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. shano and bettykath, Ask anyone who has worked in a disaster area, I have twice. The Salvation Army is great, the Red Cross is a business run by the likes of Elizabeth Dole.

  2. We are the culture of Nascar where we love to see the cars flipping over and not caring for the welfare of the driver or of the bystanders in case if they are hurt. We are the culture of Football concussions and paid bounties to put other players on the stretchers and live to talk about it gleefully. We are the culture of blocking our side of the freeway just to watch the mangled cars on the other side.

    Till we stop being this robotic and hence start feeling & doing things humanely, we are bound to get worse.

  3. In my world, the matter of jumping in and giving aid while off-duty has been a serious hot-button issue for decades. And because EMS nearly always falls under county jurisdictions, you can bet there are 10-dozen interpretations of what off-duty medics – as lifeguards – “ought” to do.

    Good Samaritan statutes are sometimes blurred with the “duty to rescue.” We are taught that – under common law – the Good Samaritan act provides some level of protection against torts arising from an imperfect rescue. Such laws do not constitute a “duty to rescue,” such as when you are on-duty and under the color of a uniform. In this regard, the Argentine Law & the German Law seem rather more civilized than ours.

    Regretfully, the most consistent advice from medical-legal pros who address us at our gatherings, is that no medical professional should count on the Good Samaritan doctrine to be of much protection, in the event of a lawsuit subsequent to their jumping in and helping. The laws exist to encourage non-professional bystanders to help if they can.

    A licensed medical professional is held to a very high standard, one that’s hard to meet on the side of the highway at night.

    So the end result among my rather large circle of medical pros – from doctors to nurses to medics – is pathetic:

    “Sorry. I just don’t stop anymore. I used to. Then I learned better.”

    We’ve all hear the horror stories 10 times over.

    So will I personally stop & help the next downed citizen I see?

    I honestly won’t know until it happens. And I take absolutely no pride in that whatsoever.

  4. Bad idea to legislate a duty to help. As to this particular situation, I’d have to know a lot more before condemning those nearby.

  5. This victim did not intentionally put himself in harms way. Someone could have ran up and dragged him onto the platform without much risk. But nobody did, cowards. I have always wondered why some form of gate wasn’t placed on subway platforms. But then again not all streets are lined with gates either.

  6. We can have an idealised version of how we will react in a crisis but we never know until faced with such a challenge. As a lifelong New Yorker, I had one opportunity to be involved. I was walking down the street when I saw someone running as fast as the could towards me while being pursued by a police officer. I was able to grab the man being pursued and physically stop him until the officer took control. There was little thought process on my part. However, I often ask myself ,if I was not 10% larger would I have stopped him or if the suspect tried to run over me rather than go around which gave me a better angle to stop him would I have avoided the situation. I have no idea.

  7. That no one tried to help this man says a lot about our species. That he was deliberately pushed onto the tracks and in harm’s way says even more. But one cannot legislate a duty in this instance. If conscience could be mandated, we’d have no problem with socio- and psychopaths. To help or not is ultimately just that: a question of conscience weighted against the instinct for self-preservation.

  8. please do include myth’s, Genovese case, as proof that people don’t care.
    this only makes me feel that your judgement is based on voodoo…

  9. Freakonomics dispelled the Kitty Genovese myth. Regarding the law, you can’t legislate balls and honor, either you have it or you don’t.

  10. Reports have stated that the deceased was on the track bed for sixty to ninety seconds. The excuse that the photographer gave does not make sense as there was plenty of time to get others to pitch in, or he could have coaxed the man to walk to the end of the platform where he would have been out of harms way, or he could have gone up a flight of stairs and alerted the token booth attendant who could have had the subways stopped and the power turned off. Generally, when one person starts to help multiples join.

  11. Does the desire to require bystanders help also apply to a group (which I’m not allowed to name accurately) whose job it is to help? According to incompetent and corrupt judges like Antagonizing ScumLiar, they are exempt from doing their job or helping the public, even if they know of and witness a crime being committed.

    http://www.nytimes.com/2005/06/28/politics/28scotus.html?_r=0

    ————————————————————

    Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone

    By LINDA GREENHOUSE
    Published: June 28, 2005

    WASHINGTON, June 27 – The Supreme Court ruled on Monday that the police did not have a constitutional duty to protect a person from harm, even a woman who had obtained a court-issued protective order against a violent husband making an arrest mandatory for a violation.

    The decision, with an opinion by Justice Antonin Scalia and dissents from Justices John Paul Stevens and Ruth Bader Ginsburg, overturned a ruling by a federal appeals court in Colorado. The appeals court had permitted a lawsuit to proceed against a Colorado town, Castle Rock, for the failure of the police to respond to a woman’s pleas for help after her estranged husband violated a protective order by kidnapping their three young daughters, whom he eventually killed.

  12. I am against creating a legal duty to try and rescue but it is disturbing that there was time to photograph this situation but no time to even try to help. I think this decision is extremely troubling.

    It is true that police have no duty to rescue. They don’t even have a duty to protect a battered women from her batterer even when she has a protective order.

  13. While I am sorry for the poor victim in this case, he forgot that he could find a safe place between the tracks under the subway cars. I have ridden the subway many times, and I always had this as an escape route if I found myself in that situation.

  14. I’d have to say that the law is probably right, there is no legal duty to try and save someone. If, for instance, I tried to save someone from drowning it is most likely that I would drown not rescue. If I saw someone drowning I would be very conflicted but that choice should be mine. The law should not require me to endanger my own life on the chance I might save someone.

    Outside of a legal duty though is a moral responsibility. If it were within my means to at least try to save someone I believe I have that responsibility to try. I’d like to think I would have at least made an effort had I been within reach of this guy. But then we never know what we might do when the moment comes. sadly, nobody came through for this guy.

  15. The police have no duty to rescue either so what does compelling people to call them do exactly?

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