With Ted Kennedy dominating the news and Boston’s airspace (closed to private aircraft until the Washington royalty have completed paying their respects), it seems like a good time to discuss the duty to rescue. Under traditional Common Law, a bystander who observed Ted Kennedy driving his car into the water would not have had any obligation to dive in and pull Mary Jo Kopechne out, nor to call the police or fire department. According to the Wikipedia page on the Chappaquiddick incident, Ted Kennedy was never charged with failure to carry out any duty to rescue, though a house with the lights on and a phone was just a few seconds’ walk from where Ted Kennedy emerged (source) and a rescue diver would have been able to reach the scene within 25 minutes (as he did the next morning).
An article by Peter Agulnick indicates that Ted Kennedy might have had some obligation under Common Law:
“A bystander is charged with a reasonable duty to rescue if he creates the risk or causes the dangerous situation that the victim faces. This is true whether the bystander’s endangering acts were intentional, negligent, or, as some courts have held, completely innocent.”
The article is interesting partly for its application to Ted Kennedy’s killing of Mary Jo Kopechne, but also for its discussion of why we might be better off without a strong obligation to rescue fellow citizens.
Not mentioned in the article is what happens if you give aid and the victim then sues you claiming you should have done something different. In the US there is generally no harm in suing others if you can find a lawyer to take the case on contingency (ie a potentially lucrative gamble), and the circumstances are by definition serious. That is why I would be very reticent to help others. It would take extraordinary circumstances for me to go near a child since as a male stranger I could only be considered a molester.
Roger: Your homeowner’s insurance (condo or renter’s) covers you for general liability. For a few extra dollars per year you can add an umbrella liability policy with an additional $5 million in coverage. There are only a tiny handful of lawsuits each year in the U.S. in which more than $5 million in damages are awarded and it is tough to think of any in which an ordinary citizen was the defendant.
We can blame the lawyers for destroying all of our good human qualities (though of course few of us could ever hope to live up to the standard set by the hero Ted Kennedy!), but it doesn’t make sense. The risk of being sued is very small and insurable. If you don’t have a lot of assets to protect you can pick a fallen child off the ground and/or call 911. If you have a lot of assets to protect, you can still try to save a life via CPR but get insurance first if you’re fearful.
(Note that flight instruction and flying small airplanes and helicopters is generally excluded from coverage, at least if you tell the insurance company that you’re a pilot.)
What I don’t understand is why there was so little done by Mary Jo Kopechne parents to find the truth or even sue Ted. Were they threatened? Paid off [1]? I can’t much about this, as if Mary Jo Kopechne and her parents don’t exist!
— George
[1] From http://en.wikipedia.org/wiki/Chappaquiddick_incident: “The Kopechne family did not bring any legal action against Senator Kennedy, but they did receive a payment of $90,904 from the Senator personally and $50,000 from his insurance company. The Kopechnes later explained their decision to not take legal action by saying that “We figured that people would think we were looking for blood money””
Gee, Roger I hope that my kids or I never have an accident near you! Ever heard of Good Samaritan laws? Would you really walk away from an obviously hurt child for fear of being sued? That’s callous, not cautious.
David makes a good point. If a person is so paranoid about legal exposure that he would not help a hurt child, he would probably need to remain at home at a desk or on a sofa with a continuously running video camera verifying that he did not leave his house. After all, you need not have done something in order to be sued. All that needs to happen is that someone can allege that you did something. A truly malicious plaintiff would be better off suing you for something that did not involve helping an injured child because proof that you tried to help the kid would gain sympathy for the defendant with a jury.
(In my personal life, given all of the stuff that I do with a real risk of liability, e.g., flying helicopters and airplanes with students or passengers, I tend not to worry about the 1 in 10 million probabilities. I know that I could cut my exposure by staying home and watching Verizon FiOS for the rest of my life, but escaping liability is not my prime goal in life.
