Duty of care

From Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Duty_of_care

In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law that the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals who have no current direct relationship (familial or contractual or otherwise) but eventually become related in some manner, as defined by common law (meaning case law).

Duty of care may be considered a formalisation of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law.

Development of the general duty of care

At common law, duties were formerly limited to those with whom one was in privity one way or another, as exemplified by cases like Winterbottom v. Wright (1842). In the early 20th century, judges began to recognize that the cold realities of the Second Industrial Revolution (in which end users were frequently several parties removed from the original manufacturer) implied that enforcing the privity requirement against hapless consumers had harsh results in many product liability cases. The idea of a general duty of care that runs to all who could be foreseeably affected by one's conduct (accompanied by the demolishing of the privity barrier) first appeared in the judgment of William Brett (later Lord Esher), Master of the Rolls, in Heaven v Pender (1883). Although Brett's formulation was rejected by the rest of the court, similar formulations later appeared in the landmark U.S. case of MacPherson v. Buick Motor Co. (1916) and, in the UK, in Donoghue v Stevenson (1932). Both MacPherson and Donoghue were product liability cases, and both expressly acknowledged and cited Brett's analysis as their inspiration.

Scope

Although the duty of care is easiest to understand in contexts like simple blunt trauma, it is important to understand that the duty can be still found in situations where plaintiffs and defendants may be separated by vast distances of space and time.

For instance, an engineer or construction company involved in erecting a building may be reasonably responsible to tenants inhabiting the building many years in the future. This point is illustrated by the decision of the South Carolina Supreme Court in Terlinde v. Neely 275 S.C. 395, 271 S.E.2d 768 (1980), later cited by the Supreme Court of Canada in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. [1995] 1 S.C.R. 85:

The plaintiffs, being a member of the class for which the home was constructed, are entitled to a duty of care in construction commensurate with industry standards. In the light of the fact that the home was constructed as speculative, the home builder cannot reasonably argue he envisioned anything but a class of purchasers. By placing this product into the stream of commerce, the builder owes a duty of care to those who will use his product, so as to render him accountable for negligent workmanship.

Responsibility

Although the idea of a general duty of care is now widely accepted, there are significant differences among the common law jurisdictions concerning the specific circumstances under which that duty of care exists. Obviously, courts cannot impose unlimited liability and hold everyone liable for everyone else's problems; as Justice Cardozo put it, to rule otherwise would be to expose defendants "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class." There must be some reasonable limit to the duty of care; the problem is where to set that limit.

England

Main article: Duty of care in English law

Whether a duty of care exists depends firstly on whether there is an analogous case in which the Courts have previously held there to exist (or not exist) a duty of care. Situations in which a duty of care have previously been held to exist include doctor and patient, manufacturer and consumer, and surveyor and mortgagor. Accordingly, if there is an analogous case on duty of care, the court will simply apply that case to the facts of the new case without asking itself any normative questions.

If there is no similar case that the court will determine whether there is a duty of care by applying the three normative criteria the House of Lords set out in Caparo Industries plc v Dickman. The criteria are as follows:

• Harm must be a "reasonably foreseeable" result of the defendant's conduct;
• A relationship of "proximity" must exist between the defendant and the claimant;
• It must be "fair, just and reasonable" to impose liability.

European Union

Australia

The High Court of Australia has deviated from the British approach, which still recognises a proximity element. Rather, Australian law first determines whether the case at hand fits within an established category of case where a duty of care has been found. For example, occupiers of a premises automatically owe a duty of care to any person on their premises.

If this is not the case, then the plaintiff must prove that it was reasonably foreseeable that harm could result from the defendant's actions. If so, the Court then applies a 'salient features' test to determine whether the plaintiff is owed a duty of care. Some of the salient features which the Court considers in making this inquiry include:

1. Whether imposition of a duty of care would lead to 'indeterminate liability' – that is, it would interfere with the legitimate protection or pursuit of an individual's social or business interests.
2. Whether imposition of a duty would constitute an unreasonable burden on individual autonomy.
3. The degree of vulnerability of the plaintiff to the defendant's actions – their ability to guard against the harm.
4. The degree of knowledge which the defendant had about the probability and likely magnitude of harm to the plaintiff.

