the way the law has evolved for a state to enact a law with a moral agenda. By setting a moral standard for society, the passage of the Joey Levick Bill in Washington would likely result in an increased number of rescues whether or not the law is actively enforced.

D. The Benefits of a Good Samaritan Law Outweigh Any Costs
 
The benefit of lives saved as a result of an effective Good Samaritan lawoutweighs the monetary costs. If the monetary costs seem overwhelming to a state, it can simply enact the law without active enforcement and still reap many of the benefits of the law without the  [*1207]  costs. Yet defenders of the no-duty-to-rescue rule often dwell upon the costs of implementing an effective Good Samaritan law.

Defenders argue that the money needed to investigate, arrest, and prosecute violators of Good Samaritan laws could reach outrageous amounts. n212 With a statute like the Washington bill, which encourages 911 phone calls, the cost of prosecuting violations is coupled with the costs of implementing additional emergency phone lines to accommodate the added number of phone calls reporting injury. Defenders argue that the money saved by not enacting Good Samaritan laws could be used to prosecute more serious offenders instead of violators of a duty-to-rescue statute. n213

Aside from the monetary costs, defenders argue that imposing a duty to rescue would reduce the number of potential rescuers and hinder police investigations. The argument is that the burden of the duty would cause people to avoid situations where the law may require them to rescue a stranger. n214 In other words, "the strong swimmer would avoid the crowded beach," thus reducing the number of potential rescuers at the crowded beach. n215 In addition, defenders argue that a duty-to-rescue rule might hinder police investigations by discouraging witnesses who failed to render assistance from coming forward to help identify perpetrators. n216

Balancing these costs against the benefits of a Good Samaritan law shows that the benefits outweigh the costs and that the statute is worthwhile. The strongest argument for adopting a duty to rescue, as well as the most evident benefit, is that the law would result in lives being saved. n217 The baby in Pope should not have been beaten to death by his mother with Pope passively watching. Kitty Genovese should not have had to die as a result of multiple violent attacks before one of thirty-eight spectators finally called the police. Joey Levick should not have had to lie alone in a ditch for fifteen hours, waiting for help to arrive, before he took his final breath. The value of these, as well as the countless other lives that a Good Samaritan statute could save, outweighs the costs of adopting a duty-to-rescue rule.

 [*1208]  The fact that Good Samaritan laws can be effective without active enforcement also refutes the argument that these laws are too costly to adopt. If a state such as Washington determines that the costs of enforcing a duty-to-rescue rule outweigh the benefits of lives saved, it can simply adopt the statute without undertaking measures to enforce the statute actively, thus gaining at least some of the benefits of the rule without the cost. The primary costs in this situation would be the minimal costs of additional phone lines and having the law on the books. This is the route states like Minnesota and Wisconsin have chosen to take, implementing their largely unenforced Good Samaritan laws with the primary purpose of providing a "moral compass" to point society in the proper direction. n218

V. CONCLUSION
 
How many people does it take to save a drowning baby? Under the common law no-duty-to-rescue rule, it could take thousands, because no one person would feel compelled by law to save the baby. Under the Joey Levick Bill, however, all it would take is one Good Samaritan, fulfilling his or her duty under the law, to save the drowning baby. Although the proposed legislation in Washington is miles away from creating the kind of Good Samaritan that Jesus described in his parable to the lawyer, it is a much-needed step toward reaching the societal goal of saving lives. Thus, Washington should adopt the Joey Levick Bill. Because the bill requires that a bystander merely call 911 if the bystander sees someone who is substantially injured, it is minimally intrusive and falls within the purview of laws reasonably acceptable to autonomous individuals. In addition, by not requiring that an individual physically attempt a rescue, the bill addresses and withstands concerns about sinister abuse of the law by criminals feigning injury. Regardless of whether the state actively enforces the legislation, the bill will likely result in an increase in the number of rescues. Most importantly, saved lives will outweigh any costs of implementation.



