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Bar Journal - March 1, 1999

The Good Samaritan: A Parable of the Past or a Future Affirmative Duty?

By:
 

I. INTRODUCTION

On May 25, 1997, Sherrice Iverson, a young girl in a Primm, Nevada casino, was sexually assaulted and then strangled to death by Jeromy Strohmeyer. During this act, his friend, David Cash, walked into the bathroom in which the attack occurred, saw his friend struggling with the 7- year-old girl in the handicapped stall, and turned and walked away. He did not call security, stop his friend, or make a simple anonymous call to 911. Later, his friend told Cash that he had killed the young girl, and again Cash did nothing. In fact, after Strohmeyer was taken into custody, Cash actually was broadcast on a live radio call-in show boasting of his lack of concern.

Sherrice's murder has sparked new interest in enacting "good Samaritan" statutes in Nevada, California and New Jersey, and has started discussions about them in other states and at the federal level.1 These statutes make it a crime for anyone that has knowledge of a violent crime to not summon assistance. This mandate can be satisfied with a simple, anonymous call to 911.

This sounds like an easy, reasonable thing to ask people to do, yet the majority of states in the U.S., in fact 43 of them, have no such law. Of the seven states that do require people to render assistance to injured people, or notify the authorities of the situation, three are in very limited circumstances, and all seven carry very little penalties for non-compliance.2

Why is this so? By and large people are disgusted at the behavior of David Cash. People were disgusted at the behavior of the thirty-eight neighbors who listened to Kitty Genovese being stabbed for thirty-five minutes in New York City in 1963, and did nothing.3 People were disgusted at the behavior of the dozens of people in Detroit that cheered as a woman was beaten by two men then jumped to her death from a bridge in 1995.4 The examples go on and on.5 When events such as these occur, they make front page news. People are appalled, and they ask what the world is coming to. The ways in which the witnesses have behaved seem not to make any sense.

What makes even less sense, is that statutes which make this type of witness behavior punishable are so rare. If there is such strong sentiment in regards to these events, why aren't these laws more common? Even if they don't carry much of a penalty, why aren't they in existence? They are not only non-existent, but people are opposed to their enactment.

Should there be a legal duty to help others? Is this an instance when the general good of the community can carve away from the individuals' rights? Is this for the good of the community, or is this an attempt to legislate morality? These are some issues that legal scholars have been questioning for centuries. In this essay, we will look at these issues as they pertain to "Good Samaritan" statutes and their place in American law.

II. HISTORY

It is noteworthy that the duty to assist an injured or endangered person is commonplace throughout the rest of the world.6 At least 21 other countries, mostly civil law countries, have passed laws which prohibit bad Samaritanism.7 One of the most visible examples is the French law under which some of the photographers at the scene of the car crash that killed Princess Diana are being prosecuted.8 Yet most of the common law countries have no such laws. This is perhaps due to public pressure being immediately satisfied in civil law countries through enacting statutory law. In common law countries, courts follow the theory of stare decisis, and are bound by a general reluctance to impose positive duties on people.9 In order for change to occur in the United States, pressure will have to be exerted at the state level to enact general good Samaritan statutes.

A. Early Common Law

Early common law imposed no duty to rescue or notify. The common law was to be used to prevent people from harming one another, rather than to force them to confer benefits upon one another.10 The early jurists were also limited by their temporal ability to redress only affirmative acts, not omissions.11 Citizens were not afraid of other's omissions, they were more concerned with someone doing them direct harm through a violation of societal negative duties.12 Under the weight of stare decisis, the focus of the common law on affirmative acts was perpetuated, and omissions were rarely adjudicated.13

Early common law was highly individualistic as well.14 There was a fear that judicial intervention in social and economic affairs would sap men of their self reliance and encroach upon their individual freedom.15 Capitalism embodies the idea that struggle between individuals will produce the common good.16 This reinforces the judicial reluctance to impose positive duties upon individuals which require them to help others.

