Bad samaritan laws: Harm, help, or hype?

Law and Philosophy

Volumn 19, Issue 6, 2000, Pages 707-750

  Malm, H M ^a  

^a LOYOLA UNIVERSITY CHICAGO   (United States)

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EID: 0034560197     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505072     Document Type: Article

References (76)

1. Many thanks to Michael Green, Dan Hefter, Vicki Igneski, Frances Kamm, Alex de Miranda, Janice Nadler, Jerry Postema, Arthur Ripstein, David Schmitz, Louis du Toit and Kit Wellman for their comments on an earlier draft of this manuscript. Additional and tremendous thanks to Kit Wellman and the Jean Beer Blumenfeld Center for Ethics for organizing and funding the conference at which this and the other manuscripts in the present volume were discussed.
2. For example, I ought to respond politely when asked what time it is and ought to share my extra water with a thirsty hiker. For a discussion of the related notion of "suberogation" see Julia Driver, "The Suberogatory," Australasian Journal of Philosophy, 70, 1992.
3. Even if the duty to aid is a perfect duty, its legal enforcement is still open to debate, given that there are number of perfect duties not enforced by law. For related discussions, see Patricia Smith, Liberalism and Affirmative Obligation, Oxford University Press: New York, 1998, chapter 2, and Samuel Freeman, "Criminal Liability and the Duty to Aid the Distressed," Univ. Penn Law Rev., vol. 142, 1994, 1455-1492, at p. 147-9.
4. Even if the duty to aid is a perfect duty, its legal enforcement is still open to debate, given that there are number of perfect duties not enforced by law. For related discussions, see Patricia Smith, Liberalism and Affirmative Obligation, Oxford University Press: New York, 1998, chapter 2, and Samuel Freeman, "Criminal Liability and the Duty to Aid the Distressed," Univ. Penn Law Rev., vol. 142, 1994, 1455-1492, at p. 147-9.
5. For excellent discussions of problems of tort liability for failing to aid see James A. Henderson, Jr. "Process Constraints in Tort," Cornell Law Review, vol. 67, 1982, 901-948, and Arthur Ripstein's article in this volume.
6. In Florida and Rhode Island, the duty to report is limited to specific kinds of criminal conduct, raising questions about why, for example, sexual assault needs to be reported but attempted murder does not. See David Biggs, "The Good Samaritan is Packing," University of Dayton Law Review, vol. 22:2, 1997, 225-264, p. 230. Also, the threat of prosecution for failing to report may deter some initially reluctant witnesses from ever coming forward and may taint, in the eyes of the jury, the objectivity and credibility of the witnesses that do report. See Daniel Yeager, "A Radical Community of Aid: A Rejoinder to Opponents of Affirmative Duties to Help Strangers" (Washington University Law Quarterly, vol. 71, 1993, 1-58, p. 35) for comments from prosecutors who choose not to enforce such laws because they threaten the objectivity of potential witnesses.
7. In Florida and Rhode Island, the duty to report is limited to specific kinds of criminal conduct, raising questions about why, for example, sexual assault needs to be reported but attempted murder does not. See David Biggs, "The Good Samaritan is Packing," University of Dayton Law Review, vol. 22:2, 1997, 225-264, p. 230. Also, the threat of prosecution for failing to report may deter some initially reluctant witnesses from ever coming forward and may taint, in the eyes of the jury, the objectivity and credibility of the witnesses that do report. See Daniel Yeager, "A Radical Community of Aid: A Rejoinder to Opponents of Affirmative Duties to Help Strangers" (Washington University Law Quarterly, vol. 71, 1993, 1-58, p. 35) for comments from prosecutors who choose not to enforce such laws because they threaten the objectivity of potential witnesses.
