We’ve talked before about the duty to rescue, but there are a couple of facets of the issue that we haven’t addressed. Plus, this issue came up (indirectly) in the most recent episode of Grimm, and we’ll talk about that, too. First, a brief summary of our prior post.
I. The Story So Far
In general there is no duty to rescue or aid others, so superheroes aren’t on the hook (except perhaps morally) if they decide not to rescue someone, even if they could do so very easily. However, once a rescue is attempted, a superhero must carry out the rescue with ordinary care. Similarly, abandoning the rescue partway through may leave the superhero liable. In short, they don’t have to rescue anybody, but if they try they must do so with reasonable care and they have to follow through.
There is, however, an exception for people in “special relationships.” For example, parents have an affirmative duty to rescue their children. However, it is very, very rare that the police or other government workers are considered to have such a special relationship with the victim of a crime or other endangered person, so even superheroes who work with or for the government will rarely be treated differently than if they were working as a private citizen.
Finally, at least five states (Massachusetts, Minnesota, Rhode Island, Wisconsin, and Vermont) have passed laws overruling the common law rule in some circumstances. For example, 12 V.S.A. § 519(a) provides “A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.” (emphasis added). Not only is this a fairly narrow exception to the common law rule, but the maximum penalty for violating it is a whopping $100 fine. So while Vermont has pushed back against the common law rule, it hasn’t put a lot of weight behind it. The other state laws have a similarly narrow scope and enforcement mechanism.
Note, however, that “without danger or peril to himself” part. A lot of superheroes might get caught by that in situations where ordinary people would have an excuse. There isn’t much that poses danger or peril to Superman, for example, so unless he owes an important duty to someone else or the imperiled person is already being assisted, Superman might find himself quite busy in Vermont. This is especially true given that Vermont’s law, unlike the others, doesn’t require the rescuer to be at the scene, merely to “know that another is exposed to grave physical harm.” Given Superman’s superhearing and other heightened senses, he is probably aware of most such situations in Vermont most of the time. In fact, Superman should probably just stay out of Vermont entirely.
So those are the basics. But what about people that are injured during a fight between a superhero and a supervillain? Does the superhero owe them a duty of rescue or aid? The answer is…maybe.
II. Injured Bystanders and the Duty to Rescue
The long-held common law rule was that there was a duty to rescue if one was legally responsible for the injury. “If the actor by his tortious conduct has caused such bodily harm to another as to make him helpless, the actor is under a duty to use reasonable care to prevent any further harm which the actor then realizes or should realize as threatening the other.” Restatement (First) of Torts § 322 (emphasis added). Normally, however, superheroes are acting under a legal privilege that allows them to avoid responsibility for a lot of bystander injuries.
For example, suppose Batman throws a gas grenade in order to stop some criminals who are about to attack a civilian, but the wind shifts and the gas causes an injury to a bystander. Batman would not be liable for that injury unless he realized or should have realized that the gas grenades created an unreasonable risk of causing such harm. Restatement (Second) of Torts § 75. No legal responsibility, no duty to rescue.
But the common law has developed, and now many jurisdictions observe a duty to rescue even when the injury was caused non-tortiously. “If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.” Restatement (Second) of Torts § 322 (emphasis added).
So going back to our example: under this new standard, Batman would have a duty of reasonable care to prevent further harm to the helpless bystander even though he was legally privileged to cause the harm in the first place. Of course, “reasonable care” might mean “very little care” if there are more pressing matters at hand, such as a fleeing supervillain to catch or another group of henchmen about to attack other bystanders. But if there is no other danger, then Batman may be obligated to at least call 911 or take the injured bystander to the hospital.
This rule means that superheroes would have to be very careful to avoid harm to bystanders, lest they be on the hook for preventing further harm, whether from themselves or from others.
III. Grimm and the Duty to Rescue
On the most recent episode of Grimm (“Island of Dreams”), Nick’s co-worker Sergeant Wu is poisoned by a magical cookie meant for someone else. Rather than take Wu to the hospital, Nick leaves him in the care of a Fuchsbau* named Rosalee who remembers seeing her father treat a similar case of poisoning several years ago. As it happens, she (mostly) successfully treats Wu, who seems mostly unharmed.
* As an aside: the mostly nonsensical, horribly pronounced pseudo-German on that show is really irritating. Hire a consultant, NBC, seriously.
Here, Rosalee (and to a lesser extent Monroe, who assists her) are in a bit of a bind. What is reasonable in this situation? Taking Wu to a regular hospital? Rosalee assures Nick that the doctors won’t know how to treat the poisoning. But the alternative doesn’t seem much better. Rosalee’s knowledge is second-hand at best, and she’s not a trained healthcare worker, even among the creatures of Grimm. And, of course, if things had gone badly, none of them would have been able to explain what had happened.
Initially, Nick himself doesn’t seem to be in any danger of liability, since having Rosalee treat Wu wasn’t Nick’s idea, and in fact he wanted to take Wu to a hospital at first. But after Wu recovers somewhat, he helps Rosalee and Monroe take Wu to his house so that he can wake up in a familiar environment. At that point, Nick became party to the rescue and could be liable if a reasonable person would have taken Wu to the hospital at that point. And that means a reasonable person who knew only what most people know about the world (i.e., nothing about magical cookies or Grimms).
Superheroes need to know the ins and outs of the duty to rescue and its many exceptions and caveats. In some states superheroes may even have a limited affirmative duty to rescue others, and in Vermont at least that could be a real problem. Those $100 fines can add up, and failure to pay them could result in a contempt charge. In Superman’s case the bad PR would probably be worse than the fine or even the contempt charge, but it’s still something to watch out for.