FOOTNOTES:
n1. Luke 10:25 (King James).

n2. Luke 10:30-35 (King James).

n3. Luke 10:36 (King James).

n4. Luke 10:37 (King James).

n5. Luke 10:38 (King James).

n6. See A.D. Woozley, A Duty to Rescue: Some Thoughts on Criminal Liability, 69 Va. L. Rev. 1273, 1273-74 (1983); John T. Pardun, Comment, Good Samaritan Laws: A Global Perspective, 20 Loy. L.A. Int'l & Comp. L.J. 591, 594-97 (1998).

n7. See Pardun, supra note 6, at 596.

n8. See Peter M. Agulnick & Heidi V. Rivkin, Comment, Criminal Liability for Failure to Rescue: A Brief Survey of French and American Law, 8 Touro Int'l L. Rev. 93, 96 (1998).

n9. See Charles O. Gregory, The Good Samaritan and the Bad: The Anglo-American Law, in The Good Samaritan and the Law 23, 24 (James M. Ratcliffe ed., 1966).

n10. See John Gillie, Transforming Family Tragedy into New Hope for Others, News Trib. (Tacoma), Apr. 20, 1997, at B1; see also H.R. 1429, 56th Leg., 1st Reg. Sess. (Wash. 1999).

n11. See H.R. 1429, 56th Leg., 1st Reg. Sess. (Wash. 1999).

n12. Agulnick & Rivkin, supra note 8, at 96 (quoting 1 James F. Stephen, A History of the Criminal Law of England 10 (1883)).

n13. See id.

n14. See Leslie Bender, An Overview of Feminist Torts Scholarship, 78 Cornell L. Rev. 575, 580 (1993).

n15. See Kathleen E. Payne, Linking Tort Reform to Fairness and Moral Values, 1995 Det. C.L. Rev. 1207, 1236.

n16. See Agulnick & Rivkin, supra note 8, at 95.

n17. See id.

n18. See id.

n19. See Thomas C. Galligan, Jr., Aiding and Altruism: A Mythopsycholegal Analysis, 27 U. Mich. J.L. Reform 439, 441 (1994).

n20. 396 A.2d 1054 (Md. 1979). This is the principal case used to introduce law students to the no-duty-to-rescue doctrine in Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and Its Processes 181 (6th ed. 1995).

n21. See Pope, 396 A.2d at 1058.

n22. See id.

n23. See id. at 1058-59.

n24. See id. at 1059.

n25. See id.

n26. See id.

n27. See id.

n28. See id.

n29. See id.

n30. See id. at 1067.

n31. See Bender, supra note 14, at 580; Jay Silver, The Duty to Rescue: A Reexamination and Proposal, 26 Wm. & Mary L. Rev. 423, 424 (1985); Robert Justin Lipkin, Comment, Beyond Good Samaritans and Moral Monsters: An Individualistic Justification of the General Legal Duty to Rescue, 31 UCLA L. Rev. 252, 276 (1983).

n32. See Silver, supra note 31, at 424-25.

n33. See id.

n34. Aleksander W. Rudzinski, The Duty to Rescue: A Comparative Analysis, in The Good Samaritan and the Law, supra note 9, at 120.

n35. See Silver, supra note 31, at 425.

n36. See Steven J. Heyman, Foundations of the Duty to Rescue, 47 Vand. L. Rev. 673, 675 (1994).

n37. See Agulnick & Rivkin, supra note 8, at 98.

n38. See id. at 98-99.

n39. See Lipkin, supra note 31, at 263.

n40. See Agulnick & Rivkin, supra note 8, at 99.

n41. See Daniel B. Yeager, A Radical Community of Aid: A Rejoinder to Opponents of Affirmative Duties to Help Strangers, 71 Wash. U. L.Q. 1, 10 (1993).

n42. See, e.g., State v. Williquette, 385 N.W.2d 145, 154 (Wis. 1986) (finding mother guilty of child abuse for not taking action to stop her husband from repeatedly abusing her children).

n43. See Westrup v. Commonwealth, 93 S.W. 646, 646 (Ky. 1906).

n44. See People v. Beardsley, 113 N.W. 1128, 1131 (Mich. 1907).

n45. See Rex v. Smith, 172 Eng. Rep. 203, 205 (1826) (discussing lack of duty between siblings but recognizing duty between master and servant).