8. Pat Smith argues that the presence of an emergency situation in which the potential victim is not in control of her welfare and the potential rescuer is in control, creates a sort of special relationship between them. Smith admits, however, that this is an atypical use of the notion of a special relationship because it lacks the voluntary undertaking on the part of at least one of the parties that is generally characteristic of special relationships (e.g., accepting a job as a lifeguard, taking a baby home from the hospital). Patricia Smith, Liberalism and Affirmative Obligation, p. 42.
9. Judy Thomson is credited with coining the term (Thomson, "A Defense of Abortion," Philosophy and Public Affairs, 1, 1971, 47-66). The good Samaritan of the Bible, recall, went way out of his way to help the stranger in need.
10. For example, Yeagher, a proponent of bad samaritan laws, states that he aims to "criticize the common notion that affirmative duties are intolerable because they threaten autonomy" (emphasis added). Yeager, "A Radical Community of Aid," p. 8.
11. Henderson, op. cit.
12. Steven J. Heyman, "Foundations of the Duty to Rescue," Vanderbilt Law Review, 47, 1994, 673-755, p. 679. Heyman also rejects the "common view that common law has never imposed liability either in tort or in criminal law for failures to rescue." He argues that "although no general duty to rescue existed in private law, the common law often imposed positive duties as a matter of public law, including a duty to assist in preventing criminal violence," p. 682.
13. Heyman, p. 679.
14. A number of proponents seem to reason this way. For example, D'Amato argues that bad samaritan laws may be grounded in self interest or "pure Hobbesian expediency," with the benefits that one receives from the laws outweighing the burdens they impose (Anthony D. Damato, "The "Bad Samaritan" Paradigm," Nw. U. L. Rev. vol. 70, 1975, p. 805). Samuel Freeman supports a similar view in "Criminal Liability and the Duty to Aid the Distressed (at 1477), and Jay Silver goes further by assuming that the laws will actually be effective in preventing deaths and that the "lives saved would justify any new incursions on individual liberty." (Jay Silver, "The Duty to Rescue: A Reexamination and Proposal," Wm & Mary L. Rev. vol. 26, 1985, as discussed in John M. Alder, "Relying on the Reasonableness of Strangers," Wisconsin Law Rev. Sept./Oct. 1991, p. 927.)
15. A number of proponents seem to reason this way. For example, D'Amato argues that bad samaritan laws may be grounded in self interest or "pure Hobbesian expediency," with the benefits that one receives from the laws outweighing the burdens they impose (Anthony D. Damato, "The "Bad Samaritan" Paradigm," Nw. U. L. Rev. vol. 70, 1975, p. 805). Samuel Freeman supports a similar view in "Criminal Liability and the Duty to Aid the Distressed (at 1477), and Jay Silver goes further by assuming that the laws will actually be effective in preventing deaths and that the "lives saved would justify any new incursions on individual liberty." (Jay Silver, "The Duty to Rescue: A Reexamination and Proposal," Wm & Mary L. Rev. vol. 26, 1985, as discussed in John M. Alder, "Relying on the Reasonableness of Strangers," Wisconsin Law Rev. Sept./Oct. 1991, p. 927.)
16. A number of proponents seem to reason this way. For example, D'Amato argues that bad samaritan laws may be grounded in self interest or "pure Hobbesian expediency," with the benefits that one receives from the laws outweighing the burdens they impose (Anthony D. Damato, "The "Bad Samaritan" Paradigm," Nw. U. L. Rev. vol. 70, 1975, p. 805). Samuel Freeman supports a similar view in "Criminal Liability and the Duty to Aid the Distressed (at 1477), and Jay Silver goes further by assuming that the laws will actually be effective in preventing deaths and that the "lives saved would justify any new incursions on individual liberty." (Jay Silver, "The Duty to Rescue: A Reexamination and Proposal," Wm & Mary L. Rev. vol. 26, 1985, as discussed in John M. Alder, "Relying on the Reasonableness of Strangers," Wisconsin Law Rev. Sept./Oct. 1991, p. 927.)
