Why We Might Not Want to Require Rescue

Proposal to reverse no-duty-to-rescue law needs a deeper examination

A new bill under consideration in the Michigan Legislature would require people to help rescue others who are in danger. But it is unlikely to have a positive effect and may even do more harm than good.

Michigan House Democratic Leader Sam Singh recently introduced House Bill 5077, which would make it a crime for an individual to decline to rescue someone in danger if doing so wouldn’t also endanger the rescuer.

Current law does not require a bystander to rescue someone in a dangerous situation that the bystander did not create. This doctrine may seem immoral and it has been frequently and widely maligned by legal academics. Nevertheless, the rule has always been a feature of American law, and it is worth considering the potential consequences of changing it.

American civil law imposes a duty of reasonable care on anyone undertaking an activity that could potentially harm someone else, from a commuter driving a car to a doctor performing brain surgery to a landlord renting an apartment. But it does not obligate an individual to rescue an endangered person from a situation that the individual did not create. Helping such a person may be the moral thing to do, but the law does not require it – with good reason, according to law professor Marin Roger Scordato. His article in the Tulane Law Review illustrates the impracticality of imposing a duty to rescue.

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Scordato notes that most people immediately act to help others in danger, so criminalizing the failure to rescue would have little impact on what is already a strong social expectation. The goal of legislation like Singh’s bill is to coerce people to render aid who otherwise wouldn’t – the “reluctant rescuers.” Scordato gives several reasons why we don’t necessarily want to coerce reluctant rescuers, two of which are worth discussing here.

First, the threat of prosecution is unlikely to motivate the person who would refuse to rescue another out of the goodness of his heart. Legislators try to reduce violent crimes by imposing severe consequences for committing them, but it seems that the best deterrent for criminals might be a very high probability of getting caught. Identifying a criminal is hard if not impossible when it comes to proving a failure to rescue. Who would ever know if a driver witnessing an accident failed to dial 911, for instance? Of course, a bystander might be able to identify a reluctant rescuer, raising the odds that the reluctant rescuer would act when others are present. But this merely means that the duty to rescue would, according to Scordato, “produce a greater number of additional rescue efforts in just those circumstances in which additional coerced rescue efforts are least needed.”

Moreover, there is always the risk that a rescue effort may do more harm than good. A law creating a duty to rescue would aggravate this risk by requiring even ill-equipped or untrained individuals to involve themselves in medically complicated or flustering scenarios. The presence of a reluctant rescuer doing the bare minimum to avoid legal liability may discourage other, more altruistic or skilled rescuers from helping. The sense of duty and an inclination to rescue may be diminished when another effort is already underway. The result may then be that the victim is worse off than if the reluctant rescuer had passed on by, leaving the altruistic one to help. A coerced rescue effort might even harm or kill the rescuer, too. So although Singh’s proposal is well-intentioned, it may merely increase the quantity — not the quality — of rescue efforts, to the potential detriment of many.

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