flash
The following column was first published on the author’s website Res Ispa Loquitur
When I teach torts at George Washington University Law School, we discuss the "no duty to rescue" doctrine. Under the common law, you are not legally required to assist a person in peril if you had no responsibility for their injury.
A recent incident in the Grand Canyon National Park raised some of the underlying issues that we debate in our discussion of this doctrine. A 63-year-old hiker was rescued after he was injured in a fall and his friends left him behind to continue their "backpacking adventure."
The five friends were backpacking on the North Rim of the park when the man fell and seriously injured his shoulder. They were on their third or fourth day out and had another three or four days planned. One of the backpackers called the sheriff’s office. They then left the seriously injured man behind and continued their trip.
INJURED GRAND CANYON HIKER, 63, SAVED AFTER FRIENDS ABANDONED HIM TO CONTINUE BACKPACKING
The Mohave County Sheriff’s Office Search and Rescue brought out a chopper but could not land in the immediate area due to the dark. Rescuers, therefore, had to land a quarter of a mile away and hike into the location where they found the man near a creek. Due to the rough terrain, the rescuers said that they were very fortunate to find the man.
The injured hiker was found and airlifted to a hospital for further medical evaluation. (Mohave County Sheriff's Office Search and Rescue)
The man was stabilized and carried back to the helicopter. The sheriff’s office was clearly not pleased that the backpackers not only "continued on their backpacking adventures – leaving the injured hiker behind alone," but also took the Apple device used to contact rescuers. They could not reach the injured person.
We have previously discussed the failure to rescue or assist others. These cases often shock the conscience for many of us. Even transit workers have been excused of a duty to rescue.
The no duty rule was the basis for the famous ruling in Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959) where a man watched another man drown without taking any efforts to assist him. Even though Bigan dared Yania to jump into the hole full of water, the court found that this made no difference since these taunts were "directed to an adult in full possession of all his mental faculties."
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On the rule itself, the Court wrote:
Lastly, it is urged that Bigan failed to take the necessary steps to rescue Yania from the water. The mere fact that Bigan saw Yania in a position of peril in the water imposed upon him no legal, although a moral, obligation or duty to go to his rescue unless Bigan was legally responsible, in whole or in part, for placing Yania in the perilous position: Restatement, Torts, § 314. Cf: Restatement, Torts, § 322. The language of this Court in Brown v. French, 104 Pa. 604, 607, 608, is apt: "If it appeared that the deceased, by his own carelessness, contributed in any degree to the accident which caused the loss of his life, the defendants ought not to have been held to answer for the consequences resulting from that accident. … He voluntarily placed himself in the way of danger, and his death was the result of his own act. … That his undertaking was an exceedingly reckless and dangerous one, the event proves, but there was no one to blame for it but himself. He had the right to try the experiment, obviously dangerous as it was, but then also upon him rested the consequences of that experiment, and upon no one else; he may have been, and probably was, ignorant of the risk which he was taking upon himself, or knowing it, and trusting to his own skill, he may have regarded it as easily superable. But in either case, the result of his ignorance, or of his mistake, must rest with himself – and cannot be charged to the defendants". The complaint does not aver any facts which impose upon Bigan legal responsibility for placing Yania in the dangerous position in the water and, absent such legal responsibility, the law imposes on Bigan no duty of rescue.
The helicopter was unable to land in a tight space between the canyon walls and was forced to land about a quarter mile from the injured hiker. (Mohave County Sheriff's Office Search and Rescue)
Recognizing that the deceased Yania is entitled to the benefit of the presumption that he was exercising due care and extending to appellant the benefit of every well pleaded fact in this complaint and the fair inferences arising therefrom, yet we can reach but one conclusion: that Yania, a reasonable and prudent adult in full possession of all his mental faculties, undertook to perform an act which he knew or should have known was attended with more or less peril and it was the performance of that act and not any conduct upon Bigan’s part which caused his unfortunate death.
Europeans have always criticized our rule and many countries have long recognized a duty to rescue — though usually that obligation ends with any physical risk.
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Feminists in the United States have also called for the end of the rule and the emphasis on a collective obligation as opposed to the intense individual autonomy model underlying the rule. Even the well-known Judge Richard Posner has argued for tort liability for the failure to carry out low-cost rescues.
There is also no law preventing these adventurers from abandoning a fallen hiker. The law cannot make us better people.
In the most recent case, any duty to rescue this man was based on the bonds of friendship and decency rather than torts.
As a lifelong backpacker and hiker, I have assisted injured hikers in past years. I also was rescued once from a remote location.
I would not even think of leaving an injured hiker even on a less remote trail. Even if another hiker insisted that his friends continue on their hike, they should refuse and leave at least one hiker behind. (Two are better if they are going to continue down a remote trail after the rescue). Not only may an injured hiker not be mentally competent to make such a decision, but every hiker has to decide independently what the situation demands.
Officials said it was fortunate that the helicopter was able to locate the hiker after his group had left him behind to continue backpacking. (Mohave County Sheriff's Office Search and Rescue)
I am assuming that the friends attempted to make the man comfortable and they did ensure that the police were notified.
I also understand you often have limited time to make the hike to the next designated camping spot. That means that you may have to lose a day but it is better than leaving a disabled elderly hiker in a remote location as evening approaches.
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Yet, they are not under any obligation under the common law or state law to render aid. There is also no law preventing them from abandoning a fallen hiker. The law cannot make us better people.
The responsibility of these fellow hikers was purely moral rather than legal. These hikers left those moral considerations at the creek with this injured hiker when they decided to abandon him in favor of continuing their adventure.
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