Special rules exist for the establishment of duty of care where the plaintiff suffered mental harm, or where the defendant is a public authority.

To establish a duty of care, the plaintiff has to satisfy the requirement of CLA Act ss 27–33. In light of this, a large number of individuals cannot claim injuries as well. Meanwhile, compared to the ‘No-Fault Compensation’ system in New Zealand, the cost to claim injuries is much higher. In light of this, individuals especially the victims who lack knowledge or capability may choose not claim private nuisance after balancing the burden and outcomes. This view affirmed by Regina Graycar, he states that the courts in Australia are reluctant to award damages for personal injuries.

In New South Wales, a plaintiff is able to recover for non-economic loss, including pain and suffering, loss of amenities/expectation of life and disfigurement, upon the severity of the loss being at least 15% of 'most extreme case'. As of October 2016, NSW Attorney General, Gabrielle Upton, has updated the maximum amount of damages for non-economic loss from $594,000 to $605,000.

France

On 27 March 2017, the French National Assembly adopted a law entitled “Devoir de vigilance des entreprises donneuses d'ordre”, whose title has been translated into English as a "duty of vigilance" or "duty of care".

The law will oblige large French companies (companies with at least 5,000 staff in France or 10,000 staff within their combined French and foreign offices over two consecutive years) to:

"Establish and implement a diligence plan which should state the measures taken to identify and prevent the occurrence of human rights and environmental risks resulting from their activities, the activities of companies they control and the activities of sub-contractors and suppliers on whom they have a significant influence."

Sweden

Sweden does not have such a law.

Switzerland

Flag (in French) supporting the responsible business initiative.

In Switzerland, a federal popular initiative named 'For responsible businesses – protecting human rights and the environment' was launched by a coalition of non-governmental organizations. It proposed a mechanism of public liability when activities of Swiss multinationals, or their subsidiaries, violate internationally recognised human rights and environmental standards.

On 29 November 2020, the responsible business initiative was accepted by 51% of voters, but rejected by a majority of cantons. The failure of the initiative leads to the entry into force of the legislative counter-project. The latter also introduces new due diligence obligations. Criminal fines can be imposed for failure to report (but nor for breaches of international law).

United States

Because each of the 50 U.S. states is a separate sovereign free to develop its own tort law under the Tenth Amendment, there are several tests for finding a duty of care in United States tort law.

Foreseeability test

In several states, like Florida and Massachusetts, the sole test is whether the harm to the plaintiff from the defendant's actions was foreseeable.

Multi-factor test

The Supreme Court of California, in a majority opinion by Justice David Eagleson, criticized the idea that foreseeability, standing alone, constitutes an adequate basis on which to rest the duty of care: "Experience has shown that . . . there are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages."

Drawing upon the work of scholars such as Fowler V. Harper, Fleming James Jr., and William Prosser, California has developed a complicated balancing test consisting of multiple factors which must be carefully weighed against one another to determine whether a duty of care exists in a negligence action.

California Civil Code section 1714 imposes a general duty of ordinary care, which by default requires all persons to take reasonable measures to prevent harm to others. In the 1968 case of Rowland v. Christian, the court held that judicial exceptions to this general duty of care should only be created if clearly justified based on the following public-policy factors:

• the foreseeability of harm to the injured party;
• the degree of certainty he or she suffered injury;
• the closeness of the connection between the defendant's conduct and the injury suffered;
• the moral blame attached to the defendant's conduct;
• the policy of preventing future harm;
• the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach;
• and the availability, cost, and prevalence of insurance for the risk involved.

A 1997 case added to this:

• the social utility of the defendant's conduct from which the injury arose.

Contemporary California appellate decisions treat the Rowland decision as the "gold standard" for determining the existence of a legal duty of care, and generally refer to the criteria for determining the existence of a legal duty of care as the Rowland factors.

