Rescuing the hero: The ramifications of expanding the duty to rescue on society and the law

Duke Law Journal

Volumn 59, Issue 1, 2009, Pages 69-107

  Ashton, Amelia H ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 77951703731     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (227)

1. Several articles have considered the repercussions to altruism or heroes and then quickly discarded the notion. See John M. Adler, Relying upon the Reasonableness of Strangers: Some Observations About the Current State of Common Law Affirmative Duties to Aid or Protect Others, 1991 WIS. L. REV. 867, 918 (recognizing and briefly refuting "the argument. .. that where altruism is required, it loses its moral value to society")
2. Marin Roger Scordato, Understanding the Absence of a Duty to Reasonably Rescue in American Tort Law, 82 TUL. L. REV. 1447, 1469, 1474 (2008) (noting that a duty to rescue would create a "discount of altruism," which would mean that "altruistic, praiseworthy behavior will be transformed and diminished to not much more than ordinary obedience of the law and compliance with the minimum social expectation that is articulated by that law" as one in a list of "costs of a coercive rule")
3. Jay Silver, The Duty to Rescue: A Reexamination and Proposal, 26 WM. & MARY L. REV. 423, 434 (1985) ("A final concern is that a rescue duty would deprive society of clear examples of heroic conduct by making it uncertain whether rescue had been occasioned by altruistic impulses or by fear of legal sanctions. However, any rescue law would almost certainly provide... that a would-be rescuer need not imperil his own life. As such, there would be ample opportunity for heroism.").
4. See A.D. Woozley, A Duty to Rescue: Some Thoughts on Criminal Liability, 69 VA. L. REV. 1273, 1273 (1983) ("The area of so-called Good Samaritan law... is one in which the relationship between morality and law is particularly sensitive.").
5. See infra Part I
6. Steven J. Heyman, Foundations of the Duty to Rescue, 47 VAND. L. REV. 673, 750 (1994) (suggesting that hypothetically "courts might recognize a limited duty to rescue that would be enforceable only in tort law, and that would apply only to cases of 'easy rescue,' in which one individual is able to rescue another with little or no risk or expense to herself or others").
7. See infra note 31 and accompanying text
8. See Heyman, supra note 4, at 750 ("[E]asy rescues involve no significant risk of injury or expenditure of resources that would require public compensation to the rescuer or others.").
9. E.g., Silver, supra note 1, at 423
10. Ernest J. Weinrib, The Case for a Duty to Rescue, 90 YALE L.J. 247, 258-68 (1980)
11. Daniel B. Yeager, A Radical Community of Aid: A Rejoinder to Opponents of Affirmative Duties to Help Strangers, 71 WASH. U. L.Q. 1, 13-23 (1993).
12. This debate has led several states to enact statutes establishing an affirmative duty to rescue or otherwise aid. See, e.g., MASS. GEN. LAWS ch. 268, § 40 (2002) (establishing a duty to report certain heinous crimes)
13. MINN. STAT. § 604A.01 subdiv. 1 (2008) (establishing a duty to provide "reasonable assistance")
14. R.I. GEN. LAWS §§ 11-37-3.1 to -3.4 (2002) (establishing an affirmative duty to report a rape that occurred in one's presence)
15. VT. STAT. ANN. tit. 12, § 519 (2002) (establishing a duty to provide "reasonable assistance")
16. WIS. STAT. ANN. § 940.34 (West 2005) (establishing a duty to aid)
17. see also Silver, supra note 1, at 427 (describing legislative enactments of duties to aid in various states); infra Part II
18. See infra Part I
19. See supra note 8; infra Part II
20. See, e.g., Weinrib, supra note 7, at 272 ("It... seems that the imposition of a duty to effect an easy rescue in an emergency would form a coherent part of a growing pattern in those doctrines that most fully embody the common law's notion of individual liberty." (citation omitted))
21. see also Robert Justin Lipkin, Comment, Beyond Good Samaritans and Moral Monsters: An Individualistic Justification of the General Legal Duty to Rescue, 31 UCLA L. REV. 252, 291 (1983) ("A person should accept the principle of easy rescue because it enhances his liberty.").
22. The Restatement codified these trends by identifying four circumstances in which a duty to rescue was owed: the duties of a common carrier to its passengers, an innkeeper to his guests, a possessor of land who holds it open to the public to the visiting public, and one who voluntarily undertakes custody of another to the one in custody. RESTATEMENT (SECOND) OF TORTS § 314A(1)-(4) (1965). Though these situations may not always be classified as easy rescue, it is likely that on balance the requirement that the rescue act need only be "reasonable," id. § 314A(1), ensures this. For a discussion of some of the case law that tends toward expanding the duty, see infra Part II.
