DUTY TO RESCUE
LAW REVIEW ARTICLE
April 19, 2003
Copyright (c) 2000 Dickinson School of Law
Dickinson Law Review
104 Dick. L. Rev. 525
LENGTH: 15818 words
* Readers may remember the final episode of the popular comedy, Seinfeld,
wherein the lead characters were prosecuted for failing to assist a pedestrian
who was being mugged. Seinfeld (NBC television broadcast, May 14, 1998).
Seinfeld's swan song is a quintessential example of a failure to assist case.
Marcia M. Ziegler
... Cash's actions in failing to assist the dying seven-year-old are arguably
of the most reprehensible character. ... This discussion of duty in Beardsley
mirrors the application of duty in civil law, and exemplifies the similarities
between civil and criminal nonfeasance even as to the distinction between moral
and legal liability. ... Similar to New Jersey's and South Carolina's approach
to spousal liability, the laws being introduced represent a movement to broaden
the definition of what is required of a
"reasonably prudent person" to include affirmative action. ... Rhode Island's duty to assist statute, in
contrast, provides for assistance, and not mere reporting: ... Both Barber and
Moore involve defendants who ceased to provide services that they had
previously provided for the plaintiff or victim. ... If a jury would find that
a bystander would reasonably know that his omission would result in harm to an
accident or crime victim, liability would attach. ... The Nonsense of Abridging
Liability for Nonfeasance - As has been seen, various heightened duties are
often imposed as exceptions to the generally prescribed reasonableness
doctrine. ... It is difficult to understand why society's sense of morality and
reasonableness should be reflected in the heightened duty statutes and in
common law negligence principles, but not with regard to a duty to assist. ...
Introduction The Tragic Death of Sherrice Iverson
Even in the middle of the night, the flashing lights of the Las Vegas casinos
shine as brightly as ever. Inside, serious gamblers hardly notice the hour. The
game is everything.
Leroy Iverson liked the slot machines. And though his daughter, Sherrice, was
only 7, he would often bring her along. She would play while he gambled into
the wee hours.
On Memorial Day weekend , Iverson brought Sherrice to the Primadonna
Casino, and once again, she was left on her own. Security cameras captured
Sherrice playing what appeared to be a game of hide-and-seek with a stranger, a
young man. No one knew it yet, but this was her last hour alive.
At 3:48 a.m., Sherrice is seen darting into the women's bathroom. Seconds
later, the young man she'd been playing with follows. Just after 5:00 in the
morning, Sherrice's body was discovered, half-naked, on a toilet seat. She had
been sexually molested and strangled to death.
Sherrice Iverson's death three years ago sparked a national debate, triggered
partly because of the youth of her killer, eighteen-year-old high school senior
n2 Although Jeremy's acts were particularly abhorrent, he will receive a fitting
[*526] punishment for his acts of violence - on October 14, 1998, he was sentenced to
life imprisonment as part of a plea agreement.
The outcry attracting more media attention, however, was not about the
confessed teenage killer who strangled a seven-year-old in a casino bathroom.
The newspaper columnists and the public at large instead preferred to vilify
another teenager; one who stood on the toilet seat in the next stall, watched
the brutality over a partition, and did nothing to stop it.
n4 David Cash, an eighteen-year-old friend of
Strohmeyer's, did exactly that; nevertheless he will escape any punishment for his actions
that many call deplorable.
n5 To add insult to injury, he also expected to profit from a movie deal and a
lawsuit against former high school officials who barred him from graduation
ceremonies following the murder.
"I'm no idiot. I'll (expletive) get my money out of this,"...
"I figure I'll probably get a couple million off that," Cash said in an interview with the Long Beach, California Press-Telegram.
Cash's actions in failing to assist the dying seven-year-old are arguably of
the most reprehensible character.
n8 Yet, Cash's irre-sponsible behavior was not confined to that casino bathroom,
because he went on to denigrate the memory of little Sherrice in radio
"It's a very tragic event, OK, but the simple fact remains I do not know this
little girl," Cash said on the air.
"I do not know starving children in Panama. I do not know people that die of
disease in Egypt. The only person I knew in this event was Jeremy
Strohmeyer, and I know as his best friend that he had potential."
The only question that remains in this contemptible tale is whether Cash should
now be held legally responsible for his
n12 Across the country, letters in opinion columns, editorials in newspapers, and
magazine articles have
[*527] called for David Cash to be formally prosecuted for his behavior.
n13 Because of the absence of a civil or criminal common law duty to assist,
however, it is virtually impossible for Cash to be held liable for failing to
help Sherrice Iverson.
n14 His actions are not only ignored by the American justice system, but have been
functionally condoned by courts under the common law system of liability.
Even if the court system will allow such behavior to escape punishment, several
state legislatures may soon independently decide the issue of duty to assist
cases in the criminal context.
n16 Several states, such as Massachusetts, Ohio, Rhode Island, and Vermont,
already have criminal statutes that offer some such protection to victims like
Sherrice Iverson and others.
n17 In the wake of this little child's death, California, Nevada, New Jersey, and
Michigan are attempting to follow suit as similar bills have been introduced in
each of those states.
Many European nations have had such legislation established for years, but
lawmakers in the United States have not been as quick to enact laws imposing an
affirmative duty to act upon witnesses of crimes or accidents.
n19 But in response to Sherrice's death, not only are state legislators
confronting the problem of how to punish people like David Cash, but the
Federal government is as well.
n20 In September 1997, Senator Barbara Boxer and Texas Representative Nick Lampson
introduced the Sherrice Iverson Act, which would make states ineligible for
federal child-abuse prevention funds under the Child Abuse Prevention and
[*528] Act if they failed to enact laws requiring third party witnesses to report
sexual crimes against children.
Bills such as these may represent a drastic change in American victims' rights
jurisprudence. If passed, they could symbolize a step toward holding witnesses
of such crimes responsible for failing to do something as simple as picking up
a telephone and calling the police. This Comment will examine the traditional
view of American courts and their reluctance to impose liability on bystanders
who fail to assist at accident or crime scenes. Part I examines the current
state of the law, including the general absence of a duty to assist and how
that absence is interpreted in both civil and criminal law. Specifically, it
discusses the reasoning in civil cases that withholding assistance is not
actionable, either because no duty to assist exists, or because the defendant
did not commit an
"action." Part II analyzes the inherent inconsistencies in the current state of the law.
It also compares the concept of disallowing recovery in duty to assist cases
with the generally applied reasonably prudent person duty. Part III advocates a
change in the existing law to provide for a reasonableness analysis in duty to
assist cases. This Comment argues that allowing a jury to determine liability
in cases of nonfeasance, based upon an objective reasonableness standard,
provides a more consistent approach to the question of liability than does the
current state of the law.
A. The General Rule of Nonfeasance
In both civil and criminal law, the failure of uninvolved bystanders to assist
at accident or crime scenes is completely nonactionable, even if harm is
n22 The concept of
"failing to act," often called nonfeasance, has been part of American law for hundreds of years,
and the resulting nonliability remains virtually unchallenged even today.
n23 However, although both civil
[*529] and criminal law are well settled on the lack of a duty to assist, different
courts discuss the doctrine and deny liability using very different language.
Most victims, who would be plaintiffs in duty to assist cases if they were
actionable, would characterize the defendants' negligent action as the
"failure to do what ought to be done;"
n24 this characterization allows ample room for courts to deny liability. In this
realm, courts typically make decisions disallowing recovery upon one of two
different bases; one, that the defendant's duty to assist the plaintiff was a
moral duty, but not a legal one, and two, that any legal duty the defendant may
have had did not encompass affirmative action.
n25 In other words, courts usually analyze that the failure to assist did not
constitute an affirmative act harming the plaintiff, or that the defendant was
not legally bound to act.
n26 More often than not, albeit, courts discuss the duty owed in the context of
morality, in determining that even if a defendant
"ought" to act, he is not legally required to do so.
When American courts do hold persons liable for negligent or criminal acts,
they most often explicitly determine that the defendant breached a specific
duty that he owed to another person.
n28 In imposing liability, the courts must determine that 1) the defendant had a
duty, and 2) he breached that duty with an overt act.
n29 This test is conjunctive; thus, if the court determines either that the
defendant had no duty, or that he did not act, liability is not imposed.
[*530] 1.The Duty Analysis - The American system of justice imposes various duties
upon people - the duties to care for our children,
n31 to maintain integrity in our professions,
n32 and to be honest when testifying in court are but a few.
n33 In addition to these specific duties, which are sometimes imposed by civil or
criminal law, there is the time-honored
"catch-all" of the duty to act as a
"reasonably prudent person."
n34 As the basis of tort law, the duty to act reasonably is nearly absolute; when
that duty is neglected, a person can be held liable for any resulting harm.
In both criminal and civil law, courts often determine that the duty owed to a
crime or an accident victim by the public at large does not encompass
n36 For example, in People v. Beardsley, the defendant had been convicted of
manslaughter in the death of his companion, Blanche Burns.
n37 The two had been drinking together during the night, and Ms. Burns had also
been taking morphine.
n38 The combination of the substances led to Ms. Burns' death early the next
n39 The defendant, having been intoxicated, asked a friend to look after Ms. Burns
but did nothing else to assist her once her physical condition began to
The trial court in Beardsley had originally determined that the defendant had a
legal duty to assist Ms. Burns, the violation of
[*531] which was a crime.
n41 On appeal, the appellate court also discussed the importance of a legal duty,
but took great pains to distinguish Beardsley's legal duty from any moral
n42 First, the appellate court emphasized the importance of moral duties, quoting
United States v. Knowles:
It is undoubtedly the moral duty of every person to extend to others assistance
when in danger,...and if such efforts should be omitted by any one when they
could be made without imperiling his own life, he would, by his conduct, draw
upon himself the just censure and reproach of good men; but this is the only
punishment to which he would be subjected by society.
