Under the common law, one of the more controversial rules is the “no duty to rescue rule” that says that, if you were not responsible for placing someone in danger or risk, you have no obligation to help them even when it would cost little to save their life. A New York judge has shown how far this rule extends in clearing two transit employees would did nothing but call their superiors while a woman was raped in their station.
The latest case occurred four years ago when the young woman was pulled down the stairs of the subway in full view of a subway clerk and then raped even as a subway train pulled into the station. The 26-year-old graduate student was repeatedly raped as the clerk and other transit worker did nothing beyond notifying a superior that police assistance was needed.
The no duty rule was the basis for the famous ruling in Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959) where a man watched another man drowned without taking any efforts to assist him. Even though Bigan dared Yania to jump into the hole full of water, the court found that this made no difference since these taunts were “directed to an adult in full possession of all his mental faculties constitutes actionable negligence is not only without precedent but completely without merit.” On the rule itself, the Court wrote:
Lastly, it is urged that Bigan failed to take the necessary steps to rescue Yania from the water. The mere fact that Bigan saw Yania in a position of peril in the water imposed upon him no legal, although a moral, obligation or duty to go to his rescue unless Bigan was legally responsible, in whole or in part, for placing Yania in the perilous position: Restatement, Torts, § 314. Cf: Restatement, Torts, § 322. The language of this Court in Brown v. French, 104 Pa. 604, 607, 608, is apt: “If it appeared that the deceased, by his own carelessness, contributed in any degree to the accident which caused the loss of his life, the defendants ought not to have been held to answer for the consequences resulting from that accident. … He voluntarily placed himself in the way of danger, and his death was the result of his own act. … That his undertaking was an exceedingly reckless and dangerous one, the event proves, but there was no one to blame for it but himself. He had the right to try the experiment, obviously dangerous as it was, but then also upon him rested the consequences of that experiment, and upon no one else; he may have been, and probably was, ignorant of the risk which he was taking upon himself, or knowing it, and trusting to his own skill, he may have regarded it as easily superable. But in either case, the result of his ignorance, or of his mistake, must rest with himself – and cannot be charged to the defendants”. The complaint does not aver any facts which impose upon Bigan legal responsibility for placing Yania in the dangerous position in the water and, absent such legal responsibility, the law imposes on Bigan no duty of rescue.
Recognizing that the deceased Yania is entitled to the benefit of the presumption that he was exercising due care and extending to appellant the benefit of every well pleaded fact in this complaint and the fair inferences arising therefrom, yet we can reach but one conclusion: that Yania, a reasonable and prudent adult in full possession of all his mental faculties, undertook to perform an act which he knew or should have known was attended with more or less peril and it was the performance of that act and not any conduct upon Bigan’s part which caused his unfortunate death.
The New York case is based on the notion that transit employees are not expected to act as police. However, these two employees did virtually nothing. They could have gone on the intercom or sought ought additional help to stop the attack. While they may have been cleared legally, there is a distinct lack of humanity and courage in their actions.
Europeans have always criticized our rule and many countries have long recognize a duty to rescue — though usually that obligation ends with any physical risk. Feminists in the United States have also called for the end of the rule and the emphasis on a collective obligation as opposed to the intense individual autonomy model underlying the rule. Even Judge Richard Posner has argued for tort liability for the failure to carry out low-cost rescues.
New York was the scene of perhaps the most infamous example of citizens failing to act to protect a victim.
Kitty Genovese (right) 
was stabbed to death near her home in Queens on March 13, 1964. She was stabbed twice in the back by Winston Moseley and screamed, “Oh my God, he stabbed me! Help me!” While someone yelled, “let that girl alone” and Moseley ran, no one called the police. Genovese crawled away, but Moseley returned ten minutes later and searched for her. Over the course of half an hour, he raped her and then murdered her. Somewhere between 12 and 38 people are estimated as having heard the assault. When witness Karl Ross finally called the police, they arrived within minutes.
For the full story, click here.