23. See infra notes 97-113
24. See supra notes 4-6 and accompanying text
25. See infra Part II
26. E.g., Nancy Benac, Pretty Good Samaritans: Unlike European Countries, the United States Has Generally Chosen Not to Adopt Laws Requiring Residents to Help Someone in Need, St. Paul Pioneer Press, Oct. 27, 1997, at 2C ("It was a rare case of prosecution in America for failing to help someone in need.").
27. See supra note 7
28. See infra Part II
29. See infra notes 97-126 and accompanying text
30. Adler, supra note 1, at 912-13
31. See supra note 1
32. See infra Part III.B.
33. See infra Part III.A.
34. See infra Part II
35. See infra notes 193-201 and accompanying text
36. See supra notes 15-23 and accompanying text
37. Charles O. Gregory, The Good Samaritan and the Bad: The Anglo-American Law, in The Good Samaritan and The Law 23, 23-24 (James M. Ratcliff ed., 1966) ("Our common law has always refused to transmute moral duties into legal duties.... [I]t is clear at common law that nobody has to lift a finger-let alone spend a dime and dial a phone number or actually render aid-to help a stranger in peril or distress." (citations omitted)).
38. Buch v. Amory Mfg. Co., 44 A. 809 (N.H. 1899). The case itself was not exactly about the duty to rescue, rather about whether a young boy-whose hand was injured when it became stuck in the gears of a machine at a mill-could recover, despite the fact that he was trespassing upon the property. Id. at 810. Chief Justice Carpenter seems to have created the hypothetical about the baby on the railroad tracks to justify his admittedly harsh decision not to allow for recovery. See id. (observing that in cases involving small children, courts have sometimes inappropriately blurred moral sentiment and the law).
39. Id. The passage has been the inspiration for the titles of several law review articles. See, e.g., Norman J. Finkel, Moral Monsters and Patriot Acts: Rights and Duties in the Worst of Times, 12 Psychol. Pub. Pol'y & L. 242 (2006)
40. Lipkin, supra note 11
41. In Yania v. Bigan, 155 A.2d 343 (Pa. 1959), for example, the defendant taunted the plaintiff, ultimately convincing him to jump into a trench that was at least eight feet deep. Id. at 343. He drowned. In considering whether Yania's estate could recover for Bigan's failure to rescue him, the court dismissed the argument that Bigan had placed Yania in his position of peril. Id. at 345. Instead, Yania was responsible for his own actions, and Bigan was consequently under no legal obligation to rescue him. Id. at 346.
42. G.W. PIERSON, Tocqueville in America 161 (1938) ("It's really an incredible thing, I assure you, to see how this people keeps itself in order through the single conviction that its only safeguard against itself lies in itself."). Another bedrock of American identity, Patrick Henry's oft-quoted quip, "Give me liberty or give me death," has been taken as shorthand for the notion that "liberty... is more valuable than security."
43. Alan Calnan, Strict Liability and the Liberal-Justice Theory of Torts, 38 N.M. L. REV. 95, 103 n.33 (2008).
44. See W. PAGE KEETON ET AL., Prosser and Keeton on the Law of Torts § 56, at 373 (5th ed. 1984) (noting the "highly individualistic philosophy of the older common law").
45. See George P. Fletcher, On the Moral Irrelevance of Bodily Movements, 142 U. PA. L. REV. 1443, 1451 (1994) (discussing "the problem with affirmative duties").
46. See id. ("All of a sudden you find yourself next to the pond with the proverbial drowning child. You must act now. It matters not that you are not in the mood to be a hero or that you have something better to do. There is nothing quite so unpredictable and insistent as having the circumstances determine when and how we must act.").
47. Robert L. Hale, Prima Facie Torts, Combination, and Non-Feasance, 46 COLUM. L. REV. 196, 214 (1946).
48. Lipkin, supra note 11, at 277
49. Id. at 279; see also id. at 279 & n.158 (arguing that autonomous individuals would likely endorse the harm principle, which prohibits injurious interference with another's person, property, or interests). The principle reinforces the notion of the individual as beyond the reach of a government seeking to impose a duty to aid rule. Id. at 282 n.179.
50. See KEETON ET AL., supra note 35, § 56, at 373 ("There arose very early a difference, still deeply rooted in the law of negligence, between 'misfeasance' and 'nonfeasance'-that is to say, between active misconduct working positive injury to others and passive inaction or a failure to take steps to protect them from harm.").
51. See, e.g., Weinrib, supra note 7, at 251-58 (discussing the lack of a duty to rescue and its roots in the common-law distinction between misfeasance and nonfeasance). The actual difference between the two categories, however, has raised much discussion. See, e.g., id. at 249 (describing how the development of the Coase theorem may make the distinction insignificant).
52. KEETON ET AL., supra note 35, § 56, at 373.
53. Weinrib, supra note 7, at 251
54. see also Terry v. Lincscott Hotel Corp., 617 P.2d 56, 61 (Ariz. Ct. App. 1980) (finding that allegations regarding an omission or nonfeasance did not constitute a cause of action).
