"Bad Samaritans" and the law (civil and criminal)

Factual Questions
1

I know there’s probably a thread about this somewhere, but I have no idea how to search for it, so here’s my query:

Imagine a lonely inner city street. A car hits an oil slick or has a sudden blowout, and a crash ensues. Husband, the driver, staggers out, a little loopy but okay. But Wife is severely injured. He looks about; all the stores are closed, and there’s no obvious private home nearby. But there is one soul about, a Bystander on a cel phone. He is deep in conversation and doesn’t seem to have taken notice of the accident. Husband runs up.

HUSBAND: Can I use your cel phone? It’s an emergency! (BYSTANDER ignores him) Please! It’s an emergency!
BYSTANDER: Go away. (continues conversation)
HUSBAND: For God’s sake, my wife is badly hurt! She needs medical attention! (He waves towards the crash site, which is close enough to be discernable, and be relatively obviously a bad crash, though WIFE may or may not be visible. BYSTANDER looks for a moment)
BYSTANDER: Look, I don’t care, so leave me alone, you asshole. (goes back go conversation on phone)

Pressed for time, Husband runs off. He manages to find a phone a block away, but by the time medical help gets there and takes Wife to a hospital, it’s too late. Wife dies in the ICU.

Assuming that the extra time wasted made a difference, could Bystander be charged criminally? Would it depend on locale? What, if anything, could Husband sue Bystander for (assume he’s rich enough to make it worth the while)? What’re the chances he would collect a judgment?

Now assume that instead of running off, Husband decks Bystander and uses the cel phone, and Wife is saved. Husband would probably face criminal assault charges (correct me if I’m wrong), but what if Bystander tried to sue? Could he, for what, and what’re his chances of collecting?

Would it make any difference to any of the above scenarios if Bystander was on the only working public pay phone nearby? Or would I need to make any adjustments to my core scenario to get different answers?

Note that I’m not looking for a debate (obviously) on the rightness or wrongness of anyone’s actions, legal obligations, or laws thereof. I’m just curious as to what laws and prescedents already exist.

2

IANAL but your scenario could be considered as “depraved indifference,” which could open up the bystander to some legal action. The thing is that as I understand the law an overt act is required to trigger criminal or civil liability. A failure to act generally doesn’t trigger such liability. A clever lawyer could make the argument that continuing to tie up the only available means of communication in the face of a medical emergency is an overt act. As always the answer will vary by jurisdiction.

3

Partial anwer: that would make a difference.

Here in Minnesota, the Public Utilities Commission has rules relating to the use of public pay phones which require that you relinquish use of the phone in an emergency situation. There are penalties for failing to do so (and penalties for falsely claiming it to be an emergency). Similar rules applied to party lines, which I remember as a young boy growing up in the countryside.

4

At common law and barring any statute to the contrary, if there is no special relationship between the two people and if cell phone man was not responsible for the accident, his failure to act does not give rise to any civil or criminal liability. Even if he could easily save the woman’s life at no personal danger to himself, the common law imposes no duty to act upon him.

If the husband knocks him out and calls an ambulance, I feel pretty certain he would be guilty of civil and criminal assault and battery at common law; I don’t think defense of a third person would apply in those circumstances and I can’t think of any other exculpatory justification. As a practical matter few prosecutors would bring charges and few juries would convict on those facts.

Please note again the very important caveat “at common law and barring any statute to the conrary.” Some jurisdictions may have enacted rules or statutes that abrogate the common law in some respects.

5

In some respects, this reminds me of the questions raised in the thread Can I legally refuse to feed Rachel Leigh Cook unless she sleeps with me?

As pravnik noted in that thread and again above, there is no particular duty at common law to save the life of another person, absent some sort of cirucmstance that establishes such a duty.

Some posters in the old thread seemed quite surprised that the demands of the shipwrecked man in the hypothetical didn’t amount to rape – but they do not. In the same vein, a passer-by has no duty, generally speaking, to lift so much as a finger to aid another.

Otto is correct when he notes that some act is required to trigger depraved indifference – you must ACT with depraved indifference; your indifference that amounts to complete inaction, even if depraved itself, is not generally a crime.

As to Husband cold-cocking Bystander – the reality is that a jury would probably hear the facts and award Bystander a dollar, if they even found against Husband in the first place. And I can’t imagine a prosecutor going to a jury and asking for a conviction with those facts.