I think that the judge got it right. Both the booth worker & the train conductor reported the assault to their superiors, who relayed it to the police as soon as they were aware of the crime in progress. This means that the workers did summon help for Maria as soon as they were aware of her being attacked. It’s likely that calling the police would cover any requirements on the basis of the MTA being a business or common carrier to it’s customers. The police were promptly called in this instance, by MTA command.
I disagree with any legal liablity for bystanders to crimes. Who is to fairly determine what is an “easy rescue” for anyone? How can that be done fairly since one doesn’t necessarily know the abilities of the bystanders involved in physical confrontation? Most likely such judgements would be broad brushed based on the gender and age fo the bystander, but people of the same age or the same gender differ in ablity. Not every person is up to being a hero, and I don’t think we should punish people, under the law, for not being up to heroism, for whatever reason.
The bystanders to such a crime also have no way of knowing in advance whether or not the perp has a concealed weapon. Armed perp makes any rescue attempt both significantly more difficult, and significantly more dangerous. There is no guarantee that a perp will automatically show his weapon when commiting his crime, he can always decide to keep it concealed, as an extra card to play should the situation change in his victim’s favor.
The using the PA argument doesn’t really work either IMO, it amounts to punishing someone because in the heat of the moment they may have not even thought of that possiblity. Can we really expect that a bystander to a situation they’re neither prepared for nor expect to happen is going to be able to think of all possible options, at a moment’s notice? Do we really expect that if given enough time, people judging after the fact won’t think of something that the bystanders to any particular situation didn’t? Those judging after the fact have much more time, and much less pressure to examine all options, something not afforded to the bystanders at the time of the crime.
My comment on common law is not a offical law which should be and I hope in the near furture it becomes a law, than this will occur(this does not mean the marriage aspect) when ever a person(s) are in peril then it is the moral duty for every citizen to assist assistance to that person(s) it not agaisnt the law not to assist people in peril (which personally I feel it should be a law that if you near or come upon a crime occurring to another person then it is your duty to assist that person. Now in Wyoming this not the case were the common law is not in place: however if you do assist a person in need and you can’t save them (or you make and attempt to try and you fail) the family of the victim can not sue you (in civil court) for negligence or manslaughter because you made an attempt to save thier lives.
Colleen asks a valid question. I’d like to try to give a valid answer.
What is wrong with us is the American legal system. Imposing any “duty to aid” beyond placing a phone call to police involves imposing a risk upon an individual that they do not choose to bear voluntarily. Gee, how bad can that risk be.
Be advised when you insert yourself into any potentially violent situation you are making a wager – what are you betting? Your life, your health, your freedom, and your wealth. Your life, (that the assailant of the other person will not turn on you and kill you), your health (that the assailant will not seriously injure you). your freedom (that you are intervening on the right side as judged by a D.A. acting in the bright sunlight and unhurried decision-making of 20/20 hindsight will not charge you with some crime), and your wealth (that you will not be sued by the assailant for disproportionate force or by the victim who alleges some injury or the other was caused or worsened by your intervention).
All-in-all, with the current legal circumstances, I read the situation that as the “community” is saying rather plainly that only fools go looking to insert themselves into other people’s situations.
Under common law there is a duty to act when there is a special relationship between the parties involved. An innkeeper with its guests / a school with its students / landlord with their tenants / AND a business open to the public WITH ITS CUSTOMERS. So I think the judge was on drugs when he decided this case. those workers had a moral and Legal obligation under common law to act. In my opinion they did virtually NOTHING. they didn’t even do the minimum of yelling or screaming or even calling 911. European countries have long recognized the moral obligations reqired of its citizens. what is wrong with us?
“Not every action or inaction that defines one as an unmitigated ass-hole should trigger criminal or civil liability. Personal and individual liberty is, in theory, prized above all else in the U.S.”
Personal and individual liberty? Really? They are more important than preservation of life and protection from physical harm? I disagree, I think the preservation of life and protection from physical harm is more important and we have laws that specifically restrict individual liberty in order to ensure this.
I do not think everyone has to be a hero and put their own lives on the line, but how on earth is it a restriction of your liberty to say you have to call the police if you see someone getting raped or beat to death? I mean come on.
Also, have you ever heard of taxes? You already are paying for poor people to get health care, its called medicaid… You’re paying for old people too btw.