55. See Lipkin, supra note 11, at 267 ("Since liability depends on actually doing something which results in injury, so-called 'negative causation' has no place in tort law.... '[N]egative causation' opens a Pandora's box of insuperable difficulties.").
56. See John F. Stinneford, The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739, 1774 (2008) ("[Edward] Coke[, a common law jurist whose philosophies influenced the Bill of Rights,] agreed with the proposition that basic principles of justice were built into the natural order itself, asserting that the 'law of nature is part of the law of England.' Moreover, Coke agreed that the fundamental basis of law is reason rather than will, and that therefore laws that violate basic principles of justice may not properly be called 'law' at all...." (quoting Calvin's Case, (1608) 77 Eng. Rep. 377, 391 (K.B.) (Coke, C.J.)) (citing 1 EDWARD COKE, INSTITUTES OF THE LAWES OF ENGLAND (1608), as reprinted in 2 THE SELECTED WRITINGS AND SPEECHES OF SIR EDWARD COKE § 69, at 684 (Steve Sheppard ed., 2003)))
57. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 623 (1958) ("Natural-law theory... in all its protean guises, attempts to... assert that human beings are equally devoted to and united in their conception of aims (the pursuit of knowledge, justice to their fellow men) other than that of survival...."). This line of reasoning continues to serve as a justification for at least some form of no-duty rule even today.
58. See RICHARD D. ALEXANDER, The Biology of moral systems 191 (1987) (noting that self-sacrifice "represents an evolutionary mistake")
59. Michael S. Moore, Reply, More on Act and Crime, 142 U. PA. L. Rev. 1749, 1799 (1994) ("The instinct for survival or the fear of loss of one's own life or bodily integrity may be such that we find it understandable that one could not be a moral hero. Running from a bear as fast as one can is surely one such example.").
60. See Sande L. Buhai, Parental Support of Adult Children with Disabilities, 91 MINN. L. REV. 710, 738-40 (2007) (discussing the idea that Christianity works to elevate society by encouraging the practice of heroism)
61. Lisa McCabe, Comment, Police Officers' Duty to Rescue or Aid: Are They Only Good Samaritans?, 72 Cal. L. Rev. 661, 678 (1984) ("[A]cts that aspire toward human perfection... are better left with an individual's inner morality....").
62. See JANET RADCLIFFE RICHARDS, Human Nature After Darwin 156 (2000) ("[R]eligions nearly always promise that self-sacrifice now will reap enormous rewards later.").
63. In re St. Joseph-Chicago S.S. Co. (The Eastland), 262 F. 535 (N.D. Ill. 1919).
64. Donoghue v. Stevenson, [1932] A.C. 562, 580 (H.L.) (appeal taken from Scot.) (U.K.). See generally KEETON ET AL., supra note 35, § 53, at 358-59 (discussing the evolution of the concept of one's "neighbor" in tort law).
65. Luke 10:25-37 (American Standard). The moment is also referenced in Buch v. Amory Mfg. Co., 44 A. 809, 810 (N.H. 1898). See supra note 31.
66. See, e.g., John 15:13 (American Standard) ("Greater love has no man than this, that a man lay down his life for his friends."). The same quote is embossed on each Carnegie Hero Foundation medal given posthumously. Carnegie Hero Fund Commission, http://www. carnegiehero.org/fund_history.php (last visited Apr. 17, 2009)
67. see also infra notes 138-40 and accompanying text
68. Jesus's approach seems attributable to his extremely sensitized empathy, or rachamin
69. See DONALD MCNEIL ET AL., Compassion: A Reflection on the Christian Life 16-17 [1983] ("He became lost with the lost, hungry with the hungry, and sick with the sick."). Similarly, many contemporary heroes credit their faith with their ability to engage in superhuman efforts despite severe illness.
70. See, e.g., MARIA TARNAWSKA, Sister Faustina Kowalska: Her Life and Mission 318-19 (Anne Hargest-Gorzelak trans., 1989) ("Although loneliness and darkness and sufferings of all kinds beat against my heart, the mysterious power of God supports and strengthens me.").
71. For this stance, see Lipkin, supra note 11, at 293. "[N]umerous emergencies arise when rescues can be effected safely and easily by observers who have no special relation to the victim. Requiring easy rescue will save lives and reduce injury at virtually no cost." Id.
72. See, e.g., Sungeeta Jain, How Many People Does It Take to Save a Drowning Baby?: A Good Samaritan Statute in Washington State, 74 WASH. L. REV. 1181, 1181-82 (1999) (recounting the Biblical story of the Good Samaritan before noting that "[m]ost American states... do not have Good Samaritan laws," but "[i]nstead... follow the common law 'no duty to rescue' rule that states that bystanders have no duty to come to the aid of those in peril").
73. Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) (appeal taken from Scot.) (U.K.).
74. See KEETON ET AL., supra note 35, § 32, at 173 (discussing the reasonable person and noting that "[t]he whole theory of negligence presupposes some uniform standard of behavior").