  • Rick
6

Does the DA have any “obligation” to prosecute a given case? At what point would failure to persue a prosecution be criminal? What would the DA be charged with (if anything)?

I can understand what Bricker is saying about reluctance to prosecute in this case, but what if Adam Schiff’s best friend is molesting kids and he chooses to not prosecute?

7

There have been a number of cases in which parties have sought a writ of mandamus to order a prosecutor to prosecute. Without resort to actual research, my recollection is that most if not all ended the same way: with the finding that the prosecutor’s discretion in his area is pretty near absolute.

“Discretion” is the key word here. If an illegal motive can be shown, such that a reviewing court can make a finding of abuse of discretion, then most jurisdictions would have some sort of malfeasance/misfeasance in office law that could apply.

  • Rick
8

This is about US law, by implication, which I do not know about. I’d like to offer a piece of speculation, though:

  1. I just looked up the criminal codes of Austria, France, Germany and Switzerland (the countries whose criminal laws were most easy for me to look up). In each of these “failure to render help” (when needed, possible and not dangerous to helper or third party) is listed as a criminal offence, with penalties varying by country, circumstances and consequences, up to five years of imprisonment (France).

  2. That these four countries independently criminalized failing to render assistance to someone in danger indicates me that it’s a pretty obvious offence to legislate against.

  3. Is it likely that every single US state has failed to do that?

9

tschild: actually the same applies to most Western European countries. Besides the ones you mention, I believe The Netherlands, Belgium and Italy at least also have civil and criminal sanctions for lack of aid. I don’t know about other countries, but I suspect most countries with a civil law system (a code of civil/criminal law) have provisions for such a case. Common law (in particular British and U.S. law) seem to be the exception.

The problem is not so much that common law has failed to legislate this, but that common law has not codified most of civil law. Civil law in such countries is mostly uncodified, and was developed over the course of centuries. This makes it rather hard to make a specific code for one single problem, especially if it is not considered to be an important issue. Civil law systems on the other hand have the whole of civil law codified, therefore they only need to add a specific article for such a case.

10

Well, since forty-nine of the fifty U.S. states have a common-law tradition, and since, so far as I’m aware, Austria, France, Germany and Switzerland do not, I’d humbly suggest that the comparison is not particularly apt.

In any event, both pravnik and I have repeatedly said things like “at common law…” and “assuming no contrary statute…” to guard against that possibility. At common law, no such duty exists. A particular state may well have imposed such a duty; I remain unaware of it.

  • Rick
11

I remain unaware of it as well; in fact, I’ll go as far as to say I don’t believe any state has imposed such a rule, except perhaps in limited situations. In a nonfeasance situation (as opposed to a malfeasance situation), the general rule here remains that one person has no duty to come to the aid of another if they did not create the peril, have a contractural or special relationship, or began to deliver aid and caused the person to then rely on the aid given. It’s shocking to many people that the law would remain as such, but there you have it.

12

It’s been 13 years since my torts class, but somewhere in the recesses of my mind there’s a factoid that Vermont adopted a limited duty to act as a good samaritan. Ahh, a quick search found repeated references to the existence of such laws in Vermont, Wisconsin, Rhode Island, and possibly Minnesota (one law review article claims the latter’s was repealed). There appear to be laws of more limited application in other states - Massachusetts and Florida, for example, impose a duty to report specific criminal acts, like child abuse. But regardless of the exact number, it’s decidedly a minority position in the United States. For mor, see here: http://www.nesl.edu/intljournal/vol6/hayden.pdf.

13

As a former holder of Red Cross First Aid and CPR cards, I can say that, if my cards were active and I saw an accident, I would be negligent if I didn’t call 911. That, however, would have been the extent of my obligation. I would not be required to extend aid of any kind. I have to assume that untrained people are also not required to extend aid.

14

Wis stat 895.48 is Wisconsin’s “good samaritan” statute. It does not impose a duty to act on anyone. Instead, it insulates from civil liability people who do act under certain circumstances.

15

That’s the other kind of “good samaritan” statute, which is common in most states. What I’m describing is a “duty to act” or “duty to assist,” WIS. STAT. § 940.34:

According to the law review article I cite above, this is a very unusual law; I believe it was passed in response to the widely-publicized Massachusetts case in which a woman was raped on a pool table while several people sat close by and no one called the police, despite an available pay phone.