An Argument Against a Legal Duty to Rescue

1. People with little close acquaintance with the law are sometimes surprised to learn that there is at common law, and in most statutory jurisdictions in the English-speaking world, no general duty to render aid to individuals who are in trouble.

Indeed, to a layperson reading the relevant case law, it almost seems that the courts sometimes try to make this principle seem as shocking as possible. In one decision that is often cited, a unanimous state supreme court held that, not only did an eight year old boy have no right to be rescued by the defendant from having his hand caught in a machine in the defendant's factory, but he (the boy, as a trespasser) would even have been liable for damages to the defendant in this case had his hand, in being ground up by the defendant's machine, damaged the machine.(1)

It is easy to make judgements like these sound very counterintuitive, as I hope I just have. Yet despite this fact, and despite the fact that the traditional common law rule on this issue has been eroded in the recent decades, the position of the courts on this subject is still surprisingly rigorous. Indeed, most of the so-called exceptions to the doctrine do not really seem to be exceptions at all.

In one group of "exceptions," individuals have an obligation to rescue people from risky situations which they, the potential rescuers, have caused, even if the act that caused the hazard was involuntary. Thus the drivers of two trucks that had, as a result of apparently unavoidable accident, blocked a highway were held liable for injuries when a woman's car crashed into the trucks. The reason was that they probably could have prevented the accident by placing flares or a guard at a bend in the road fifty feet from the trucks, and they did not do so.(2)

A plausible explanation of this sort of judgement would go like this: Even though the drivers were not at fault for the original act that caused the hazard, they were to blame for the injuries that eventually resulted, for they voluntarily omitted a precaution that would have prevented it. At the time that the original hazard was created, it was still not too late to avoid causing the injuries, but by omitting the precaution this is precisely what they failed to do. This means, when the double negatives are canceled out, that by their voluntary actions they have become the causes of injuries to others. The duties that are violated in such cases are simply applications of the deepest and most pervasive duty in the common law of tort: the duty to avoid causing physical harm to others. Of course, what the "no duty to rescue" rule allows is the failure to save people from harm, not the failure to avoid causing it.(3)

In another group of alleged exceptions, people can acquire an obligation to rescue others based on a "special relationship" with those others, where this relationship is defined by social conventions or practices of some sort or other. Examples of such relationships are those that hold between common carrier and passenger, bar tender and customer, employer and employee. Many of these cases can be explained on the basis of the causal reasoning I just discussed(4). Most of those that remain can be explained on the basis of contractual or contract-like principles.(5) Along such lines, for instance, we can argue that a special duty to rescue applies to employers, even when they do not cause the injuries that occasion the need for help. Because no one would ordinarily accept an employment agreement in which the employer states that no attempt will be made to get the employee to a hospital in the event of an injury on the job, a clause promising such help can usually be assumed to be part of the agreement.(6)

An exception, strictly speaking, is a case in which a principle, as understood by those who use it, has implications that the same people recognize to be false. What the principle that there is no general legal duty to rescue means is that there is no duty to rescue people from harm, as contrasted with the very real duty to avoid causing harm, and apart from the more or less contractual sources of positive obligations to help. Between two strangers, there can be no such duty. The fact that both of them are human beings is irrelevant: there must be some closer link between them. It is also legally irrelevant how desperate the need of the injured person is nor how easy their rescue would be.

Of course, such things are not morally irrelevant, and that is no doubt a good part of the reason why this feature of the law seems somewhat shocking to ordinary human sensibilities. We know that law and morality are different, but we do not expect them to diverge so widely. There is a strong tendency in many of us to think that, as A. M. Honoré once said, "the law should reflect, reinforce, and specify, at least that segment of the shared morality which consists in moral duties owed to others."(7)

What I would like to do in what follows is present reasons why it is desirable that the law should diverge from morality in precisely the way that it does, as distasteful as some of the concrete implications of this divergence might be.

2. Antony Honoré gives the following as one of the reasons why there should be a legal duty to rescue:

Rules of law which mirror moral duties have, among other things, an educative function. They formulate, in a way which, though not infallible, is yet in a sense authoritative, the content of the shared morality. They specify morality by marking, with more precision than the diffused sense of the people can manage, the minimum that can be tolerated.(8)

The standard by which Honoré is here judging the current state of the law is a goal that our institutions should help to produce. That goal is the moral education of the citizenry or, more exactly, getting them to understand the principle that they should help others in grave need. The law can help simply by including, within it, a duty to rescue. It would do so by adding to our shared morality two things that, on this particular issue, it presently lacks: 1) the authoritative prestige of the law, and 2) the law's clarity. One of the costs of the present situation, Honoré argues, is that less of an important social goal is produced than would otherwise be the case.

This argument ignores the fact that the proposed change in the law might - and probably would - interfere with the way that another institution promotes the same goal. This other institution is precisely what Honoré calls our "shared morality," or what I will call "positive morality." Positive morality, like positive law, is a collection of standards that are actually in force. It consists of the moral principles which are shared by almost all the people in a given culture and which the individuals who hold them have learned from other people. As such, it clearly represents a form of social control over individual conduct.(9)

Positive morality controls human conduct, in part, by virtue of the fact that it is perceived as doing so. It influences our conduct through the example provided by the conduct of others. In the context of rendering aid, what this means is that people do help others, that they are perceived as doing so because of moral principles that require them to do so, and that this perception is in part what inspires the rest of us to act as they do. The perceptions we have of the motives of others are crucial to the educative function that positive morality performs: helping people because one holds the relevant principles is essential to decent or virtuous behavior, which is what the system is supposed to teach.

If we enlist the law to perform this educative function, it will probably interfere with the way positive morality performs it. It would do so by introducing another motive for helping behavior, one that was not possible before, and one that is at least as powerful an inducement as moral principle is. This is the fear of punishment or liability for civil damages, together with a desire to avoid such sanctions. In such an environment, if we knew that someone rescued someone in need, we might well not be as sure as we were before that they did it because of moral principle.(10)

Thus we cannot assume, as Honoré does, that the legal reform he favors would simply add the prestige and clarity of the law to a system of positive morality, which in itself would go on working as before. The law can blur one of the crucial messages that morality sends. If this effect were strong enough, the proposed reform would to some extent replace virtuous and decent conduct with behavior that is simply compliant.

