Duty to Help Those in Danger

You may have read a recent news story about a group of teens who recorded and mocked a disabled man, Jamel Dunn, as he was drowning. If this happened in New York, could the observers be liable in a civil action to recover damages for personal injury/wrongful death?^[1]Whether criminal liability may be found is beyond the scope of this article.

In New York, there is no general duty to aid one in peril. In 1946, a New York City Court observed that:

[T]here is no legal duty to offer relief or assistance to one who is sick or injured. It is true that there may be a strong moral and humanitarian obligation to furnish such aid and assitance [sic] under ordinary circumstances, but from time immemorial our courts have held that there is no legal responsibility so to do.^[2]Plutner v. Silver Associates, 186 Misc. 1025, 1027, 61 N.Y.S.2d 594, 595 (Mun.Ct., N.Y. County, 1946); see generally 14 N.Y.Prac., New York Law of Torts § 6:30.

More recently, the Third Department summarized the law as follows:

In any negligence action, the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff” (Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 576, 807 N.Y.S.2d 588, 841 N.E.2d 747 [2005] ). This is frequently a “difficult task [and,] [d]espite often sympathetic facts in a particular case before them, courts must be mindful of the precedential, and consequential, future effects of their rulings, and limit the legal consequences of wrongs to a controllable degree” (Lauer v. City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000] [internal quotation marks and citations omitted]; see Darby v. Compagnie Natl. Air France, 96 N.Y.2d 343, 347, 728 N.Y.S.2d 731, 753 N.E.2d 160 [2001]; Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [2001] ). Consonant with the premise that a moral duty does not equate with a legal duty (see e.g. Pulka v. Edelman, 40 N.Y.2d 781, 786, 390 N.Y.S.2d 393, 358 N.E.2d 1019 [1976] ), it is the general rule that “one does not owe a duty to come to the aid of a person in peril”.^[3]Daily v. Tops Markets, LLC, 134 A.D.3d 1332, 1333, 20 N.Y.S.3d 487, 488 (N.Y. App. Div. 2015), leave to appeal denied, 27 N.Y.3d 909, 60 N.E.3d 1201 (2016).

This rule is not absolute, however. Courts hold that a duty of care may arise under certain circumstances.

For example, the New York Pattern Jury Instructions – which are not authoritative, but are nevertheless instructive – provide:

Defendant AB had no duty to come to CD’s assistance. But once AB voluntarily came to the assistance of CD, the law imposed on AB the duty of using reasonable care in giving assistance and the duty to continue to do so if it would appear to a reasonable person that discontinuing assistance would expose CD to a new danger or a return to the same or a similar danger.^[4]N.Y. Pattern Jury Instr.–Civil 2:24.

The commentary to this charge notes that its principle “applies in at least three separate situations: (i) aid voluntarily rendered to one in distress; (ii) special duties assumed toward a specific class of persons; and (iii) nonperformance of a promise gratuitously made for the benefit of the plaintiff”, all of which are “subject to the general rule that ‘[o]ne who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all[.]'”

For example, courts have held that a common carrier has a “duty to take reasonable action to protect a passenger who is being assaulted.”^[5]Daily v. Tops Markets, 134 A.D.3d at 1333.

The above illustrates that legal obligations do not always align with/flow from moral and ethical principles.