Many of the concerns which initiated the early jurists' reluctance to adjudicate omissions still make people reluctant today.17 Along with the continued emphasis on individual freedoms, the tenuous causal relationship between a witness failing to help or notify and the actual harm to the victim seems to have troubled early jurists and still causes pause.18

B. General Exceptions in the United States

Over the years, some exceptions have been chipped away from the general rule of not imposing an affirmative duty to render aid. There are presently five situations in which our courts recognize a duty to render aid to others.

First, if there is a contractual obligation, the courts will enforce it. For example, the lifeguard who is employed to save swimmers in distress. Fireman, policemen, baby-sitters, nurses, and many other similar professions fall under this category.19

Second, a duty may arise under statute. Most jurisdictions have statutes in which a driver who is involved in an accident has a duty to help any injured parties, whether or not the accident was his fault.20

Third, the courts have imposed a duty where a special relationship exists between the witness and the injured party. Examples of this type of relationship are parent to child, employer to employee, spouse to spouse, and landowner to guest.21

Fourth, one who negligently injures or imperils another has a duty to render reasonable assistance.22 Many courts have broadened this rule, placing the duty on anyone whose conduct, whether negligent or innocent, has caused danger or injury.

Lastly, one who begins to aid a person is under a duty to exercise reasonable care.23 The person rendering aid may cease to do so, as long as the victim's condition will not worsen as a result.

III. CURRENT STATUS OF GOOD SAMARITAN STATUTES IN THE UNITED STATES

With limited exception,24 there is no duty under Anglo-American law to lend personal assistance to or obtain help for persons in distress.25 The expert swimmer with a boat and a rope in hand, who sees someone drowning, may sit and smoke a cigarette, having no duty to aid the drowning man.26 There is no duty to intervene if you see your neighbor's child hammering on explosives.27

All states and the District of Columbia have enacted statutes that encourage physicians to provide emergency aid.28 These statutes reduce the standard of care owed by physicians, and provide civil immunity for all but gross negligence or acts of bad faith. Interestingly, studies have shown that these statutes are largely ineffective.29

Some states have taken upon themselves to create a general duty to render aid or summon help. There are currently seven states with some form of good Samaritan statute, and at least three with bills currently under proposal.30 Although these statutes represent a positive step towards a duty to rescue in the United States, they are not perfect.

Vermont was the first state to enact such a statute, in 1967. Out of the existing statutes, Vermont has the most comprehensive good Samaritan statutes, covering the most circumstances in which someone has a duty to render assistance or notify the authorities.31 The Vermont statute states that a person has a duty to render reasonable assistance if they have knowledge of another person in physical danger or that is injured. There is an exemption that states that a person does not have to render any type of assistance that would place the rescuer in physical danger, or if an obligation to a third party would prevent them from acting. The statute goes on to grant civil immunity for all but gross negligence on the part of the rescuer.32 The Vermont statute does not have much of a bite to it however. Those that violate the statute are only required to pay a fine, which is not to exceed $100.

The Minnesota statute was enacted in 1983 in response to a highly publicized rape case in New Bedford, Massachusetts, in which there were numerous witnesses who watched a woman being raped by four men for a period of 75 minutes.33 It is similar to the Vermont statute, but differs in that it only places the duty to aid on witnesses at the scene of an emergency, whereas the Vermont statute is triggered if anyone has knowledge of another in danger.34 Minnesota provides civil immunity to the rescuer for anything falling short of willful and wanton or reckless conduct. The fine is identical to that of Vermont, not to exceed $100.35 In 1994, Wisconsin enacted a statute almost identical in nature to that of Minnesota,36 and in 1996, the state of Colorado followed suit.37

At about the same time and also in response to the New Bedford rape case, Massachusetts and Rhode Island enacted statutes, but they differ significantly than those exemplified by Vermont and Minnesota. In the Rhode Island statute the duty is imposed only on those that witness a sexual assault, and they are simply required to notify the police immediately.38 The Massachusetts statute adds armed robbery, homicides and rapes to the sexual assault situation covered by the Rhode Island statute.39 Interestingly, even though these two types of statutes are more limited in scope than the previously discussed statutes, they carry heavier penalties. In Rhode Island, failure to notify is punishable by up to one year in jail, and a fine no to exceed $500, or both. Massachusetts carries a fine between $500 and $2500, but no imprisonment for those that fail to meet the statutory duty.

