Foundations of the Duty to Rescue

In 1908, James Barr Ames concluded his classic lecture on Law and Morals by posing the problem of a duty to rescue., Suppose, he said, that you are walking over a bridge when a man falls into the water and cries out for help. Do you have an obligation to save him from drowning by throwing a nearby rope? As the law then stood, the answer clearly was no. "The law does not compel active benevolence between man and man. It is left to one's conscience whether he shall be the good Samaritan or not." Nevertheless, Ames asserted, it was difficult to see why the law should remain in this condition.

The law was utilitarian; it existed to serve the reasonable needs of society. We would all be better satisfied, he thought, if a person who refused to rescue another from death or great bodily harm, when he could do so with little or no inconvenience to himself, could be punished and required to compensate the victim or his survivors. Over the century, Ames's view has achieved only limited success. Many scholars have sharply criticized the general rule against a duty to rescue.

Judicial decisions have steadily eroded the rule in two ways: by recognizing exceptions in which the law imposes a duty to aid strangers and by expanding the class of special relationships that give rise to affirmative duties. Despite these developments, the absence of a duty to rescue remains the general rule in both tort and criminal law. Although the persistence of this doctrine sometimes is attributed merely to the practical difficulties involved in defining and enforcing such an obligation, the true explanation appears to lie deeper, in uncertainty about whether a duty to rescue is justified in principle.