17. Smith, Liberalism and Affirmative Obligation, p. 39.
18. Joseph Ellin, "The Mind of the Bad Samaritan," forthcoming in Civility and Its Discontents: Essays on Civic Virtue, Toleration, and Cultural Fragmentation, eds., Jonathan Schonsheck and Christine Sistare, University of Kansas Press, estimated publication, fall 2001.
19. Smith, Liberalism and Affirmative Obligation, p. 38.
20. We can't explain the case as a mere conflict of rights without committing ourselves to the silly view that in a shooting case, the vicitm's right not to be killed was in conflict with the assailant's right to put a bullet through her heart. If X has a right against Y that Y provide an easy rescue at time T, then Y is not at liberty, and certainly doesn't have a right, to be eating lunch at T.
21. Joel Feinberg, "The Moral and Legal Responsibility of the Bad Samaritan," Crim. J. Ethics, 3, 1984, p. 68, and Harm to Others, Oxford University Press, 1984, chapter 4, and Ernest Weinrib, "The Case for a Duty to Rescue," Yale L.J. 90, 1980, pp. 287-292. Weinrib has since changed his view. Feinberg also argues for a right to be rescued in Harm to Others.
22. Joel Feinberg, "The Moral and Legal Responsibility of the Bad Samaritan," Crim. J. Ethics, 3, 1984, p. 68, and Harm to Others, Oxford University Press, 1984, chapter 4, and Ernest Weinrib, "The Case for a Duty to Rescue," Yale L.J. 90, 1980, pp. 287-292. Weinrib has since changed his view. Feinberg also argues for a right to be rescued in Harm to Others.
23. Joel Feinberg, "The Moral and Legal Responsibility of the Bad Samaritan," Crim. J. Ethics, 3, 1984, p. 68, and Harm to Others, Oxford University Press, 1984, chapter 4, and Ernest Weinrib, "The Case for a Duty to Rescue," Yale L.J. 90, 1980, pp. 287-292. Weinrib has since changed his view. Feinberg also argues for a right to be rescued in Harm to Others.
24. The quote is from Weinrib, p. 292, as cited in Heyman, "Foundations of the Duty to Rescue," p. 741. Heyman notes that his own view differs from the one under consideration in that, on his view but not the present one, the duty to aid is a duty of the community that is delegated to individuals in emergency situations, as opposed to an individual duty that is most efficiently and fairly fulfilled through state-funded institutions.
25. As noted in Feinberg, Harm to Others, p. 165. There are problems with this view but they are not relevant to our present concerns. See my "Liberalism, Bad Samaritan Law and Legal Paternalism," Ethics, vol. 106, 1995, pp. 4-31.
26. As noted in Feinberg, Harm to Others, p. 165. There are problems with this view but they are not relevant to our present concerns. See my "Liberalism, Bad Samaritan Law and Legal Paternalism," Ethics, vol. 106, 1995, pp. 4-31.
27. For a related problem, consider the person who, after receiving a publicly funded liver-transplant, regularly drinks alcohol and reasons that if his current liver fails, he'll get on the list for a new one. If society's duty to provide the transplants is grounded on his rights as an intrinsically worthy human being, then we have little basis for criticizing his behavior or for putting conditions or limits on the aid. After all, drinking alcohol doesn't change one's intrinsic worth. But if the duty to aid is grounded in beneficence, then we can more easily explain our negative judgments when the aid is abused or taken for granted and more easily account for the conditions we put on the aid in terms of competing demands on our resources. Indeed, with respect to resources, it seems that if our intrinsic worth generates a right to easy rescues, then it should also generate a right that others make minimal efforts toward putting themselves in the position of being able to provide easy rescues, e.g., by learning CPR, contributing money toward a rescue boat, or spending a few minutes of their time at the beach looking for persons in need of rescue instead of reading. (After all, a child's right against its custodial parents includes more than a right to be given food when food is available; it includes a right that the parents try to make it the case that food is available.) But no one seems to be advocating legal duties of this sort.