The failure of Honoré's argument illustrates several themes that will be fundamental to the argument I will put forth here. First, failure to legally require rescue does not, as we might think it does, consign the option of whether to render aid or not to the unregulated chaos of purely individual choice. Personal choice is neither purely individual nor chaotic. Conduct that is not regulated by law is still apt to be regulated to one extent or another by other social institutions. Concerning the option of whether to help others or not, it is particularly obvious that one extralegal institution that does influence personal choice is positive morality.

Second, one of these institutions almost certainly interferes to some extent with another: if one of them is set to solve a particular problem, the other will most likely do less than it did about that same problem before.

The third theme is that, as is often the case in public policy decisions, the issue before us is at least in part a choice between different institutional arrangements. This is obviously true in those policy decisions in which, as seems likely in this case, a proposed institutional arrangement would interfere with a different one that is already in place.

More generally, we are faced with a choice between institutions whenever alternative arrangements would be likely to solve a given problem differently. In the present case, the problem that both arrangements are being asked to solve is whether various individuals, who are in need of help, will be helped by various other individuals. The two institutional arrangements (to be more specific than I have been heretofore) that we are contemplating here are, on the one hand, positive morality working on its own and, on the other, the law together with positive morality, to the extent that it is able to function together with the law. It is very likely that these two arrangements would behave differently in significant ways. We can only have a sound argument for choosing between them one way or the other by finding relevant features of both institutions. That, of course, is what I propose to do here.(11)

3. I will begin by saying something about the relevant aspect of morality. People who engage in helping behavior are pursuing a certain goal: the safety of other people. If, however, they help others in the manner that morality requires, they do not pursue this goal solely in order to achieve some further result, such as winning the approval of others or escaping legal sanctions, to which this end is a means. This sort of conduct differs from other sorts goal-directed behavior, in which ends are sought merely as means to attaining further ends. Here people are acting on some notion to the effect that the safety of others is worth pursuing in itself. This notion would be one of the moral principles, perhaps the most important one, that regulates individual conduct where the troubles of others are concerned.(12)

However, such conduct is like any other sort of goal-directed behavior in several crucial ways. First, the goals that moral principle prompts us to pursue are, like all ends of action, pursued in the face of other goals that one might have pursued. Second, again like all goals, they require the use of resources (including, at a minimum, effort and stretches of time) that cannot also be spent on some of our other goals. It follows that, third, the pursuit of such goals, like the pursuit of any goal, always costs us something. The cost, in this sense, is the value of the goal we would have pursued, but had to forgo in pursuing this one.(13) Fourth, for all the goals that are of interest in the present context, it is always possible to pursue the goal further than one has pursued it so far. That is, with exceptions that for our purposes are trivial, even if one's goal is a discrete action (such as helping someone or attending a movie) one can do this act more times (help more people, for instance, or see more movies).(14)

The four points I have just made are more or less obvious, once one has been brought to think of them. The fifth is more likely to be controversial. It is that conduct in which we pursue moral goals can, like all other goal-directed behavior, be evaluated according to a certain conception of rationality. In this conception, an act is rational if and only if the value of the goal exceeds its cost. This has an implication that will seem wrong to some people, at least at first. The implication is that it is possible for conduct in pursuit of a moral goal to be too costly; if it is, it fails to be rational and is worthy of criticism on that account.

I hope the initial strangeness of this statement will disappear when one realizes exactly what the alternative to it would be. The statement means that all ends, even morally noble ones, should be pursued only up to a certain point and no further: namely, to the point at which, if we were to lavish any more resources on it, we would be have been doing better if some bit of those resources had been devoted to something else. We could only deny this by asserting one of two extremely implausible theses: One is that we should go beyond this point, which would mean that we should fail to spend the resources at our disposal as well as we can. The other is to say that there is some goal for which this point could never be reached, which would mean that there is some goal which is such that it would be desirable to sacrifice all other goals, including all (other) morally good ones. It seems impossible to imagine what that goal would be.(15)

Ethical principles that consist in recognizing a certain end of action as worth pursuing in itself have a characteristic that Kant attributes to what he calls "imperfect duties": they leave "a play-room (latitudo) for free choice in following ... the law, ie.: ... the law cannot specify precisely what and how much one's actions should do toward the obligatory end."(16) Given that I hold a principle that specifies certain end of action as worth pursuing in itself, and given that I do pursue it, conduct in which this end is pursued less than I pursue it is (unless it involves not pursuing the end at all) just as consistent with this principle as my own conduct is. The same is true of conduct that pursues the end more than I pursue it, or at different times, at different places, in relation to different people, and so forth.

Which sort of conduct is better, mine or the alternatives? This question raises a range of problems that the end itself, and the fact that it is dear to me, cannot solve. They can only be solved by an agent who chooses means to a given end in the context of indefinitely many other ends, all of which have value. Whatever the end presently being sought, it is always possible to betray some other legitimate loyalty for its sake, to undervalue some competing end. This is all that my initially surprising stricture about rationality means.

To solve problems of this sort with any degree of rationality requires a particular sort of thinking. For instance, I have at this moment a choice between continuing to write or driving to the University to hear a lecture on a subject unrelated to the one on which I am writing. What the rational course of action would be depends on a number of factors.

One sort of factor is the relative importance of a variety of goals, including not only the extent of my interest in the two different subjects involved but also my desire to avoid the sort of stress that might be involved in having to hurry back from the University to pick up my son at the home of his daycare provider, my desire chat with various people who might be at the lecture, and indefinitely many other objectives that might or should appeal to me.(17) Another sort of factor consists of the particular facts of the circumstances of my choice. How well has my writing been going this afternoon? How much would I be able to write during the next two hours? What is my opinion of the person who will be giving the lecture? Who is likely to be in the audience?