Most recently, Washington state enacted a duty to summon assistance statute in 1998, after a heinous murder of a young man, in which he slowly drowned over the course of fifteen hours while three onlookers periodically came back to look at him.40 This statute requires anyone with knowledge "...of another person in substantial bodily harm... must summon assistance."41

IV. JURISPRUDENTIAL ANALYSIS

Does the lack of this type of statute in most jurisdictions of the United States stem from our historical emphasis on individualism and self-reliance? Capitalism is based on the idea that a struggle between individuals with selfish goals will automatically maximize the common good. Does enacting an affirmative duty, that of helping others in trouble, undermine individualism or the capitalist roots of our society?

" The law has persistently refused to recognize the moral obligation of common decency and common humanity, to come to the aid of another human being who is in danger, even though the outcome is to cost him his life."42 Is that too much to ask of someone? Is it too much to legally impose upon someone? If they don't call 911 or help the person in need, should they be punished? Even if they had a legal duty that could be punished by fines or jail time, would it really change people's behavior in this type of situation? The quandary, as suggested by the biblical tale of the good Samaritan, is that people who would not voluntarily render aid at the prompting of conscience probably won't be moved by the threat of prosecution on a misdemeanor count.43

A. Reasons for Enacting a Duty to Rescue or Notify

The most important benefit of enacting a duty to rescue or notify would be that it would aid those victims that are in need by requiring people to help. This would also legalize the beneficial notion of a civic duty, and show the public's disapproval for bad Samaritanism. There has been a strong movement in American jurisprudence for the past thirty years which has focused on individual rights. These rights, while valid, need to be balanced by a corresponding notion of community responsibility. A statute might also help to reduce crime, as a perpetrator may be less likely to harm others knowing that an observer must report the crime.

1. Help Save Lives and/or Reduce Harm to Victims

The most beneficial reason for enacting the duty to rescue or notify is to help save lives and reduce possible harm to victims. If witnesses promptly aid the victim, or notify authorities, and they in turn respond quickly, lives can be saved, and suffering reduced. If David Cash had simply called the police, Sherrice Iverson could still be alive. If one of the patrons of the tavern in New Bedford, Massachusetts had called the police, the woman who was raped might have been spared a good deal of trauma. Requiring witnesses to notify authorities, at the very least, should help to prevent harm that otherwise might have escalated.44

A second way in which the imposition of the legal duty helps mitigate harm is the speedy capturing of assailants.45 If people notify the authorities in a timely manner, presumably the likelihood of catching the offenders will increase, and the risk of the offender doing further harm to others is eliminated. In this way, even if the witness is unable to help the immediate victim, there is still a residual benefit conferred upon society.

2. Formal Declaration of Societal View of Bad Samaritanism

A statute would clarify any doubt people may have as to their duty in situations where they witness a crime. It would also be a declaration of the view of society as to the expected behavior of witnesses to a crime. People would not second guess themselves, or wonder if they would be getting involved in a situation which is none of their business, if the law clearly states what is expected of them in these situations. Furthermore, people generally wish to be law-abiding citizens, regardless of the likelihood of being caught.46 This formal declaration not only serves a symbolic function, but also helps to reinforce people's faith in the law in general.47 When instances occur in which it is reported that witnesses do nothing to help their fellow citizens who are suffering, people are shocked to learn the law does nothing to prevent this type of behavior. It impacts their respect for the legal system in general.

Unfortunately, modern society also needs this type of statute, whereas one hundred years ago our society may not have.48 The Industrial Revolution brought about large changes in the social lives of people. The children of the former agrarian society moved to the urban centers to find employment. That practice has evolved into a society that is very mobile. Most people do not have strong connections to their community any longer, whereas in the past, people were much more connected to those that surrounded them. As the connections between individuals and their communities weakens, so too does their feeling of social and moral obligations to others in that community.