75. Michael A. Santoro, Human Rights and Human Needs: Diverse Moral Principles Justifying Third World Access to Affordable HIV/AIDS Drugs, 31 N.C. J. INT'L L. & COM. REG. 923, 936-37 (2006) ("A [utilitarian] premise of the duty of rescue is that the cost to the rescuer or others must not be so great as to (in the extreme case) outweigh the benefit to the person being rescued. The less burdensome it is for the rescuer and the greater the benefit to the person being rescued, the more compelling is the obligation to act." (citation omitted)).
76. This Note characterizes this shift as "humanitarian," using the word's more colloquial meaning without exploring its full philosophical connotations. Other authors discuss more thoroughly the movement's humanitarian origins.
77. See Julie Stone Peters, "Literature," the "Rights of Man," and Narratives of Atrocity: Historical Backgrounds to the Culture of Testimony, 17 YALE J.L. & HUMAN. 253, 261 (2005) ("Rights and the humanitarian duty to aid were, in a sense, two sides of the very definition of what it was to be human: One had rights by virtue of one's humanity... and it was one's sense of obligation to another's suffering that proved one human....")
78. Jennifer L. Groninger, Comment, No Duty to Rescue: Can Americans Really Leave a Victim Lying in the Street? What is Left of the American Rule, and Will It Survive Unabated?, 26 PEPP. L. REV. 353, 362 n.104 (1999) (discussing the "acknowledged tendency of courts to expand the category of special relationships based on humanitarian concerns").
79. KEETON ET AL., supra note 35, § 53, at 359.
80. See id. § 56, at 375 ("The remedy in [duty to aid cases] is left to the 'higher law' and the 'voice of conscience,' which, in a wicked world, would seem to be singularly ineffective either to prevent the harm or to compensate the victim." (quoting Union Pac. Ry. Co. v. Cappier, 72 P. 281, 282 (Kan. 1903))).
81. See infra notes 88-96
82. See infra notes 193-201 and accompanying text
83. See supra note 4
84. Restatement (Second) of Torts § 314A (1965)
85. Id. § 314A cmt. c (recognizing the law's evolution to include limited duties to rescue in "situations in which there was some special relation between the parties").
86. Keeton ET AL., supra note 35, § 56, at 373.
87. Restatement (Second) of Torts § 314A
88. See KEETON ET AL., supra note 35, § 56, at 374 ("In such relationships the plaintiff is typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiff's welfare."). These patterns have also been classified as stemming from the "ability condition" and the "dependency condition." Lipkin, supra note 11, at 264-65.
89. See Peter F. Lake, Recognizing the Importance of Remoteness to the Duty to Rescue, 46 Depaul L. Rev. 315, 318 (1997) (discussing in part "how the weakness of the argument to limit liability makes remote-rescue cases more appealing cases to courts than some other rescue cases in which the fear of unlimited liability is greater").
90. Restatement (Second) of Torts § 314A caveat
91. Id. § 314A cmt. b.
92. Id.; see also id. ("The relations listed are not intended to be exclusive, and are not necessarily the only ones in which a duty of affirmative action for the aid or protection of another may be found. There may be other such relations, as for example that of husband and wife, where the duty is recognized by the criminal law, but there have as yet been no decisions allowing recovery in tort in jurisdictions where negligence actions between husband and wife for personal injuries are permitted. The question is therefore left open by the Caveat, preceding Comment a above. The law appears, however, to be working slowly toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence.").
93. Thornton v. City of Flint, 197 N.W.2d 485 (Mich. Ct. App. 1972).
94. Brown v. Knight, 285 N.E.2d 790 (Mass. 1972).
95. Restatement (Second) OF Torts § 314A(4)
96. Iseberg v. Gross, 879 N.E.2d 278 (Ill. 2007).
97. Bjerke v. Johnson, 742 N.W.2d 660, 663 (Minn. 2007).
98. Id. at 666; see also id. at 665-67 (analyzing whether a special relationship existed).
99. Furek v. Univ. of Del., 594 A.2d 506 (Del. 1991).
100. Robert D. Bickel & Peter F. Lake, The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life? 127-30 (1999).
101. Furek, 594 A.2d at 519
102. see also Kathleen Connolly Butler, Shared Responsibility: The Duty to Legal Externs, 106 W. VA. L. Rev. 51, 84 (2003) ("The court rejected the idea that [the] 'student and the university operate at arms-length, with the student responsible for exercising judgment for his or her own protection when dealing with other students or student groups.' Given the nature of the relationship, the duty owed was limited, but a duty was owed." (quoting Furek, 594 A.2d at 517)).
103. Furek, 594 A.2d at 517 n.8.
104. Id. at 522 n.17.
105. Schieszler v. Ferrum Coll., 236 F. Supp. 2d 602 (W.D. Va. 2002).
106. Id. at 611; see also Heather E. Moore, University Liability When Students Commit Suicide: Expanding the Scope of the Special Relationship, 40 IND. L. Rev. 423, 431 (2007) (discussing the case in some detail and noting that it was the first signal to universities that the law relating to liability and suicide was in flux).
