Law and Philosophy 1 (3):391 - 418 (1982)

Theodore M. Benditt
University of Pittsburgh (PhD)
Should there be civil liability when a person who could easily and without risk rescue another fails to do so? It is argued that the failure to act does not cause the harm that follows, and that the misfeasance/nonfeasance distinction provides no basis for liability. In spite of this, it is maintained that there can sometimes be a duty to rescue, and even a right to be rescued, even in the absence of a voluntary undertaking or an explicit assumption of responsibility.There are convincing arguments for some sort of legal recognition of a duty to rescue, but these arguments do not support tort liability. Nor is a case for tort liability made with the argument that a growth of tort law in this direction would be compatible with the values most centrally involved in the division between torts and contracts. Furthermore, there is a case against tort liability — namely, that the purpose of tort liability is to compensate, that there are certain sorts of situations in which compensation is apposite, and that failure to rescue does not fit into these categories. Criminal liability is the appropriate way for the law to recognize a duty to rescue.
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DOI 10.1007/BF00231222
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