I agree with Bricker.
And, although I’m not a Canadian lawyer, I do not read Grey’s statute as creating any liability for the hypothetical skier.
The closest language says:
There’s a requirement that the kid be under the adult’s charge - an existing legal relationship, created voluntarily or through operation of law. So a teacher, school bus driver, day care employee or similar person with responsibility for the child would be potentially responsible. Someone in the child’s presence through happenstance would not be.
To get to the point that Grey asserts, there’d need to be another law (or perhaps a definition in this law) that stated that a random adult with no prior connection to the child has a responsibility to take care of the child if no one else is available. That law doesn’t seem to exist.
Said another way, Grey’s argument kind of begs the question. If someone is “under my charge” I have a responsibility for him already. A law that only kicks in when that responsibility already exists cannot logically create that responsibility if it doesn’t.
Why have the law at all, then? Simple - at a minimum, it criminalizes the breach of that pre-existing duty.
As LawHog has indicated, the states that have enacted Good Samaritan laws have done so to protect those attempting to render aid. Under the common-law, you have no duty to render any aid (barring relationships or circumstances that impose a duty), but if you attempt to do so, and the person is injured, you can be liable. The classic case is of a person drowning. If you throw him a life preserver and it hits him, you could be liable for any injury resulting from your action. So, it is just the opposite of what you said, and I don’t know what it has to do with the train system.
No. Similar problem. The abandonment must first be unlawful. Your argument is circular. This law does not in any way make ignoring/abandoning a child unlawful. If the abandonment is unlawful, the law creates consequences
[quote=Bricker]
Recklessly means having a duty of care and violating it. **
(This isn’t the Bricker statement that I was endorsing.) Technically, Walloon is correct, if Bricker meant this definition of “reckless” to be complete (which I don’t think he did). To be reckless, the behavior must be something more than mere negligence or carelessness. The disregard of the duty must be more extreme.
But there still must be a duty of care and a breach of that duty, (which I believe was his point).
Depends on exactly what “acts” means- and I couldn’t find a definition in the penal law. Only the second paragraph requires any sort of relationship between the child and the adult.
My point about the trains was this: in the 19th century in America, much of the rail system operated in non-urban areas. Laws were enacted at the time that compelled people who witnessed a train accident to render aid. This was devised to help the rail system remain viable. Albeit an unlikely scenario, and very very rarely used.
All of these arguments regarding Good Samaritan that have been cited or discussed here seem to be laws that are working on the reverse of this, namely to protect an individual who attempts to render aid at some point. But that was not what the OP was asking.
My point in a nutshell: there were laws compelling people to act, but they may not be around now, and may have been very rarely invoked.
I did not make myself as clear on that as I had hoped. I apologize.
At common law, you simply don’t have a duty to help people and keep them from injury – you merely have a general duty not to injure them. (Unless of course you’re responsible for their predicament – if you caused the avalanche, e.g.)
The exception is if you and the person in need of help have a special relationship. The classic example is the parent-child relationship. Therefore, the question in the OP really is whether the circumstance forms one of these important special relationships.
Probably no. Typically a special relationship (outside the parent one) is formed when the responsible party is getting some benefit from the relationship – a professional is getting paid for advice, a school official is getting paid out of tuition, etc. No benefit in the OP. The relationship typically is one willingly entered by at least the responsible party – usually you cannot be forced to be responsible for someone other than your child. Not the case here.
Special relationships have been formed de facto, I think, but IIRC they happen when the responsible party offers his assistance and the other party begins to rely on it. In this case, the removal of the assistance is a form of harm, or could lead to it, so it’s not a situation in which one has been purely passive.
I say as a matter of common law there’s no tort and certainly no crime committed here. However, this is the type of thing where the legislature might revise the duties at the common law, so in any given jurisdiction the law may be very different.
–Cliffy
P.S. For God’s sake, please don’t anyone rely on this post for legal advice. This isn’t my area of practice and I’m not licensed in your state. I am not competent to represent you.
Even the first paragraph requires an overt act by the person to be charged. Our skier is not acting to put the child in danger. He’s refraining from acting. Again, the statute doesn’t create any resposibility to act where none doesn’t already exist.
I don’t know what is the wording after the 1978 reform, but my part of Spain used to make it illegal to deny to someone:
food or water
fire
salt
passage through your fields to reach theirs, if no other path was available.
The law also stated how much of this could be taken, but in any case you would have been responsible for that kid. If someone died freezing to death and you had refused them fire, that would make you responsible for murder (not manslaughter); if they died from eating food that they had been unable to preserve after you denied them salt, murder again. In some 1100 years of having that law written down (it was oral, previously), there have been only a few cases where it got called and it was always re. the paths part.
Like I said, this was active until 1978. I understand from my lawyer uncles that it got modernized but not taken out. And yes, I know you were asking about US laws…
We’ve done virtually the same issue before, right down to the misunderstanding of what Good Samaritan laws say, and prompt debunking of the misunderstanding:
But this doesn’t fit the OP. Again, no one is forcing the kid away from food or doing any overt action to deny the child anything. The point is, can you be charged for NOT acting to help someone.
There might be a law somewhere but the next problem is, how the hell do you enforce something like this? Arrest everyone who passes a bum on the street? Or a driver who passes a stranded vehicle?
Suppose we amend the OP to include communication with the outside world. The stranded adult would reasonably wish to communicate the situation to the outside world – in hopes of rescue.
If he mentions the child in this communication, does he then take on responsibility as guardian? He would be setting forces in motion that would (hopefully) result in eventual rescue of the child. I think that the situation would be different if the rescuers were expecting one lone guy and found a guy and a dead child, than if they were expecting a guy and a child, and found the child dead.
Is he legally obligated to provide the detail that there is another human stranded?
In the hypothetical situation I described, there’s plenty of food. Why would you eat the child in that situation? You know eating humans isn’t good for you, right?
Wasn’t there a case a year or two ago where a guy saw a person he knew murdering a kid in a mall bathroom, and just walked away? If I recall correctly, the authorities were not able to find a charge that would apply to him, despite massive public outrage…
273a. (a) Any person who, under circumstances or conditions likely
to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain
or mental suffering, or having the care or custody of any child,
willfully causes or permits the person or health of that child to be
injured, or willfully causes or permits that child to be placed in a
situation where his or her person or health is endangered, shall be
punished by imprisonment in a county jail not exceeding one year, or
in the state prison for two, four, or six years.
This is immediately followed by the non-death version, a misdemeanor.