28. Indeed, I've elsewhere argued that the analogy between the affirmative duties required in other areas of the law, and those that would be created by bad samaritan laws is weak. See my "Liberalism, Bad Samaritan Law and Legal Paternalism," p. 16.
29. They would be similar to protestations that persons, or even just children, ought not be able to access pornographic material on computers at pubic libraries. We can't effectuate that desire until we explicate some relatively clear conception of what we mean by "pornography" (or, by analogy, "bad samaritan") and devise a sufficiently accurate method for limiting access to much of that material (or subjecting the bad samaritan to prosecution) that doesn't also limit access to too much other material (subject too many non-bad samaritans to prosecution).
30. I provide a detailed discussion of the various forms of the line-drawing objection and their responses in "Civic Virtue and the Legal Duty to Aid," forthcoming in Civility and Its Discontents: Essays on Civic Virtue, Toleration, and Cultural Fragmentation, eds., Jonathan Schonsheck and Christine Sistare, University of Kansas Press, anticipated publication date, Fall 2001.
31. Feinberg (Harm to Others, pp. 156-157). In more detail, he argues that we should "formulate bad samaritan statutes in relatively vague terms that allow juries the discretion to apply standards of reasonable danger, cost, and inconvenience." But rather than requiring jurors to draw the line between reasonable and unreasonable aid (and thereby run the risk of improper conviction), he proposes that they draw the line between clearly reasonable and questionably reasonable aid. That is, we should: divide up the spectrum of hypothetical cases into three segments: (1) clear cases of opportunity to rescue with no unreasonable risk, cost, or inconvenience whatever; (2) cases of opportunity to rescue but only at clearly unreasonable risk, cost, or inconvenience to the rescuer or others; and (3) everything in the vast no-man's-land of uncertain cases in between the extremes. To err on the side of caution, we would hold no one in the uncertain category liable .... That would be to hold everyone liable who clearly deserves to be liable, while exempting all those who do not clearly deserve to be liable - both those who clearly deserve not to be liable, and those whose deserts are uncertain.
32. Thanks to Bill Edmundson and Michael Green for pointing out the need to explain why we need not treat laws against causing harm and laws against failing to prevent harm, nor treat violations thereof, in similar manners.
33. To object that the latter act does impose one's religious beliefs on others because it has a consequence for the other is to render the notion of imposing virtually meaningless. Almost everything I do could thus be said to be imposing my views on others, leaving me with an intolerably small realm of freedom (as well as the need to find a new term for the traditional notion of imposing). My decision to send my child to a public school instead of a local religious school would count as imposing my beliefs on the members of the religious school because it left them with fewer tuition dollars than they would have had had I sent my child there.
34. I discussed these problems in more detail, and with a focus on their implications for traditional liberalism, in "Liberalism, Bad Samaritan Law and Legal Paternalism." I need to repeat some of the general points here as a basis for the arguments in the next section.
35. The important question here isn't whether persons ought to provide the aid under such circumstances, but whether and on what ground this sort of risk can be deemed clearly reasonable, while risks of money and significant inconvenience be deemed not clearly reasonable (or more than minimally risky).
36. Differences are present even with respect to depraved individuals who want to see others suffer, since this desire is far less likely to be satisfied by failures to prevent harm than acts of causing harm. In the former case, the individual must wait to stumble upon situations in which she could aid but choose not to, while in the latter case she can create the situations to satisfy her desire. See also, Henderson, "Process Constraints in Tort Law," p. 940.
37. It won't do to say that we should merely discount the size of the harm by the probability of its occurrence because that keeps the central question intact: Does a small risk of great harm render the needed conduct more than minimally risky or not? In other words, what probability of death or serious injury can we reasonably require people to incur in the course of aiding others?
38. Yeager, "A Radical Community of Aid," p. 14.
39. Alder, "The Reasonableness of Strangers," p. 919. He adds that this is something that "should be easily and intuitively grasped."