Both of these sorts of factors are absolutely indispensable for the making of a rational choice. Just as the particular circumstantial facts can tell me nothing about what to do except in relation to the goods that are presently available as ends of action, so the reverse is also true. If the subject the lecturer is speaking on is far more interesting to me than what I am writing about now, this tells me nothing, by itself, about whether I should drop what I am doing and drive to campus. What if my opinion of the lecturer is such that I think it is not very likely that he will add to my knowledge of this interesting subject? Even if I do not think this is very likely, the solution to my ultimate problem will depend on how unlikely I think this is, as well as how interesting the subject is, in addition to many other things.

The sort of thinking that is involved here is capable of producing infinitely many different outcomes concerning a single issue. The rationality of the outcome is the fact that, in a certain way, it is appropriate to a total ensemble of factors, each one of which admits of indefinitely many differences of degree.

The creation of a legal duty to render aid would represent an attempt to translate into law the principle that the safety of others is worth pursuing in itself. Although the legal enactments would not take the form, literally, of declaring that this moral principle is now a legal one, the lawmaking agents (whether judges or legislatures) would be motivated by the conviction that pursuing this end is a duty, and they would be trying to bring the conduct of the people who are subject to their laws to pursue this end more effectively. That is, the lawmakers would be involved in goal-directed behavior, with their subjects acting as their surrogates, and what they do can and must be judged according to the standard of rationality I have set out here.

4. By this standard, how rational can we expect the conduct of these agents to be? I think we are not entitled to be very optimistic about this. I can best explain why by discussing a classic case on this issue, one to which I have referred already: Buch v. Amory Manufacturing Co.(18)

At the time of the accident that gave rise to this case (1886), the plaintiff was an eight year old boy. He entered the defendant's textile mill at the invitation of his thirteen year old brother, who worked as one of the "back-boys" (we are not told what their duties are), in a room with a number of spinning machines in it. The plaintiff wanted to learn how to do his older brother's job, and stayed there a day and a half helping out, though the company did not hire children his age to do that sort of work for the reason that they thought (even by their nineteenth-century standards) that the machinery involved was too dangerous for someone that young.

The younger Buch was unable to speak or understand English. Testimony regarding events preceding the accident may not be entirely consistent. The boy testified that other back-boys were bringing their younger brothers to learn their jobs and that the overseer in the room, a Mr. Fulton, passed down the aisles and was aware that he was working there. Fulton testified that he was not aware of the boy's presence until about two hours before the accident: upon becoming aware of it, he said, he told him to leave and, realizing he did not understand, took him to an employee who spoke Buch's language and told the employee to send him out of the building. The boy testified that he was not aware that anyone ordered him to leave but that he thought Fulton had told him to take his vest off. Eventually, Buch's hand was caught in a system of gears that the back-boys were clearly instructed not to touch. He, however, had been given no warning about it at all. His hand was injured, presumably severely.

A trial by jury yielded a verdict for the plaintiff. The appellate court set aside the jury verdict and entered a judgment for the defendant. They justified their decision by pointing out, in some forceful language, that whereas the plaintiff's case only makes sense on the assumption of a general duty to render aid, there is in fact no such legal duty. I think it is instructive to consider what they could have said if, on the contrary, they had decided in favor of the plaintiff.

It is very important to understand the nature of the problem that this would pose for them. The defendant (meaning the defendant company's agents) expended some level of efforts to the end of preventing the accident and could have spent more or less. Any fault found with the defendant's conduct must involve an objection, at least an implicit one, to the level of effort achieved. This point requires a more complete explanation.

One dimension, so to speak, of possible accident-preventing effort consists of the things that defendant did or might have done to get the plaintiff out of the building. The defendant could have a) done nothing about it, b) given him an order in English, c) given him an order in the international language of gestures and grimaces, d) ordered an employee who speaks Buch's language to order him out, e) done (d), and watched to be sure the order was understood, f) done (e), and followed Buch to the door; finally, under certain circumstances, he could have g) physically ejected the boy from the building. To decide for the plaintiff is to decide that, wherever the defendant's behavior was along this continuum of increasing efforts, it was not far enough.

The same point can be made regarding another relevant dimension of accident-preventing effort. We can imagine the defendant warning about the hazards lurking in the room in which the "back-boys" worked. We know, with the brilliant perspicuity of hindsight, that the one warning that would have prevented the accident would have been about touching a certain system of gears.

If we were to decide that the defendant should have given this warning we would be committed to deciding something more than that. In hazardous situations there is seldom one thing that stands out, before an accident happens, as the warning that should be given. What someone in Fulton's situation would be aware of before any mishap would be a range of possible mishaps, some more serious and some less. If he were to warn somebody about some number, n, of hazards he would warn them about the n most serious ones. If we decide that he, or virtually anyone else, wrongly omitted a certain warning, we are committed to saying that n was not large enough: the level of efforts at warning was not high enough.

Somehow or other, the lawmaking process must let citizens know what they must do if they are to stay out of court.(19)

In deciding for the plaintiff in a case like Buch, the courts must give a reason why the sort of thing the defendant did was wrong, and they must do so in such a way that they indicate to others in the defendant's situation what level of accident-preventing effort is required of them. The most cautious way to define the needed standard would be to do so incrementally. The Buch court might begin this process by stating that the level of care exercised in this case was "unreasonably" low in one respect or another and leaving it to future courts to decide which of the indefinitely many other things people might do in circumstances like these are reasonable or unreasonable. In other words, the court would be leaving the specification of the level of required effort as something to be accomplished by the judicial process over a period of time, saying for the moment only that this level (whatever it might be) was not met by the Amory Manufacturing Company.

Even this course of action - relatively modest and ad hoc though it is - is not without its hazards. There is a reason why people who are in something like Fulton's position would not always warn people of all conceivable hazards, and even the most conscientious would not necessarily follow every foolish trespasser all the way to the door: the reason is that they always have a number of other immediately urgent things to do. Some of these things will even involve looking out for the safety of a good many other people. What Fulton should have done was to pursue the security of young Buch to the point at which, if we were to spend any more effort on it, he would be have been doing better had he devoted the extra effort to some other end. I think it is significant that, even though a century has passed since the accident at the Amory Manufacturing Company, in which standards of workplace safety have risen considerably, it is still not obvious that Fulton's efforts fell short of that point.