In California, the duty inquiry focuses on the general category of conduct at issue and the range of foreseeable harm it creates, rather than the specific actions or injuries in each case. Appellate lawyer Jeffrey Ehrlich persuaded the California Supreme Court to clarify the central importance of this distinction with its 2011 decision in Cabral v. Ralphs Grocery Co. which requires "no duty" rulings to be based on categorical public-policy rules that can be applied to a range of cases, without reference to detailed facts. By requiring courts to apply the Rowland factors at this high level of factual generality, the Cabral decision preserved the role of juries in determining whether the defendant breached its duty of care based on the unique circumstances of each case.

A majority of U.S. states have adopted some kind of multi-factor analysis based on the work of Prosser and others. Some states simply copied California's factors but modified them, like Michigan (which deleted the insurance factor and never picked up the social utility factor), while others developed different lists of factors, such as this one from Tennessee:

• the foreseeability of the harm or injury;
• the possible magnitude of the potential harm or injury;
• the importance or social value of the activity engaged in by the defendant;
• the usefulness of the conduct to the defendant;
• the feasibility of alternative conduct;
• the costs and burdens associated with the alternative conduct;
• the relative usefulness of the alternative conduct;
• and the relative safety of the alternative conduct.

A 2011 law review article identified 43 states that use a multifactor analysis in 23 various incarnations; consolidating them together results in a list of 42 different factors used by U.S. courts to determine whether a duty of care exists.

The Tennessee Court of Appeal has also recently followed the California Supreme Court's lead by citing Cabral for the proposition that duty determinations must be made at the highest level of factual generality.

Measurement

Main articles: Standard of care and Reasonable person

Once a duty exists, the plaintiff must show that the defendant breached it. This is generally treated as the second element of negligence in the United States. Breach involves testing the defendant's actions against the standard of a reasonable person, which varies depending on the facts of the case. For example, physicians will be held to reasonable standards for members of their profession, rather than those of the general public, in negligence actions for medical malpractice.

In turn, once the appropriate standard has been found, the breach is proven when the plaintiff shows that the defendant's conduct fell below or did not reach the relevant standard of reasonable care.

However, it is possible that the defendant took every possible precaution and exceeded what would have been done by any reasonable person, yet the plaintiff was injured. If that is the case, then as a matter of law, the duty of care has not been breached and the plaintiff cannot recover in negligence. This is the key difference between negligence and strict liability; if strict liability attaches to the defendant's conduct, then the plaintiff can recover under that theory regardless of whatever precautions were taken by the defendant.

Examples

Products

Product liability was the context in which the general duty of care first developed. Manufacturers owe a duty of care to consumers who ultimately purchase and use the products. In the case of Donoghue v Stevenson [1932] AC 562 of the House of Lords, Lord Atkin stated:

My Lords, if your Lordships accept the view that this pleading discloses a relevant cause of action you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.

Land

Main article: Premises liability

 

A notice in the Republic of Ireland informing potential entrants on premises of limits to the duty of care

At common law, in the case of landowners, the extent of their duty of care to those who came on their premises varied depending on whether a person was classified as a trespasser, licensee, or invitee. This rule was eventually abolished in some common law jurisdictions. For example, England enacted the Occupiers Liability Act 1957. Similarly, in the 1968 landmark case of Rowland v. Christian, the Supreme Court of California replaced the old classifications with a general duty of care to all persons on one's land, regardless of their status. After several highly publicized and controversial cases, the California Legislature enacted a statute in 1985 that partially restored immunity to landowners from some types of lawsuits from trespassers.

Colorado's highest court adopted the Rowland unified duty of care analysis in 1971. The resulting explosion of lawsuits against Colorado landowners caused the state legislature to enact the Colorado Premises Liability Act in 1986, which enacted a cleaned-up statutory version of the common law classifications and simultaneously expressly displaced all common law remedies against landowners in order to prevent state courts from again expanding their liability.

In the Republic of Ireland, under the Occupiers' Liability Act, 1995, the duty of care to trespassers, visitors and "recreational users" can be restricted by the occupier; provided reasonable notice is given, for which a prominent notice at the usual entrance to the premises usually suffices.

