Documentation:Torts/Negligence Rescuers

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Negligent endangerment or rescue
Generally speaking, tort law does not expect individuals to come to the rescue of others, and those who choose not do so rarely face liability. There are, however, exceptional circumstances where the common law requires an individual to take action for the benefit of someone else.[1]

When a duty to aid does arise, a rescuer should act reasonably to avoid effecting a negligent rescue.[2] Furthermore, a tortfeasor may owe a duty of care to a rescuer who is induced to act because of the tortfeasor's negligent endangerment of another.[2][3]

Misfeasance versus nonfeasance

A key proposition underpinning tort law is that harmful acts (misfeasance) attract liability whereas harmful omissions (nonfeasance) typically do not. That is, someone who tries to assist a person in need exposes themselves to legal consequences, while someone who stands idly by faces no such liability.[4] This distinction may be explained by the nature of a duty of care. Tort law imposes a duty on rescuers to act reasonably, but it does not impose a duty on mere bystanders.[1]

Tort law's treatment of misfeasance versus nonfeasance is well-illustrated when comparing the cases of Yania v. Bigan and Zelenko v. Gimbel Bros. Inc. In Yania, a bystander who watched as his friend drown through his own carelessness was not held liable for his failure to rescue his friend.[5] The defendant in Zelenko, on the other hand, was found liable because he had undertaken to render medical aid to a person who had fallen ill, but he had done so in a careless manner.[6]

Affirmative duty to rescue

A white Cabin cruiser in the middle of a body of water, with a spread of trees in the background.

Duty of care

Despite the common law's tendency to avoid holding bystanders liable, in exceptional circumstances there may be an "affirmative duty" on individuals to act.[1] For example, in Horsley v. MacLaren, the defendant invited guests onto his cabin cruiser, and one of the guests fell overboard.[7] The Supreme Court of Canada found that the defendant, as the host, owner, and operator of the boat, had a duty to effect the rescue of his guest, even if he had not carelessly caused their immediate peril.[8]

Standard of care

While the law may sometimes impose an obligation to act or rescue, the standard of care is reasonableness and not perfection. In Horsley, a majority of the Supreme Court of Canada acknowledged that the defendant's rescue attempt was not executed according to recommended procedures, but considered that it did not amount to a breach of duty.[9] The majority agreed with the Ontario Court of Appeal, which stated that the defendant must be "judged in the light of the situation as it appeared to him at the time and in the context of immediate and pressing emergency".[10]

Duty owed to rescuers

Background of Wagner v. International Railway Company

This Quimbee video provides the background facts of Wagner v. International Railway Company.[11]

The common law has imposed liability on those who create dangerous situations that naturally invite rescue.[3]

In Wagner v. International Railway Company, the plaintiff and his cousin boarded a train, the doors of which the conductor failed to close.[12] As a result, the plaintiff's cousin was thrown from the train car, and the plaintiff injured himself in the search for his cousin's body. The New York Court of Appeals found that a wrongdoer is liable to a rescuer who is injured in the course of a reasonable rescue attempt. In Justice Cardozo's words, "[d]anger invites rescue" and "[t]he risk of rescue, if only it be not wanton, is born of the occasion."[3] Although the wrongdoer might not have personally foreseen the interference of a third party rescuer, they are still responsible as though they had.

However, a wrongdoer is only liable to a rescuer to the extent that the wrongdoer is at fault for the danger. In Horsley v. MacLaren, a perilous situation arose when one of the invited guests fell overboard from MacLaren's boat.[13] MacLaren attempted a rescue, which was followed by a second attempt from Horsley who ultimately died in his efforts.[14] Because the the guest did not fall overboard due to MacLaren's negligence, any duty MacLaren might owe to Horsley must arise from a subsequent creation of danger.[13]

Ritchie J. in the Supreme Court of Canada found that MacLaren's initial rescue efforts were imperfect but not so faulty as to breach the duty he owed to the overboard guest. The evidence could not support that he created a new situation of danger that "induced Horsley to risk his life by diving as he did."[9] MacLaren might have owed Horsley a duty, however, if it had been found that MacLaren had been negligent in his own rescue attempt.[13]

Good Samaritan and duty to rescue laws

International map of bystander laws[15]
International map of bystander laws
Duty to rescue law
Good Samaritan law
No duty to rescue or Good Samaritan law
No duty to rescue, no data about Good Samaritan laws

In a legal context, a "Good Samaritan" refers to someone who voluntarily provides emergency aid to an ill or injured person.[16] The term has its roots in the Biblical Parable of the Good Samaritan. The passage tells of an injured traveler who is ignored by a priest and a Levite but is then finally aided by a passing Samaritan.[17]

Most Canadian provinces have enacted Good Samaritan statutes that protect individuals from liability when coming to the aid of others.[18] While individuals are not obligated to help strangers in need, if they do so, they typically will not be liable for injuries caused by their act or omission in rendering aid unless they are grossly negligent.[19] The rationale is that it is beneficial for society if potential rescuers are concerned only with providing assistance rather than the possibility of legal repercussion.[16]

British Columbia Good Samaritan Act
Good Samaritan Act, RSBC 1996, c 172.[20]
No liability for emergency aid unless gross negligence

1  A person who renders emergency medical services or aid to an ill, injured or unconscious person, at the immediate scene of an accident or emergency that has caused the illness, injury or unconsciousness, is not liable for damages for injury to or death of that person caused by the person's act or omission in rendering the medical services or aid unless that person is grossly negligent.