40. Alder, p. 878, discussing Stephan Braun, "Some Hero's Welcome: Rescuers Sued," L.A. Times, Nov. 2, 1990, at B1. Note that even if the suit were unsuccessful, being subjected to a civil trial and having to help prepare and pay for a defense, is more than a minimal harm to the defendant. Thus, the enactment of good samaritan laws will not completely remove this risk.
41. Yeager, p. 14 and p. 41, discussing Warren v. District of Colombia.
42. Indeed, a utilitarian calculus would probably support the imposition of even greater risks especially if Freeman is correct in claiming that "each of us is about as likely to benefit from this legal duty as be inconvenienced by it (Freeman, "Criminal Liability and the Duty to Aid the Distressed," p. 1483.) Of course, it is important to separate the burdens and benefits of the legal duty from the burdens and benefits of the moral duty. If the legal duty doesn't provide a significant balance of benefits over the moral duty, then it is not likely to be worth the time, money, and trouble.
43. For example, although I have been told that some persons feign injury as a means to lure victims for robberies and rapes, and told that this activity is likely to increase if we enact bad samaritan laws (see Alder, "The Reasonableness of Strangers," p. 919), I have no idea as to what percentage of persons who appear to be injured are actually faking it. Thus, if I were told that small risks (e.g., 5%) of great harm relieve me of my duty to aid, but very small risks (e.g., 1%, or even 0.05%) do not, I would have difficulty determining whether I was obliged to aid in the motorist case.
44. For discussion of the doctrine as it relates to bad samaritan laws and misprision of felony laws see Susan J. Hoffman, "Statutes Establishing a Duty to Report Crimes of Render Assistance to Strangers: Making Apathy Criminal," Kentucky Law Journal, vol. 72, 1983-1984, 827-865, at 848.
45. Even the bystanders in the Kitty Genovese case faced the tiny risk that the police would release their names to the public thus subjecting them to retaliation from the accused or his friends.
46. Obviously, people can die in their efforts to avoid causing harm as well. It is also true that the benefits of the laws might outweigh the increased risks to the samaritan (though this requires that the laws be effective). My point isn't that the increased risk of harm shows that bad samaritan laws are inherently unfair or misguided. It is only that, if we want anyone to be subject to the laws, we need to acknowledge and accept the fact that some people will die in their efforts to uphold the law. We can't pretend that bad samaritan laws are risk-free because they claim to oblige only minimal acts of aid.
47. This marks yet another difference between obligations to prevent harm, of which we are relieved when the risk to ourselves is more than minimal, and obligations not to cause harm, of which we are relieved (or violations justified) only if the risk to ourselves or others is great. Great risks of significant harm (or reasonable beliefs thereof) will tend to be accompanied by observable, explainable, concrete evidence ("He had a gun in his hand and it was cocked and aimed at me") making it reasonable to believe that harm is likely in this particular case, in a way that small to tiny risks of harm (or reasonable beliefs thereof) will not ("I don't know what it was, but there was just something creepy about the way he lay collapsed in the driver's seat").
48. For example, Alder writes: "People can understand a rule that says, "generally, you are expected to conduct yourself reasonably" more easily than they can understand ... a rule that requires one to rescue or protect but only where to do so would be 'easy'" ("The Reasonableness of Strangers," p. 920).
49. It wouldn't do to say that the passerby should have called the police without speaking up to the potential assailant. If Chicago police officers got phone calls every time a street person was verbally harassed they would have little time for other work. Further, even in the truly needed cases, the response time may be too slow for the police to prevent the harm.