107. MASS. Gen. Laws ch. 268, § 40 (2002). The statute provides that: 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 hundred dollars.
108. Minn. Stat. § 604A.01 subdiv. 1 (2008). The statute provides that: Duty to assist. A person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel. A person who violates this subdivision is guilty of a petty misdemeanor.
109. R.I. Gen. Laws §§ 11-37-3.1 to -3.4 (2002). The statute provides that: § 11-37-3.1 Duty to report sexual assault. - Any person, other than the victim, who knows or has reason to know that a first degree sexual assault or attempted first degree sexual assault is taking place in his or her presence shall immediately notify the state police or the police department of the city or town in which the assault or attempted assault is taking place of the crime.
110. § 11-37-3.2 Necessity of complaint from victim. - No person shall be charged under § 11-37-3.1 unless and until the police department investigating the incident obtains from the victim a signed complaint against the person alleging a violation of § 11-37-3.1.
111. § 11-37-3.3 Failure to report - Penalty. - Any person who knowingly fails to report a sexual assault or attempted sexual assault as required under § 11-37-3.1 shall be guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment for not more than one year, or fined not more than five hundred dollars ($500), or both.
112. § 11-37-3.4 - Immunity from liability. - Any person participating in good faith in making a report pursuant to § 11-37-3.1 shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed. Any participant shall have the same immunity with respect to participation in any judicial proceeding resulting from the report.
113. VT. Stat. Ann. tit. 12, § 519 (2002). The statute provides, in relevant part: (a) A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.
114. (c) A person who willfully violates subsection (a) of this section shall be fined not more than $100.00.
115. WIS. Stat. Ann. § 940.34 (West 2005). The statute provides, in relevant part: (1)(a) Whoever violates sub. (2)(a) is guilty of a Class C misdemeanor. ....
116. (2)(a) Any person who knows that a crime is being committed and that a victim is exposed to bodily harm shall summon law enforcement officers or other assistance or shall provide assistance to the victim. ....
117. (d) A person need not comply with this subsection if any of the following apply: Compliance would place him or her in danger. Compliance would interfere with duties the person owes to others. In the circumstances described under par. (a), assistance is being summoned or provided by others.
118. Some other states also maintain various forms of a duty to rescue statute. See, e.g., FLA. STAT. § 794.027 (2009) (requiring one who "observes the commission of the crime of sexual battery" to "seek assistance for the victim or victims by immediately reporting such offense to a law enforcement officer")
119. OHIO REV. CODE ANN. § 2921.22(A)(1) (LexisNexis 2009) ("[N]o person, knowing that a felony has been or is being committed, shall knowingly fail to report such information to law enforcement authorities.")
120. WASH. REV. CODE § 9A.36.160 (2009) (describing the "crime of failing to summon assistance"). This Note discusses just five such statutes.
121. The Rhode Island law allows the possibility of up to one year of imprisonment. R.I. GEN. LAWS §§ 11-37-3.3.
122. Failure to report the enumerated witnessed crimes in Massachusetts carries a fine of between $500 and $2500. MASS. Gen. Laws ch. 268, § 40 (2002).
123. MINN. STAT. § 604A.01 subdiv. 01 (2008).
124. R.I. GEN. LAWS §§ 11-37-3.1 to -3.4. The law also pertains only to first-degree sexual assault. Id. § 11-37.3.1.
125. MASS. GEN. LAWS ch. 268, § 40.
126. WIS. STAT. ANN. § 940.34(2)(a) (West 2005).
127. Id. § 940.34(2)(d)(3).
128. Id. § 940.34(2)(a) (emphasis added).
129. See supra Part I
130. VT. Stat. Ann. Tit. 12, § 519(a) (2002).
131. WIS. STAT. ANN. § 940.34(2)(a).
132. MASS. Gen. Laws ch. 268, § 40 (2002).
133. MINN. Stat. § 604A.01 subdiv. 1 (2008)
134. R.I. GEN. LAWS §§ 11-37-3.1 to -3.4 (2002).
135. VT. Stat. Ann. tit. 12, § 519(a).
136. This interpretation presumes that the Wisconsin statute's provision that the action not "interfere with duties the person owes to others," WIS. STAT. ANN. § 940.34(2)(d), includes a duty of not posing a danger to others.
137. Minn. Stat. § 604A.01(1) subdiv. 1; VT. Stat. Ann. tit. 12, § 519(a).
138. Mass. Gen. Laws ch. 268, § 40.
139. Id.; Minn. STAT. § 604A.01 subdiv. 1
140. WIS. Stat. Ann. § 940.34(2)(d).
141. R.I. Gen. Laws § 11-37-3.3 (2002)
142. WIS. Stat. Ann. § 940.34(1)(a) (making violations a Class C misdemeanor in reference to WIS. STAT. ANN. § 939.51(3)(c)).
