Two Methods for Evaluating Duty to Rescue Proposals

Abstract

Under American law, a stranger generally bears no duty to rescue another, even another in a life-threatening situation, and even if the rescue could be accomplished with little or no inconvenience or risk. This contrasts with the rule in many European countries that people do bear a legal obligation to render assistance to others in imminent peril when doing so would not place the potential actor at risk.1 In his contribution to this symposium, Professor Kleinig examines the support for the American view. Many who defend the American rule argue that a sharp, categorical distinction separates harm-causing conduct that is properly sanctionable from failures to rescue. Failures to act, including failures to rescue, allegedly exhibit a difference in kind from actions that justify, indeed demand, different legal treatment. That difference is variously described: as the difference between causing harm and conferring a benefit; as that between negative duties and positive duties; as that between duties of a specific obligor to a specific obligee (perfect duties) and those that take no specific obligee (imperfect duties); or as that between obligations that do not intrude upon individual liberties and those that do. One or more of these distinctions