50. Our judgments of reasonableness are also complicated by the fact that assessments of risk must often be made very quickly by the samaritan. For example, many years ago, after I had been living in Sweden for about three months, I decided to leave a downtown gathering early on a Friday night and walk home. I took what had been my normal path through the back of the University and across a large open field with a winding path that had three foot embankments on the sides. I was about half way through the path, with the lights of the University fading far behind me and the lights of a city street about 300 yards ahead, when I stopped thinking about the gathering and realized that I had never taken that path at night before. I was alone, it was dark, the field seemed deserted and I was scared. But turning back wouldn't have been any better. A few minutes later I saw a man walking a bit oddly in the opposite direction. He stayed on his side of the path until he was a few steps away, then he crossed over, put his hands on my shoulders and said something in Swedish that I didn't understand. My recollection is that his tone wasn't aggressive and his hands, though firm, were not tightly clutching. Still, I didn't wait and ask him to repeat himself but instead knocked his hands off my shoulders and ran up the embankment and across the field not stopping until I was surrounded by the lights of the city. In retrospect, it is quite possible that I was a bad samaritan. Perhaps the man was having an internal attack of some sort and needed aid. Perhaps he was distressed and pleading for help for someone else in the field who needed aid. Perhaps he was just drunk and asking for money. I don't know. I do think that if the man had been found dead and I'd been seen leaving the field and charged with failing to aid (after all, I didn't even stop to look back), I may have had a difficult time convincing anyone that my fear was reasonable. Indeed, even I am not sure it was reasonable given my belief even then that Sweden had an exceptionally low assault rate.
51. Actually, this would be true only if we were consistent. But one problem with having bad samaritan laws with lots of case by case excuses or exceptions is the opportunity it affords for further racial, economic and even sexual discrimination, as I'll later discuss.
52. Frances Kamm, if I understood her correctly, suggested in a discussion that persons such as my sister-in-law shouldn't want to trust their own assessments of risk since they know that their abilities to make such assessments may have been compromised by the trauma. That may be. But it is worth noting that what we view as compromised abilities may be viewed by the possessors as a heightened sense of reality. Further, even if the samaritans granted that their abilities were compromised, they still wouldn't be able to determine when they had a duty to aid, because their compromised abilities would prevent them from reliably predicting what others would judge, after the fact, to be more than minimally risky. Finally, it is one thing to say that persons should not want to trust their judgments of risk, and another to say that they should be criminally punished for doing so.
53. For example, Rodriquez argues that "American courts should impose liability whenever they determine that a reasonable man under similar circumstances would have helped the person in danger." (Teresita Rodriguez, "I am My Brother's Keeper," Boston College Law Review, vol. 26, 1985, 497-526, p. 525.) And Freeman, after discussing the use of the reasonable person standard in other areas of the law, argues that it is not "unprincipled to ask jurors to decide whether the legal duty to rescue has been violated, by considering what the reasonable person would do under the circumstances given her assessments of the risks, costs and inconvenience involved" (Freeman, "Criminal Liability" p. 1492).
54. For example, Rodriquez argues that "American courts should impose liability whenever they determine that a reasonable man under similar circumstances would have helped the person in danger." (Teresita Rodriguez, "I am My Brother's Keeper," Boston College Law Review, vol. 26, 1985, 497-526, p. 525.) And Freeman, after discussing the use of the reasonable person standard in other areas of the law, argues that it is not "unprincipled to ask jurors to decide whether the legal duty to rescue has been violated, by considering what the reasonable person would do under the circumstances given her assessments of the risks, costs and inconvenience involved" (Freeman, "Criminal Liability" p. 1492).
55. As Pardun notes, prosecutors in the Northern Territory of Australia have the burden of proving beyond a reasonable doubt that the accused bad samaritan showed a callous disregard for the welfare of others. The term "callous" requires that "there be more than normal intent" and this "heightened intent is measured subjectively." Pardun. p. 596. The inclusion of this burden in our laws would help alleviate some of the present problems, though it would also reduce the likelihood of convicting the truly bad samaritans since the passivity that is evidence for paralyzing panic or excessive fear may be just the same as for callous disregard, as I discuss shortly.
