No Duty to Rescue Rule: Court Holds That New York Transit Workers Had No Obligation To Help Woman Being Raped in Station

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.

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