143. MASS. Gen. Laws ch. 268, § 40.
144. Minnesota classifies a violation of its Good Samaritan statute as a petty misdemeanor, MINN. STAT. § 604A.01 subdiv. 1, for which the penalty cannot exceed $300, id. § 609.02 subdiv. 4a.
145. VT. Stat. Ann. tit. 12, § 519(c) (2002).
146. See Benac, supra note 16 (quoting Duke University School of Law Professor Sara Sun Beale as noting that "there's a fairly big feeling that if you want to be Mother Teresa, you can be Mother Teresa.... [b]ut putting yourself at risk or going out of your way is seen as a choice, not a socially enforceable obligation").
147. See supra note 62
148. See supra Part I
149. See supra note 7
150. See Merriam-Webster's Collegiate Dictionary 543 (10th ed. 1996) (defining hero as "a mythological or legendary figure... with great strength or ability;... a man admired for his achievements and noble qualities").
151. See infra notes 149-50 and accompanying text
152. See infra notes 152-53 and accompanying text
153. This was the response of one woman honored by Yad Vashem, an Israeli organization that honors non-Jews who came to the aid of those persecuted by the Nazis. Geri J. Yonover, The Lessons of History: Holocaust Education in the United States Public Schools, 26 VT. L. Rev. 133, 146-47 (2001).
154. See infra notes 193-99 and accompanying text
155. Carnegie Hero Fund Commission, http://www.carnegiehero.org/heroFund.php (last visited Apr. 18, 2009).
156. The Commission's requirement that the rescuer have no responsibility for the victim would rule out the four exceptions to the no-duty rule as outlined by § 314A, which delineates situations in which the would-be rescuer does have full responsibility for the victim because of their relationship. See supra note 72 and accompanying text.
157. Carnegie Hero Fund Commission, supra note 138
158. See, e.g., E.H. Loewry, AIDS and the Physician's Fear of Contagion, 89 CHEST 325, 325-26 (1986) (noting that society's "expectations of 'reasonable risk' necessitates [sic] courage without demanding heroism").
159. See Geoffrey Christopher Rapp, The Wreckage of Recklessness, 86 WASH. U. L. REV. 111, 116 (2008) ("Reckless conduct can provide a basis for recovery for injured professional rescuers, otherwise barred by the application of the so-called Firefighters' Rule.").
160. E.g., Deborah Young, Sunday Morning Mayhem: Fdny Hero Perishes Battling House Blaze, Staten Island Advance, Nov. 24, 2008, at A01.
161. This is in keeping with tort law's tendency to view foreseeability as a necessary component to fault. See KEETON ET AL., supra note 35, § 29, at 162 (discussing the importance of foresight in tort). It also conforms to George P. Fletcher's view that a layman's duty to rescue infringes upon individual liberty at least in part because the rescue is demanded spontaneously, and is therefore unforeseeable. See supra note 37.
162. See infra note 166
163. Young, supra note 143
164. See supra note 142 and accompanying text
165. Richard P. Martin, Myths of the Ancient Greeks 145 (2003).
166. Ronald Reagan, Address Before a Joint Session of Congress Reporting on the State of the Union, 1 PUB. PAPERS 72, 78-79 (Jan. 26, 1982). This stands in stark contrast to the idea of the no-duty rule as distinctly American. See supra Part I.
167. Carnegie Hero Fund Commission, supra note 54
168. Anthony M. Kennedy, Law and Belief, Trial, July 1998, at 23, 24 ("[W]hen our heroes are counted, they will be ones who recognized that individual responsibility is a celebration of freedom, not its denial.").
169. See supra Part I
170. Marc A. Franklin & Matthew Ploeger, Of Rescue and Report: Should Tort Law Impose a Duty to Help Endangered Persons or Abused Children?, 40 Santa Clara L. Rev. 991, 993 (2000).
171. See supra note 49
172. E.g., Football Hero, Sports Illustrated, July 11, 1983, at 18
173. Jimmie Tramel, True Hero's Gift of Life Remembered, Tulsa World, Dec. 25, 2005, at B3.
174. See Yonover, supra note 135, at 146-47
175. See Franklin & Ploeger, supra note 156, at 996
176. Eckert v. Long Island R.R. Co., 43 N.Y. 502 (1871).
177. Jay Tidmarsh, A Process Theory of Torts, 51 Wash. & LEE L. REV. 1313, 1383 n.247 (1994).
178. See Finkel, supra note 32, at 249 ("[A] number of media and social commentators were quick to conclude that these modern anecdotal stories of horrors without civic-minded actions reflected a decline in civic duty.")
