Costs and benefits of a duty to rescue

Abstract

The issue of the duty to rescue is not fully resolved in the economic analysis of law. The problem is that in many cases the costs of rescue can be quite low and the benefits high, so that by a cost-benefit, or economic, test, it would appear that there should be a duty to rescue. Epstein has claimed that the lack of such a duty is more consistent with a rights theory of the common law than with an economic theory.’ Posner and Landes2 have presented two arguments as to why it might be efficient for the law not to require such a duty. Their arguments are: first, the imposition of a duty to rescue would create incentives for people both to avoid situations in which rescue would be likely and also to avoid acquiring skills which would be useful in providing rescue; second, much rescue occurs for what they call ‘altruistic’ reasons (by which they mean desire for fame and social approval) and the imposition of a positive duty would remove this incentive. Wittmans expands this argument by pointing out that imposition of a duty to rescue would mean that there would be too many potential rescuers and potential victims would take too many chances if there were a duty to rescue. It is clear that these arguments are speculative and may not be fully convincing, although Wittman’s arguments are the closest to those presented here. The purpose of this note is to argue that there is an additional element in the costbenefit analysis of duty to rescue which has not been sufficiently considered heretofore in the literature. This is the cost of enforcing such a duty. When careful attention is given to this enforcement cost issue, 4 it becomes clear that if there were to be adequate enforcement of a duty, then enforcement costs would be quite high, and probably unacceptable. Thus, either there would be inadequate enforcement, in which case the relatively weak Landes-Posner altruism argument might govern, or a substantial amount would be spent to achieve adequate enforcement, which would lead to other unfortunate consequences.