Separately, when attending a friend’s reading of a children’s book at a local bookstore, I find myself the only lone male in the audience. Nearly everyone else was a mother with child or children. I introduced myself to those around me as a “pedophile”. While videotaping Abby reading a little girl climbed into my lap to get closer to the book. I’m still waiting for the lawsuit to land on my doormat…)
I do happen to have umbrella insurance, but am not aware of the fine print of exactly what is covered in situations like these. (But I am aware that the insurance only works if the insurance company is allowed to lead the defense, and their general approach is to reduce any payments they end up having to make rather than justice or payments I would have to make.) And the article did not mention the good samaritan laws. I still think it is really important that if there is more of a requirement to help people then there should be more of an awareness of the laws to prevent any ambiguity.
As for those who think no harm could come to a male stranger helping children, there have been a stream of stories over the years about it, along with surveys etc. See http://www.wendymcelroy.com/print.php?news.2454 for one example with commentary, http://www.telegraph.co.uk/education/3352895/Day-of-the-dad-paedophilia-hysteria-leaves-men-afraid-to-help.html for a prominent story and many anecdotes in blogs discussing the article as well as postings in reddit etc.
And yes, as much as it would pain me I would be extraordinarily careful offering any assistance to adults or children because I am fearful of what could happen to me in the US (I already have experience of a friend being sued over a traffic incident). My behaviour is the opposite outside of the US and UK.
Roger: I can’t see how those links support your point. No “harm came to a male stranger helping children”. The links were about a child who died because of a guy like you, who decided not to help. There was nothing in there about a man who lost a big lawsuit because he had tried to help a child but was accused of pedophilia. The fact that there are additional people in the world who share your fears doesn’t make those fears real. If I am afraid of monsters in my closet and find some other people who share my share, that does not prove that monsters are in fact in my closet.
Err, the Fitzroy Barnaby case is a direct example in the links. Unfortunately I can’t find the reddit discussion over this, but it included stories from single dads being in parks with their daughters and someone else calling the police, police being called when helping children put on their shoes coming off a bouncy castle. etc. (Sorry for being unable to find the links). It is a hysteria and it is rare like being struck by lightening or winning the lottery.
I have no fear of lightening. I do have a fear over this issue. (It possibly contributes that I generally don’t like children, do not have any of my own and am from a different culture. Consequently I don’t know what is “normal”.) You aren’t going to change my mind here, and I am not relevant to your overall point.
What is relevant is that the US is (perceived as) a highly litigious and there are instances of difficulties because of aiding strangers (even if rare and pumped up by media hysteria). This can lead to people taking different actions, or inaction, than you would personally do, and those too could vary depending on if it is a child or adult involved. Good samaritan laws and making them well known (and not different in every city/county/state as wikipedia implies) are a complement to any “duty to rescue” laws. Addressing hysteria is important too.
Getting off topic, there are direct measurable effects in the genders of teachers due to the hysteria. See http://preview.tinyurl.com/4ezvew – an article by the now London mayor giving numbers as well as being affected on a plane ride.
Here are some links covering the issues of adults around children. I am certainly not the exception!
http://www.schneier.com/blog/archives/2005/06/talking_to_stra.html (Child avoided rescuers because they were strangers)
http://preview.tinyurl.com/kccoh (Men are advised not to approach lost children)
http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article6797723.ece (We approach others’ children at our peril)
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10357510 (Ban on men sitting next to children)
http://www.ipce.info/newsletters/e_22/2_9_fear.htm (Reasons, polls and stories about adults helping children)
On the subject of helping adults there was a California good samaritan ruling last year – http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/12/18/state/n134850S58.DTL
It is easy to armchair quarterback that the rescuer did wrong, but in the same situation with debris, shock and fluids (I’m pretty sure I wouldn’t be able to tell the difference between gasoline and brake fluid in those circumstances) mistakes are easy to make.
Perhaps first aid, helping strangers and those sort of things should be regularly taught to children at various ages.
Roger: “The 28-year-old Fitzroy Barnaby jumped out his car, grabbed her arm and lectured her on how not to get killed”. He was not trying to save this 14-year-old girl from anything at the time. He was one man out of 150 million in the U.S. He happened to live in a state with unusual laws (“unlawful restraint of a minor, the offense of which Barnaby was convicted, automatically qualifies as a sex offense under Illinois law” according to http://overlawyered.com/2005/07/he-grabbed-girls-arm-now-hes-a-sex-offender/ ).