Of course, there will be instances in which we can be confident that the level of effort put out was not reasonable, but this will often not be the case. This is because, in deciding this issue, we are judging the balance the defendant struck between one goal (the security of one person) and a multitude of competing goals. In many cases the defendant will have an expert knowledge of those competing goals and an intimate awareness of the relevant circumstantial facts. The project of eventually formulating a judicial standard specifying a required level of effort is a particularly daunting one because compounding the difficulties posed by individual cases on their own merits is the additional fact that the crucial relevant circumstances are often ones that change wildly from one case to another.

An important reason for these difficulties lies in the fact that, at least if we take Fulton's testimony at face value, there is no relationship at all between him and the boy, other than the fact that both are human beings and happen to find themselves in the same place. They are simply strangers. Why this should be a source of difficulties might become clearer if we consider an alternative way of viewing the connection between them, a way that becomes available if we assume Buch's version of the facts.

His testimony gives the strong impression that the presence of younger brothers in the factory is a regular practice, known by agents of the company. Supposing this impression could be made compelling, one can imagine ways in which the court might reach the conclusion that the defendant was violating his obligations to the plaintiff. For instance, they might base such an argument on the notion that the presence of the young boys was welcomed by the company management because they were doing various sorts of work that was beneficial to the company. In return they were learning how to do the work that their older brothers did. That is, their relationship with the company involved the same sort of reciprocal exchange that an employment relationship involves. This would mean that the boys have the same claims of right to protection against hazards that employees have, such as the right to be instructed in the safe use of factory equipment and warned of hidden hazards. Of course, these would be obligations that the defendant had not honored.

Alternatively, the court might base an argument leading to a similar conclusion on the idea that, if management did not positively welcome the presence of the boys, they knew of and tolerated it, and that the boys were aware of this. Since, for good reason, it was not customary (even in those days) to allow small children in dangerous places on a daily basis, management's behavior constituted a kind of assurance to the boys that harm was unlikely to come to them. On Buch's account, this was in fact part of the reason they were there. If, then, one of the boys were to be injured in an accident, management would be (part of) the cause of the injury. The only way to avoid this status would be to prevent such accidents from happening, either by no longer tolerating the boys' presence in the factory or by such measures as giving adequate warnings and instructions. Obviously, they did neither one of these things.

I am not saying that either of these arguments would be legally sound, nor that their factual assumptions ultimately stand up to scrutiny; my point is only that they have a markedly different character from the alternative line of reasoning in the plaintiff's behalf. In particular, neither of them involves the sort of problem I identified in the case of the other sort of argumentation.

In the sort of reasoning involved in these two arguments, there are principles at work that prevent the problem of the level of care from falling into an abyss of unplumbable obscurity. People, in building relationships, inevitably create grounds for reciprocal obligations of varying degrees of definiteness. The employment relationship is a particularly clear example of this. Employees come into the relationship with various expectations, and some of these expectations form the basis of the agreement between employer and employee. Normally employees expect, and are known to expect, assistance in the event of an injury on the job. This is part of the reason employers owe them such assistance: it was on the basis of such known expectations that the employee took the job.

Similar factors also tend to fix the level of care that is owed in preventing injuries from happening. In different industries, different levels of safety are customary. Such custom is one strong piece of evidence as to what employees expect, or might reasonably expect, from their jobs. The level of a worker's pay is another indication. Some jobs are, and are presented as, more dangerous than others and, other things equal, they pay more. If a job that is not relatively highly paid turns out to be unusually dangerous in a way that the employer could have prevented, that is evidence that the extra danger was not part of the bargain and, consequently, that the employer has violated his or her obligations to the employee.

On Fulton's version of the facts, on the other hand, Buch is related to him and to his employer simply as a trespasser. In relation to trespassers, it is not possible to fix the obligatory level of care in the ways I have just discussed. There is no agreement, explicit or otherwise, between owner and trespasser. Indeed, trespassers typically are where they are in violation of the owner's likely wishes. Perhaps for this reason, no custom seems to have emerged concerning how owners and trespassers are to treat one another.(20)

In trying to decide how I or anyone else, such as Mr. Fulton, should treat a trespasser, I must do without the guidance of the complex of more or less definite mutual obligations that people create when they enter and develop relationships with one another. The only principles we have to guide us are those that guide our relations with any other human beings whatsoever, and the only such principle that is relevant to this case (given that the various rules that prohibit us from causing harm are irrelevant) is the notion that the safety of others is worth pursuing in itself.

The need to rely on this principle throws everyone - both the court and the individuals making decisions in the field, such as Mr. Fulton - into the position of striking a balance between one goal and a multitude of others. Confronted with such issues, the decision-making individuals, with their knowledge of the relevant goals and awareness of the attendant circumstances, seem more likely to act rationally.

5. I should not put off any longer considering a certain objection that some people would, I am sure, be eager to make. It consists, in brief, in claiming that the difficult task that I say a duty to rescue would present to the law is one that the law carries out all the time, though in a somewhat different context.

My argument, as I have set it out so far, goes in effect like this. To lay down a duty to rescue would be to require people to do things that promote a certain goal. To adjudicate such a duty would be to decide when defendants had or had not pursued this goal as they should. To do so rationally would be to weigh this goal against all the others that were pressing on the defendant at the relevant moment in time and determining whether this goal was, in this context, more important than the others were. But this task is one that legal systems are less well situated to do than is the alternative institutional decision-maker, which is positive morality. Positive morality is administered by individual human beings, and ones who are actually in the circumstances in relation to which all the relevant goals have their meaning. For this reason it has powerful advantages that positive law lacks.

To all this the objection would be that the law must be competent to weigh goals against each other because that is what it does already. In a classic English case, Blyth v. Birmingham Water Works,(21) a man sued the local water company. Winter frost had caused their pipes to burst and, when they thawed, the resulting water damaged his house. The appeals court reversed a verdict for Mr. Blyth, and without denying that the defendant company had damaged his property in a way that it could have prevented. The reason it gave, echoed by many other courts, was that, though the company did cause the damage, they were not negligent in doing so. "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

On one plausible interpretation, this key word, "reasonable," means what I mean be "rational." The court in Blyth pointed out that the weather damage in this case was caused by "the frost of 1855, which penetrated to a greater depth than any which ordinarily occurs south of the polar regions." The idea seems to be that, although the Birmingham Water Works might perhaps have adequately protected Blyth against the accident that eventually happened - perhaps by burying their pipes even deeper than they did - it would nonetheless been unreasonable to do so, given the low antecedent likelihood that this accident would happen. In the context of this low likelihood, such precautionary measures would have involved an undue sacrifice of the other goals the company was pursuing. The omitted precautions would only have been be reasonable if no such sacrifice were involved. Precautions in other words, are only reasonable if it is (in my sense) rational to take them.