Business

See also: Business judgment rule

In business, "the duty of care addresses the attentiveness and prudence of managers in performing their decision-making and supervisory functions." The "business judgment rule presumes that directors (and officers) carry out their functions in good faith, after sufficient investigation, and for acceptable reasons. Unless this presumption is overcome, courts abstain from second-guessing well-meaning business decisions even when they are flops. This is a risk that shareholders take when they make a corporate investment."

Cybersecurity

See also: Reasonable person

With increased cyber threats and attacks, legislation has evolved to incorporate how to establish responsibility in the event of a breach. Key terms in privacy bills and laws cite 'reasonable security' or 'duty of care' as a requirement of organizations when managing sensitive data. If a company manages private information such as social security numbers (SSN) or personal health information (PHI), it is their responsibility to practice 'duty of care' and establish 'reasonable controls' to protect this data. For example, if a hacker group attacks a bank with ransomware, and they exfiltrate all their client data - who is responsible for potential wire fraud, identity theft, and costs for litigation? Businesses are required to demonstrate they have implemented a security strategy based on their risk profile, as it is specific for each working environment. Legislation is outlining specific roles for executives in order to carry out 'duty of care' properly, as in the case of the Colorado Privacy Act. It states, "A controller shall take reasonable measures to secure personal data during both storage and use from unauthorized acquisition. The data security practices must be appropriate to the volume, scope, and nature of the personal data processed and the nature of the business." The New York Privacy Act (NYPA) also proposed a 'duty of care' for risk assessments by controllers regarding personal data.

The common theme in establishing duty of care is the assessment of risk, the likelihood of these risks occurring, and how they would impact all parties potentially affected by those risks. Companies must comply with these new requirements of their duty to for reasonable security as it applies to their working landscape - to manage risk appropriately or be liable for the harm they could cause.

Omission (law)

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Omission_(law) 

In law, an omission is a failure to act, which generally attracts different legal consequences from positive conduct. In the criminal law, an omission will constitute an actus reus and give rise to liability only when the law imposes a duty to act and the defendant is in breach of that duty. In tort law, similarly, liability will be imposed for an omission only exceptionally, when it can be established that the defendant was under a duty to act or duty of care.

Criminal law

In the criminal law, at common law, there was no general duty of care owed to fellow citizens. The traditional view was encapsulated in the example of watching a person drown in shallow water and making no rescue effort, where commentators borrowed the line, "Thou shalt not kill but needst not strive, officiously, to keep another alive." (Arthur Hugh Clough (1819–1861)) in support of the proposition that the failure to act does not attract criminal liability. Nevertheless, such failures might be morally indefensible and so both legislatures and the courts have imposed liability when the failure to act is sufficiently blameworthy to justify criminalisation. Some statutes therefore explicitly state that the actus reus consists of any relevant "act or omission", or use a word that may include both. Hence, the word "cause" may be both positive in the sense that the accused proactively injured the victim and negative in that the accused intentionally failed to act knowing that this failure would cause the relevant injury. In the courts, the trend has been to use objective tests to determine whether, in circumstances where there would have been no risk to the accused's health or well-being, the accused should have taken action to prevent a foreseeable injury being sustained by a particular victim or one from a class of potential victims.

So, returning to the drowning example, the accused would be liable if the victim was a child in a pool with a water depth of six inches, or there was a flotation device nearby that could easily be thrown to the victim, or the accused was carrying a mobile phone that could be used to summon help. However, the law will never penalise someone for not jumping into a raging torrent of water, i.e. the law does not require the potential saver to risk drowning even though the individual might be a lifeguard paid to patrol the given beach, river or pool. No matter what the terms of employment, an employee can never be required to do more than what is reasonable in all the circumstances. In R v Dytham (1979) QB 722 an on-duty police officer stood and watched a man beaten to death outside a nightclub. He then left without calling for assistance or summoning an ambulance. He was convicted of the common law offence of willful misconduct in public office. Widgery CJ said:

The allegation was not one of mere non-feasance, but of deliberate failure and willful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty, but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.

