Duty to Rescue
What is the Duty to Rescue?
Under the common law, there is generally no affirmative duty to rescue a stranger in peril, even if rescue would be easy and costless. Exceptions exist for special relationships and for those who create the peril.
Definition
The traditional common law rule is that there is no affirmative duty to rescue a person in danger, regardless of how easy the rescue might be. A bystander who watches a stranger drown in shallow water has no legal obligation to act, even if the rescue would require minimal effort and pose no risk. This rule reflects the common law's reluctance to impose affirmative obligations on individuals and its preference for punishing harmful acts over failures to act. The rule has been widely criticized as morally indefensible, but it remains the default position in American tort law.
Important exceptions significantly limit the no-duty rule. First, special relationships create affirmative duties to rescue or protect: employers owe duties to employees, common carriers to passengers, innkeepers to guests, schools to students, and jailers to prisoners. Second, a person who creates a perilous situation, even innocently, has a duty to attempt a rescue. Third, a person who voluntarily begins a rescue must continue to do so with reasonable care and may not abandon the rescue if doing so leaves the victim in a worse position than before the attempt began. Fourth, some jurisdictions impose a duty to rescue by statute (so-called duty-to-rescue or Good Samaritan obligation statutes), though these are the exception rather than the rule.
The Restatement (Third) of Torts expands the duty to act in emergencies, recognizing duties based on prior conduct, special relationships, and undertakings. Several European legal systems impose a general duty to rescue as a matter of law, and there is ongoing academic debate about whether American law should do the same. For exam purposes, the no-duty rule and its exceptions are heavily tested, as they illustrate the fundamental distinction between misfeasance (negligent action) and nonfeasance (negligent failure to act).
Key Elements
- 1General rule: no affirmative duty to rescue a stranger
- 2Exception: special relationship between the parties (carrier-passenger, employer-employee, school-student, etc.)
- 3Exception: the defendant created the dangerous situation
- 4Exception: the defendant voluntarily undertook a rescue and must continue with reasonable care
- 5Exception: statutory duty to rescue in some jurisdictions
- 6If a duty exists, the rescuer must act with reasonable care
Landmark Cases
Yania v. Bigan
397 Pa. 316 (1959)
Affirmed the no-duty-to-rescue rule, holding that a bystander had no legal obligation to rescue a drowning person even when rescue was possible.
Tarasoff v. Regents of University of California
17 Cal.3d 425 (1976)
Created a duty for therapists to warn foreseeable victims, expanding the special relationship exception to the no-duty rule.
Farwell v. Keaton
396 Mich. 281 (1976)
Imposed a duty to rescue based on a social companion relationship, expanding the categories of special relationships.
Soldano v. O'Daniels
141 Cal. App. 3d 443 (1983)
Held that a bartender's refusal to allow a call for help could create liability, addressing the duty not to impede a rescue.
Exam Tips
- Start by stating the general no-duty rule, then systematically work through each exception to see if any applies.
- Pay close attention to the relationship between the parties — a special relationship transforms the analysis entirely.
- If the defendant created the peril, there is a duty to rescue regardless of whether the creation was negligent or innocent.
- Note that a voluntary rescuer who begins a rescue must act with reasonable care and may not abandon the rescue to the victim's detriment.
Common Mistakes to Avoid
- Assuming a moral obligation creates a legal duty — the common law does not require rescue simply because it would be the right thing to do.
- Overlooking the special relationship exceptions, which are the most frequently tested aspect of this rule.
- Confusing the duty to rescue with Good Samaritan statutes, which protect voluntary rescuers from liability rather than imposing a duty to act.
Memory Aid
No duty to be a hero — unless you have a Special Relationship, Created the peril, or Started the rescue.