If deciding whether someone is negligent always requires a decision about whether or not what they did was "reasonable" in this sense of the word, then it would seem that tort law is constantly weighing goals against each other in just the way that I have been warning against. So, the objection to my argument would run, such weighing must not be so difficult for the law to do after all.

My answer to this consists in admitting everything that has just been said about contemporary tort law while nonetheless maintaining that negligence is a special case. Though the concept of negligence does require us to weigh ends of action against each other, the resulting problems are of an entirely different order from those presented by a duty to rescue.

In order to say why this is so, I must say a little more about what negligence is. In ordinary language, negligence means something like "sloppiness," but that is not what it means in the law. It means neglect of one's legal duty. In ordinary negligence - that is, without a duty to rescue - this duty is, fundamentally, a duty to avoid physically harming other people and their property.(22) But negligence does not mean, simply, violating this duty. The duty that one is violating if one is being negligent is variously called the "duty of reasonable care" or "... ordinary care" or "... proper care." It requires one to make a reasonable - or, in my terms, "rational" - effort in conforming to the duty of not harming people.

What the duty of due care requires is not that we calculate whether the cost of avoiding harming someone in a given way is greater than the damage it would involve and then avoiding it only if it is. Such a principle would allow one to deliberately inflict "cost-effective" damage on people, and that is not true of the duty of reasonable care. The duty of reasonable care only concerns unintentional harms. Its two principles tell us: first, that it is wrong to cause certain sorts of harm to others, even unintentionally and, second, that like all purposive conduct, our efforts to conform to the first principle need not go too far.

The duty of reasonable care that lies at the core of negligence theory is different from a duty to rescue in three ways that, for our purposes, are particularly important.

First, the fundamental principle of negligence theory, the one that prohibits the relevant sorts of harm, differs from the one on which the duty to render aid is based in that the former principle does not enjoin the pursuit of some end of action. What it does is to remove one concern of ours - roughly, the avoidance of physical harm to others - from the domain of the calculus of ends. It functions, then, as a constraint within which various ends are weighed against one another and sought.

However, the account of due care I have sketched does not consist simply in an explanation of this constraint. I have also acknowledged that it involves the pursuit of a certain goal, and to this extent I must agree that it resembles the duty to rescue. Yet it is here that, nonetheless, the second difference from the duty to rescue can be found. This difference lies in the fact that the goal involved in due care consists precisely in conformity to a constraint or, more precisely, in error-proofing oneself against violating this constraint. The constraint, moreover is one that is essential to the pursuit and enjoyment of our goals, whatever they might be. Life would be insufferable if we were condemned to act under the constant threat of violent death or injury, even if the violence is accidental.

This means that, third, the goal that is essential to the exercise of reasonable care is one that is very easy, perhaps uniquely so, to weigh against other ends. It is the goal that must be pursued with great success by nearly everybody if any other goals are to be meaningfully pursued by anyone. Its importance, relative to other goals is obviously very high. Further, this is so obvious to nearly everyone that most people do go far in the pursuit of this goal. That is why reasonable care is routinely referred to as ordinary care or, in the words of Blyth, the standards by which we can judge a defendant's pursuit of this goal is "those considerations which ordinarily regulate the conduct of human affairs" (emphasis added).

Matters are entirely different in the matter of rendering aid. The nature of our helping behavior - including how many people we help, how much we help them, and what degree of neediness is required to trigger our compassionate responses - is not closely controlled by considerations that ordinarily regulate human affairs. Accordingly, we cannot fall back on such considerations in judging the helping or failing to help that others do. This is no doubt part of the reason why it is not clear whether Mr. Fulton did or did not do as much as he should have in protecting young Buch from harm.

Protecting others from harm is no different in this respect from virtually all the important goods that are ends of action for us, including the attainment of truth, the contemplation of beauty, and the various pleasures of the senses: our attempts to weigh them against competing ends is very imperfectly regulated by shared rules regarding how far they are to be pursued. The sort of error-proofing that is involved in ordinary care is an almost unique end in this respect. This is probably because it is related to other goods in what is virtually a unique way. For virtually any of our other goals, the pursuit of the remaining ones can go on well enough even if most people are not pursuing it. As Kant pointed out long ago, this is even true of the goal of helping others.(23)

4. There is another potential objection to the argument I have given here to which I need to turn my attention. Indeed, my argument would be seriously incomplete if I do not attend to it.

My argument thus far rests on a comparison between two institutions, positive law and positive morality, and this comparison is so far made with respect to a single feature. Ordinary morality, I have said, is administered by individuals who are in a better position than are those who administer the law to understand the relevant facts and even, in some cases, the nature of the ends that are in conflict when issues about rendering aid actually arise.

The objection to this is that understanding is not enough to make the agent that possesses it a good maker of decisions. In order to make the best decision in the relevant situations, one must also value the security of others as highly as one should. If individual human beings, as they are presently influenced by ordinary morality, tend to be gravely inadequate in this regard, then it might be best for the law to step in. The law is sometimes a very blunt instrument, but it would be better than an instrument that is not aimed at the right target at all.

My response, once again, will be to agree with much of what the objection says. In a crucial respect, however, I maintain that the burden of proof lies with the objector and not with me, and it is a burden that is not being carried by proponents of a duty to rescue. In this connection it will be useful to consider, more briefly this time, another often-cited case.

In October 1969, Tatiana Tarasoff was stabbed to death by a man named Prosenjit Poddar. It subsequently became known that two months earlier the murderer had told his psychotherapist, and employee of U. C. Berkeley's Cowell Hospital, that he intended to kill Tarasoff. The therapist had notified the campus police. They then detained Poddar for questioning but released him, after extracting a promise to leave Tarasoff alone, because he seemed rational to them. The therapist was then ordered by his superior at the hospital to pursue the matter no further. The parents of the murdered girl sued the University and others.