179. Ted Gest, Are Good Samaritans a Vanishing Breed?, U.S. NEWS & WORLD REP., Nov. 14, 1983, at 9 (offering reasons for the decline in unsolicited rescue, including the possibility that it is due to "an increasingly impersonal U.S. society")
180. Austin Wehrwein, Enforcement Uncertain: 'Samaritan' Law Poses Difficulties, Natl. L.J., Aug. 22, 1983, at 5 (describing the representative who introduced the Minnesota rescue bill as expressing that "[t]he traditional common-law rule that a bystander has no duty to aid an endangered person would permit 'totally unacceptable conduct for civilized society'")
181. Ruth Youngblood, Rapes Trigger Calls for New Laws, MIAMI HERALD, Apr. 4, 1983, at 3D ("The degeneration of one person is the degeneration of us all.... If a community like ours can solve the problem, then cities and towns all over the country will seize upon the solution." (quoting the mayor of New Bedford, the town in which a young woman was raped in a bar while at least a dozen men watched)).
182. See, e.g., infra text accompanying note 180. Most classic examples of the rule are cases involving a life-saving rescue. The murder of Kitty Genovese, the public rape of a young woman on a pool table, and the rape and murder of Sherrice Iverson in Las Vegas-all credited with incentivizing duty-to-rescue legislation-similarly involve dire situations. See infra notes 193-201. Consequently, this Note's discussion focuses on heroes who perform these sorts of acts, rather than other kinds of heroes, often so called because they perform good deeds over a longer period of time. See Reagan, supra note 151, at 78 ("And then there are countless quiet, everyday heroes of American life-parents who sacrifice long and hard so their children will know a better life than they've known...."). Society seems to value both kinds.
183. See, e.g., Philip W. Romohr, A Right/Duty Perspective on the Legal and Philosophical Foundations of the No-Duty-To-Rescue Rule, 55 DUKE L.J. 1025, 1037 (2006) ("Utilitarians generally support a duty to rescue others, at least to the extent that such a duty provides maximum satisfaction to the most people.").
184. See infra Part III.B.
185. See, e.g., Weinrib, supra note 7, at 261 ("Acts that are beyond the call of duty demand of the agent extraordinary heroism or sacrifice, and 'while we praise their performance, we do not condemn their non-performance.'" (quoting HENRY SIDGWICK, THE METHODS OF ETHICS 219 (5th ed. 1893))).
186. See supra note 142
187. E.g., Education Portal, Fireman Training, http://education-portal.com/fireman_training.html (last visited Apr. 10, 2009).
188. For a discussion of the interplay between social norms and the law, see generally Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903 (1996). Sunstein notes that "[s]uccessful law and policy try to take advantage of learning about norms and norm change." Id. at 909. But he also notes: "Many laws have an expressive function. They 'make a statement' about how much, and how, a good or bad should be valued. They are an effort to constitute and to affect social meanings, social norms, and social roles." Id. at 964.
189. One particularly salient description of the interplay between duty, reasonableness, and heroics has arisen in the quasi-duty-to-rescue context of doctor responsibility in the face of the AIDS epidemic. See Loewry, supra note 141, at 325-26 ("Fear of coming to harm as a consequence of medical practice has been of concern to physicians at least since contagion has been recognized to exist. The balance among duty, fear, and courage has been a necessary part of medical practice ever since.... Society assumes that the contract [between the healer and the community] will be honored and the trust kept in time of need. Its expectations of 'reasonable risk' necessitates [sic] courage without demanding heroism. A definition of what is reasonable is inherent within the context of the situation abroad at the time. The contract is reasonable. It has endured over the ages and has been hallowed by use.")
190. See Yeager, supra note 7, at 24-25 ("[A] bystander's duty does not include the heroism of invulnerability and infantile omnipotence.").
191. See supra notes 97-126 and accompanying text
192. Colleen Kenney, Night Shift from Hell... and Back
193. Jacque Bethune Is Recovering from a Gunshot Wound to the Mouth, a Crime Never Solved, LINCOLN J. STAR, Nov. 16, 2008, at A1
194. see also Christina Hall, As Flames Tear Through Home, Warren Teen Becomes a Hero; Cops: Mom Drugged Kids' Hot Chocolate, Set Fire, DET. FREE PRESS, Nov. 20, 2008, at A1 (describing a 13-year-old boy who guided his sister out of a burning house and called 911 as a "hero"). Failure to perform the act in the latter case would violate the Minnesota and Wisconsin statutes. See supra notes 106-07, 110-11 and accompanying text.
195. MASS. Gen. Laws ch. 268, § 40 (2002)
196. Minn. Stat. § 604A.01 subdiv. 1 (2008)
197. Wis. Stat. Ann. § 940.34 (West 2005).
198. See, e.g., Minn. STAT. § 604A.01 subdiv. 1.
199. VT. Stat. Ann. tit. 12, § 519 (2002).
200. Nick R. Martin, Bearing Witness Against Serial Shooter Suspect: Valley Man Shot in 2006 Testifies, Tells of Life Since Then, Mesa Trib. (Ariz.), Nov. 16, 2008, at A2.