3. Deterrent to Criminals

The duty to notify would have a general deterrent effect on crime. If the odds of an attacker, or perpetrator of a crime, being caught are increased because of police notification by a witness to the attack, then there should be a corresponding drop in the number of violent crimes. If the criminal perceives an increased risk of being caught, they will be less inclined to commit the crimes.49

B. Practical Objections to Duty

There are four practical, or potential administrative problems upon which duty to rescue statutes are often attacked. It can be argued that this duty may: (1) put the witnesses in physical harm if they must enter into a situation which has put the victim in his current predicament, (2) that it asks the witness to also face the possible retaliation of the aggressor which is threatening or harming the victim, (3) that the victim might bring a civil action against the witness for a botched rescue attempt, and (4) that the enforcement of the statute will be sporadic, and therefore unfair. These arguments, while some of them are plausible, can be largely overcome by careful drafting of the statute.50

1. Physical Harm

It is perfectly reasonable for people to not want to put themselves in harm's way. Yet this same problem has been dealt with in the current exceptions to the rule51 by excluding the witness from aiding or rescuing the victim in situations when the witness would put him/herself at significant bodily risk. In such instances, the duty is often satisfied with a prompt phone call to 911 or the authorities, thereby mitigating any harm that might threaten the witness. No existing statute currently has a requirement for a witness to risk physical danger, nor is it imaginable that one would expect this of a bystander.52

2. Retaliation by Aggressor

Fear of retaliation by the aggressor, like the fear of physical harm, is very real. People do not want to be pressured to be a hero against their will, especially if it means getting unsavory people upset with them. As explained in many of the existing statutes,53 and as with the threat of physical danger,54 the duty to render assistance is often sat isfied with a simple call to 911, or the authorities. This call can even be made anonymously. By allowing notification to satisfy the duty, the fear of retaliation is practically eliminated.

3. Risk of Liability For Actions

The fear of a witness taking on liability for their involvement in a crime situation is easily dealt with by good draftsmanship of the statutes. Many of the existing statutes include civil exemption for good Samaritans for all but gross negligence or acts in bad faith.55 By allowing for these exemptions, there is less cause for pause by a witness in helping a victim in need.

4. Selective Enforcement

The objection has been raised that these types of statutes are prone to selective enforcement. That one witness might be prosecuted, while the man standing next to him at the crime scene will go on his way without another thought. This may be true, yet this is the case with most, if not all of our existing laws in the United States. There are simply not enough law enforcement officials to be able to apprehend every person that breaks the law. It would be ridiculous to argue that because some bank robbers are not apprehended, while others are, or some motorists speed without being caught, that these laws should be abolished. Likewise, the selective enforcement argument pertaining to the duty to rescue is not a valid one.

C. Theoretical Objections to the Duty

1. It Should Be A Moral Decision

One of the most often heard arguments against good Samaritan statutes is that the duty to rescue is a type of forced altruism and that forced altruism is wrong.56 Is it though? Many legal scholars believe that "the law not only reflects people's values, but also helps to shape them."57 A study was conducted in 1970 which asked people to rate various degrees of bad Samaritanism. Half of the participants were told that the behavior described was illegal, the other half were told that the behavior was not illegal. The results were that significantly more of the people who believed that the behavior was illegal also thought that it was immoral.58

One argument states that to codify the rendering of aid to others, the moral value of that act will be negated, in that the person was required to do so.59 Does it follow that one in possession of another person's property loses his moral worth as to how he conducts himself, because of larceny laws?60 This argument, like the selective enforcement argument, is a small price to pay for the protection that these laws confer upon all of us.

In the face of the loss of a person's life, is it truly a valid argument that the witness' motivation is important? If someone does community service out of their own feelings of civic duty, or because they are required by law, does it change the fact that the community service is a good thing, regardless of why it is done? The law should be concerned with protecting the citizens of this country, not making sure that people will receive accolades for the good moral acts that they have done. Even if we believe that the motivation of people is a legitimate issue, it seems a strange argument that we should legalize behavior that is reprehensible, in order to allow people that do not behave in this manner to appear moral.

Even if those in opposition fear the loss of room for individual morality in given situations, the legalization of a duty to assist still allows for much moral leeway. By setting a minimum level of notification, there is still a great deal of room for people to expand upon their involvement, by actually helping the witness, or staying to testify to the police that arrive on the scene.