Relying upon the difference between law and morality in its decision, the
"we must eliminate from the case all consideration of mere moral obligation, and
discover whether respondent was under a legal duty towards Blanche Burns at the
time of her death...."
n45 The court ruled that Mr. Beardsley had not voluntarily undertaken any legal
duty to Ms. Burns through his prior relationship to her, and thus could not be
In overturning Beardsley's conviction, the court specifically explained that
"the law recognizes that under some circumstances the omission of a duty owed by
one individual to another, where such omission results in the death of the one
to whom the duty is owing, will make the other chargeable with manslaughter."
"This rule of law is always based upon the proposition that the duty neglected
must be a legal duty, and not a mere moral obligation."
This discussion of duty in Beardsley mirrors the application of duty in civil
law, and exemplifies the similarities between civil and criminal nonfeasance
even as to the distinction between moral and legal liability. On the civil
side, in Yania v. Bigan, the widow of a miner brought a suit arising out of a
failure to assist scenario.
n49 The decedent and the defendant had been business associates; during the course
of a visit to the defendant's property, the defendant had asked the decedent to
help him start a water pump in one of his
n50 The decedent jumped into the trench and was drowned.
n51 His widow instituted a wrongful death suit, alleging that the defendant failed
both to warn her husband about the danger of the trench, and that he failed to
help him back out of the hole.
The trial court sustained demurrers to the complaint, because of the failure to
state a claim.
n53 On appeal, the state's Supreme Court affirmed the decision, holding that the
defendant had no
duty to rescue the decedent, nor any duty to warn him of potential danger.
n54 The court stated,
"The mere fact that Bigan saw Yania in a position of peril in the water imposed
upon him no legal, although a moral, obligation or duty to go to his rescue
unless Bigan was legally responsible, in whole or in part, for placing Yania in
the perilous position."
n55 The Yania court held that the complaint did not
"aver any facts which impose upon Bigan legal responsibility for placing Yania
in the dangerous position in the water, and absent such legal responsibility,
the law imposes upon Bigan no
duty of rescue."
2. The Action-Inaction Analysis - Contrarily, other courts deciding nonfeasance
cases focus upon the defendant's conduct rather than upon any specific duty
n57 Typically, the failure to assist is labeled an
"omission," and not as an
n58 In explaining the difference, the Supreme Court of Tennessee has stated in
Bradshaw v. Daniel:
In determining the existence of a duty, courts have distinguished between
action and inaction. Professor Prosser has commented that
"the reason for the distinction may be said to lie in the fact that by
"misfeasance' the defendant has created a new risk of harm to the plaintiff,
"nonfeasance' he has at least made his situation no worse, and has merely failed
to benefit him by interfering in his affairs."
[*533] Crime and accident bystanders are not legally bound to act affirmatively;
therefore, a jury does not determine the issue of reasonableness in cases of
omission since someone cannot
n60 Through this reasoning, a person can fail to assist an assault victim without
incurring liability even if a jury could find his conduct unreasonable.
n61 Courts often draw this distinction again presupposing that the obligation to
assist is a moral one; yet, they decline to require assistance legally.
For the purposes of duty to assist cases, there is sometimes no clear line
"action" and an
n63 In criminal law, the
"actus reus," or the external part of the crime, provides a definition of
n64 Contrary to caselaw definitions of non-feasance, however, many criminal codes
define the actus reus as conduct which
"includes a voluntary act or the omission to perform an act of which he is
n65 This is different from Beardsley and other cases which distinguish acts from
omissions and thus perpetuates the difficulty in defining the
"action" for the purpose of nonfeasance.
References to omissions in the criminal context, however, are frequently
interpreted as requiring punishment for behavior under
[*534] the defendant's control and not for uncontrollable behavior.
n67 For example, in Martin v. State, the defendant had been found intoxicated on a
public highway, in violation of a clearly drafted
"public drunkenness" statute;
n68 yet, his conviction was overturned because he had been dragged to that highway
from his home by police officers.
n69 Because he had been forced into the public area, the court determined that
there had been no voluntary act on his part, and no actus reus.
Criminal cases also discuss the
"action" as being an
"exercise of the will."
n71 In State v. Utter, the defendant was charged with second degree murder in the
stabbing death of his son.
n72 At trial, Utter offered expert psychiatric testimony that his jungle training
and experiences in World War II contributed to a
"conditioned response" which caused him to kill his son involuntarily.
n73 In upholding his conviction for the lesser included offense of manslaughter,
the court noted that the defense of
"conditioned response" is viable, because it can cause someone to kill without knowledge or will, and
"voluntary act" on the defendant's behalf.
Thus, the courts in Utter and Martin discuss the
"action" in terms of control; Martin could not control his actions because of outside
force, and Utter could not control his actions because of a mental disorder.
n75 In still other criminal cases, defendants can escape liability based on the
lack of an actus reus even though the conduct in question was a voluntary act.
n76 In Barber v. Superior Court, a defendant doctor was charged with murder after
removing feeding tubes from a brain-dead patient.
n77 The court dismissed the charges, stating
"we view petitioner's conduct as that of an
[*535] omission rather than that of an affirmative action...."
n78 Specifically, the court held that the withdrawal of the tubes was tantamount
to withholding medication or nourishment, and not commensurate to actively
killing the patient.
American civil law also relies on the distinction between active and passive
conduct to define
"action" for the purposes of nonfeasance cases.
n80 In Logarta v. Gustafson the parents of a suicide victim sued his companion for
n81 The defendant claimed his actions were passive, rather than active, and
therefore not actionable at common law.
n82 The court noted, in dismissing the claim:
under English common law, this distinction was referred to as the difference
"nonfeasance": There is no distinction more deeply rooted in the common law and more
fundamental than that between misfeasance and nonfeasance, between active
misconduct working positive injury to others and passive inaction, a failure to
take positive steps to benefit others, or to protect them from harm not created
by any wrongful act of the defendant. This distinction is founded on that
attitude of extreme individualism so typical of anglo-saxon legal thought.
Consequently, civil courts have been able to deny liability on the basis that
the defendants' conduct was a passive, rather than active, gesticulation.
n84 Although this distinction is frequently applied, it is difficult to use and
can be applied inaccurately. For example, in Moore v. Murphy, a sheriff failed
to continue holding a ladder for an inmate who was painting a wall.
n85 The inmate fell from the ladder sustaining personal injury.
n86 The court neither discussed nor imposed an affirmative duty upon the sheriff
to act; rather, the court found that the sheriff's failure to keep holding the
ladder was in fact an
"action" and not an
"omission," and the sheriff was liable for misfeasance, the commission of an overt act.
[*536] Nevertheless, if the court had characterized the incident as not involving
action on the part of the sheriff, he could not have been held liable for
negligence under their rationale.
The result in Moore is analogous to an English case decided near the turn of
the century, Newton v. Ellis.
n88 There, the plaintiff was driving his carriage at night along a highway.
n89 The defendant had excavated a hole in the highway without lighting the
n90 The plaintiff fell into the hole, and sued the excavator for his failure to
"The court viewed the digging of the hole and the failure to light it as one
complex act rather than two separate events, one as an act, the other a failure
n92 Much like the sheriff holding the ladder, the Newton court viewed the totality
of the defendant's conduct as
"active," rather than
"passive," at least for the purpose of imposing liability.
B. Policy Reasons Behind the Lack of a Duty to Assist
There are many reasons behind the lack of a duty to assist in American law;
one such reason often cited is to preserve the principle of personal autonomy.
n94 A discussion of personal auton-omy usually centers around the causation issue
in failure to assist cases.
n95 Scholars often argue, as did the Tennessee Supreme Court in Bradshaw v.
Daniels, that there is a grave distinction between causing harm and failing to
n96 Some scholars argue that the difference is significant enough to require
liability in the first instance, if not in the second.
n97 Hence, the argument runs, when one merely allows harm to happen, instead of
[*537] causing it to happen, one's personal autonomy should not be violated by the
imposition of liability.
Also, as in Beardsley, courts are reluctant to merge what they see as a moral
judgment with legal liability.
n98 Some scholars even assert that the lack of a duty to assist is aligned with
common law morality.
n99 This, again, is tied to a personal autonomy argument - some opponents of duty
to assist statutes argue that the decision not to assist someone is personal
and rooted in basic ideas of justice and fairness.
Some authors also insist that nonfeasance can be viewed in terms of a
n101 They argue that the costs of assisting someone may outweigh the benefits; any
such costs may indeed be economic.
n102 For example, if only one doctor knows the cure for a deadly but rare disease,
presumably under a duty to assist statute he would be required to fly around
the world curing it.
n103 In short,
"strong arguments [have been] advanced to show that the common law position on
Samaritan problem is in the end consistent with both moral and economic principles."
A. The Reasonably Prudent Person Doctrine, and the Exemption for Nonfeasance
The doctrine of nonfeasance, as a per se rule disallowing
[*538] recovery, overlooks the most fundamental concept in negligence law - the
"reasonably prudent person" doctrine that otherwise governs every action a person takes.
It is fundamental that negligence is tested by whether the reasonable person at
the time and place would recognize and foresee an unreasonable risk or
likelihood of harm or danger to others. The standard of care is the conduct of
a reasonable person of ordinary prudence under the circumstances. The standard
necessarily imports varying amounts of care in relation to the variable element
of risk of harm. The greater the risk, the greater the care required.