56. McInnes is focusing on the need to protect potential good samaritans from their unreasonable, mistaken beliefs that an emergency requiring intervention was in progress when in fact it wasn't. (Mitchell McInnes, "Protecting the Good Samaritan: Defenses for the Rescuer in Anglo-Canadian Criminal Law," Criminal Law Quarterly, vol. 36, 1994, pp. 331-371. See also Larry C. Wilson, "Good Samaritan," McGill Law Journal, vol. 33, 1988, pp. 757-815.) Such protections would be especially important were we to enforce bad samaritan laws because the general threat of punishment for not intervening would have the result of encouraging people to intervene whenever the need for intervention was clear (or else risk punishment if one's own uncertainty turned out not to be shared by others). But this would expose the samaritan to additional liability for assault, for example, when the samaritan intervened when intervention wasn't necessary or welcome. Henderson cites a case in which a would-be good samaritan was sued after he "shot the plaintiff under the mistaken impression that such action was necessary to prevent the plaintiff from injuring the defendant's father." Henderson adds that matters are different in the case of negligently causing harm. If an agent isn't sure whether her assessments of risk would expose her to liability because she isn't sure how our hypothetical reasonable person would view the situation, erring on the side of excessive caution would not expose her to additional liability because the "would-be victims would have no legitimate ground for complaint" (Henderson, p. 933). The downside of the protection, of course, is that it would further encourage "officious intermeddlers."
57. McInnes is focusing on the need to protect potential good samaritans from their unreasonable, mistaken beliefs that an emergency requiring intervention was in progress when in fact it wasn't. (Mitchell McInnes, "Protecting the Good Samaritan: Defenses for the Rescuer in Anglo-Canadian Criminal Law," Criminal Law Quarterly, vol. 36, 1994, pp. 331-371. See also Larry C. Wilson, "Good Samaritan," McGill Law Journal, vol. 33, 1988, pp. 757-815.) Such protections would be especially important were we to enforce bad samaritan laws because the general threat of punishment for not intervening would have the result of encouraging people to intervene whenever the need for intervention was clear (or else risk punishment if one's own uncertainty turned out not to be shared by others). But this would expose the samaritan to additional liability for assault, for example, when the samaritan intervened when intervention wasn't necessary or welcome. Henderson cites a case in which a would-be good samaritan was sued after he "shot the plaintiff under the mistaken impression that such action was necessary to prevent the plaintiff from injuring the defendant's father." Henderson adds that matters are different in the case of negligently causing harm. If an agent isn't sure whether her assessments of risk would expose her to liability because she isn't sure how our hypothetical reasonable person would view the situation, erring on the side of excessive caution would not expose her to additional liability because the "would-be victims would have no legitimate ground for complaint" (Henderson, p. 933). The downside of the protection, of course, is that it would further encourage "officious intermeddlers."
58. Consider, for example, a person who sincerely believes that the scientists are wrong and that it is only a matter time before we discover that one can get AIDS from casual contact with an infected person. Requiring her to act contrary to this belief and provide, say, CPR to a stranger, is somewhat of an interference with her autonomy. Notice too that the same can't be said about acts that cause harm (e.g., suppose she shot her neighbor in order to preclude contact with him) because such acts impose one's beliefs on others and are not protected by the right of autonomy.
59. Ellin, "The Mind of the Bad Samaritan," and Henderson, "Precess Constraints in Tort," p. 933.
60. Ellin, "The Mind of the Bad Samaritan," and Henderson, "Precess Constraints in Tort," p. 933.
61. This can remain true even if we craft the laws with a variety of protections for our atypical samaritans. As long as the fines remain small to moderate or jail time is likely to be suspended, it will be prudent for the accused samaritan to plead guilty and avoid the expense and emotional turmoil of criminal proceedings.