n46. See, e.g., United States v. Knowles, 26 F. Cas. 800, 802 (N.D. Cal. 1864) (No. 15,540).

n47. See Agulnick & Rivkin, supra note 8, at 101.

n48. See People v. Montecino, 152 P.2d 5, 13 (Cal. Dist. Ct. App. 1944).

n49. See Pope v. State, 396 A.2d 1054, 1063 (Md. 1979) (recognizing that babysitters owe duty to children they care for although hosts have no duty to rescue guests in their homes).

n50. See Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 3.3(a)(3) (2d ed. 1986).

n51. See, e.g., Jones v. State, 43 N.E.2d 1017, 1018 (Ind. 1942) (finding defendant guilty of murder when he did nothing to rescue his rape victim who, immediately following rape, jumped into river and drowned); Commonwealth v. Cali, 141 N.E. 510, 511 (Mass. 1923) (finding defendant guilty of arson when, after accidentally starting fire, he failed to call fire department and did nothing to extinguish fire himself).

n52. See, e.g., Tubbs v. Argus, 225 N.E.2d 841, 843 (Ind. Ct. App. 1967) (finding driver of car involved in car accident had duty to help injured passenger despite state's guest statute that limited liability of driver for passenger's injuries).

n53. See Silver, supra note 31, at 426.

n54. See LaFave & Scott, supra note 50, 3.3(a)(4).

n55. See Agulnick & Rivkin, supra note 8, at 95.

n56. See Kadish & Schulhofer, supra note 20, at 190; Anne Cucchiara Besser & Kalman J. Kaplan, The Good Samaritan: Jewish and American Legal Perspectives, 10 J.L. & Religion 193, 209 (1993-94).

n57. See David C. Biggs, "The Good Samaritan Is Packing": An Overview of the Broadened Duty to Aid Your Fellowman, with the Modern Desire to Possess Concealed Weapons, 22 U. Dayton L. Rev. 225, 229 (1997).

n58. See Galligan, supra note 19, at 457. Examples of the duty to control the conduct of others include "an employer's duty to protect third parties from harmful acts of his employees, and a car- owner's duty to regulate the speed his chauffeur drives lest the car injure third parties." Agulnick & Rivkin, supra note 8, at 103.

n59. See, e.g., Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 340 (Cal. 1976).

n60. See LaFave & Scott, supra note 50, 3.3(a)(7).

n61. See Commonwealth v. Welansky, 55 N.E.2d 902, 910 (Mass. 1944).

n62. See Yeager, supra note 41, at 5-8.

n63. See Agulnick & Rivkin, supra note 8, at 105.

n64. Yeager, supra note 41, at 14.

n65. See Silver, supra note 31, at 426; Pardun, supra note 6, at 598.

n66. See Silver, supra note 31, at 423.

n67. See Agulnick & Rivkin, supra note 8, at 93-94.

n68. See Diane Kiesel, Who Saw This Happen - States Move to Make Crime Bystanders Responsible, 69 A.B.A. J. 1208, 1208 (1983).

n69. See id.

n70. See id.

n71. See id.

n72. See Silver, supra note 31, at 423.

n73. See id.

n74. See Agulnick & Rivkin, supra note 8, at 94.

n75. See Silver, supra note 31, at 423.

n76. 1967 Vt. Acts & Resolves 309 (Adj. Sess.), 2-4 (codified at Vt. Stat. Ann. tit. 12, 519 (1997)).

n77. Vt. Stat. Ann. tit. 12, 519(a) (1997).

n78. See Vt. Stat. Ann. tit. 12, 519(c) (1997).

n79. Vt. Stat. Ann. tit. 12, 519(b) (1997).

n80. See Pardun, supra note 6, at 599; see also State v. Joyce, 433 A.2d 271 (Vt. 1981).

n81. 433 A.2d 271 (Vt. 1981).

n82. See id. at 272-73.

n83. See id. at 273.

n84. Id.

n85. 1983 Minn. Law 623, Art. 2, 1 (codified at Minn. Stat. Ann. 604A.01 (West 1999)).

n86. See 12 Vt. Stat. Ann. tit. 12, 519 (1997); Yeager, supra note 41, at 14.