The reasonably prudent person doctrine has long been recognized as the general
"standard of due care" owed to persons with whom we interact on a daily basis.
n107 It has been said that this duty takes into account the circumstances
surrounding the incident; it allows the jury essentially to step into the shoes
of the defendant and determine how he
"should' have behaved.
Nevertheless, American law has traditionally qualified the meaning of how a
reasonable person should act by forcing upon tort law the artificial concept of
n109 Effectively, the doctrine of nonfeasance abridges the liability of persons who
refuse to assist others in times of distress or peril.
n110 Because no legal duty to act exists, American courts consistently hold that
persons who fail to assist crime or accident victims have not caused actionable
harm. Accordingly, the possibility that the conduct would be seen as
unreasonable by a judge or jury is completely disregarded by the justice
Case law has specifically noted that the imposition of liability for negligence
and misfeasance requires a reasonableness inquiry,
[*539] whereas disallowing recovery for nonfeasance does not. For example, in Mattice
n112 the court defined misfeasance as
"not exercising reasonable care when acting," and nonfeasance as
"not performing voluntary tasks in all instances, where there is no duty to act."
n113 Without a requirement for reasonableness, then, the doctrine of nonfeasance
operates as an exception to the otherwise widespread reasonably prudent person
B. Other Exemptions to the Reasonableness Doctrine
Beyond the generally imposed duty to act reasonably, and other than situations
of nonfeasance, there are certain circum-stances wherein American law imposes
heightened duties above the reasonably prudent person standard.
n114 Breaches of these height-ened duties can result in either criminal or civil
liability for those who breach that duty.
n115 Unlike the general duty to act reasonably, these heightened duties often
impose an affirmative duty to act, in direct contrast to the doctrine of
There are well-developed circumstances where persons involved in certain
special relationships are required to act. For example, parents owe duties to
care for their children,
n117 and spouses owe the same to each other.
n118 Moreover, when a defend-ant causes harm to a plaintiff through an act of
negligence or malice, and subsequently refuses assistance, the defendant can be
held liable for failing to act.
n119 But these duties are imposed upon willing or at least involved actors-parents
and spouses, for example, know that when they enter into such relationships
they have duties to care and provide for each other.
[*540] Other duties are contractual; landlord-tenant duties,
n120 doctor-patient duties,
n121 and fiduciary duties to professional clients
n122 are all duties that parties know exist and are entered into willingly.
n123 The rationale for this seems to be based upon the choice of the actors - when
persons decide to take on responsibilities above and beyond that of a stranger
to another stranger, they should be responsible for a greater duty of care.
This duty is also applicable to actors who knowingly create dangerous
situations; once they have chosen to act, courts hold that they are or should
be aware of the consequences of their actions.
Other heightened duties, however, are imposed upon persons who may have no
relation to as other involved person at all, and who have not consciously or
willingly undertaken a heightened duty or precipitated a dangerous condition.
For example, landowners have certain duties to trespassers that wander onto
land unseen and uninvited, even in the absence of any contractual duty.
Statutes also impose duties people would not ordinarily know existed. Although
perhaps merely a legislative attempt to codify the definition of
reasonableness, some statutes impose affirmative duties upon tavern owners to
withhold liquor from clearly intoxicated persons. Owners who breach this duty
can face liability for resulting injuries to third persons harmed in drunk
n126 Similarly, some statutes impose upon film developers the duty to report child
abuse even when there is no relationship of the developer to the child victim.
A. Modern Trends in the Law
1.Case Law - In recent years, some jurisdictions have gone outside the realm
"duty," and looked only at
"reasonableness," in direct contrast to the traditional view of nonfeasance. Specifically, these
courts have disbanded the notion that bystanders never have a duty to assist
n128 In Soldano v. O'Daniels,
n129 the court held that a restaurant owner owed a murder victim a duty to call
police when a death threat was made or to permit a third person to use a
n130 In Soldano, a patron had seen the victim being threatened with a gun, and
rushed into the defendant's restaurant in order to assist the victim.
n131 The restauranteur's employee, however, refused to call the police himself or
to allow the patron to use the restaurant's telephone.
In reversing summary judgment, the court rejected the restauranteur's argument
that the common law never imposed a
duty to rescue one in peril, citing the
"special relationship" exception to the rule.
n133 Although the court did not find a
"special relationship" between the defendant and the victim, it went on to fashion an additional
exception to nonfeasance for this conduct.
n134 The court based its new exception on public policy, namely, the
[*542] encouragement of citizen involvement in crime prevention.
n135 Considering the importance of the telephone to such a policy, the court
reasoned that telephones in businesses open to the public need to be available
during business hours to persons seeking assistance in situations involving
imminent danger of physical harm.
However, the court underlined the narrow scope of its new rule by expressly
exempting private residences from its operation.
n137 The court reasoned that imposing a duty to aid the rescue attempt in the
present case by permitting use of a telephone was but a small departure from
"morally questionable" rule of nonliability for inaction absent a specified duty.
In defining liability for duty to assist cases, the Soldano case thus creates a
problem: failing to act reasonably can be both non-actionable and actionable
depending upon how the court defines
"reasonableness." The prima facie tort case based upon the
"reasonably prudent person" duty is the standard all over the country.
n139 And as a result of the requirement of
"reasonableness," courts and legislatures have deemed it prudent to force people in certain
relationships to act affirmatively.
n140 Practically speaking, though, these rules encompass different standards in
different jurisdictions. Occasionally, even seeming inaction by persons between
whom no duty exists has been actionable when the court characterizes the
inaction as action.
The Soldano case and the Cash scenario illustrate this point. In both cases,
the actors were bystanders, uninvolved in the accident they had just witnessed.
n142 The bystander of Sherrice Iverson's murder will never be charged with a crime
either because his conduct can be viewed as
"passive," or because he had no duty to assist her.
n143 The other is found to be liable for his conduct because the court, after
examining public policy, found he had committed an
"action" in derogation of his duty for the purposes of tort liability.
[*543] At least two courts, though, have undertaken to adopt a system of liability
based solely upon reasonableness, disregarding the traditional emphasis on duty
or action through some recent cases.
n145 In New Jersey, the tension between action and inaction has been the subject of
such a transformation in the specific area of spousal liability.
n146 Until recently, New Jersey courts abided by the traditional concept of
nonfeasance in suits against spouses of sexual offenders.
n147 In Rozycki v. Peley, parents of a group of young boys who were sexually
molested by a neighbor sued the neighbor's wife, alleging that she knew of her
husband's pedophilia, and that she had a duty to warn the boys of his dangerous
n148 In examining the parents' claims, the Superior court noted that the
"plaintiffs' contention [was] essentially based on public policy considerations.
They argued that there is a broad public interest in preventing sexual assault
on small children which requires the imposition of a duty."
n149 The court also noted the plaintiffs'
"special relationship" contention, stating that the plaintiffs
"analogized the instant case to situations in which parents have been held
responsible for the torts of their children, or landowners held liable for the
dangerous condition of their property."
While sustaining the wife's motion for summary judgment, the court, in keeping
with the traditional rule of nonfeasance, held that the wife did not have a
duty to warn the victims of her husband's tendencies.
n151 In doing so, the court examined several cases in which it believed such a duty
was recognized, such as in the context of a relationship with a therapist or a
doctor, and refused to extend that reasoning to spousal immunity.
n152 Specifically, the court noted the lack of precedential rulings imposing a duty
upon spouses of pedophiles to warn potential victims.
n153 The court also distinguished cases that have imposed such a duty to warn on
the ground that those cases were limited to instances involving mental health
But just as the public policy argument was firmly rejected in Rozycki, it was
embraced in a subsequent decision by the New
[*544] Jersey Supreme Court, directly overruling the earlier superior court decision.
n155 In J.S. v. R.T.H., parents brought suit against the wife of a man who sexually
abused their two daughters.
n156 In J.S., the court decided the issue of spousal liability based not upon a
heightened duty ascribed to the wife, but upon the traditional duty to be a
reasonably prudent person.
n157 The court detailed
"weighing... the relationship of the parties, the nature of the risk, and the
Goldberg, supra, 38 N.J. at 583, 186 A.2d 291, we conclude that if plaintiffs prove Mary was aware of her husband's conduct
or history, it was foreseeable that he posed a danger to these young girls, and
it is fair to hold that Mary had a duty to take reasonable steps to protect
them from such danger. Our conclusion derives from the continuity and nature of
the social relationship between these next-door neighbors and the girls'
habitual and repeated visits of which Mary was clearly aware. Under such
circumstances, the girls and their parents had a reasonable expectation that
Mary would not knowingly expose them to the risk of sexual assault by her own
husband. It will be a jury's role to determine the specific contours of her
duty, and whether she deviated therefrom, based upon its findings as to the
extent of her knowledge and the foreseeability of harm.
More recently, South Carolina has followed the same principles discussed
throughout J.S. in another failure to warn case involving child sexual abuse.
In Doe v. Batson,
n159 a man had abused several boys in the home he shared with his mother. After the
man had been convicted of seventeen counts of child abuse, the parents of his
victims brought a negligence suit against his mother for failure to warn them
of the man's sexual propensities.
n160 In the suit, the parents alleged that the defendant mother knew her son was
taking his young victims into his bedroom, and therefore, should have warned
[*545] At the trial court level, summary judgment was granted against the victims'
parents' for failure to state a claim; the court found no duty to warn under
the circumstances alleged as a matter of law.
n162 The court of appeals reversed, noting that the question of liability under the
circumstances alleged was a novel question in South Carolina law.
n163 After discussing the general proposition of non-liability for nonfeasance, the
court noted the state's doctrine of imposing liability upon persons who fail to
control the behavior of people in custody such as prisoners.
n164 The reasoning was based upon the
"special relationship" theory, in that the person supervising one in custody is in the best position
to warn outsiders of harm.