2. Infringement on Individual Liberty

Another argument against the duty to rescue or aid is that it unduly imposes a burden on individual liberty.61 Jeremy Bentham stated that "[A]ll law insofar as it is an interference with personal liberty is bad,"62 and this badness needs to be more than offset by the goodness that it achieves.

This argument is plausible to the extent that the duty to rescue would be a positive duty. Positive duties require us to proactively do something, while negative duties require us to refrain from harming others.63 Therefore, it is easy to educate oneself as to the negative duties imposed by law, and simply live life without perpetrating any prevented activities. Positive duties are more of an imposition to individual's liberty, requiring the individual to cease from their own agenda, and do something required by law.

One might argue that the duty to rescue is too much of an interference with our individual liberty and by requiring someone to get personally involved in a rescue attempt is too great of a cost. The same cannot be said of the duty to notify. It is largely agreed that the law is justified in interfering with our liberty to the extent that it prevents or aims at preventing, us from doing harm to others.64 The average person is rarely going to encounter such a situation, and if and when they do, a phone call to the authorities is all that is required. Given the amount of harm, even death, that can result from bad Samaritanism, the imposition on individual liberty seems insignificant.

Some people further fear that the imposition of a duty to rescue statute will give way to the dreaded slippery slope of the legal world.65 Yet all one has to do to negate this fear is look at the existing statutes. By drafting the statute well within each jurisdiction, the statutes can individually be as far reaching, or as limited as citizens and legislators wish.

3. Reluctance to Punish Omissions

Is there a difference between harming, and letting harm happen? Many scholars feel that omissions cannot be punishable because they do not give rise to harm.66 If the person who happens upon an accident does not help the victims, how can he be held liable for not doing something, an act of omission, since his inaction causes no harm?67 Some schools of thought go so far as to state that all non-contractual positive duties the state imposes are illegitimate.68 Along with these contractual positive duties, there are negative duties imposed by the law which state that people are not to bring harm to others. Where would the duty to aid fit into this scheme? Many feel it has no place in our legal system,69 since it is an omission.

This causal argument seems very weak. Those that oppose the penalizing of omissions often point to the criminal law's requirement of actus reus.70 This requirement is included in the criminal law not to limit the law to positive acts, but to prohibit punishment for mere mental state.71 There have been many laws enacted which do not require positive acts, such as driving without a license, failing to report for a military draft, and failing to pay one's taxes.72 The current general exceptions carving out duties to rescue in certain circumstances73 are all based on omissions. If a parent does nothing to save their child from drowning, they will be found criminally liable, even though they have not committed a positive act. Therefore, the argument that physical causation must be present for there to be liability is invalid.

VI. CONCLUSION

It is amazing that duty to aid statutes are as few as they are in the United States. With good draftsmanship, they can be effectively written to limit their applicability to very reasonable circumstances, and are satisfied with minimal effort on the part of witnesses. This type of duty is, however, an unquestionable legalization of morality and also an infringement on individual rights.

"[T]he most important factor behind the decline of community has been the rights revolution: the assertion of an ever-widening sphere of individual rights, from abortion on the left to gun control on the right, and the consequent unwillingness of Americans to abridge these rights in the name of responsibilities to larger communities."74 It seems at some point we are going to have to turn our attention to the communities in which we live, to look at what part we play in tying them together or watching as they decay. As individuals, to not protest at what is due us, but what we may owe to others. It is incredibly sad that we are at a point where it may be necessary to legislate common decency. That a bystander who sees a seven year old being harmed feels nothing, and has no values that compel him to help in any way. And in turn, to what extent are we bystanders watching theses acts of apathy if we in turn do nothing to condemn them?

ENDNOTES

1.

Associated Press, "New Bill Requires Reporting of Sex Crimes" September 10, 1998, Associated Press, "Iverson Slaying Prompts 'good Samaritan' Bill" September 30, 1998, Las Vegas Review Journal, "Bill Would Make Cash's Silence Illegal", August 27, 1998.

2.

See Chapter 9A.36 Revised Code of Washington , Colorado Statute 18-8-115, Massachusetts Law, ch.268, section 40, Vermont Statute 12-23-519, Minnesota Statute 604A.01, Wisconsin Statute 940.34, and Rhode Island Statute 11-37-3.1.

3.

