The Case Against a Duty to Rescue

Abstract

It has always been the rule in Anglo-American common law that there is no general duty to come to the aid of strangers, no matter how great the need or how easily the aid could be given. The rule is based upon the fundamental distinction between misfeasance — active misconduct that causes positive injury to another — and nonfeasance — inaction that represents a failure to take positive steps to benefit another. Courts have consistently held that the common law of private obligations does not impose affirmative duties simply on the basis of one party’s need and another’s capacity to fulfill that need. In this century, the courts have with increasing frequency avoided the most morally offensive applications of this general rule by basing affirmative duties to render aid upon various “special relationships” found to exist between potential rescuers who failed to act and the victims they failed to save.