Saturday, January 06, 2007

Duty to Rescue?

Last week, Wesley Autrey, a 50-year-old New York construction worker debunked generations of legendary Tort law hypotheticals involving babies stranded on railroad tracks and heartless strangers refusing to do a good turn unless legally compelled, by undertaking a voluntary, hazardous rescue of a fellow passenger who fell onto the tracks in an apparent seizure. Autrey, nonplussed my his remarkable feat, said he just "did what I felt was right." Both parties were uninjured when the train passed over them, save a small grease smudge on Autrey's blue knit cap.

First-year Torts students learn that, as a general rule, subject to many exceptions, there is no affirmative duty to rescue. The classic hypothetical goes like this: You walk past a man passed out, lying face down in a puddle. Do you have a tort duty to flip him over? (Think Yania v. Bigan, Pa. 1959.) The rescue would be easy and virtually costless to the rescuer, other than the minimal delay and possible soiled shoe, and certainly valuable to the near-drowning man. Yet Tort law says, "No!," absent some special relationship, creation of harm, or other exception giving rise to an affirmative duty, the passer-by can continue merrily on his way, without pausing to nudge the guy onto his back. The no-duty rule tends to strike students as morally offensive, offering the instructor a chance to point out that legal duties do not always trace moral duties. The traditional policy rationales for imposing civil liability for misfesance, but not nonfeasance, are personal autonomy, freedom of action, and privacy.

To the chagrin of Torts professors everywhere (and eerily reminscent of a different, old Cardozo opinion featuring an ill-fated knit cap and announcing the "danger invites rescue" exception to the no-duty rule, Wagner v. International Railway Corp., NY 1921), the Autrey incident offers a stunning rejoinder to the traditional no-duty principle. Moreover, it is a clear example of the result shown in David Hyman's recent Texas Law Review article. Contrary to popular perceptions and tort policy assumptions that people tend to avoid voluntary rescue of strangers, Hyman's empirical study concluded that, in fact, people commonly engage in not only cheap, easy rescues but also hazardous acts of herorism that would not be required by law and may not be justified in traditional cost-benefit terms.

Well, touche to first-year Torts students, eagerly anticipating first-semester grades, and moralists everywhere. And -- forgive the unavoidable pun -- and hat tip to David for the story.


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