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90 Yale L.J. 247 (1980-1981)
The Case for a Duty to Rescue

handle is hein.journals/ylr90 and id is 265 raw text is: The Yale Law Journal Volume 90, Number 2, December 1980 The Case for a Duty to Rescue* Ernest J. Weinribt No observer would have any difficulty outlining the current state of the law throughout the common-law world regarding the duty to rescue. Except when the person endangered and the potential rescuer are linked in a special relationship, there is no such duty.' This general rule rests on the law's distinction between the inflic- tion of harm and the failure to prevent it. The distinction between misfeasance and nonfeasance in turn reflects deeply rooted intui- tions about causation, and it has played a critical role in the devel- opment of the common-law notions of contract and tort and of the boundary between them. In large part because this distinction is so fundamental to the common law, the courts have uniformly re- fused to enunciate a general duty to rescue,2 even in the face of repeated criticisms that the absence of such a duty is callous.3 * I would like to thank Professor Charles Fried of Harvard University and my colleagues Professor A. S. Weinrib and Professor S. A. Schiff for commenting on earlier drafts of this article. t Professor, Faculty of Law, University of Toronto. 1. See W. PROSSER, THE LAW OF TORTS § 56, at 338-43 (4th ed. 1971) (special relation- ships include husband-wife, shipmaster-crew, proprietor-customer, carrier-passenger, edu- cator-pupil, and employer-employee); Note, The Duty to Rescue, 47 IND. L.J. 321, 321 & n.3 (1972) (same). For the law in non-common-law jurisdictions, see Feldbrugge, Good and Bad Samaritans: A Comparative Survey of Criminal Law Provisions Concerning Failure to Rescue, 14 Am. J. Comp. L. 630 (1966); Rudzinski, The Duty to Rescue: A Comparative Analysis, in THE GOOD SAmARrTAN AND THE LAW 91 (J. Ratcliffe ed. 1966); Note, Stalking the Good Samaritan: Communists, Capi- talists and the Duty to Rescue, 1976 UTAH L. REv. 529. Cases from Canadian and British jurisdictions serve as the principal illustrations in this article, but the relevant American case law is noted throughout. 2. See, e.g., Buch v. Amory Mfg. Co., 69 N.H. 257, 44 A. 809 (1897); Home Office v. Dorset Yacht Co., [1970] A.C. 1004, 1029-30 (H.L.) (Lord Reid). 3. For several of the criticisms of the common-law rule, see note 17 infra (citing sources). 247

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