By: Jeffrey Lapin
Generally, no person has a duty to help another in need. Supreme Court Associate Justice Anthony Kennedy noted this during oral arguments on President Obama’s healthcare law on March 27, 2012 and added that while this may seem immoral or wrong, it is the law and has been for a long time. There are a few exceptions to this general rule, which are primarily related to a person’s job in relation to a victim. This post will discuss the duty of private citizens to help another in need. It will not wade into the question of the government’s duty especially those issues involving the President Obama’s Affordable Care Act (also known as Obamacare).
NO GENERAL DUTY
The 2-part finale of “Seinfeld” had a trial in which the main characters were charged with violating the city’s “Good Samaritan” Law that required bystanders to help those in need. Jerry, Elaine, George and Kramer witnessed an overweight man getting carjacked at gunpoint. Rather than helping, they made jokes about the man’s large size and later get arrested under the law for not calling police to help the man.
The four are convicted after a number of witnesses are called to testify about their “character.” The Judge, after the verdict is read, states:
I do not know how, or under what circumstances the four of you found each other, but your callous indifference and utter disregard for everything that is good and decent has rocked the very foundation upon which our society is built. I can think of nothing more fitting than for the four of you to spend a year removed from society so that you can contemplate the manner in which you have conducted yourselves.
Nebraska does not have such a law.
In Nebraska, there is no general duty to help another in need, whether it is a crime victim or someone who has sustained an injury. During the United States Supreme Court oral arguments on the Affordable Care Act (“Obamacare”) on March 27, 2012, when discussing his concerns about the federal government’s ability to require people buy a product, Associate Supreme Court Justice Anthony Kennedy stated:
The reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.
This general rule is echoed in Nebraska. For a discussion of this rule in Nebraska read Dowis v. Continental Elevator Co., Inc., decided by the Nebraska Supreme Court in 1992, and which can be found here.
EXCEPTIONS: SPECIAL DUTY TO HELP
Despite the general rule that there is no duty to help, there are exceptions that are primarily based on the relationship or employment status of the person who could render aid or assist a victim. Police officers and firefighters, by the very nature of their jobs, are required to assist citizens, in both rendering aid, if possible, and trying to apprehend the person committing the crime or causing the injury.
Nebraskans are required to immediately report suspected child abuse. Nebraska Revised Statute § 28-711 provides, in part:
When any physician, medical institution, nurse, school employee, social worker, or other person has reasonable cause to believe that a child has been subjected to child abuse or neglect or observes such child being subjected to conditions or circumstances which reasonably would result in child abuse or neglect, he or she shall report such incident or cause a report of child abuse or neglect to be made . . .
Violation of the statute is a Class III misdemeanor, which could result in up to 3 months imprisonment, a five hundred dollars fine or both.. This statute does not limit it to professionals who might work with children. However, it is usually the professionals listed in the statute who are prosecuted for failing to report.
When someone, who is not under a duty to do so, does voluntarily act to help someone, the volunteer can be liable if harm occurs as a result of aid or actions. This has also been long established law. In 1928, New York Judge Benjamin Nathan Cardozo, who later would be become an Associate United States Supreme Court Justice, said of this rule:
The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all.
A volunteer must use the same care as a reasonably careful person would have used under similar circumstances. However, there is an exception for those rendering care at the scene of an emergency. Nebraska Revised Statute § 25-21,186 provides:
No person who renders emergency care at the scene of an accident or other emergency gratuitously, shall be held liable for any civil damages as a result of any act or omission by such person in rendering the emergency care or as a result of any act or failure to act to provide or arrange for medical treatment or care for the injured person.
This exception only applies to “actual” volunteers; it does not apply to police, rescue or other professionals who have a duty to render aid in these situations.
The general rule that private citizens do not have an affirmative duty to render any type of assistance is very longstanding. This includes even just reporting a crime or accident. There are some laws where a duty has been imposed to report but those usually only apply to child abuse or persons society considers in need of special protection. Professionals have a duty but that is imposed by the job itself; they are not truly “volunteers.”
While this is the law, we do live in a society where people voluntarily render aid to others in need. It does not occur all of the time but there are enough “Good Samaritans,” especially in Nebraska, throughout the news for not offering assistance tends to occur much more often than not. Fortunately, there are laws that protect people who do help others. These types of laws need to be protected. In addition, remember the Golden Rule, which is to treat other people as we would wish to be treated yourself.
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Lapin Law Offices represents injured, abused and disabled clients throughout Nebraska. If you have been questions about a potential case please give us a call at 402-421-8033 (Lincoln) or 888-525-8819 (Toll Free) anytime (24/7) or contact us through our website: www.LapinLawOffices.com.