As for the other links, you’ve proved that you are not alone in your fear and that some extremely fearful people write for or are quoted by newspapers. None of the stories were about someone who was convicted of a crime or lost a civil judgment because of attempting to help an adult or child. The California case said only that an attempt to help someone is not an absolute defense against being sued for negligence. The plaintiff would still have to show negligence and that the rescuer’s actions caused harm (given that the injured person “slammed into a light pole at 45 mph”, it seems doubtful that a jury will believe that the injuries were primarily caused by something other than the accident). The defendant’s homeowner’s and umbrella insurers would have to defend her and pay up to the policy limits.
I don’t think that there are a significant number of Americans who are as fearful as you. Remember that “hysteria” was originally something that only women could suffer from. A man is not supposed to become hysterical in the face of a 1 in 150 million risk. Most Americans would probably say that given the opportunity to save the life of a 2-year-old child, any man who would do less than save her is less than a man.
[And since most men are more afraid of being painted as total pussies than they are of a brush with the law, I don’t think our nation’s children are significantly at risk. The girl who died in the story you linked us to was in England, a nation with a different concept of manliness (sufficiently different that a Prime Minster of France, Edith Cresson, estimated that 1 in 4 British men was homosexual).]
Phil: I don’t quite now what you are trying to convince me of. I am not an American but do live in the US and previously lived in the UK. You are obviously far more comfortable with the law (eg see the blog URL) whereas my only encounters have been negative and what I see in the media plus anecdotes in online forums. Like 99.99% of people I am not aware of each and every law in every state. You might consider the arm grabbing to be a 1 in 150 million thing, but I don’t know if every state has similar gotchas. Quite probably they do. If I ever end up in the legal system I do not expect to fare well – I couldn’t afford a lawyer and public ones don’t exactly all have a stellar reputation. (Again you would be far more comfortable should something like that happen.) The bottom line is that emotions play a part in this, and some of us are unable to estimate the probabilities of various issues with any degree of accuracy. Additionally some of us do not have the same comfort level with the legal system as you. The umbrella insurance is still problematic and not a total solution. For example if the coverage is for $1m then the insurance company pays the same amount whether the judgement is for $1m or $5m, but the latter would be far more devastating. They are for profit companies and it would not be in their interests to try and get the judgement lowered unless it would be lowered below their liability. And they won’t pay anything unless they have freedom to lead the defense.
Going back to your posting (which is what we should be discussing!), I am of the opinion that any attempts to increase the duty to rescue must also deal with “good samaritan” laws as well as adult child interaction, and those can be done in positive ways. Neither your commentary nor the article linked to mentioned them.
BTW the British stereotyping is just lame and not relevant.
Roger: The arm-grabbing IS a 1 in 150 million thing. There are 150 million American males. 1 guy was convicted. As nobody here was on the jury that convicted him we don’t know the full facts of the story. It may be that the guy was not behaving reasonably. Your supplemental fears about the potential inadequacy of your liability insurance aren’t very interesting because you haven’t cited any cases in which a would-be rescuer lost a civil judgment in any amount, much less an amount that exceeds typical homeowner’s liability coverage or a $5M umbrella policy.
I’m not trying to convince you of anything. If you’d rather let a child die than take a 1 in 150 million chance of having some legal hassles, that is apparently legal in many Common Law jurisdictions (though perhaps no longer in Massachusetts, after an early 1980s case in which a woman was being raped and nobody called 911). It is not my job to tell other people how to behave (though I would hope that if you did casually a fellow soul die the entire U.S. political establishment did not spend a week singing your praises, calling you a hero, and burying you in Arlington Cemetery).
I AM trying to convince everyone else reading this Weblog that the links you posted are not additional evidence of risk to a would-be rescuer, only evidence that the world contains some extremely fearful people.
I’m involved in a fair number of outdoor clubs and the “liability” discussion is a common one. Personally, I think people over exaggerate the risk of liability. Also, the media is a poor source of statistical data since their habit is to report rare (and sensational) events.
“rescue diver would have been able to reach the scene within 25 minutes”
25 minutes underwater is a very long time. It’s likely that it would have be a case of recovery not rescue. (Even so, waiting until the next morning was obsene.)
njkayaker, Mary Jo Kopechne survived for several hours in the car breathing from a dwindling air pocket which eventually ran out of oxygen.