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.
Phil Ochs wrote a song referencing the Kitty Genovese tragedy called, “Outside of a Small Circle of Friends”.
Look outside the window, there’s a woman being grabbed
They’ve dragged her to the bushes and now she’s being stabbed
Maybe we should call the cops and try to stop the pain
But Monopoly is so much fun, I’d hate to blow the game
And I’m sure it wouldn’t interest anybody
Outside of a small circle of friends.
Riding down the highway, yes, my back is getting stiff
Thirteen cars are piled up, they’re hanging on a cliff.
Maybe we should pull them back with our towing chain
But we gotta move and we might get sued and it looks like it’s gonna rain
And I’m sure it wouldn’t interest anybody
Outside of a small circle of friends.
Sweating in the ghetto with the (colored/Panthers) and the poor
The rats have joined the babies who are sleeping on the floor
Now wouldn’t it be a riot if they really blew their tops?
But they got too much already and besides we got the cops
And I’m sure it wouldn’t interest anybody
Outside of a small circle of friends.
Oh there’s a dirty paper using sex to make a sale
The Supreme Court was so upset, they sent him off to jail.
Maybe we should help the fiend and take away his fine.
But we’re busy reading Playboy and the Sunday New York Times
And I’m sure it wouldn’t interest anybody
Outside of a small circle of friends.
Smoking marijuana is more fun than drinking beer,
But a friend of ours was captured and they gave him thirty years
Maybe we should raise our voices, ask somebody why
But demonstrations are a drag, besides we’re much too high
And I’m sure it wouldn’t interest anybody
Outside of a small circle of friends.
Oh look outside the window, there’s a woman being grabbed
They’ve dragged her to the bushes and now she’s being stabbed
Maybe we should call the cops and try to stop the pain
But Monopoly is so much fun, I’d hate to blow the game
And I’m sure it wouldn’t interest anybody
Outside of a small circle of friends.
[ Additional verse, 1974 ]
Down in Santiago where they took away our mines
We cut off all their money so they robbed the storehouse blind
Now maybe we should ask some questions, maybe shed a tear
But I bet you a copper penny, it cannot happen here
And I’m sure it wouldn’t interest anybody
Outside of a small circle of friends.
http://www.musicsonglyrics.com/P/philochslyrics/philochsoutsideofasmallcircleoffriendslyrics.htm
Phil Ochs was born in El Paso, Tx. in 1940 and took his own life in 1976.
perhaps they thought that if they intervened that the perp/perv would throw the woman into the track area onto the third rail whereby she would have been killed. According to the media this is what he was threatening to do to her if she resisited. The transit workers were probably terrified themselves.
One thing is fur sartin. When you get seamus n’ Bob together on the same thread thar’s bound to be laughter. Amos n’ Andy they’s ain’t, but…
Bob,Esq:
“Half the credit goes to your straight man setup.”
*****************
Just call me Dan Rowan.
Mespo,
Half the credit goes to your straight man setup.
david W:
While good Samaritan laws are not fool proof and there are foolish employers, doing what is right still is to be encouraged. No one ever said that acting responsibly was free of risks–like every other human endeavor–but the greatest difficulty might be living with yourself if you fail to act.
Then again, no good deed goes unpunished. If you do try to help someone you could end up being sued by them. See this recent article. Alternatively, you could be fired from your job (see this article) or be left with a stack of unpaid medical bills if you get injured in the process (see this article).
As for the Yania case, like Phil Collins used to sing: “Well if you told me you were drowning, I would not lend a hand . . .” In The Air Tonight (1981).
Bob,Esq:
ROFLMAO
Seamus,
Ed Norton: “Hey Ralph, mind if I smoke?”
Ralph Cramden: “I don’t care if ya burn.”
Seamus:
“Are we required to step in every time we see some ghetto-fabalous parent yanking their todler’s arm socket out of joint? Are we required to step in and pay for medical treatment for poor people that we’ve become aware will die if they don’t recieve it? What about some homeless mentaly ill gooned-out vet who is clearly starving and/or freezing to death?”
************
“No man is an island,
Entire of itself.
Each is a piece of the continent,
A part of the main.
If a clod be washed away by the sea,
Europe is the less.
As well as if a promontory were.
As well as if a manner of thine own
Or of thine friend’s were.
Each man’s death diminishes me,
For I am involved in mankind.
Therefore, send not to know
For whom the bell tolls,
It tolls for thee.”
–John Donne (1572-1631)
Meditation 17
Devotions upon Emergent Occasions
9 Then the LORD said to Cain, “Where is your brother Abel?”
“I don’t know,” he replied. “Am I my brother’s keeper?”
10 The LORD said, “What have you done? Listen! Your brother’s blood cries out to me from the ground.
11 Now you are under a curse and driven from the ground, which opened its mouth to receive your brother’s blood from your hand.
12 When you work the ground, it will no longer yield its crops for you. You will be a restless wanderer on the earth.”
–Genesis 4:9-12 (New International Version)
seamus,
Way I see it:
Family first and whatever else you can do second.
Hearts of stone.
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.
The reason these stories are so shocking is that they are relatively rare. I remember reading about that Genovese case years after it happened when I was in highschool.
How far would imposing some sort of “Good Samaritan Law” a la the final episode of “Seinfeld” go?
Are we required to step in every time we see some ghetto-fabalous parent yanking their todler’s arm socket out of joint? Are we required to step in and pay for medical treatment for poor people that we’ve become aware will die if they don’t recieve it? What about some homeless mentaly ill gooned-out vet who is clearly starving and/or freezing to death?
I’ve come across all of these people in the last few days here in beautiful Chicago. The government sure the Hell isn’t going to do anything. I sure as Hell didn’t do anything either.
I’m pretty sure I would have helped somebody being attacked because I did it a couple years ago and ended up with my glasses broken and a fat lip.
For some reason the people who are about to become abused, dead, etc. but which are victims of “social problems” instead of “criminal attacks” don’t seem to deserve my sympathy, with the possible exception of the kid recieving the spiral fracture from his mother. In that case I’m usually just comfortable hiding amongst all the other people standing around pretending not to notice.
Mespo:
“Why was there no duty imposed from her status as a passenger on a common carrier where the carrier supposedly has the highest duty at law to protect its customers?”
While I may think and feel that the transit workers should be tarred and feathered, even if you deemed the entire NY subway system a zone of danger it doesn’t follow that their negligence, if any, was criminal.
Anonymously Yours, the attackers left unhampered and are currently at large.
What precisely is the authority of the Transit Police regarding this situation. These transit workers are either the most apathetic people on the planet or the most pusillanimous. I think the latter.
The actions of the transit workers were morally disgusting, but I agree with mespo. Isn’t the issue here not the rescue doctrine, but the breach of the transit authority’s duty to provide adequate security for its passengers? Is there some issue of sovereign or statutory immunity that I’m missing?
This is sad, sad, sad. Ok, presuming no liability on the part of the Transit Authority, what happened to the “attackers”?
Wow. First the falling bodies thread now this pleasant one. I saw this story a day or two ago and I was a bit shocked by it then. I understand the legal reasoning of the court in this subway case, I just can’t understand why more wasn’t done to help this poor woman. As the victim commented, even if they had gone on the intercom and said something, it might have scared the attacker enough for him to leave. I have to agree with the European rule in this situation. Another phone call to the police directly might have helped and just grabbing the closest pipe or something to attempt to convince the attacker that it was time to flee would have been reasonable. A very sad case.
So much for the myth of tough New Yorkers. Why was there no duty imposed from her status as a passenger on a common carrier where the carrier supposedly has the highest duty at law to protect its customers?