Ah, I was under the impresson that the child was a neighbor of hers. The fact that she did have a relationship with the child (through her relationship with his father) changes everything.
Taking the devil’s advocate side here, Newkirk also knew the child was liable to fall in the creek, yet did not prevent him from playing there the second time.
To use your match analogy, she prevents the child from playing with matches, tells the father, then watches him play with a new set until he burns himself up.
When a child is in clear danger, it’s pretty weak to say that you already discharged your duties, it’s someone elses responsibility, so you don’t need to intervene to save his life.
None of this excuses the father from responsibility, of course, but there can be more than one responsible person in a situation.
Hiya.
No, your statement is not true. In a criminal case, an apellate court may overturn a guilty verdict simply to meet the ends of justice. In Virginia, to pick a state I know well, this is codified at Va Code § 8.01-681. This exceptional ability is very rarely used, because the strong presumption is that if all the “proper legal rules and laws” are followed, the end result is just.
Actually, that’s not so. An appeals court (depending upon the jurisdiction and the issues involved) may set aside a verdict in either a civil or criminal case if the trial judge and/or jury clearly lost its way, or reached a verdict that was clearly unsupported by the evidence. It’s a high standard to meet, but it’s not out of reach. In a criminal case where the defendant was wrongly convicted, he or she may not be retried; that would be double jeopardy. In a civil case, the case may be remanded for further proceedings such as a hearing to correct the amount awarded to the winner, or for an entirely new trial.
As for a duty to assist one in danger, I haven’t checked lately, but as of a decade or so ago (when this issue came up in one of my law school classes) both Vermont and Minnesota had statutes which provided for a duty to assist where the person observing someone else in trouble could assist while not endangering himself or herself. Given the few facts we have of the nonswimming woman and the kid in the flooded creek, I’d think the woman wouldn’t be liable even in Vermont and Minnesota.
I agree. I was under the impression that she was a bystander.
As the live-in girlfriend, I agree you can impute a duty of care to her. She lived with the child.
Actually, it doesn’t, at least from the evidence presented in the article. Unless the woman’s relationship with the child is formalized by marriage and adoption, or is established by practice (woman was a habitual caregiver to the child), the relationship between the woman and the father does not carry with it automatic responsibility for the child.
Sua
Facts not in evidence, Bricker!! 
Neither article says she was a “live-in” girlfriend. I would agree that live-in status would indicate that she was a caregiver to the child, but we don’t know that yet.
Sua
As should be obvious by now, I haven’t read the articles – I’m reacting solely to the commentary here.
I think we’re in agreement on the point, though - IF she was a live-in girlfriend, we may impute to her a duty of care to the child.
I point out that I did not assert that she was, I added a question mark, & put the comment in as an aside.
Another article
http://www.mcall.com/news/nationworld/state/all-a18_drownoct02,0,6407992.story?coll=all-statenews-hed
A photo, caption reads
2004 article, describing the boy’s body being found.
http://www.wrtanews.com/artman/exec/view.cgi?archive=2&num=314
article on his funeral
http://www.wjactv.com/news/3746881/detail.html
His memorial was vandalized
How many times should she have to take him back to his father?
I don’t want to strain the analogy, but if may kid were found playing with matches either he would not leave my sight or his access to matches would be restricted. If he subsequently burns down the house it is my fault. The father knowingly allowed the kid to put himself in danger. Had he been a responsible parent none of this would have happened.
Is that what she said? It’s what I said. It is not at all clear from the article that she could have prevented him going into the creek. She is being punished for not following him in, which would have put her own life at risk, apparently to no purpose, as those who did go in were unable to save him.
Should she be more responsible than the father?
Stop badgering the witness, Sua.
If I were on the jury, based on the facts in the article there is no way that I would vote to convict.
“But…but…it’s a child!” does not alter the fact that she can’t swim and that a swollen, flooded stream can be hazardous to even a good swimmer.
However many times it takes to ensure the kid doesn’t wind up in a coffin, that’s how many. I’m not saying she has to follow the kid around with a leash, but if she’s down there, and he’s down there, it’s not that hard to get him away from the raging torrent. The kid is two for christs sake, he shouldn’t wind up dead because he’s got an inattentive dad. Not when there’s an adult in the vicinity who knows he’s in danger.
Obviously the dad is pretty irresponsible and a lousy father, no question. This is not your kid however, it is someone elses kid, who is engaging in highly dangerous activity right in front of you. You don’t step in because the parent should?
That’s a detail I don’t know, and a detail that I would consider important if I were on the jury. If there wasn’t a way for her to stop the kid from falling in, I can’t fault her nearly as much for not jumping into a raging stream while not knowing how to swim.
When the father is as irresponsible as this one, it is trivial to be more responsible, and someone should have been.
I don’t really even want to say that she should be incarcerated for failing to help the child, but I damn well think she should have done more for that kid that day.
The caption isn’t there, but it is apparently the same “creek”. (Creek makes it sound less dangerous, but fast water is dangerous water no matter how wide!)
The water appears shallow and fast, and in my opinion (maybe not expert, but damn close, 25+ years in the woods) that makes it really dangerous! It looks like you can just walk right through it, but when you take your first step, you get swept away.
It’s not deep enough to swim in, so your stuck trying to wade, and you can’t wade because the water speed keeps taking your feet out from under you! So you can’t get up, instead you get rolled downstream.
You’re right, he shouldn’t end up dead but sometimes accidents happen. I’ve taken care of toddlers before and it surprised me how quickly I could lose track of one if my attention as focused on something besides them.
Such as? If you’re not a good swimmer then it’s a bad idea to jump in after someone who’s drowning. I once saved a drowning child, I was a child at the time, but I would not have attempted it if I were not a good swimmer and I can not taken a water life saving course. Even with my limited training my head was forced underwater by her wild attempts to save herself. Shouting for help was probably the best option for her.
Marc
Caption onna right.
Sorry, missed it. Thanks for finding the pics!
When I took my one semester law class at Iowa in the mid 1940’s this question came up. At that time Iowa law imposed no obligation but if a person started to render aid they had to continue it to the best of their ability until other help arrived or it was definitely hopeless.
For example, you couldn’t stop on the highway and start to help an accident victim and then decide to just walk away before other help arrived.
This is still the basic, general law on this issue in many, if not all states. (The idea behind the starting-to-render-aid exception is that a potential rescuer may have passed on by, figuring that the first rescuer was dealing with the problem. If the furst rescuer hadn’t made his half-assed attempt, the second one might have stopped and successfully completed the resQ.
I think we’ve done this issue before. Let me see what I can find.