The court discussed that other states, including New Jersey, are increasingly
reviewing the question of liability under circumstances involving child sexual
n166 In reversing the summary judgment ruling, the court also noted that the
parents' may have had a viable claim under a premises liability theory, as well
as under a special relationship theory.
2.State Bills and Statutes - Other solutions to this melting pot of tort law
are increasingly being codified by state legislatures through criminal
statutes. Similar to New Jersey's and South Carolina's approach to spousal
liability, the laws being introduced represent a movement to broaden the
definition of what is required of a
"reasonably prudent person" to include affirmative action. This approach not only allows for a unilateral
application of the law, but guards against imposing liability when a reasonable
person would not have acted. An expansion of the
"reasonableness" test also guards against forcing people to interject in dangerous situations -
it is difficult to call jeopardizing one's own safety
"reasonable," just as it may be difficult to define failing to call 911 as
Although the new statutes codify this expanded definition of reasonableness,
many of them are typically child-abuse specific.
n168 The Texas legislature recently passed a law making it illegal for a witness to
child abuse to fail to either assist the child or report the
[*546] abuse, even if the witness has no prior relationship to the child.
n169 The law requires the witness to judge whether a
"reasonable person would believe" that an offense was being committed, specifically expanding the reasonableness
rationale to include the affirmative acts required by the statute.
n170 The Act also allows a witness to avoid conviction when he or she would be put
"danger of suffering serious bodily injury or death."
In New Jersey, an analogous bill was recently passed making it a crime for an
adult to fail to report an incident of sexual abuse against a child.
n172 Similarly, in California, three such bills have been introduced that would
n173 One bill makes it a misdemeanor to fail to report a violent crime against
anyone, a sexual crime against anyone under 14, or an assault on a child that
is likely to cause substantial bodily harm to the child.
n174 A second requires anyone who witnesses a murder, rape or other serious assault
to report the incident to police as soon as possible.
n175 Failure to report such crimes can be either a felony or a misdemeanor,
depending on the discretion of the local district attorney.
n176 The third makes it a felony to fail to report sexual assaults or violent
crimes against anyone under 16.
n177 The bill also contains an exception to prosecution if the witness fears
[*547] Likewise, in Nevada, a newly introduced statute also carries a serious penalty
- persons who fail to report sexual abuse against a child can face a felony
n179 A similar bill is being backed in Michigan by two state senators and the state
n180 This bill would
"punish witnesses with up to four years in prison for failing to report the
abuse, kidnapping or serious injury of a child."
These statutes may well represent a change in the law that will effectuate
protection of children. But such statutes can only be effective if there is
momentum to enforce them in the individual states. Surprisingly, at least six
states have had duty to assist statutes protecting both children and adults in
effect for several years, but the failure to enforce the statutes renders them
Vermont has had such a law since 1967, however, officials say that it may never
have been used.
n183 John T. Quinn chairs the executive board for Vermont's county prosecutors.
n184 He says,
"I have been in this state 20 years, and I can't recall a case where we used
n185 Referred to as the Duty to Aid the Endangered Act, Vermont's law requires
anyone who observes a person subject to
"grave physical harm" to render
"reasonable assistance," unless aid would result in danger to the bystander.
n186 Violating the law carries a $ 100 fine.
Wisconsin has a similar statute that largely remains dormant.
n188 This statute also requires bystanders to assist crime victims, but has liberal
exception provisions if the bystander would be in danger or if someone else has
n189 Yet, in the eight years directly following its inception, the law was not
n190 In 1992, the law was applied for the first time to prosecute two people
[*548] for failing to assist a 16-year old-girl who was being
"savagely beaten at a party."
"The two...were sentenced to probation, fined $ 300 each and ordered to perform
community service after a jury found they should have helped the girl, beaten
after she rebuffed the sexual advances of another partygoer."
In 1994, a Wisconsin appellate court upheld the statute in the face of a
defendant's constitutional challenge.
n193 Nevertheless, the statute is still rarely applied.
n194 James Haney is the Wisconsin Attorney General's director of research and
n195 In a recent interview, Haney indicated that prosecutors have rarely called his
office with questions about enforcing the failure to assist statute.
n196 Haney also said, in explaning the dearth of calls,
"It's not the kind of issue that we heard a lot about,... while it might be a
little rosy-eyed to say this, I think the good people of Wisconsin generally
aid victims when they see them in trouble."
Several other states have similar statutes lying dormant on their books. Both
Ohio and Washington have enacted statutes requiring bystanders to aid police
n198 Washington's statute provides for misdemeanor penalties when one,
"upon request by a person he knows to be a peace officer,... unreasonably
refuses or fails to summon aid for such peace officer."
n199 The Ohio statute, on the other hand, specifically provides an exception for
liability when a bystander would be put in apparent risk.
n200 The Ohio statute reads in pertinent part:
No person shall negligently fail or refuse to aid a law enforcement officer,
when called upon for assistance in preventing or halting the commission of an
offense, or in apprehending or detaining an offender, when such aid can be
given without a substantial risk of physical harm to the person giving it.
[*549] Two other statutes directly codify the
"reasonableness" approach in cases involving civilian victims.
n202 Massachusetts's duty to assist statute provides in pertinent part:
Whoever knows that another person is a victim of aggravated rape, rape, murder,
manslaughter or armed robbery and is at the scene of said crime shall, to the
extent that said person can do so without danger or peril to himself or others,
report said crime to an appropriate law enforcement official as soon as
reasonably practicable. Any person who violates this section shall be punished
by a fine of not less than five hundred nor more than two thousand and five
Although this statute provides for a determination based upon reasonableness,
it actually does nothing more than ensure that the police eventually will be
involved. Rhode Island's duty to assist statute, in contrast, provides for
assistance, and not mere reporting:
Any 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 he
or she can do so without danger or peril to himself or herself or to others,
give reasonable assistance to the exposed person. Any person violating the
provisions of this section shall be guilty of a petty misdemeanor and shall be
subject to imprisonment for a term not exceeding six (6) months or by a fine of
not more than five hundred dollars ($ 500), or both.
The use of the word
"emergency" in the Rhode Island statute presumably allows for prosecution when people
refuse to give assistance at the scenes of both crimes and accidents. In any
event, many of these statutes allow a jury to decide the question of
reasonableness in the context of duty to assist cases.
n205 The statutes also require this inquiry to be objective. For example, since the
Rhode Island statute requires
"reasonable assistance" and the Massachusetts statute requires assistance
"within a reasonable time," there is no room for defendants to evade responsibility by pointing to their
subjective beliefs when an otherwise reasonable person would have rendered
B. How the Changing Law is More Effective
1. Current Confusion in Defining
"Action/Inaction" - The current system of imposing liability based upon
"action/inaction" is inconsistent at best, and a clear rejection of typical American negligence
principles at worst. An examination of Barber within the concept of
"action/inaction" analysis illustrates these inconsistencies in the basic definitions of
n206 In Barber, the court could have determined that the doctor's removal of
feeding tubes was within the duty of reasonable care he owed to the victim,
without attempting to determine whether his acts were in fact omissions. This
analysis seems especially appropriate considering the
"victim's" articulated wishes not to be kept alive by machines.
n207 But by defining the defendant's conduct as omission, Barber stands for the
proposition that defendants who engage in voluntary acts, as overt as
physically removing feeding tubes, may not be acting at all.
n208 Moore, on the other hand, stands for exactly the opposite proposition: that
one who stops in the middle of an action, such as holding a ladder, without
more has committed an actionable affirmative overt act.
Both Barber and Moore involve defendants who ceased to provide services that
they had previously provided for the plaintiff or victim. The only difference
between the actions of the two defendants is that one removed his hands and
walked away from a ladder, and the other physically removed a feeding tube.
Presumably, the acts of removing one's hands from a ladder and pulling tubes
out of a patient's body are somewhat similar in effect. If anything, the
removal of tubing seems to be more
"overt" in the length of time and the amount of contact required of the defendant.
Usually, in civil cases where liability hinges on the definition of
"action," courts distinguish action from inaction without much analysis or explanation;
yet, the definition often changes from case to case. In some civil cases,
"action" is defined with regard to
"awareness," as in the criminal context.
n210 As a
[*551] consequence, there is virtually no way to predict, especially in close cases
and in the light of cases like Barber, how a court will rule if a defendant
asserts the defense of not committing an overt act.
At the very least, courts' characterization of the distinction between
nonfeasance and misfeasance is often unclear. From case to case, the definition
of nonfeasance is virtually identical to traditional definitions of
n211 In Casale v. Housing Authority of City of Newark, the court discussed a claim
against a city for failing to shovel snow on a public sidewalk.
n212 The court discussed the thesis that
"the omission to take precautions in something that ought to be done has the
same legal consequence as the commission of something that ought not to be done."
n213 Ironically enough, the court's rationale in discussing wrongdoing, that the
"ought" to have acted, is exactly the definition of nonfeasance that typically results
in non-liability for defendants, as discussed in the Beardsley case.
It makes little difference to the outcome of any given case, though, whether a
court chooses to negate liability on the basis of no
"action" or a lack of a duty. If a duty exists, either that duty imposes an affirmative
act, or it does not; any superficial discussion of whether the defendant's
conduct is active or passive is unnecessary. In discussing the lack of an
"action," courts in most cases could simply define the duty involved as not encompassing
This distinction of
"passive" conduct constituting a basis for imposing liability has not gone without
n215 In examining Newton, Ernest Weinrib writes,
"for principled use by
[*552] courts, the unelaborated distinction between active and passive conduct is
n216 Weinrib goes on to detail the difficulties with an analysis based on action.
n217 He argues that defendants pleading nonfeasance based on the lack of an
"overt act" really are
"acting" by virtue of their omissions.
