The Duty to Rescue Flashcards
The Good Samaritan
i. Facts
1) A man is injured and left for dead; a priest and a Levite pass without helping; Samaritan helps
ii. Issues
1) Did priest and Levite have duty to help injured man?
iii. Holding
1) A moral duty maybe, but not a legal one.
b. Buch v. Amory Manufacturing
i. Facts
1) P is an 8 yo boy who trespasses on the defendants mill; observer told him to leave. P did not leave because he could not understand english; P had hand crushed in a machine that his 13 yo brother tried to teach him to use.
ii. Issues
1) Did the D have the duty to forcefully expel P from factory
iii. Holding
1) The only duties owners of the property owe to trespassers are to abstain from intentional or negligent acts of personal violence
a) Not bound to warn against hidden or secret dangers or to protect against any injury that may arise from his own acts or those of other persons.
b) P is liable for any damage he causes to D’s property.
iv. Notes
1) How to make the landowner responsible?
a) Create a duty for the landowner to intervene if they come on your land
b) Did his brother have a duty to his child? Intervening actor?
i) Was the brother under the doctrine of respondeat superior?
2) 2 views on helping someone after you have started
a) Once you begin to help someone you cannot stop
b) Once you begin you can stop as long as you don’t prejudice the injured person.
c. Hurley v. Eddingfield
i. Facts
1) D practicing as licensed MD when the P decedent became ill and called for the D (family MD) messenger provided fees to MD, no other MDs in the area to assist. The D for no apparent reason refused to treat the P and the P dies.
ii. Issues
1) Does the D as a decedent’s Family doc have an affirmative duty to render care?
iii. Holding
1) No
a) D’s license to practice medicine does not compel him to render care if he does not want to.
d. Yania v. Bigan
i. Facts
1) The P and D are operators of a strip mine; the P came to discuss business with the D when D cajoled him into jumping into a cut some 16-18 feet deep in which 10 ft of water stood; the P jumped in and drowned, and he didn’t rescue him
ii. Issues
1) Did the D have the affirmative duty to warn the P against the dangers of the strip mine?
iii. Holding
1) No
a) P was an adult with knowledge of the dangers
2) No
a) D under a moral not legal obligation to rescue the P
i) Unless the D is legally responsible for placing the P in a perilous position
iv. Notes
1) How is it different from the good Samaritan
a) Did he have a legal duty to act
i) The D instigated the incident
A. He told him he won’t help him.
ii) Happened on the D’s land and he invited him there as a business context.
e. Ames law and morals
i. Notes
1) Law is utilitarian - it exists for the realization of the reasonable needs of the community.
a) 3 Examples
i) Walking across the bridge man drowning, do I have a duty to throw the buoy?
ii) Surgeon is living in one city and a man living a few cities over has an infirmary
iii) You go out pheasant hunting, and one of your shots ricochets and blinds another hunter who falls down and passes out and is in a puddle of water 3 in deep face down.
b) Does the hunter have a duty to act?
i) Ames
A. One who fails to intervene to save another, when he could do so with little inconvenience, is liable for the death or injury of the other.
c) Results
i) It would be easy to throw the rope
A. Probably more inconvenient if you had to jump in
ii) It would be very hard to travel a few cities over and inconvenient
iii) He cannot
f. Epstein a Theory of Strict Liability
i. Notes
1) Difference between allowing people to acting as they please, and asserting people are entitled to act as they please
a) Ames law could foster interference with individual liberty
2) Revisit of the examples
a) Is there a duty to give a contribution to charity? Kind of like the rope.
i) It is convenient under the rule by Ames, and so you should have to.
A. Distinguished: One person v. millions, there is no limit to the amount you would have to give.
b) What if the Indian offered to pay away the inconvenience for the doctor?
i) Yes you would under Ames
A. Distinguished: Monetary exchange wouldn’t necessarily eliminate inconvenience = not a fair example.
3) Hard to tell where liberty ends and liberty begins.
g. Posner’s Epstein tort theory a critique
i. Notes
1) Tort duties can vindicate the principles of freedom of contract
2) Consideration for rescue is not payment but reciprocation should the roles of the parties be reversed sometime in the future.
3) You can’t use contract doctrine to impose liability.
h. Benders an overview of feminist torts scholarship
i. Most of the law created by men, and so the law is skewed to one side. Maybe we out to change the law so that it is more compassionate.
j. Legislative responses from the states
i. Vermont
1) If you don’t act and have a duty, you are fined $100
ii. Kansas and New Jersey
1) The only standard they hold a passerby to is to avoid Gross NEG
a) You can provide CPR even if you don’t properly know how to do it.
k. Montgomery v. National Convoy
i. Facts
1) The D truck stalled on the road without their fault, blocking the road. 15 min later the P’s car came over the hill and saw the trucks 50 ft away. Due to icy conditions he couldn’t stop in time. Jury awarded the P 3K, the D appeals
ii. Issues
1) Does the D have the duty to warn other traffickers of the road blockage?
iii. Holdings
1) Yes
a) The D recognized this duty by putting out flares and leaving lights on trucks, but these measures insufficient
i) Duty to take measures reasonably calculated to prevent injury
b) Danger of situation so self-evident, jury could have concluded omission was willful
iv. Notes
1) Was the truck drive engaged in misfeasance or nonfeasance?
a) You should argue in favor of nonfeasance, to help the driver.
l. Newton v. Ellis
i. Facts
1) D under contract with local board of health, dug a hole in public highway that he left unlighted at night; P drove by later and fell in the hole.
ii. Holding
1) Not a case of not doing rather a case of omitting to secure protection for the public.
iii. Notes
1) The court holds him liable of misfeasance,
m. SS of the law 3-39 duty based on prior conduct creating a risk.
i. When an actors prior conduct even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.
p. Zelenko v. Gimbel Bros
i. P taken ill at the D’s store. The D owned the P not duty whatsoever; the D sequestered the P for six hours without rendering any aid.
ii. Holding
1) D nailed for meddling in legal affairs of which he had no concern.
a) Assumed duty once did so; duty = held to usual standards of Negligence
iii. Notes
1) D owed the P no duty to assist after injury, but once they acted they did
2) If they left him in a situation of prejudice, they are liable for his injuries.