Exceptions

Section 1 does not apply if the person rendering the medical services or aid

(a) is employed expressly for that purpose, or
(b) does so with a view to gain.

On the other hand, Quebec has passed duty to rescue legislation that positively requires every person to come to the aid of those in danger.[21] In contrast to the common law presumption of no liability for nonfeasance, Quebec has entrenched an obligation to rescue within its Charter of Human Rights and Freedoms,[21] which holds quasi-constitutional status.[22] Rescuers are exempt from liability for injuries incurred as a result of their efforts.[23] Similarly, Northern Australia and five American states have also implemented legal duties to rescue.[24] There have even been recommendations to enshrine duty to rescue laws in the Canadian Criminal Code, but the Parliament of Canada has not taken this step.[22]

Discussion questions

In the news
Spiderman of Paris

Many jurisdictions have various approaches to laws around rescue. France, with a notably strict citizenship process, granted citizenship to a Malian migrant who scaled an apartment building to save a child in danger.[25][26]

  • What is the moral hazard embedded in the common law’s act/omissions distinction? How do Good Samaritan laws aim to correct it?
  • Does judicial invocation of the Good Samaritan Parable suggest that common law principles are grounded in morality?
  • Many jurisdictions have developed legislative responses to nonfeasance. While European civil systems often impose duties to rescue, most Canadian provinces, not-withstanding Quebec, only impose Good Samaritan laws, which provide protection from liability for individuals to provide assistance to those in danger.[27] Which do you think is more effective?
  • In what way do Good Samaritan laws reflect (or not) the lesson of the Biblical Good Samaritan?
  • Countries such as France have been known for imposing liability on those who fail to rescue those in danger and, in recent circumstances, have gone above and beyond to reward those who rescue others, such as the French Spiderman incident.[28] What are the implications of imposing a legal duty to rescue or providing incentives to rescuing in situations of danger?


  1. ↑ 1.0 1.1 1.2 Abraham, Kenneth S; Kendrick, Leslie (15 May 2019). "There's No Such Thing as Affirmative Duty". Iowa Law Review. 104 (4): 1651–1652.
  2. ↑ 2.0 2.1 Horsley v. MacLaren, 1971 CanLII 24 (SCC) (§13.3.2) at 445.
  3. ↑ 3.0 3.1 3.2 Wagner v. International Railway Co, 232 NY 176 (NY CA 1921) (§13.3.1) at para 5.
  4. ↑ Linden, Allen M (1966). "Tort Liability for Criminal Nonfeasance". Canadian Bar Review. 44 (1): 25.
  5. ↑ Yania v. Bigan, 397 Pa. 316 (PA SC 1959) (§13.2.1).
  6. ↑ Zelenko v. Gimbel Bros. Inc., 158 Misc. 904 (1935 NY SC) (§13.2.2).
  7. ↑ Horsley v. MacLaren, 1971 CanLII 24 (SCC) (§13.3.2).
  8. ↑ Horsley v. MacLaren, 1971 CanLII 24 (SCC) (§13.3.2) at para 1.
  9. ↑ 9.0 9.1 Horsley v. MacLaren, 1971 CanLII 24 (SCC) (§13.3.2) at para 21.
  10. ↑ Horsley v. MacLaren, 1971 CanLII 24 (SCC) (§13.3.2) at 450–451 citing Horsley v. MacLaren, 1970 CanLII 34 (ONCA) at 494.
  11. ↑ Quimbee (18 February 2021). "Wagner v. International Ry. Case Brief Summary | Law Case Explained". YouTube.
  12. ↑ Wagner v. International Railway Co, 232 NY 176 (NY CA 1921) (§13.3.1) at para 3.
  13. ↑ 13.0 13.1 13.2 Horsley v. MacLaren, 1971 CanLII 24 (SCC) (§13.3.2) at para 7.
  14. ↑ Horsley v. MacLaren, 1971 CanLII 24 (SCC) (§13.3.2) at para 25.
  15. ↑ "Good Samaritan Laws". Wikipedia.
  16. ↑ 16.0 16.1 West, Brian; Varacallo, Matthew (12 September 2022). "Good Samaritan Laws". StatPearls.
  17. ↑ Luke 10:25-37.
  18. ↑ Linden, Allen (2016). "Toward Tort Liability for Bad Samaritans". Alberta Law Review. 53 (4): 837, 842.
  19. ↑ Good Samaritan Act, RSBC 1996, c 172, s 1.
  20. ↑ Good Samaritan Act, RSBC 1996, c 172 (§13.3.4).
  21. ↑ 21.0 21.1 Charter of Human Rights and Freedoms, CQLR c C-12, s 2.
  22. ↑ 22.0 22.1 Linden, Allen (2016). "Toward Tort Liability for Bad Samaritans". Alberta Law Review. 53 (4): 842.
  23. ↑ Civil Code of Québec, CQLR c CCQ-1991, art 1471.
  24. ↑ Linden, Allen (2016). "Toward Tort Liability for Bad Samaritans". Alberta Law Review. 53 (4): 841–842.
  25. ↑ Hughes, Roland (24 December 2018). "The Spiderman of Paris: What happened next?". BBC.
  26. ↑ Al Jazeera English (29 May 2018). "Spiderman of Paris: Malian saves toddler from balcony in France | Al Jazeera English". YouTube.
  27. ↑ Linden, Allen (2016). "Toward Tort Liability for Bad Samaritans". Alberta Law Review. 53.
  28. ↑ Hughes, Roland (24 December 2018). "The Spiderman of Paris: What happened next?". BBC.
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