"Indeed, [the defendant's] act may have been quite callously deliberate, as when
an employer vindictively refuses to make an elevator available to employees who
wish to emerge from a mine."
n219 Weinrib also suggests that
"[a] defendant in a nonfeasance case, then, can concede that in one sense he has
acted yet argue that in a second sense he has not acted."
At least one court has abandoned a similar
"antiquated" distinction in American law in favor of a
"reasonableness" standard; in Scurti v. City of New York, the plaintiff had sued a municipality
for the death of his son.
n221 His son, in trespassing upon a city-owned railroad yard, had been electrocuted
by high-voltage wires.
n222 The trial court had granted summary judgment for the defendant, based upon the
traditional distinctions of the duties owed to trespassers, licensees, and
n223 The court noted that the plaintiff's claim had been dismissed by the lower
court because he had been a trespasser at the time of his death, thus, under
the traditional distinctions the defendant owed him only the duty to refrain
"willful or wanton injury."
Nevertheless, the court
"held that the liability of a landowner to one injured upon his property should
be governed, not by the ancient and antiquated distinctions between
trespassers, licensees, and invitees decisive under common law, but rather by
the standard applicable to negligence cases generally, i.e., the
[*553] reasonable care under the circumstances where by foreseeability shall be a
measure of liability.'
2.Personal Autonomy and Causation - As indicated above, critics who decry the
imposition of a duty to assist often rely on arguments associated with personal
autonomy or causation. Both doctrines, however, have their limits. Personal
autonomy is no doubt an important concept in American jurisprudence. But this
right is greatly restricted through statutes or common law creating heightened
duties in certain relationships or contracts. Additionally, one does not have
the personal autonomy to act generally as an unreasonable person would.
Actually, the reasonableness doctrine, even if applied to nonfeasance, grants
most Americans the greatest personal autonomy available - the right to act as
we normally would want to.
In the reasonableness context, people are typically seen as
"unreasonable" for doing things that infringe upon another person's personal autonomy. Courts
find persons liable when they assault someone against that person's will, or
when they negligently cause harm to someone's reputation with libelous action.
A reasonableness test also addresses the cost-benefit analysis discussed by
opponents of the duty to assist. By definition, if a decision not to assist
would fail a cost-benefit analysis, such a decision most likely would not be
found reasonable by a jury.
Likewise, it does not necessarily follow that one who has failed to assist
another person in a time of distress has not caused or furthered the victim's
pain. Although it can be argued that there is a difference between directly
causing harm and merely allowing harm to happen, the analysis in failure to
assist cases fulfills the traditional
"but for" causation test.
n226 This test dictates that if
"but for" the defendant's conduct the plaintiff would not have been harmed.
"but for" David Cash's failure to assist Sherrice Iverson, there is a reasonable
probability that she would be alive today.
The causation analysis also fails the proximate cause test, as least as it is
defined with reasonableness in mind.
n228 If a jury were allowed to make a determination of liability, it might easily
[*554] determine that the traditional proximate cause test of Palsgraf can be
satisfied in duty to assist cases.
n229 Palsgraf requires that the defendant must, under the circumstances, reasonably
appreciate that some danger may result because of his behavior.
n230 Of special importance is that Palsgraf does not require a defendant to
appreciate the specific harm involved, just the possibility of an accident.
This proximate cause test can be logically applied to failure to assist cases,
in a manner that is consistent with the spirit of Palsgraf. If a jury would
find that a bystander would reasonably know that his omission would result in
harm to an accident or crime victim, liability would attach. In the case of
David Cash, for example, a jury could have easily found that Cash reasonably
knew his failure to assist Sherrice Iverson resulted in more abuse and torture
3.Morality - Perhaps the best reason behind enforcing duty to assist laws is
the reason no legal scholar wants to discuss - the issue of morality. As was
discussed in Beardsley and Knowles, courts are reluctant to impose a seemingly
moralistic obligation on uninvolved actors.
n232 But the evolution of any law is ultimately tied to society's sense of right
and wrong; it is spurred by a feeling of what one
n233 As one author suggests, the morality concern surrounding nonfeasance is what
makes it such a contentious issue:
Both courts and commentators generally consider it morally outrageous that the
defense of nonfeasance can deny endangered persons a legal right to an easy
rescue. Yet the defense is taken to be so basic to the law and so compelling
that it overrides the moral perceptions of the judges and the shared attitudes
of the community. This in itself is a tribute to nonfeasance.
[*555] In short, there is no reason why American law should not be influenced by some
sense of moral right and wrong; it is not a faith or a religion through which
the public was outraged at Cash's conduct, but through a gut feeling that his
failure to assist a seven-year-old was repugnant. People were not publicly
repulsed by Cash's behavior as a heavy handed attempt to influence politics or
the social arena, but because it viciously affronts something that Americans
hold dear - the right of persons to rely on each other in true emergency
4.The Nonsense of Abridging Liability for Nonfeasance - As has been seen,
various heightened duties are often imposed as exceptions to the generally
prescribed reasonableness doctrine. Statutes that impose these duties do so for
purposes of preventing drunk driving deaths, preventing child abuse, and
enforcing contractual agreements. Nonfeasance, then, by lying outside the
doctrine of reasonableness, also operates as an exception to the general rule
of reasonableness. Nonfeasance, however, is an abridgment of duty, and not an
expansion of it. Effectively, nonfeasance restricts what otherwise would have
been a duty if the question of reasonableness would have been submitted to a
By imposing heightened duties in certain well-delineated and specific
categories, the legislature has merely codified what society's sense of
morality and reasonableness unquestionably says should be done. For example, it
is thought of as reasonable for a doctor to report child abuse. Similarly,
society views it as reasonable for tavern owners to refrain from serving
alcohol to visibly drunk persons. What the statutes effectively do is ensure
that this reasonableness is uniformly applied across the country.
But the statutes have another altogether prudent purpose for existing - they
put unreasonable people on notice that their behavior is likely to result in
liability. Not only do statutes like this uniformly apply reasonableness, then,
they also act as a way to make people specifically aware of the potential for
liability if they act unreasonably.
It is difficult to understand why society's sense of morality and
reasonableness should be reflected in the heightened duty statutes and in
common law negligence principles, but not with regard to a duty to assist.
Nonfeasance is essentially a
"get out of jail free" pass. It is a way to act unreasonably that operates contrary to society's
collective sense of morality and even logic. Indeed, the reasons for
"mandated reasonableness" are compelling: preventing child abuse and drunk driving are but two of the
soundest reasons imaginable.
[*556] The reasons in support of nonfeasance, on the other hand, are not as
compelling, especially when compared to the rationale behind the heightened
duty statutes. Personal autonomy is abridged for the sake of abused children,
but not when David Cash watches his friend abuse and murder a young girl. This
outcome is not only illogical, it is also directly contrary to society's
notions of what
"should be" the law.
C. Toward a Reasonable Standard of Negligence Law
In order to more consistently apply the concept of reasonableness in both the
criminal and civil contexts, a uniform duty to assist standard is necessary.
Much like the child abuse statutes, a duty to assist statute would encompass
what society already considers to be reasonable. A statute encompassing the
goal of merging criminal liability with reasonableness might read as follows:
Criminal Liability for Failure to Assist
1.General Rule: It shall be a crime for witnesses to violent actions to deny
assistance to the victims of such actions.
2.Affirmative defenses: It shall be an affirmative defense to prosecution under
this statute if the defendant reasonably believed his or her safety would have
been endangered by rendering such assistance. Should the trier of fact find
that the defendant reasonably believed that he or she would be endangered, or
that a defendant's acquaintance or family member would be endangered, the
defendant shall not be convicted. Also, should the evidence support a finding
that the defendant reasonably believed an attempt to assist would result in
greater harm to the victim, the defendant shall not be convicted.
Duplicity: Persons shall be exempt from prosecution under this statute if the
trier of fact finds that assistance has already been rendered to the accident
or crime victim, and that the defendant was aware of such assistance.
Impossibility: Persons shall be exempt from prosecution if the trier of fact
finds that assisting the victim would have been impossible, by reason of the
defendant's mental defect, age or infirmity, or by physical impossibility.
Assistance: help in either reporting the incident of crime or in attempting to
stop the crime. For the purpose of this statute, the requirement to assist may
be satisfied by a telephone call to the proper authorities, but is not limited
to such action, nor is the telephone call specifically required.
Deny: the failure to render, or action which constitutes assistance being
delayed. This term also encompasses affirmative action which is intended to
interfere with the giving of assistance.
Endangered: put in physical peril, either through direct threats from the
assailant, physical contact from the assailant, or from the specific
circumstances surrounding the incident.
Violent actions: actions that could result in death or serious bodily harm,
including but not limited to actions that would constitute the crimes of,
physical assault, battery, sexual assault, murder, manslaughter, attempted
murder, child abuse, and rape.
Such a statute would allow a jury to determine if a person like David Cash
acted reasonably in denying Sherrice Iverson assistance, or whether his actions
constituted conduct deserving of criminal liability. If the trier of fact would
determine that a defendant who refused to offer assistance at the scene of a
crime acted within the bounds of reasonableness, that defendant would not be
punished. On the other hand, if the trier of fact would determine that
reasonable people would have offered assistance, the defendant would receive
punishment for his or her unreasonable actions.