N.Y. Times, March 27, 1964, at A1.

4.

Myron Stokes and David Zeman, NEWSWEEK, The Shame of a City, National Affairs section, Detroit, Pg. 26, September 4, 1995.

5.

Newsweek, Mar. 21, 1983, at 25; Kiesel, Who Saw This Happen?, 69 A.B.A. J. 1208 (1983), (Bar room rape in New Bedford, MA where 5 people raped a woman on a pool table while 15 people watched, including the owner of the tavern. No one called the police in the 75 minutes that the attack went on.); Ann Arbor News, Mar. 13, 1984, at C1, ( In St. Louis, 30 people stood by and made no effort to help or call the police as 2 young men sexually assaulted a fourteen year-old girl); Kiesel, supra, at 1209, (In San Antonio, two bystanders watched a man fall off a ledge into nine feet of water, they said something to him, and walked away, letting him drown); Hopkins News Letter, Nov. 16,1984, at 1, (In Baltimore, someone beat, robbed, and stripped a female security guard before wrapping her head in a blanket and setting it on fire. Many people in the building heard her screaming, but no one investigated or called the police); U.S. News and World Report, Nov. 14, 1983, at 56, (In San Francisco, someone kidnapped a man from his car in front of several onlookers, none of whom notified the police).

6.

Feldbrugge, Good and Bad Samaritans: A Comparative Survey of Criminal Law Provisions Concerning Failure to Rescue, 14 Am. J. Comp. L. 630.

7.

Rudzinski, The Duty to Rescue: A Comparative Analysis, The Good Samaritan and the Law, 91 (J. Ratcliffe ed. 1966). Including; France, Italy, Germany, Hungary, Czechoslovakia, Denmark, the Netherlands, Norway, Poland, Portugal, Rumania, Russia and Turkey.

8.

See 63 of the Code Penal (1810 as amended, 1959) appearing in the The French Penal Code 38 (The American Series of Foreign Penal Codes, vol. I, G. Mueller ed. 1960).

9.

Infra, note 10.

10.

Frankel, Criminal Omissions: A Legal Microcosm, 11 Wayne L. Rev. 367, at 367-384 (1965).

11.

Id., at 375-376.

12.

Negative duties prohibit certain behavior, in contrast to positive duties which require an affirmative act.

13.

Kirchheimer, Criminal Omissions, 55 Harvard L. Rev. 615, at 622 (1942).

14.

W. Prosser & W. Keeton, The Law of Torts at 56, at339 (5th edition 1984).

15.

The Failure to Rescue: A Comparative Study, 52 Column. L Rev. 631, at 632(1952).

16.

Id. at 633.

17.

See Section IV, infra.

18.

19 U. Mich. J.L. Ref. 315, at 320, (1985).

19.

W. Lafave & A. Scott, Handbook on Criminal Law at 26, at 185 (1972).

20.

W. Prosser & W. Keeton, The Law of Torts at 56, at 375 (5th edition 1984).

21.

Id., at 376-77. Courts have gradually expanded this group of exceptions.

22.

Id., at 377.

23.

57 Am. Jur. 2d (Negligence) at 46, (1971).

24.

See Section II, B, supra.

25.

J. Silver, 26 Wm and Mary L.Rev.423, The Duty to Rescue: A Re-examination And Proposal, at 424, (Spring 1985).

26.

Osterlind v. Hill, 263 Mass. 73, 160 N.E. 301 (1928).

27.

Sidwell v. McVay, 282 P.2d 756 (OK 1955).

28.

For examples, see D. Louisell & H. Williams, Medical Malpractice at 21.10-21.59 (1983).

29.

Professional Liability Survey, 189 J.A.M.A. 859, p. 864 (1963).

30.

Associated Press, "New Bill Requires Reporting of Sex Crimes" September, 10 1998, Associated Press,"Iverson Slaying Prompts 'good Samaritan' Bill" September 30, 1998, Las Vegas Review Journal, "Bill Would Make Cash's Silence Illegal", August 27, 1998.

31.

See Vermont statute, supra, note 2.

32.

See Vermont statute, supra, note 2.

33.

NEWSWEEK, The Tavern Rape: Cheers and No Help, Mar. 21, 1983, at 25.

