Tunisan Nadar Khiari, 28, will soon be back on his way to Tunisia and should consider himself fortunate that he avoided a longer stay in Sweden after an despicable crime caught on camera. Khiari was waiting for a train when he saw a drunk man fall on to the train tracks. At first, the video below suggests that Khiari is coming to the man’s aid. Instead, Khiari jumps down and robs the unconscious man and leaves him on the tracks where the man is struck and lost his foot (but miraculously survived).
Unlike many countries, Sweden does not have a good Samaritan law requiring either low-risk rescue (which might not be the case in jumping on to train tracks) or, more importantly, alerting police or authorities to someone in peril. In that sense, Sweden follows the same approach as the United States with a “no duty to rescue rule.” Indeed, we have had such cases on train tracks involving station employees.
Given the lack of a rescue rule, Swedish court ordered Nadar Khiari to pay just $1,800 in damages to his victim and ordered him to be deported after serving his 1 1/2 year sentence. It is a pretty light sentence given the fact that he robbed a helpless man and left him to die. It is particularly light given that fact that Khiari was also convicted of an earlier theft.
Khiari is one of those people who sees suffering and wants to benefit from it. He stole the man’s cellphone, a silver case and a gold necklace.
In the United States, 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 drown 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.
Of course, Bigan did not first rob Yania before he slipped beneath the water. The Swedish case however highlights the distinction between low cost and high cost rescues. Judge Richard Posner, one of the most important names in the law and economics movement, has written that it would be efficient for the United States to modify its common law rule to require low cost rescues. Such rescues, including calling the police, can avoid huge costs (as here) at little cost. This cost differential supports what Posner says is the economics of altruism. Other writers like Leslie Bender from a feminist perspective have also criticized the “no duty to rescue” rule.
Source: National Post