A corresponding civil statute is also necessary to unilaterally apply the
"reasonableness" approach to failure to assist cases. Such a statute might read:
Duty to Assist Victims of Emergencies
1.General rule: There shall be imposed upon witnesses of violent crimes and
accidents involving serious bodily injury or risk of serious bodily injury a
duty to report such accidents or crimes to the appropriate authorities. There
shall also be imposed upon such witnesses a duty to render reasonable
assistance to involved victims.
[*558] 2.Definitions: Reasonable: In determining reasonable-ness for the purpose of
this statute, the trier of fact may take into account the following factors,
but is not limited to these factors:
1.The witness's objectively reasonable fear of danger to him or herself, his or
her family member or accompanying bystander, or additional or aggravated danger
to the victim,
2.The impossibility of assistance,
3.If assistance has already been rendered and the witness realizes that fact,
4.The age or infirmity of the witness,
5.The external surroundings of the incident. The trier of fact may not take the
defendant's subjective fear into account if that fear is not objectively
If duty to assist statutes are to be effective nationwide, the federal
government must encourage their passage in all the states. In order to do this,
Congress might condition federal funding on the passage of such a statute.
Congress could also allow states to pass their own versions of duty to assist
statutes, or require passage of a uniform civil or criminal version. States
could be allowed to pass statutes of this kind without affirmative defenses -
that is, a criminal statute that would require prosecutors to prove the
defendant's safety was not in danger. States could pass versions of this
legislation focusing on either reporting or assisting, or either on crimes or
accidents. States could also be allowed to punish offenders as they saw fit.
Thus, an offense under the criminal statute could be punished as a misdemeanor
or a felony, and civil statutes could have limited damages provisions. Of
course, these options would mean that the statutes would differ somewhat from
state to state, but at least states would be encouraged to look at
reasonableness when people fail to give assistance to crime and accident
The tougher question is one of enforcement of the criminal statutes.
n235 In order to encourage enforcement, prosecutors could use these statutes as a
basis for plea bargains, as they do for other
[*559] crimes without necessarily restricting corresponding penalties. Also, once the
statutes are publicized, as such federal programs often are, potential
defendants and victims may be on actual notice of this criminal behavior,
providing local police departments with a better ability to enforce them.
As an interesting postlude to the Sherrice Iverson murder, although Nevada
officials have been unable to charge David Cash with a crime, federal officials
are now investigating him in connection with civil rights violations.
n236 In December 1998, investigators began an inquiry into a racial slur
Strohmeyer allegedly made about his victim; consequently, some officials believe Cash
refused Sherrice Iverson assistance because of her race.
n237 The exact charges being investigated are unknown.
Perhaps motivated by widespread public discord, it now appears that the federal
government is attempting to do what the courts and state legislatures have
refused to - hold someone accountable for failing to assist another. But this
attempt to rectify matters with an angry public runs directly counter to common
law. After all, if there is no duty to assist, what does it matter why someone
refuses to act within the law? Cash could have refused assistance for any or no
reason, if he had no duty to assist Sherrice.
If this attempt at a
"reasonable" assessment of liability in failure to assist cases is to succeed, it must have
its impetus in the legislature, and not in the judiciary. After all, following
the Iverson murder and Princess Diana's untimely death, public sentiment in
support of such liability has been higher than ever. The public outrage
surrounding Sherrice Iverson's untimely death should provide legislatures with
the impetus to do what the judiciary cannot. Perhaps it has taken some vicious
paparazzi and a drug addicted teenage murderer to turn public sentiment away
"rosy-eyed" notion that
"good people...generally aid victims when they see them in trouble."
n239 Or perhaps people nationwide are simply not as upstanding as are Wisconsin
residents. And maybe
[*560] criminal sanctions would not have saved Sherrice Iverson, but maybe they would
have rendered David Cash responsible for looking over that stall door and
watching her die.
n1. 20/20 (ABC television broadcast, Oct. 30, 1998).
n2. See id.
n3. See id.
n4. See, e.g., Martin Dyckman, Standing By Can Be A Crime, St. Petersburg Times,
Sept. 6, 1998, at 3D.
n5. See id.
n6. See id.
n7. See id.
n8. See Robert Selna, Protesters Demand Berkeley Expulsion; UC Student Assailed
For Alleged Role in Girl's Slaying, Special to the Examiner, S.F. Examiner,
Aug. 27, 1998, at A20 (demanding that Cash be expelled for
"morally reprehensible behavior.")
n9. See Dyckman, supra note 4.
n10. Selna, supra note 8, at A20.
n12. See Dyckman, supra note 4.
n13. See Associated Press, Iverson Slaying Prompts
Samaritan" Bill, Las Vegas Rev. J., Sept. 30, 1998, at 3B; see also Tribune News
Samaritan" Law Sought, Chi. Trib., Sept. 16, 1998 at 3; Donrey Capital Bureau, Bill Would
Make Cash's Silence Illegal, Las Vegas Rev. J., Aug. 27, 1998, at 4A.
n14. See John T. Pardun, Comment, Good
Samaritan Laws: A Global Perspective,
20 Loy. L.A. Int'l. & Comp. L.J. 591 (1998), for a discussion of the general lack of a duty to assist in American
n15. See id.
n16. See Associated Press,
Samaritan" Bill Linked to Girl's Murder - Barbara Boxer and A Texas Congressman Introduce
the Sherrice Iverson Act, Fresno Bee, Sept. 10, 1998, at B6; see also supra
note 14 and accompanying text.
Mass. Gen. Laws Ann. ch. 268, 40 (West 1984); Ohio Rev. Code. Ann. 2921.23 (Anderson 1984);
R.I. Gen. Laws 11-56-1 (1956);
Vt. Stat. Ann. tit. 12 519 (1984).
n18. See Girl's Murder Prompts California to Consider
Samaritan' Laws, Deseret News, Dec. 10, 1998 at A22; Stacy Finz, Killing of Girl, 7, in
Casino Spurs Good
Samaritan Bills, S.F. Chronicle, Dec. 9, 1998 at A21; Tribune News Service, supra note
13, at 3.
n19. See Pardun, supra note 14, at 596-97.
n20. See Associated Press, supra note 16, at B6.
n21. See S.2452, 105th Cong., 2 (1997).
Jackson v. Forest City Enter., Inc., 675 N.E.2d 1356, 1358 (Ohio 1996) ("Ordinarily, an individual possesses no duty to act affirmatively for the
protection of others and the fact that harm to another is foreseeable as a
result of a failure to act does not create a duty to prevent harm.").
n23. See James Barr Ames, Law and Morals,
22 Harv. L. Rev. 97 (1908) (discussing the common law position on the Good
Samaritan rule). Although Black's Law Dictionary defines nonfeasance as
"the failure to act when a duty to act existed," most modern courts equate the term with scenarios wherein recovery is denied.
Black's Law Dictionary 440 (Pocket ed. 1996). Cf.
Lewis v. Razzberries, Inc., 584 N.E.2d 437,441 (Ill. App. 1 Dist. 1991) ("Liability arises from misfeasance, but not from nonfeasance."); see also infra note 27 and accompanying text.
Cameron v. Ohio Dep't of Transp. 669 N.E.2d 874, 877 (Ohio 1995).
Jackson, 675 N.E.2d at 1358.
n26. See id.; see also
Melodee Lane Lingerie Co. v. American District Telegraph Co., 218 N.E.2d 661 (N.Y. 1966), for a discussion of the nonfeasance/misfeasance distinction and the importance
of the distinction between action and inaction in determining liability. See
infra Part I(A)(2), The
"Action/Inaction" Analysis, for a discussion of the action/inaction distinction.
Jackson, 675 N.E.2d at 1358.
n28. See W. Page Keeton et al., Prosser
& Keeton on the Law of Torts 29-30 (5th ed. 1984
& Supp. 1988) for a discussion of the prima facie case of negligence. As the
authors indicate, a plaintiff seeking to prove negligence must establish: (1)
that the defendant owed a duty to the plaintiff; (2) that the defendant
breached that duty; (3) that the defendant's negligence was an actual and
proximate cause of the plaintiff's harm; and (4) the plaintiff suffered actual
damages. See id. For the purposes of nonfeasance, only the first three prongs
are of any significance. See infra Part I(A)(1) for a discussion of breach. See
infra Parts I(C) and II(B)(2) for a discussion of causation.
n29. See Keeton et. al., supra note 28, 29-30.
n30. See id.
Florio v. Texas, 784 S.W.2d 415 (Tex. 1990). Florio discusses the general duty parents have to care for children in the
context of a criminal prosecution of a live-in boyfriend who failed to assist a
child. See id. Interestingly, the Florio court ruled that the boyfriend had no
duty to the child, even though he was described as a
id. at 417.
State ex rel. Florida Bar v. Murrel, 74 So. 2d 221 (Fla. 1954) (discussing duties owed by attorneys to clients);
Sugarman v. Bd. of Registration in Med., 662 N.E.2d 1020 (Mass. 1996) (discussing duties owed by psychiatrists to maintain integrity in the
Golde v. Fox, 159 Cal. Rptr. 864 (Cal. Dist. Ct. App. 1979) (discussing the duties real estate brokers have to maintain integrity in their
Dalbey Bros. Lumber Co. v. Crispin, 12 N.W.2d 277, 279 (Iowa 1943) (discussing the purpose of oaths to secure the truth in court).
Drum v. Miller, 47 S.E. 421 (N.C. 1904). Drum recites the proposition that forseeable injury of any kind, and not the
specific injury that was sustained, is sufficient for purposes of tort
liability. See id.
"When the act is lawful, the liability depends, not upon the particular
consequence or result that may flow from it, but upon the ability of a prudent
man, in the exercise of ordinary care, to foresee that injury or damage will
naturally or probably be the result of his act."