34.

See Vermont statute, supra, note 2.

35.

See Minnesota statute, supra, note 2.

36.

Id.

37.

See Colorado statute, supra, note 2.

38.

See Massachusetts and Rhode Island statutes, supra, note 2.

39.

See Rhode Island statute, supra, note 2.

40.

See Washington statute, supra, note 2.

41.

Id.

42.

Prosser on Torts, supra, note 14, at 352.

43.

The Columbian, Section B, pg. 8, March 14, 1997.

44.

U.S. News & World Report, at 56, Nov. 14, 1983. There are circumstances in which the notification of authorities may be ineffective, if for example, someone is drowning. On the other side of the coin, by simply requiring notification, the witness will not be put in any danger, and will not endanger the victim any further by the attempts of a non-professional rescue. Therefor, the simply duty to notify type of statute may be as effective as a duty to rescue statute overall. After fulfilling their obligation to notify, witnesses could then decide to act further, or not.

45.

See Osbeck, 19 U. Mich. J. L. Ref. 315, at 324.

46.

C Andrain, Political Life and Social Change, 23-24 (3rd ed. 1982).

47.

Honor, Law, Morals and Rescue, in the Good Samaritan and the Law, at 239-240, J. Ratcliffe ed. (1966).

48.

See Silver, 26 Wm. and Mary L. Rev. 423, at 434, (1985).

49.

See J. Kaplan & J. Skolnick, Criminal Justice, Commonsense on Deterrence, 54-58 (1983).

50.

See VT, RI, CO, WA, MA, WN, and MN statutes, supra, note 2.

51.

See section II, B, supra.

52.

See VT, RI, CO, WA, MA, WN, and MN statutes, supra, note 2.

53.

Id.

54.

Id.

55.

See W.Va. Code Ann. 55-7-15 (1997), Wisc. Stat 940.34 (1995), NC Stat. sec 20-166(d) (1994), Tenn. Code Ann. 63-6-218 (1996).

56.

Osbeck, 19 U. Mich. J.L. 315 at 328.

57.

D'Amato, The Bad Samaritan Paradigm, 70 Nw. U. L. Rev. 798, at 809 (1975).

58.

Hornstein, The Influence of Social Models on Helping, in Altruism and Helping Behavior, at 77 (J. Macauley and L. Berkowitz ed. 1970).

59.

Woosley, A Duty to Rescue: Some Thoughts on Criminal Liability, 69 Va. L. Rev. 1273, at 1292. (1983).

60.

Woosley, A Duty to Rescue: Some Thoughts on Criminal Liability, 69 Va. L. Rev. 1273, at 1292. (1983).

61.

J. Feinberg, Harm to Others, pg. 126 (1984).

62.

J. Bentham, Principals of Morals and Legislation, chs. 1 & 17,at 19 (1789).Osbeck, 19 U. Mich. J.L. 315 at 328.

63.

J. Feinberg, Harm to Others, pg. 126 (1984).

64.

Osbeck, 19 U. Mich. J.L. 315 at 328

65.

The belief that creating an opening for certain behavior in the law will release a floodgate of related litigation.

66.

Osbeck, 19 U. Mich. J.L. 315 at 328, at 328.

67.

Id., at 329.

68.

Id., at 328.

69.

Hospers, What Libertarianism Is, in The Libertarian Alternative, (Machan ed. 1974). Even within the framework of the Liberatarianism argument, there is a possible quasi-contract theory based on the conferred benefit to the public, in that if they are ever to be in serious danger, the law would require others to come to their aid. See J. Rawles, A Theory of Justice, 108-114 (1971).

70.

See W. Lafave & A. Scott, supra note 19, at 175.

71.

19 U. Mich. J.L.Ref. 315 at 330.

72.

See G. Williams, Textbook of Criminal Law 31 (1983).

73.

See Section II.

74.

B.F. Fuukuyama, Rights Revolution Undercutting America's Sense of Community, The Houston Chronicle, Outlook section, pg. 1, July 30, 1995.

The Author

Attorney Kirsten B. Wilson is a solo practitioner in Lee, NH.

 

 

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phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
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