Is There a “Duty to Rescue”?

Among scholars of law there is some degree of disagreement regarding the responsibility of an individual to render aid to an accident victim. One school of thought holds that an individual is not obligated, and cannot be compelled by force of law, to give assistance to another under emergency conditions. Another line of thought holds that everyone is obligated to render aid so long as they act within the bounds of their training and experience. In today’s post our Houston drowning accident lawyer will discuss the issue of whether or not a “duty to rescue” exists and how such a duty, if it exists, could lead to liability in cases involving accidental drowning or near-drowning.

The legal “duty to rescue”

One of the foundational principles of common law holds that if someone, by either their action or inaction, creates a hazard then that person has created a duty to warn others of the hazard’s existence and also creates a duty to rescue anyone that falls victim to that hazard. Although there is no law that specifically creates and defines the type of precautions that must be taken, the common law clearly holds that “creating a danger also creates the responsibility to protect.”

There are a number of situations arising outside common law where there is a legal requirement that certain groups or organizations are bound by a duty to rescue. As examples, the employees of an airline have the legal duty to rescue passengers in the event of an accident or the driver of a truck transporting chemicals has the duty to warn others of the danger of exposure to a toxic substance following an accident.

In the United States, less than a dozen states have enacted laws requiring that an individual render aid to an accident victim. As you might imagine, these laws are rarely applied and it is unlikely that a conviction under such a law would survive an appeal. Since we can safely ignore such laws we can turn our attention to the question of one’s moral duty to render aid in emergency situations.

The moral “duty to rescue”

The strongest arguments supporting the concept of a duty to rescue are based on the notion that we have a “moral” or “humanitarian” obligation to assist others in times of emergency. Two of the more commonly-cited arguments are discussed in the following paragraphs.

• “Do unto others as…”

This argument is probably the most common reason to be advanced in favor of a duty to rescue. In its simplest form, this position is based on the fact that practically every system of religious belief or philosophy maintains that we should act in a manner that, if the situation were reversed, we would want others to act if it was ourselves who were in danger. Restated, “If I’m drowning I want you to rescue me because I would do the same for you.”

The counter-argument to this position is based on the belief that an individual cannot be compelled to act in a manner that would place them in a situation that exposes them to the same, or greater, risk of injury that they are attempting to prevent.

• “The greatest good for the greatest number…”

The philosophy of utilitarianism holds that any action that benefits the greater number of individuals is “good” so long as that action does not cause undue harm to others. Utilitarianism thus holds that we have a moral duty to rescue since, by doing so, we have prevented the unnecessary loss of a life and removed the “downstream” harm that would have resulted from a loss of life such as the loss of earnings from a family’s breadwinner.

This argument will, of course, fail if an individual does not feel that intervention is necessary or if he or she does not feel an obligation to respond regardless of the degree of danger.

Wrapping up

In the absence of a statutory law requiring a bystander to render aid or, at a minimum, to assure that professional emergency response personnel have been summoned, it is unlikely that an individual could be prosecuted for failing to render assistance to a drowning accident victim. However, since it can easily be shown that there is a moral duty to render assistance in situations where another is obviously in danger, it is at least conceivable that the failure to render assistance in an emergency could result in a civil judgement against a “not-so-innocent” bystander.

As always, questions related to the possible liability of witnesses to a drowning or near-drowning accident should be discussed with a drowning accident attorney and only after all issues of fact regarding such an accident are known.