Id. at 423.
n35. See id.
n36. See infra Part I(A)(1).
113 N.W. 1128 (Mich. 1907).
id. at 1129.
n39. See id.
n40. See id.
id. at 1131.
Beardsley, 113 N.W. at 1131.
United States v. Knowles, 26 F. Cas. 800, 801 (D. Ct. N. Cal. 1864) (Nov. 15,540); see also
Beardsley, 113 N.W. at 1131.
Beardsley, 113 N.W. at 1131.
id. at 1131.
n46. See id.
Id. at 1129.
Id. at 1129.
155 A.2d 343, 344 (Pa. 1959).
n50. See id.
n51. See id.
n52. See id.
n53. See id.
Yania, 155 A.2d at 345-46.
Id. at 346.
n57. See supra Part I(A); see also supra note 23 and accompanying text. For the
purposes of this comment, discussion will be limited to an examination of
action and duty. See id.
n58. See generally
Melodee Lane Lingerie Co. v. American District Telegraph Co., 218 N.E.2d 661 (N.Y. 1966).
Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn. 1983) (quoting Keeton et al., supra note 28, at 56).
n60. See id. The logical argument in this context is that reasonableness can only
be confined to action, and that inaction cannot be viewed as unreasonable
because it is a nullity; effectually, inaction does not exist and therefore
cannot be unreasonable.
n61. See id.; see also
Hughes v. State, 719 S.W.2d 560, 565 (Tex. Crim. App. 1986) (Teague, J., concurring). In Justice Teague's concurring opinion, subtitled
"A Requiem Dedicated to the Kitty Genoveses of this Country," he discussed the famous saga of Ms. Genovese, who was murdered outside her
apartment in Queens, New York, in 1964. Id. Thirty-eight people in her
apartment building heard her screams, but did nothing to assist her. See id.
Teague asks the question,
"Why did those good persons not come forth to aid Kitty, a fellow human being,
who was then being mauled by nothing less than a rabies-infected animal, who
was then disguised as a human being?...It was their fear of legal consequences,
and not necessarily their timidity or lack of bravery, that chilled their
better instincts to intervene on behalf of Kitty!!! Do we want such thinking to
exist in Texas? I, for one, do not." Id.
n62. See, e.g.,
People v. Beardsley, 113 N.W. 1128, 1131 (Mich. 1907); see also supra Part I(A)(1).
n63. See infra Part I(A)(2).
n64. See Albin Eser, The Principle of
"Harm" in the Concept of Crime: A Comparative Analysis of the Criminally Protected
4 Duq. L. Rev. 345, 386 (1965). ("Actus reus is to be interpreted as the comprehensive notion of act, harm, and
its connecting link, causation, with actus expressing the voluntary physical
movement in the sense of conduct and reus expressing the fact that this conduct
results in a certain proscribed harm....") (emphasis in original).
n65. See Model Penal Code 2.01(1) (1984)(emphasis added).
Beardsley, 113 N.W. at 1131.
17 So.2d 427 (Ala. Ct. App. 1944).
n68. See id.
n69. See id.
n70. See id.
State v. Utter, 479 P.2d 946 (Wash. App. 1971); see also infra Part I(B)(2).
Utter, 479 P.2d at 948-51.
id. at 947.
id. at 951. This defense has been followed in Washington since Utter. See
State v. Perkins, 14 Wash. App. 27, 31, 538 P.2d 829, 833 (1975) ("This jurisdiction has recognized that a true conditioned response evoked by
external stimuli may produce acts which completely exculpate the actor because
he lacked any criminal intent.").
n75. See generally
Martin v. State, 17 So. 2d 427 (Ala. Ct. App. 1944);
Utter, 479 P.2d at 948-50.
Barber v. Superior Court, 195 Cal. Rptr. 484 (Cal. App. 1983); see also infra Part I(B)(2).
Barber, 195 Cal. Rptr. at 486.
id at 490.
n79. See id.
Logarta v. Gustafson, 998 F. Supp. 998 (E.D. Wis. 1998).
n81. See id.
n82. See id. The defendant had seen the decedent in a field, with a gun in hand,
and knew at the time that he was despondent. See
id. at 1000. The defendant then left, asking that the decedent
"only think about what he was doing." See id.
id. at 1001.
Moore v. Murphy, 119 N.W.2d 759, 760 (Iowa 1963).
id at 761-762.
n86. See id.
n87. See id.
119 Eng. Rep. 424 (K.B. 1855); see also Ernest J. Weinrib, The Case for a
Duty to Rescue,
90 Yale L.J. 247 (1980) reprinted in A Torts Anthology 126 (Lawrence C. Levine, Julie A. Davies,
& Edward J Kionka eds. 1993). Weinrib discusses this case and its impact upon
the nonfeasance doctrine. See id.; see also infra Part I(B)(2).
Newton, 119 Eng. Rep. at 424.
n90. See id.
n91. See id.
n92. See Weinrib, supra note 88, at 129.
n93. See id.
n94. See Richard A. Epstein, A Theory of Strict Liability,
2 J. Legal Stud. 151 (1973) reprinted in A Torts Anthology, supra note 88, at 123. Epstein discusses some
of the reasons behind a lack of a duty to assist. See id.; see also infra Part
n95. See id.
n96. See id.; see also
Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn. 1983); supra note 60 and accompanying text.
n97. See Epstein, supra note 94, at 124-125.
Beardsley, 113 N.W. at 1131; see also supra Part I(A)(1).
n99. See Epstein, supra note 94, at 125; see also infra Part II(C).
n100. See id. Epstein argues that the utilitarian views held by proponents of duty
to assist laws
"must in the end find some special place for the claims of egoism which are an
inseparable byproduct of the belief that individual autonomy - individual
liberty - is a good in itself not explainable in terms of its purported social
worth." Id. at 125. But see generally Ames, supra note 23. Further, as discussed in
supra Part I(A)(2), other commentators argue that personal autonomy should give
way to the protection of persons in danger of bodily harm. See id.
n101. See Epstein, supra note 94, at 125; see also
United States v. Carroll Towing, 159 F.2d 169 (2nd Cir. 1947). Epstein discusses the cost-benefit formula derived from Carroll Towing and its
application to nonfeasance. See Epstein, supra note 94, at 125. The Carroll
Towing formula dictates that there is a duty between a plaintiff and a
defendant only if three conditions are algebraically related. See
Carroll Towing, 159 F.2d at 169. The formula states that if the burden on the defendant to take precautions to
protect the plaintiff, (B), is less than the probability of harm to the
plaintiff, (P), multiplied by the severity of harm, (H), the defendant has a
duty to take those precautions. See id. Thus, if B is less than H times P, the
defendant owes a duty to the plaintiff. See id.
n102. See Epstein, supra note 94, at 125.
n103. See id.
n104. See id. at 126.
Butler v. Acme Markets, Inc., 426 A.2d 521, 524 (N.J. 1981) (using the language
"reasonable person of ordinary prudence.")
Weinberg v. Dinger, 524 A.2d 366, 374 (N.J. 1987). ("The standard of care ordinarily imposed by negligence law is well established.")
Coburn v. City of Tucson, 691 P.2d 1078, 1080 (Ariz. 1984). ("The duty remains constant, while the conduct necessary to fulfill it varies
with the circumstances....").
Jackson, 675 N.E.2d at 1358.("Ordinarily, an individual possesses no duty to act affirmatively for the
protection of others and the fact that harm to another is foreseeable as a
result of a failure to act does not create a duty to prevent harm...."); see also supra note 15 and accompanying text.
Jackson, 675 N.E.2d at 1358.
n111. See id.; see also supra Part I(A)(1) for a discussion of duty in nonfeasance
527 N.E.2d 469 (Ill. App. 1 Dist. 1988).
id. at 472.
Helm v. Inter-Ins. Exchange for Auto. Club, 192 S.W. 2d 417, 420 (Mo. 1946) (discussing the heightened duty arising from contractual obligations).
n115. See id.; see also
18 U.S.C. 2258 (1994), making breach of the duty to report child abuse punishable as a class
Harzfeld's, Inc. v. Otis Elevator Co., 114 F. Supp. 480, 483 (D.Mo. 1953) (discussing the existence of a duty to act affirmatively and subsequent
liability upon breach of that duty).
Florio, 784 S.W.2d at 417; see also supra note 31.
Borelli v. Brusseau, 16 Cal. Rptr.2d 16, 17-18 (Cal. App. 1 Dist. 1993) (discussing that the marital duty of support
encompasses not only physical care, but also emotional care and love).
n119. See Weinrib, supra note 88, at 128-130.
Crowell v. McCaffrey, 386 N.E.2d 1256 (Mass. 1979) (imposing upon landlords the duty to keep their leased premises habitable).
Sugarman v. Board of Registration in Medicine, 662 N.E.2d 1020 (Mass. 1996).
n122. See id.
Vanegrift v. Am. Brands Corp., 572 F. Supp. 496 (D.N.H. 1983) (discussing the duties imposed for those who undertake contractual
obligations). In cases such as these, since one undertakes a duty to contract,
tort law might enforce that duty above and beyond the plaintiff's contractual
remedies. See id.; see also 86 C.J.S. Torts 4(a) (1997),
"Mere nonfeasance, even if it amounts to a willful neglect to perform a
contract, is not sufficient, although where performance of contractual
obligations has induced detrimental reliance on continued performance, mere
inaction may give rise to tort liability...." See id.
"Tort liability of the parties to a contract arises from the breach of some
positive legal duty imposed by law because of the relationship of the parties,
rather than from a mere omission to perform a contract obligation." See id. Note that the
"relationship of the parties" is the impetus behind most heightened duties; parties to a contract are no
different. See id.
n124. See, e.g.,
Newton v. Ellis, 119 Eng. Rep. 424 (K.B. 1855).