In the controversial decision that eventually resulted, Tarasoff v. Regents of University of California, the California Supreme Court held that psychotherapists who determine or, pursuant to the standards of their profession, should have determined that one of their patients is dangerous to some third party, they have a legal duty to take reasonable care in protecting that third party from such harm. The people at Cowell Hospital, they said, had violated this duty by failing to warn Tarasoff or her parents.(24)

We can only understand this principle if we realize that it does not constitute one of the misleadingly named "exceptions" to the common law no-duty-to-rescue rule as I explained them in the first section of this paper. Unlike those so-called exceptions, this one really does contradict the rule. It is not based on contractual or contract-like obligations that bind the therapist either to the patient or to the endangered third party, nor is it limited to cases in which the therapist somehow contributes to causing the patient's violent behavior. The duty that the rule in Tarasoff imposes on therapists is simply a special case of the one that advocates of a duty to rescue wish to have imposed on everyone.

One thing that the controversy surrounding Tarasoff made very clear was that, in it, the law was intervening in a choice between different ends of action. The arguments of the defendants, the dissent by Justice Clark, and the amicus brief filed by various psychotherapeutic professional organizations all stressed the importance of client confidentiality. Such talk was relevant to the issue because what the court contemplated doing, and eventually did in this case, was to interfere in the balance struck by therapists between the value of public safety and an array of competing values. The most morally salient of the these other values consist mainly in the privacy of their clients and all the factors that depend on it.

The court interfered by supporting the goal of public safety with a powerful incentive: the threat of a lawsuit in the event that the therapist has reason to believe that a patient is dangerous to someone and the patient actually does injure or kill that person. Of course, no new incentives were given to pursue the competing goals. Such an approach would make little sense unless therapists have a strong bias in favor of sacrificing public safety for the sake of client confidentiality.

Curiously, the amicus brief gave the impression that such a bias exists, though of course its aim was to oppose the sort measure the court eventually took. It gave this impression by asserting that professional ethical standards require therapists to be concerned solely with the good of their patients.(25) Any evidence that therapists do adhere to such "ethical" standards, which would involve an overwhelming bias against the public safety, would actually lend strong support to the court's position: it would tend to show that the balance that therapists tend to strike between the relevant goals is badly distorted by bias.

However, there does not seem to be any such evidence, and there is actually some evidence to the contrary. After Tarasoff, the Stanford Law Review and the California Psychiatric Society distributed a questionnaire to all the psychiatrists and some of the psychologists practicing in the state. Of the 35% who responded, almost half said they had warned potential clients before the initial supreme court decision in the case.(26) The stereotype of the therapist who makes an irrational fetish of client confidentiality is apparently a myth.

Indeed, it is probable that common sense should lead us to the same conclusion. It is difficult to realistically imagine a therapist who has good reason to think that a client is planning to kill someone and yet believes that the privacy of the would-be murderer carries more weight than concern for the victim's life.

This point can easily be generalized. The goal promoted by the Tarasoff duty and by any duty to rescue is, after all, a good, and is pursued as such by all human beings who are not extremely abnormal. As Adam Smith pointed out long ago, have a notable, seemingly visceral aversion to the sight of people in pain and an apparently natural desire do something about that pain. The notion of a general common law duty to rescue, like the Tarasoff duty, rests on an assumption that is not easily reconciled with this familiar fact. This is the idea that the value that people place on the safety of others too low, and in particular that this deficiency is so great that the balance struck between it and the many goods with which it competes would be closer to where it should be if this good were backed up by a powerful threat that sets it apart from the others.

Those who advocate a non-contractual duty to render aid, including the Tarasoff court, are by implication putting forth a thesis about human nature that is dubious at best. Someone might think that this is not true on the grounds that most people place to little value on the good of others, that they are insufficiently altruistic. It may be true that people are insufficiently altruistic, but that is irrelevant to this issue. The value that is given extra weight by the duty to render aid is not the good of others as such but rather something much more specific: their safety. Among the indefinitely many goods with which this good can conflict are the multitude of other ways, other than protecting them from physical harm for which we are not responsible, in which we can benefit others.

Most of the things that Mr. Fulton busied himself with in the moments before Buch's accident probably had to do mainly with the good of people other than Buch or himself, including the company's employees, its owners, its managers, and its customers. The values with which the boy's safety conflicted during those moments no doubt included such altruistic considerations as these. The same sort of point is if anything more obvious in the Tarasoff case. One of the most obvious goods with which Tarasoff's safety probably conflicted in the calculus of the hospital officials' fateful decision was the therapy (and, through it, the mental health) of Poddar, whom the police had assured them was harmless.

What the

6. The difficulties in weighing the security of other people against other ends is often concealed by the sorts of examples in terms of which the duty to render aid is discussed: Kitty Genovese is repeatedly assaulted and thirty-eight witnesses apparently have a chance to save her life by some simple measure or other,(27) a man sees a two year old child on a railroad track as a train approaches and can easily and safely pull the child off.(28) One of the most memorable is by Jeremy Bentham: a woman's headdress is on fire and someone nearby can easily put the flames out by pouring water on her.(29) In such extreme cases, it certainly does seem obvious that the cost of rendering aid would be well outweighed by the benefits produced.

Such examples do, however, suggest a solution to the end-weighing problems I have discussed here: why not have a legal duty that is limited to such obvious cases? This is the course defended by Ernest Weinrib.(30) He defends a duty of easy rescue, which would require help provided that a) the situation involved is an emergency and b) the help would involve no risk and little other cost for the one who gives the help. Does this represent a viable alternative to more ambitious forms of legal duties to rescue?

I believe it does not. It merely trades in one shortcoming for another. The two sorts of shortcoming have the same cause: namely, that this measure would, like the others, consist in the lawmaking agents attempting to get their subjects to pursue a certain goal. The shortcoming that is avoided is of course the one I have so far emphasized here: the difficulty regarding the rationality of the behavior involved. In Weinrib's proposal the emergency provision, as it might be called, increases the benefits of the required act by decreasing the likelihood that the needy person will get help from some other source. The helper is more likely to represent the difference, for example, between life and death. The cost provision restricts the measure to cases where the value of competing goals is especially low. Together, they mean that the value of what is achieved is especially likely to exceed the value of whatever is sacrificed for it.