62. The preceding discussion exposes additional grounds for treating laws against causing harm and laws against failing to prevent harm differently. The adoption of the subjective perspective in the former case could be exploited for personal gain in a way that it couldn't in the latter case. That is, persons who want to harm another could claim they perceived a significant risk to themselves as well as take actions, prior to the harm, to make the claim seem believable. But since people stumble into situations in which their aid is needed, and since they rarely stand to profit from not aiding, the adoption of the subjective perspective in this case is less open to abuse and thus is less troubling. In addition, failures to prevent harm do not make the victim worse off than she would have been had the samaritan not been present, and do not preclude other people from providing the aid. In contrast, acts of causing harm do (tend) to make the person worse off and do preclude others from stopping the harm before it occurs (though others may still lessen its severity). For additional discussion of the objective versus subjective perspective especially as it relates to tort liability for failing to aid and negligently causing harm, see Henderson, pp. 931-932.
63. United States v. King, 402 F.2D 694 (9th Cir. 1968), as cited in Yeager, p. 32. Yeager also mentions United States v. Trigilio, 255 F2d. 385 (2nd Cir. 1958) in which a "federal grand jury witness could claim privilege against self-incrimination for fear he might be charged with violating misprision of felony statute."
64. I'm not claiming that all accused bad samaritans will be able to avoid conviction. Thus, there may be a retributive good to be gained from punishing at least a few bad samaritans. But we still need to decide whether this good is worth the harms of punishing, or subjecting to legal prosecution, persons who weren't truly culpable.
65. Yeager. p. 23.
66. Though he adds that the record in Vermont is "unclear." John Pardun, "Good Samaritan Laws: A Global Perspective," Loy. L.A. Int'l Comp. L.J., vol. 20, 1998, 591-613, at 597 & 599. With respect to Minnesota, Pardun is quoting Allie Shah, "How Good is 'Good Samaritan' Legislation? It's Hard to Enforce Lending a Helping Hand," Star-Tribune (Mpls-St. Paul) Sept. 18, 1997, at 1B.
67. Though he adds that the record in Vermont is "unclear." John Pardun, "Good Samaritan Laws: A Global Perspective," Loy. L.A. Int'l Comp. L.J., vol. 20, 1998, 591-613, at 597 & 599. With respect to Minnesota, Pardun is quoting Allie Shah, "How Good is 'Good Samaritan' Legislation? It's Hard to Enforce Lending a Helping Hand," Star-Tribune (Mpls-St. Paul) Sept. 18, 1997, at 1B.
68. Pardun. pp. 596-601.
69. Pardun, pp. 599-600.
70. Within limits. After a certain point, the probability of conviction is more important than the size of the threat. See Paul Robinson and John Darley, "The Utility of Desert," Northwestern University Law Review, vol. 91, 1997, p. 472.
71. The Utility of Desert, Paul Robinson and John Darley, Northwestern University Law Review, vol. 91, 1997, pp. 486 & 471.
72. Joel Feinberg, "The Expressive Function of Punishment," in Doing and Deserving, 1970 (Princeton, N.J.: Princeton University Press), p. 104.
73. Robinson and Darley, p. 472.
74. Yeager, p. 23, citing a law in Minnesota that classifies the failure to render aid as a civil petty-misdemeanor the punishment for which is the same as that for cross-country skiing without a valid pass and failing to return a library book on time.
75. For an account of the aims and methods of a variety of reward systems, including the Carnegie Hero Fund Commission which has awarded more that 7,000 medals for heroism and more than $19 million, see Yeager, pp. 11-12. (Yeager himself prefers punitive inducements over rewards and worries that the process of rewarding some heroes and not others will lead to post-rescue divisiveness and bitterness. He seems to ignore the fact that the process of sporadic and selective enforcement of bad samaritan laws may have the same result.)
76. If coming from a proponent of bad samaritan laws, the standard objections to the proposed change in our organ-donation laws (e.g., objections based on autonomy or the sanctity, significance and/or inviolability of the body) seem disingenuous when the donors had ample opportunity to register their dissent. Taking their organs from them after they are dead is no more of a significant infringement of their autonomy than are laws requiring them to provide easy rescues while they are alive.