n87. See Silver, supra note 31, at 427.

n88. The Accused (Paramount Pictures 1988).

n89. See Yeager, supra note 41, at 21.

n90. See id.

n91. See id.

n92. See id.

n93. See id.

n94. See id.

n95. See id. at 22.

n96. Minn. Stat. Ann. 604A.01 subd. 1 (West 1999).

n97. Minn. Stat. Ann. 604A.01 subd. 2 (West 1999).

n98. See Minn. Stat. Ann. 604A.01 subd. 1.

n99. Minn. Stat. Ann. 604A.01 subd. 1.

n100. Vt. Stat. Ann. tit. 12, 519(a) (1997).

n101. See Minn. Stat. Ann. 604A.01 subd. 1.

n102. See Minn. Stat. Ann. 604A.01 subd. 1.

n103. See Pardun, supra note 6, at 597 (citing Allie Shah, How Good Is "Good Samaritan" Legislation? It's Hard to Enforce Lending Helping Hand, Star-Trib. (Mpls.-St. Paul), Sept. 18, 1997, at 1B).

n104. See id. at 606.

n105. 1983 Wis. Laws 198, 1 (codified at Wis. Stat. Ann. 940.34 (West 1996)).

n106. Wis. Stat. Ann. 940.34(2)(a) (West 1996).

n107. See Wis. Stat. Ann. 940.34(2)(d) (West 1996).

n108. See Wis. Stat. Ann. 940.34(3) (West 1996).

n109. See Pardun, supra note 6, at 600.

n110. 521 N.W.2d 448 (Wis. 1994); see also Pardun, supra note 6, at 600.

n111. See LaPlante, 521 N.W.2d at 449-51.

n112. See id. at 443; Pardun, supra note 6, at 600.

n113. See Biggs, supra note 57, at 242.

n114. See William Dauber, Mother of Slain Man Crusades for New Law, Seattle Times, June 13, 1996, at B1. However, Washington has a statute imposing on individuals a duty to notify law enforcement authorities if the individuals witness a violent felony. See Wash. Rev. Code 9.69.100 (1998). Persons who fail to do so face a charge of gross misdemeanor, punishable by up to one year in prison and a $ 5000 fine. See Wash. Rev. Code 9.92.020 (1998). Some commentators have referred to this statute as a type of Good Samaritan law. See, e.g., Yeager, supra note 41, at 6. However, from the text of the statute, the purpose appears to be catching the criminal, not aiding the victim. See id.

n115. See Kathy George, Federal Way Boy Drowns - Pals Don't Seek Help, Seattle Post-Intelligencer, July 2, 1998, at B1 (summarizing history of Joey Levick Bill).

n116. See H.R. 1429, 56th Leg., 1st Reg. Sess. (Wash. 1999).

n117. See Jennifer McCoy, Law Would Force Bystanders to Help - Parents of Slain Teen Argue for Legislation, Seattle Times, Jan. 30, 1997, at B3.

n118. See Amy Corneliussen, Friends Testify They Didn't Mean for Roadside Beating to Kill Man, News Trib. (Tacoma), Oct. 27, 1994, at B1.

n119. See id.

n120. See id.

n121. See id.

n122. See Nancy Bartley, Innocent Bystanders No More - Victim's Parents Want Call for Help to Be Law, Seattle Times, Dec. 13, 1996, at B1.

n123. See Arthur C. Gorlick, Slaying Sparks Drive for "Joey Levick Bill', Seattle Post-Intelligencer, June 14, 1996, at B1.

n124. See id.

n125. See id.

n126. See id.

n127. See id.

n128. See id.

n129. See id.

n130. See id.

n131. See Corneliussen, supra note 118, at B1. But see Barry Siegel, Beyond the Reach of the Law, L.A. Times, Aug. 20, 1996, at A1 (indicating that girlfriend of one defendant may have tried calling 911 earlier, but no ambulance was dispatched because of vagueness of information she gave).

n132. See Nancy Bartley, Accused Killer Charged with Harassment, Seattle Times, Oct. 8, 1997, at B1.

n133. See id.