The new shortcoming that this proposal brings with it is that, precisely for this reason, the acts that it enjoins are especially likely to be done anyway. As I have said, the goal it promotes is a good, and one that is sought by nearly everyone. By limiting itself to requiring that this good be sought in situations where much of it can be achieved at virtually no cost, it is requiring something that is virtually inevitable. It represents an attempt to displace or reenforce positive morality precisely when its weighting of the relevant goods is most likely to result in the appropriate action. In other words, the proposal seems to be pointless.(31)

Lester H. Hunt

1. "If, then, the defendant's machinery was injured by the plaintiff's act in putting his hand in the gearing, he is liable to them for the damages in an action of trespass and to nominal damages for the wrongful entry." Buch v. Amory Mfg. Co., 69 N. H. 257, 44 A. 809 (1898), p, 262.

2. Montgomery v. National Convoy Trucking Co., 186 S. C. 167, 195 S. E. 247 (1937).

3. A variation of this sort of reasoning is explicitly given in Erie R. Co. v. Stewart 40 F. 2d 855 (6th Cir. 1930), cert. denied 282 U. S. 843 (1930). The court awarded damages for injuries that would have been prevented had the defendant railroad warned the plaintiff that a train was coming. The railroad had no duty to warn passersby of such hazards but, as they nonetheless had hired a watchman to do just that, the plaintiff took the watchman's absence from his station as an indication that the road was clear. "The company must use reasonable care to see that reliance by members of the educated public upon its representation of safety is not converted into a trap." That is, in the context of the defendant's past behavior, positive efforts to warn were now necessary in order to avoid causing harm to others. Richard Epstein gives an explanation of Montgomery that is more or less the same as mine in "A Theory of Strict Liability," The Journal of Legal Studies, vol. 2 (1973), pp. 192-3 but claims that this explanation is inconsistent with the traditional legal doctrine of negligence. If the things I will be saying about negligence later in this paper are true, however, he is wrong about this.

4. At least some of the common carrier exceptions might be explained in this way. A person in a speeding train or airplane is in an obvious sense isolated in a little world separate from the world outside the vehicle. Since the carrier has considerable control over this little world, much of what happens in it is to some degree or other caused by the carrier. Further, such isolation often makes it difficult for an injured passenger to get help on his or her own. This isolation is of course produced by the action of the carrier. Admittedly, these actions are innocent and socially valuable, but it is nonetheless true that actively seeking help of the passenger may be the only way the carrier is able to escape blame for further injuries resulting from this isolation.

5. William M. Landes and Richard A. Posner make the point about contractual principles in their "Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism," The Journal of Legal Studies, vol. 7 (1978), p. 125. They point out that the duty of hospital emergency rooms to treat all comers can be explained in the same way. The custom of treating all comers in the past "invites a potentially costly reliance" on a sort of implied offer of aid. This sort of reliance argument is used in De Vera v. Long Beach Public Transportation Co. 180 Cal. App. 3d 782, 225 Cal. Rptr. 789. A bus passenger injured in a accident was unable to sue the driver who negligently struck the bus because the driver's identity was not known. Instead, he sued the bus company for failing to find out who the driver was when, as the appeals court found, they "knew or should have known that plaintiff was relying on defendants to obtain and safekeep this information."

6. Another sort of case, in which a defendant is held liable for the consequences of an abandoned rescue attempt, does not fit obviously into either of the two groups of exceptions I just discussed. It might nonetheless be explicable on the basis of the sorts of thinking that underlie both the other groups of cases. It has been argued that by undertaking the rescue attempt one assumes, apparently in a contract-like way, an obligation to carry it out. On the causal side, it is sometimes the case that a rescue attempt that is abandoned leaves the injured party in a worse position than when the attempt was begun. Both these arguments are used in Farwell v. Keaton, 396 Mich. 281, 287, 240 N. W. 2d 217, 220 (1976), in which the defendant had left an injured and unconscious friend late at night in a car parked in the friend's grandparent's driveway, thus making it impossible for anyone to find and help him until morning. The contractual argument is most plausible when the injured person relies (for instance, by not seeking other help) on the would-be rescuer's apparent intention to carry the rescue out, where this reliance turns out to be detrimental to the injured individual when the attempt is aborted. For a contrasting view of abandoned rescue attempts, see Epstein, "A Theory of Strict Liability," p. 194-5.

7. See Antony M. Honoré, "Law, Morals and Rescue," in James M. Ratcliffe, ed. The Good Samaritan and the Law (Garden City, New York: Doubleday, 1966), pp. 239-40.

8. "Law, Morals and Rescue," p. 240.

9. For a lengthier discussion of this point, see my "Some Advantages of Social Control: An Individualist Defense," Public Choice, no. 36 (1981), pp. 3-16.

10. Landes and Posner have made this point in a somewhat different context in "Salvors, Finders, Good Samaritans," p. 125.

11. Here I am much indebted to Neil Komesar's Who Decides?, forthcoming from University of Chicago Press. Prof. Komesar's book sets out guidlines for choosing between decision-making institutions are deftly criticizes authors who ignore the "comparative-institutional" aspects of public policy choices.

12. See my "Generosity and the Diversity of the Virtues," in Robert B. Kruschwitz and Robert C. Roberts eds., The Virtues: Contemporary Essays on Moral Character (Belmont, California: Wadsworth, 1987), pp. 224-25.

13. This conception of cost is what is known as "opportunity cost," the conception that is used by economists. For a deep discussion of this idea and its implications, see James M. Buchanan, Cost and Choice: An Inquiry in Economic Theory (Chicago: Markham Publishing Co., 1969).