Ryals v. United States Steel Corp., 562 So.2d 192 (Ala. 1990) (holding that even as to trespassers, landowners generally owe a duty to avoid
wanton injury). But see
Scurti v. City of New York, 354 N.E.2d 794 (N.Y. 1976). This Comment advocates the approach followed in Scurti, which holds that the
duty should be one of reasonable care as determined by a jury. See id.
Brigance v. Velvet Dove Restaurant, 725 P.2d 300 (Okla. 1986). Brigance discusses the common law rule of liability for tavern owners and the
passage of dram shop statutes imposing such a duty. See id. The Brigance court
also imposed such a duty in the absence of such a statute under a
"reasonable care" analysis, much like that urged in this Comment. See id.
42 U.S.C. 13031 (1994) (federal statute requiring a host of defined professionals to report
child abuse upon their learning of facts
"that give reason to suspect" a child has been abused);
18 U.S.C. 1169 (1994) (federal statute requiring officers in Indian reserves to report child
18 U.S.C. 2258 (1994) (federal statute making the failure to report child abuse a class B
Soldano v. O'Daniels, 141 Cal. App.3d 443 (Cal. App. 5 Dist. 1983).
id. at 453.
id. at 446.
n132. See id.
Soldano, 141 Cal. App. 3d at 448-450.
n134. See id.
id. at 449.
id. at 452.
n137. See id.
Soldano, 141 Cal. App. 3d at 455.
n139. See, e.g.,
Jackson v. Forest City Enterprises, 675 N.E.2d 1356, 1358 (Ohio App. 1996); see also supra text accompanying note 23.
n140. See supra Part II(B).
Barber, 147 Cal. App. 3d 1006; see also supra Part I(A)(2).
Soldano, 141 Cal. App. 3d 443; see also Dyckman, supra note 4.
n143. See Dyckman, supra note 4 and accompanying text.
Soldano, 141 Cal. App. 3d 443.
Rozycki v. Peley, 489 A.2d 1272 (N.J. 1984).
n146. See id.
n147. See id.
id. at 1272.
id. at 1273.
Rozycki, 489 A.2d at 1273.
id. at 1277.
id. at 1274-76.
id. at 1275.
n154. See id.
J.S. v. R.T.H., 693 A.2d 1191 (N.J. 1997).
n156. See id.
id. at 1193-94.
Id. at 1194. Ironically, this
"reasonableness" requirement was effectively legitimized years ago even though it was not
embraced throughout the doctrine of nonfeasance. If it were not reasonable to
make someone liable for inaction, as in J.S., the definition of nonfeasance
would not ever have been defined as
"the failure to do that which ought to be done." See id.; see also supra Part I.
No. 3092, 1999 WL 1220010 (S.C. App. Dec. 20, 1999).
n160. See id.
n161. See id.
n162. See id. at *1.
n163. See id. at *4.
Batson, No. 3092, 1999 WL 1220010, at *4.
n165. See id.
n166. See id.
n167. See id.
n168. See Girl's murder prompts California to consider
Samaritan' laws, supra note 18, at A22.
Tex. Penal Code Ann. 38.17 (West 1994). The Act provides that:
a) A person, other than a person who has a relationship with a child described
by Section 22.04(b), commits an offense if: (1) the actor observes the
commission or attempted commission of an offense prohibited by Section
22.021(a)(2)(B) under circumstances in which a reasonable person would believe
that an offense of a sexual or assaultive nature was being committed or was
about to be committed against the child; (2) the actor fails to assist the
child or immediately report the commission of the offense to a peace officer or
law enforcement agency; and (3) the actor could assist the child or immediately
report the commission of the offense without placing the actor in danger of
suffering serious bodily injury or death.
b) An offense under this section is a Class A misdemeanor.
n170. See id.
n171. See id.
n172. See Finz, supra note 18, at A21.
n173. See Girl's Murder Prompts California to Consider
Samaritan' Laws, supra note 18, at A22.
n174. See id.
n175. See id.
n176. See id.
n177. See id.
n178. See Girl's murder prompts California to consider
Samaritan' laws, supra note 18, at A22.
n179. See Maura Dolan,
Samaritan' Laws Are Hard to Enact, Experts Say Aid: Outrage over inaction of
Strohmeyer friend sparks calls for bills. But existing legislation has limited success,
L.A. Times, September 9, 1998, at A1.
n180. See Tribune News Services, supra note 13, at 3.
n181. See id.
n182. See Pardun, supra note 14, at 596-97.
Vt. Stat. Ann. tit. 12, 519 (1967); see also Dolan, supra note 179, at A1.
n184. See Dolan, supra note 179, at A1.
n185. See id.
n186. See id.
n187. See id.
Wis. Stat. 940.34. (West Supp. 1999); see also Dave Daley, Few prosecuted under state
"Samaritan' law; Like France, Wisconsin requires residents to help crime, accident
victims, Milwaukee J. Sent., September 5, 1997, at 9.
n189. See Daley, supra note 188, at 9.
n190. See id.
n191. See id.
n192. See id.
n193. See id.
n194. See Daley, supra note 188, at 9.
n195. See id.
n196. See id.
n197. See id.
Ohio Rev. Code Ann. 2921.23 (Banks-Baldwin 1997);
Wash. Rev. Code Ann. 9A.76.030 (West 1988).
Wash. Rev. Code Ann.9A.76.030.
Ohio Rev. Code Ann. 2921.23.
n201. See id.
Mass. Gen. Laws Ann. ch. 268, 40 (West 1983);
R.I. Gen. Laws 11-56-1 (1984).
Mass. Gen. Laws Ann. ch. 268, 40.
R.I. Gen. Laws 11-56-1.
n205. See id.
Barber v. Superior Court of Los Angeles, 195 Cal. Rptr. 484 (Cal. Ct. App. 1983); see also supra Part I(A)(2) (discussing the Barber
Barber, 195 Cal. Rptr. at 493.
n208. See id.
Moore v. Murphy, 119 N.W. 2d. 759 (Iowa 1963). Moore discusses the conduct in question as
"misfeasance," the designation typically reserved for affirmative conduct leading to
id. at 761.
n210. See supra Part I(A)(2); see also A.P. Simester, New Voices in Criminal Theory,
On the So-called Requirement for Voluntary Action,
1 Buff. Crim. L. Rev. 403 (1998). Simester attempts to create a concrete definition of
"overt act" for the purposes of tort law. See id. Simester discusses the difficulty of
"action" in tort cases, and details the importance, above all, of moral culpability in
establishing criminal guilt. See id. Simester's analysis can be applied to the
Cash scenario; Simester specifically argues that omissions, being different
from overt actions, are difficult to define and therefore punish. See
id. at 417-418. Yet, as this Comment argues, if Cash were punished based upon moral
culpability, as is the practical basis of all criminal statutes, the definition
"inaction" would be unnecessary. See id.
Casale v. City of Newark, 125 A.2d 895 (N.J. 1956).
n212. See id.
id. at 897.
n214. See id. In Casale, the court determined that the city would not be liable for
the Plaintiff's harm, not because of a lack of wrongdoing, but because the
failure to act was attributable to the city's agents and not to the city
itself. See id. The court noted that the doctrine of respondeat superior did
not apply to a nonfeasance scenario, even if
"there was some proof of active wrongdoing in this case." See
id. at 897; see also
People v. Beardsley, 113 N.W. 1128, 1131 (Mich. 1907).
n215. See Weinrib, supra note 88, at 129.
n216. See id. The Restatement (Second) of Torts has noted that one possible reason
for the distinction between
"inaction" may be outdated.
In the early law, one who injured another by a positive affirmative act was
held liable without any great regard even for his fault. But the courts were
far too much occupied with the more flagrant forms of misbehavior to be greatly
concerned with one who merely did nothing, even though another might suffer
serious harm because of his omission to act. Hence, liability for nonfeasance
was slow to receive any recognition in the law.
Restatement (Second) of Torts 314 cmt. c, at 116-17 (1965).
n217. See Weinrib, supra note 88, at 129.
n218. See id.
n219. See id.
n220. See id.
387 N.Y.S.2d 55 (1976).
n222. See id.
n223. See id.
id. at 57.
id. at 55.
Salinetro v. Nystrom, 341 So. 2d 1059 (Fla. 1977).
n227. Salinetro details the counterfactual test of causation; it asks what would
have happened if the defendant had not acted. See id. The test essentially
requires a finder of fact to imagine an alternative set of events bearing no
relation to what really happened in order to determine liability. See id.
Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).
n229. See id.
n230. See id.
n231. See id.
People v. Beardsley, 113 N.W. 1128 (Mich. 1907);
U.S. v. Knowles, 26 Fed. Cas. 800 (N.D. Cal. 1864).
n233. See James Fitzjames Stephen, A History of the Criminal Law of England 80-82
(1883), for a discussion of how morality is the impetus for all criminal law
and the determination of punishment.
"The sentence of the law is to the moral sentiment of the public in relation to
any offence what a seal is to hot wax. It converts into a permanent final
judgment what might otherwise be a transient sentiment." Id.
n234. See Weinrib, supra note 88, at 131.
n235. See Dolan, supra note 179, at A1.
n236. See Associated Press, 2 Friends of Killer Testify In Casino Slaying, S. D.
Union Trib., Dec. 18, 1998, at A6.
n237. See id.
n238. See id.
n239. See Daley, supra note 188, at 9.
Prepared: April 16, 2003 - 5:02:29 PM
Edited and Updated, April 17, 2003