New York Subway Killing Raises New Questions Concerning The “No Duty To Rescue” Rule

img_1373-4_3_r560The gruesome death of Ki-Suck Han at the Times Square Station has again raised the question of the “no duty to rescue” rule. In this case, Han, 58, was pushed by a man on to the tracks and struggled to climb out of the way of the approaching train on a platform with people who simply watched and one, a journalistic photographer, snapped pictures.

I gave an interview to the Wall Street Journal yesterday on the issue for an article this morning. The rule has routinely arisen in appalling cases where people have stood by without taking action or even calling the police. Yet, the rule remains largely due to the difficulty in drawing a line between a moral and legal responsibility.

The picture was shot by freelance photographer R. Umar Abbasi, who insisted that he was simply not strong enough to lift the man but, rather than try, he decided to snap pictures. He has given interviews insisting that he acted appropriately and that the situation unfolded too quickly to do anything to help Han.

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.

About a dozen states have passed laws requiring rescue in low-cost situations. These laws make it a misdemeanor to not act but are generally not enforced. Indeed, I would be very skeptical about the enforceability of such laws in most situations as a criminal matter.

In this case, a platform with people watched as Han was killed without literally lending a hand. Instead, the only action was to record the scene for later publication.

ht_nypd_suspect_train_kb_121204_wgThe man who pushed Han has now reportedly implicated himself. He will obviously face judgment after we determine his competency. However, it is the judgment of the onlookers that should occupy New York in the coming weeks.

New York has struggled with this rule previously. New York was the scene of perhaps the most infamous example of citizens failing to act to protect a victim.
Kitty Genovese (right) kittygenovesewas 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.

Source: USA Today

30 thoughts on “New York Subway Killing Raises New Questions Concerning The “No Duty To Rescue” Rule”

  1. Whether it’s Kitty Genovese, Maria Besedina, Leonard Sims, Ki-Suck Han, or any other person in danger I’m opposed to legal duty for bystanders to rescue people. It should be the person who is inflicting the harm upon another person, deliberately through direct action, who is subject to legal punishment. (same for recklessly endangering others through deliberate & direct action) People who happen to be there at the time, IMO, should be immune to legal punishment should they choose to not get involved. Those people likely never agreed to take care of every stranger that happens to be in danger.

    If I’m ever in a situation where something goes down near me, I don’t want to be hauled into court simply because I thought the situation was too dangerous, or my attention was elsewhere and I simply didn’t see it. My course of action will depend on the circumstances, and will most likely involve, at most, me taking out my cell phone and dialing 911. Can people in underground subways even get cell reception? There are no subways where I live so I don’t know. I tend to be a cautious person on these types of things, and I don’t think that being cautious should be legally punished, in a situation that was not of my own making.

    As the person who owns my life, it should be my decision whether or not to intervene in a rescue situation (not limited to this one). The person with the best knowledge of my ablities in such a situation would be me. No one judging me after the fact would be able to know what I should, or shouldn’t be capable of handling. They don’t know what my level of physical ablity is, my tolerance for danger, what my reaction time is, what level of training I may or may not have specific to the situation, even what level of calmness under pressure or lack thereof, are normal for me. I question the judgement could ever be fair without knowing those things.

    I oppose the idea that the courts should be able to decide what an “easy rescue” is. Perps of crimes are quite capable of having weapons, whether brandishing them or having them concealed. I don’t want to be told that if I don’t see a weapon out, that I have to assume that the perp is unarmed. That’s a very risky bet, and the stakes of said bet is serious injury or death. If that assumption is wrong I don’t get to hit the reset button. If the perp then pulls out a knife or a gun it could well be the end of my life. This is a decision I should make for myself

    Each rescue situation is unique, and there’s more time for analysis after the fact than there is during the time when it’s occuring. Bystanders would be at a disadvantage, and I don’t think that their decisions on whether or not to get involved should be subject to legal second-guessing by people who have more information, little pressure, and all the time they need to make a decision.

  2. Just remember the Golden Rule, folks: that is your guide! All of you have already made the decision as to what “you would do” is such a similar situation is presented….

  3. even if in the Kitty Genovese case there weren’t 38 witnesses, there have been plenty of other cases where the bystander effect is noted. I would include the case recently posted on this blog, with the young man passed out and many of the people around him molested him. There were many bystanders there who did nothing. Why they did nothing to stop the amoral and disgusting acts done unto the passed out man, only those people can say for sure.

    There are my hypotheses as to why – and i’m pretty sure that our current problem with bullying in schools is related to this entire phenomenon, or the bystander effect.

    Why didn’t anyone help this man? were they afraid that if they were unsuccessful they would be harmed or sued? Did they fear that they would be pushed in simply for helping? perhaps. did they think that the train would see him and stop before hitting him? we just don’t know. What we DO know is that many people watched him die. Does justice need to be served upon these bystanders? I’m sure their nightmares alone will cover that.

    it is a sad state of affairs when people THINK before helping someone who is desperately attempting to SAVE HIS OWN LIFE. I would like to think that i would have helped him without even thinking about it. I would also like to think that there are many other people who would have done so – but obviously not.

  4. Gene, Thanks for the update. He’s a “former deli worker”..well so am I. Let’s not stereotype deli workers.

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