14. One act that constitutes an exception to this rule is committing suicide.

15. One might think that one reasonable candidate for this office could be something like "doing one's duty." I will argue later in this paper that this is not so. I will try to show that traditional negligence theory rejects this idea, and quite properly so. It is possible to go too far in trying to do one's duty. Again, one might want to propose a candidate like "the good," "utility," Aristotelian eudaimonia, or "whatever is pleasing to God." But these are not goals, in the sense in which I am speaking of them here. They are not discrete ends of action to which other such ends are alternatives. They include all goals that are worth pursuing and, consequently, nothing of genuine value ever could be sacrificed to them.

16. Immanuel Kant, The Doctrine of Virtue: Part II of The Metaphysic of Morals, trans. by Mary J. Gregor (New York: Harper and Row, 1964), p. 49. Arguably, what I call axiological principles state what Kant is calling "imperfect duties." This is how he defines the latter notion, which he identifies as the subject matter of "ethics" in a somewhat technical sense of that word: "The doctrine of Law deals with the formal condition of outer freedom.... But ethics goes beyond this and provides ... an end which ... it is a duty to have." The Doctrine of Virtue, p. 38. One of the things I am saying here is that it is precisely because these "duties" (a word with connotations that I would prefer to avoid) only provide ends that they have the characteristic that Kant calls latitude.

17. Here and throughout this paper I am ignoring the issue of whether the goals upon which rationality depends are: a) any goals the agent happens to desire or b) goals that the agent should desire, so that at least particularly foolish goals do not count. I think that any plausible way of resolving this issue would be compatible with what I am saying here.

18. Cited in footnote 1, above.


19. This sort of point is made very forcefully by James A. Henderson, Jr. in his "Process Constraints in Tort," Cornell Law Review, vol. 67 (1982), pp. 901-48.

20. In fact, even if such a custom did exist, it would have little claim to be taken very seriously, either legally or morally. The authority of the customs that govern relations between employer and employee derives from the fact that - like those that regulate relations between producer and consumer, doctor and patient, or vendor and vendee in real estate transactions - the relationships involved are voluntary on both sides. This means, among other things, that customs fixing levels of effort will tend to be economically efficient. Each side has opportunities to, in one way or another, pay the other take its interests more fully into consideration. It follows that the level of effort fixed by custom is apt to be worth the cost, at least to the beneficiary of the efforts. See Richard A. Posner, Economic Analysis of the Law (Boston: Little, Brown and Company, 1992), p. 168. Such arguments do not apply to relationships that, like the one that holds between property owner and trespasser, is not mutually voluntary. It would be absurd to think that customs, insofar as they might exist independently of the law, regarding allowable levels of pollution are good evidence as to what that level should be. The status of consumer of pollution is always more or less involuntary and thus the producer of pollution has no very strong motive, apart from the law, to take the consumer's interest into consideration. Such a custom would be biased against the consumer. It is arguable that there are such biased customs in the case of trespassers: namely, common notions that give property owners an open-ended license to use force against trespassers. Courts rightly resist such customary thinking when they insist that such force must be "reasonably necessary." See Katko v. Briney 183 N. W. 2d 657 (Iowa 1971).

21. 11 Exch. 781 (1856).

22. Courts will award damages for economic harm (such as lost business profits) or emotional upset (such as fear) caused by a negligent act, but only if they are the consequence of real or apparent physical harm or danger which is also caused by the act.

23. In last of the four examples of maxims that violate the categorical imperative, he imagines someone who "sees others who have to struggle with great hardships (and whom he could easily help)" and says to himself: "Let every one be as happy as Heaven wills or as he can make himself; I won't deprive him of anything; I won't even envy him; only I have no wish to contribute anything to his well-being or to his support in distress!" In the course of the argument that follows, Kant concedes: "Now admittedly if such an attitude were a universal law of nature, mankind could get on perfectly well - better no doubt than if everybody prates about sympathy and goodwill, and even takes pains, on occasion, to practice them, but on the other hand cheats where he can, traffics in human rights, or violates them in other ways." Groundwork of the Metaphysic of Morals, trans. by H. J. Paton (New York: Harper, 1964), pp. 90-1.

24. 17 Cal. 3d 425, 551 P. 2d 334, 131 Cal Rptr. 14 (l976). Actually, this decision, which is sometimes called Tarasoff II was preceded by another ("Tarasoff I"), in which the court held specifically that therapists have a duty to warn possible victims. 13 Cal. 3d 177, 529 P. 2d 553, 118 Cal. Rptr. 129 (1974). The furor among therapists that followed Tarasoff I was so great that the Court took the unusual measure of hearing the same case again, replacing the duty to warn with the more flexible duty of reasonable care. See Daniel J. Givelber, William J. Bowers, and Carolyn L. Blitch, "Tarasoff, Myth and Reality: An Empirical Study of Private Law in Action," Wisconsin Law Review, 1984, especially pp. 448-50.

25. Givelber et al, "Tarasoff, Myth and Reality," p. 449. Evidently, the authors of the brief spoke of client confidentiality as if it were, not a goal, but a hard constraint on the conduct of therapists, something like the prohibitions against theft and fraud.

26. "Where the Public Peril Begins: A Survey of Psychotherapists to Determine the Effects of Tarasoff," anonymous note in Stanford Law Review, vol. 31 (1978), p. 165. This fact is especially striking because, as the paper by Givelber et al indicates, notifying the potential victim is the protective measure therapists are least likely to take. They much prefer less direct measures, such as notifying police. "Tarasoff, Myth and Reality," p. 469.

27. Editor's "Introduction," The Good Samaritan and the Law, pp. ix-x.

28. Buch v. Amory Manufacturing Company, p. 69.

29. Quoted by Ernest Weinrib in "The Case for a Duty to Rescue," The Yale Law Journal, vol. 90 (1980), p.

30. See The Case for a Duty to Rescue, cited in footnote 31, above.

31. Admittedly, the are probably some people who would not, on their own, perform the acts required by this measure. But they would either be people for whom the security of others has no value whatsoever (since it is outweighed by virtually any amount of any competing good) or they would be people who are unable to think and make choices in such a way that they can act on the values they do recognize. It is doubtful that people who function in such radically abnormal ways could be influenced by legal rules and it is equally unlikely that they could accumulate wealth that could be seized as damages. See James A. Henderson, Jr., "Process Constraints in Tort," pp. 939-40.