n134. See id.

n135. See id.; see also State v. Soler, Nos. 36068-0-I, 36179-1-I, 1998 WL 300535, at *1 (Wash. Ct. App. June 8, 1998).

n136. See Man Enters Alford Plea in Slaying, Seattle Times, Feb. 26, 1999, at B2. A defendant making an Alford plea denies guilt but agrees that if the case goes to trial he or she will be found guilty. See generally North Carolina v. Alford, 400 U.S. 25 (1970).

n137. See Amy Corneliussen, Jury Convicts 2 in Beating Death of Federal Way Man, News Trib. (Tacoma), Nov. 15, 1994, at B1.

n138. See Pardun, supra note 6, at 596.

n139. See Cheryl Reid, In Son's Memory, Mother Seeks Law; A Woman Whose Only Child Was Murdered Fights to Make It a Crime to Refuse to Render Aid, News Trib. (Tacoma), Jan. 8, 1996, at B1.

n140. H.R. 1429, 56th Leg., 1st Reg. Sess. (Wash. 1999). The quoted text is taken from the most recent version of the bill. For a discussion of the initial draft of the legislation, see Melody J. Stewart, How Making the Failure to Assist Illegal Fails to Assist: An Observation of Expanding Criminal Omission Liability, 25 Am. J. Crim. L. 385, 390 (1998) (citing legislative history). A subsequent version of the bill can be found at H.R. 1186, 1(b), 55th Leg., 1st Reg. Sess. (Wash. 1997).

n141. See H.R. 1429, 56th Leg., 1st Reg. Sess. (Wash. 1999).

n142. See id.

n143. Since the tragic 1997 death of Princess Diana in France, a country with Good Samaritan laws, the issue has once again become a point of heated debate. Photographers, who were the first to arrive at the scene of Princess Diana's accident, allegedly snapped photographs of her body instead of assisting her and her companions who were stuck in the car. As a result, authorities investigated seven photographers for possible violations of France's Good Samaritan law. See Agulnick & Rivkin, supra note 8, at 93. Also, in 1998, the much-anticipated final episode of the hit television sitcom Seinfeld centered around a Good Samaritan law. In the episode, Jerry, Elaine, George, and Kramer watched with amusement as a thief held up a man not more than a few feet from where they stood, stealing his car. With cellular phone and video camera in hand, they ridiculed the victim, snickering at his obesity. Their laughter soon turned to tears, as the police hauled the foursome off to jail under Latham, Massachusetts', new Good Samaritan law. See Seinfeld (NBC television broadcast, May 14, 1998).

n144. See Bender, supra note 14, at 580; Silver, supra note 31, at 423; Lipkin, supra note 31, at 276; infra Part IV.A.

n145. See Pardun, supra note 6, at 604-05.

n146. See Agulnick & Rivkin, supra note 8, at 97.

n147. See Payne, supra note 15, at 1239; Pardun, supra note 6, at 605.

n148. See Agulnick & Rivkin, supra note 8, at 96.

n149. See id.

n150. See id.

n151. See Lipkin, supra note 31, at 277.

n152. See Silver, supra note 31, at 429.

n153. Lipkin, supra note 31, at 277 (citing Buch v. Amory Mfg. Co., 44 A. 809, 810 (N.H. 1897)).

n154. See id.

n155. See id. at 287.

n156. See id. at 288.

n157. See id.

n158. See id.

n159. See id. at 278-79.

n160. See id. at 288.

n161. Id. at 288-89 (footnotes omitted).

n162. See id. at 289.

n163. See Pardun, supra note 6, at 604-05.

n164. See Richard Seven, 31-Year Term Given in Murder of Samaritan - Judge Cites Teen's History of Bad Choices, Seattle Times, Dec. 24, 1994, at A1.

n165. Christy Scattarella, Good Samaritan Won't Help Again - Motorist Accused of Robbing Woman Who Stopped to Aid Him, Seattle Times, Apr. 6, 1994, at B1.

n166. See Pardun, supra note 6, at 604-05.

n167. See id.

n168. See H.R. 1429, 56th Leg., 1st Reg. Sess. (Wash. 1999).

