U.S. society contains an uneasy tension between individualism as an end in itself, and growing acknowledgement of the individual’s duties to others.
Paul Simon and Carole King, NYC, 1959. Photo by Michael Ochs
Friends. With a Little Help From My Friends.1 Umbrella. We’re Going to Be Friends. Lean on Me. Stand by Me. Count on Me. Buddy movies. Bromances. Man crushes. Girl crushes. Womances. It Takes a Village to Raise a Child. No Man Left Behind. In songs, TV, movies, books, greeting cards, social media–indeed, in every aspect of communication–themes of friendship, community, and human connection abound. These themes exist, uneasily at times, with themes of individual liberty. Bert and Ernie versus Edward Scissorhands. Walter White and Jesse Pinkman versus Travis Bickle. Harry Potter and Ron Weasley versus Batman. Thelma and Louse versus Wonder Woman. “If your friends are there, then everything’s all right” versus “I want to be alone.”
Surfers Mick Fanning and Julian Wilson were competing for first place in a professional tournament in South Africa when a shark attacked Fanning , knocking him off his board. Fanning punched the shark, got away, and was quickly pulled onto a rescue Jet Ski. Caught on live TV, it’s a harrowing story–even before taking into account Wilson’s response. When he saw the attack, Wilson swam toward Fanning, not away. Fortunately Fanning’s quick rescue allowed Wilson to abort his confrontation with the shark and be picked up by another Jet Ski.
A story like this has universal appeal. We ask, “what would I do in Julian Wilson’s situation?” Until we find ourselves in a situation where helping another puts our lives at risk, we don’t know the answer. It matters not how brave, or cowardly, we think we are. Such responses are instinctual. We can surprise ourselves, for good and bad.
What are the consequences if we see a person in danger, could help her without risking ourselves, and fail to act? Can we be held legally liable for our inaction? Under U.S. law’s Bystander Rule, we have no legal duty to help.
For example, assume that one day you are walking along the Esplanade. You hear yelling, look for its source, and see that I am floundering in the Charles River. Our eyes meet. “Help!” I cry. You stop walking, lean on a bench, and gaze at me. “Help!!” I call again. You don’t respond. “I’m drowning!” I explain, thinking you need a prompt to understand the situation. “I know!” you reply. “I’m in the Questrom Honors Program!” You take off your backpack and place it on the bench. I think you are preparing to leap into the water to save me, but you are just getting more comfortable. (Textbooks are so heavy.) The last image I see before sinking beneath the Charles is your face, calmly watching me disappear.
Assume you can swim, it’s a warm day, and you could have helped without risking your safety. Have you violated your ethical duty to me? Most of us would answer yes. Reverse the situation, and you would want me to rescue you.
Have you violated your legal duty to me? In other words, if my family sues you for failing to help, for watching passively as I drown, will a court hold you liable? No. Under common law rules dating back centuries, a bystander has no obligation to help a person a need, even if he can do so without risk to himself. You can watch me drown without incurring any legal liability. If I am floundering in the river because you hip-checked me into the water, then you are not a bystander and this rule would not apply.
There are exceptions. For example, parents have a legal duty to protect their children, hired bodyguards have a legal duty to protect their clients (to the extent specified in the contract between them), a landowner has a legal duty to protect persons on his land (how much protection the owner must provide may depend on why the person is on the land), and an employer has a legal duty to protect third parties from injuries caused by his employees.
Another exception can arise from the nature of the relationship between the bystander and the injured party. The Tarasoff case, one of the most famous court decisions in this area of the law, changed the duties of mental health professionals when their clients pose a risk of harm to others. We’ll discuss Tarasoff and its ramifications in class.
Seinfeld’s series finale applied a wrinkle to this theme. Trouble with their private jet strands Jerry, Kramer, Elaine, and George in Massachusetts. On a sidewalk discussing their options they see a man across the street across being robbed.
Jerry et al land in jail for violating the “Good Samaritan” law. End of episode, end of series, enter syndication.
Good Samaritan laws exist in every state, but they don’t work like the law in Seinfeld. Rather, they shield from liability a bystander who tries to help an injured person but, in doing so, negligently causes the victim harm. By protecting the bystander from liability they encourage aid to the injured party.2
- Don’t forget Joe Cocker’s version at Woodstock
- The American Association of Orthopaedic Surgeons summarizes U.S. Good Samaritan laws.
Paul Simon I am a Rock Carole King You’ve Got a Friend Questrom School of Business SM233