Advanced Torts

Remember the story of Kitty Genovese, the lady from New York City who cried for help when attacked outside her apartment building yet no one came to help? Remember little Sherrice Iverson, the cute little seven-year-old girl who was brutally murdered in a Las Vegas casino, and how the killer’s friend did nothing to help her?

In America, unique among all civil law countries, there is no general duty to respond in those situations. Therefore, the apartment residents who put a pillow over their head to drown out the screams and the killer’s friend who did nothing for poor little Sherrice got off scot free.

Today, in my Advanced Torts Seminar, I have been assigned to argue that there should be a general duty of care to assist someone in serious danger if it creates no risk to you to do so.

The word “tort” is a bit more popular today, what with conservatives wanting to reform it and all. It is a fun word for beginning law students because no one really knows what it means. Here’s the skinny: If you begin with the realization that there is such a thing as criminal law, you’ll soon realize that there’s a whole bunch of law that has nothing to do with “crimes.” We say these non-criminal disputes constitute the world of “civil” law. In civil law, there is an entire body of law devoted to property disputes, and another devoted to contract disputes. Generally speaking, torts is what is left over afterwards.

Torts is hands-down my favorite topic in law school, and I am privileged to be in this Advanced Torts Seminar because I get the opportunity each week to listen to Justice Allen Linden (THE Torts guy from Canada) ramble on about torts for a couple of hours. I love it.

Today, however, he asked a couple of us to argue “for” the general duty of care for easy rescue and a couple of us to argue “against” it. Ought to be fun, and I’m looking forward to it.

There are all sorts of interesting torts (like defamation, false imprisonment, and products liability), but the bread and butter tort is negligence. There are four elements to a successful tort action. First of all, you must have a “duty” to the other person. Second, you must “breach” that duty. Third, the breach must have been the “cause” of the injury. Finally, there must be “damages.” If all four elements are present, you have met your burden of proving negligence.

But as I said before, in America, you have no general “duty” to pick up the phone and dial 911 when someone is being murdered before your very eyes. I’m arguing against that today. The fun part is I actually believe my argument.

Over the years, America has carved out a lot of exceptions to the general rule. A large section of those exceptions is based on whether or not you have a “special relationship” to the other persons. Thus, schools, airlines, and hotels, for example, owe those they serve a general duty of care.

My argument is rather simple: Doesn’t the special relationship we call “common humanity” create enough of a relationship where you have a “duty” to provide a “no-risk-to-you” easy rescue of another human being in serious danger?

The major counterargument is personal freedom. But when personal freedom trumps a human life, I think we have lost our way.