n169. See id.

n170. Id.

n171. Id.

n172. See supra note 164 and accompanying text.

n173. See supra note 165 and accompanying text.

n174. See Woozley, supra note 6, at 1276.

n175. See Agulnick & Rivkin, supra note 8, at 97; Pardun, supra note 6, at 608.

n176. See Stewart, supra note 140, at 424.

n177. See Yeager, supra note 41, at 15-18.

n178. See id. at 10 n.49.

n179. See id. at 10; Stewart, supra note 140, at 424.

n180. See Agulnick & Rivkin, supra note 8, at 97; Pardun, supra note 6, at 608.

n181. See Gardner v. Loomis Armored, Inc., 128 Wash. 2d 931, 949, 913 P.2d 377, 386 (1996) (stating that "society places the highest priority on the protection of human life"); see also Wash. Rev. Code 9.69.100 (1998) (requiring witnesses of violent crimes to report them to officials); Wash. Rev. Code 7.69.010, 9.01.055, 9A.76.020, 9A.76.030 (1998) (encouraging citizens to aid law enforcement officers).

n182. See Payne, supra note 15, at 1240.

n183. See Yeager, supra note 41, at 15-18.

n184. See Galligan, supra note 19, at 490. "Traditional Western psychological models of behavior have assumed that people act out of self-interest. For instance, Freud's psychological model of the id, ego, and the superego, with his pleasure principle playing a key role in human development, contemplated that people act in their self-interest." Id. at 490-91.

n185. See Anthony D'Amato, The "Bad Samaritan" Paradigm, 70 Nw. U. L. Rev. 798, 809 (1976).

n186. See id.

n187. See id. at 810.

n188. See Silver, supra note 31, at 433.

n189. See id.

n190. However, to achieve these benefits, states must advertise the statute.

n191. See Yeager, supra note 41, at 15-18.

n192. See Viola C. Brady, Note, The Duty to Rescue in Tort Law: Implication of Research on Altruism, 55 Ind. L.J. 551, 557 (1980).

n193. A study of students from different countries illustrated that when students knew that there was a legal duty to aid, they reacted more positively to the duty to aid and judged people's failure to aid more harshly. "Breaking the law was itself viewed as immoral, thus intensifying the opprobrium directed at the actor's behavior." Marc A. Franklin, Vermont Requires Rescue: A Comment, 25 Stan. L. Rev. 51, 58-59 (1973).

n194. Payne, supra note 15, at 1240.

n195. See Lipkin, supra note 31, at 255-57.

n196. See James Barr Ames, Law and Morals, in The Good Samaritan and the Law, supra note 9, at 1.

n197. See id. at 4.

n198. See id. at 2. However, in the case of self-defense, although under the law the defendant was liable, the law required the judge to inform the king that the killing had occurred in self-defense. See id. The king in turn had the power to pardon the defendant if he so pleased. See id.

n199. See id. at 4.

n200. See id. at 20.

n201. See Thomas B. Stoddard, Bleeding Heart: Reflections on Using the Law to Make Social Change, 72 N.Y.U. L. Rev. 967, 971 (1997).

n202. Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. 2000a-2000h (1994)).

n203. See Stoddard, supra note 201, at 973.

n204. See id. at 974.

n205. See id.

n206. See John L. Diamond, The Myth of Morality and Fault in Criminal Law Doctrine, 34 Am. Crim. L. Rev. 111, 111 (1996).

n207. See John L. Diamond, The Crisis in the Ideology of Crime, 31 Ind. L. Rev. 291, 292-93 (1998).

n208. See id. at 292.

n209. See id.

n210. See id.

n211. See id. at 292-93.

n212. See Pardun, supra note 6, at 605.

n213. See id.

n214. See Payne, supra note 15, at 1239.

n215. See id. (quoting Richard A. Posner, Economic Analysis of Law 174 (3d ed. 1986)).

n216. See Agulnick & Rivkin, supra note 8, at 97.

n217. See Payne, supra note 15, at 1241.

n218. See Pardun, supra note 6, at 608.





Prepared: February 8, 2002 - 5:02:29 PM
Edited and Updated, February 12, 2002


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