201. See Sunstein, supra note 172, at 910 ("Norms can tax or subsidize choice. Collective action-in the form of information campaigns, persuasion, economic incentives, or legal coercion-may be necessary to enable people to change norms that they do not like.").
202. For the description of a situation in which a jury nullified in favor of a man who attempted to save a child from an oncoming train, see supra notes 160-63 and accompanying text
203. See supra notes 48-56 and accompanying text
204. Neela Banerjee, Changing Faiths: More Americans than Ever Are Leaving Childhood Affiliations Behind and Making Their Own Decisions About Religion, N.Y. Times Upfront, Apr. 4, 2008, at 12-13 (noting that an increase in the percentage of people who claim to be unaffiliated with a particular religion "does not mean that Americans are becoming less religious").
205. See supra notes 48-56 and accompanying text
206. See Adler, supra note 1, at 918-19 ("[W]hat society loses in the goodness of volunteerism, it will recoup in the reduction of blameworthy conduct.").
207. See Lipkin, supra note 11, at 258 ("A general legal duty to rescue would save lives and reduce the cost of rescue operations.").
208. See id. at 288 ("Adopting the harm principle restricts the individual's freedom to interfere with and injure others, but enhances his overall freedom by rendering the avenues traversed through life relatively safe and predictably free from avoidable injury and death. This sort of calculation is the hallmark of individualism and the first principle of prudential reasoning.").
209. See Sunstein, supra note 172, at 908 ("A regulatory policy that targets social norms may well be the cheapest and most effective strategy available to a government seeking to discourage risky behavior.").
210. See David A. Hyman, Rescue Without Law: An Empirical Perspective on the Duty to Rescue, 84 TEX. L. REV. 653, 656 (2006) ("[P]roven cases of non-rescues are extraordinarily rare, and proven cases of rescues are exceedingly common-often in hazardous circumstances, where a duty to rescue would not apply in the first instance."). Strong and widespread negative public reactions to bad bystanders may also suggest that the norm does not need changing. See infra notes 193-201.
211. This would seem to reveal that the so-called problem is less than imagined, and that the moral duty to rescue is quietly present. See Sunstein, supra note 172, at 912 ("[W]hen social norms appear not to be present, it is only because they are so taken for granted that they seem invisible.").
212. See Adler, supra note 1, at 918 ("Actions that are beyond the call of duty will not be legally required in any case, so the law will not deprive society of heroes nor deprive individuals of all opportunities to perform heroically.").
213. Finkel, supra note 32, at 248
214. Ellen Goodman, Op-Ed, Horror Show in a Tavern, BOSTON GLOBE, Mar. 17, 1983.
215. Youngblood, supra note 165
216. Silver, supra note 1, at 427
217. Wehrwein, supra note 165
218. Finkel, supra note 32, at 249
219. The "David Cash case" resulted in three hundred newspaper articles nationwide. Susan B. Apel, Privacy in Genetic Testing: Why Women Are Different, 11 S. Cal. Interdisc. L.J. 1, 14 n.67
220. see also, e.g., Op-Ed, America's Shame, Boston Globe, Apr. 1, 1983 ("Americans reacted with understandable outrage recently when bystanders in a New Bedford bar acted as callous spectators to the crime of rape. We are now learning that American officials acted as accessories after the fact in aiding Nazis who took part in the slaughter of millions of innocent people. No moral outrage is commensurate with that crime.").
221. Alan Dershowitz, who was quoted as the calmer voice of reason about the technicalities of expanding a duty in the wake of the New Bedford spectator rape case, recognized this pattern by noting: "We don't want to make it a crime for someone to refuse to endanger his own life.... Law is often the product of the worst abuses in human nature." Youngblood, supra note 165. The legend of the Kitty Genovese incident may also stand as an example of the potential for a particularly emotional reaction to an event to influence the relating of that event.
222. See Jim Rasenberger, Kitty, 40 Years Later, N.Y. TIMES, Feb. 8, 2004, § 14, at 1 ("Yeah, there was a murder.... Yeah, people heard something. You can question how a few people behaved. But this wasn't 38 people watching a woman be slaughtered for 35 minutes and saying, 'Oh, I don't want to be involved.'" (quoting one who researched the incident forty years later)).
223. Editorial, 'Good Samaritan': Reaction Shows Public Is Not Indifferent, Dallas Morning News, Sept. 4, 1998, at 30A.
224. See Benac, supra note 16
225. Silver, supra note 1, at 433 (noting that "nonrescuers would be difficult to trace, and nearly impossible when not witnessed by others")
226. Timothy Harper, Duty to Help, LEXINGTON HERALD-LEADER (Ky.), Mar. 11, 1984, at A2. Andrew Carnegie seems to have agreed with this assessment. About establishing monies for heroes, he noted, "I do not expect to stimulate or create heroism by this fund, knowing well that heroic action is impulsive." Carnegie Hero Fund Commission, supra note 54.
227. Adler, supra note 1, at 918