In the Attorney General's Reference (No 3 of 2003) (2004) EWCA Crim 868 police officers arrested a man with head injuries for a breach of the peace because of his abusive and aggressive behaviour towards the hospital staff who were trying to treat him. He later stopped breathing in the police station and all attempts at resuscitation failed. Five police officers, who were involved in the care of A at the time of his death, were charged with manslaughter by gross negligence and misconduct in a public office. It was held that the latter offence required that a public officer was acting as such, that he willfully neglected to perform his duty and/or willfully misconducted himself in a way which amounted to an abuse of the public's trust in the office holder, without reasonable excuse or justification; that whether the misconduct was of a sufficiently serious nature would depend upon the responsibilities of the office and the office holder, the importance of the public objects which they served, the nature and extent of the departure from those responsibilities and the seriousness of the consequences which might follow from the misconduct; that to establish the mens rea (Latin for "guilty mind") of the offence, it had to be proved that the office holder was aware of the duty to act or was subjectively reckless as to the existence of the duty; that the test of recklessness applied both to the question whether in particular circumstances a duty arose at all and to the conduct of the defendant if it did arise; and that the subjective test applied both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission.

Assumption of responsibility for care of dependents

The general rule is that parents, legal guardians, spouses (see R v Smith (1979) CLR 251 where the wife died after giving birth to a stillborn child, delivered by her husband at home) and anyone who voluntarily agrees to care for another who is dependent because of age, illness or other infirmity, may incur a duty, at least until care can be handed over to someone else. In three cases, the duty was implied:

• R v Instan (1893) 1 QB 450, Instan lived with her aunt, who was suddenly taken ill and could no longer feed herself or call for help. She was convicted of manslaughter because she neither fed her aunt, nor called for medical help, even though she continued to stay in the house and ate her aunt's food.
• R v Stone & Dobinson (1977) QB 354. Stone and his mistress agreed to care for his sister who was suffering from anorexia. As her condition deteriorated, she became bed-ridden but no help was summoned and she died. They were convicted of her manslaughter because they had accepted her into their home and so assumed a duty of care for her.
• R v Gibbins & Proctor (1918) 13 Cr App Rep 134. A father and his lover neglected his child by failing to feed her. The lover had taken on a duty to care for the child when moving into the house and was under an obligation to care for her.

Statutory omissions

Misprision of felony was abolished in 1967 but new statutory offences of failure to comply with a duty to disclose terrorist acts or funding under s19(2) Terrorism Act 2000, and failure to disclose knowledge or suspicion of money laundering maintain the tradition. Similarly, the appropriation element in s1 theft may be committed by an act or by keeping when there is a duty to return the property, a deception under s15(4) Theft Act 1968 may be committed by what is not said or done, and "dishonestly secures" under s2(1) Theft Act 1978 may also be committed by omission (see R v Firth (1990) CLR 326 in which the defendant failed to tell the NHS that patients using NHS facilities were in fact private patients thereby obtaining the use of the facilities without payment). One of the simpler examples is the offence of failing to report a road traffic accident (s. 170 Road Traffic Act 1988).

Duty to act when the defendant has created the danger

A person who creates a dangerous situation may be under a duty to take reasonable steps to avert that danger. In R v Miller (1983) 2 AC 161, the defendant was sleeping rough in a building. He fell asleep on his mattress while smoking a cigarette. When he woke, he found that the mattress was smouldering but, instead of calling for help, he simply moved into another room. This allowed the fire to spread. He was convicted under the Criminal Damage Act 1971 for recklessly causing damage by omission. Lord Diplock said:

...I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence.

But although this may apply to the generality of offences, "constructive manslaughter" is different. R v Lowe (1973) QB 702, the defendant committed the offence of neglecting his child under s1 Children and Young Persons Act 1933, and this caused the child's death. It was held that there should be a difference between commission and omission. Mere neglect without some foresight of the possibility of harm resulting is not a ground of constructive manslaughter, even if that omission is deliberate. R v Khan & Khan (1998) CLR 830, confirmed that there is no separate category of manslaughter by omission unless the omission constitutes a breach of duty to act. The defendants supplied a 15-year-old prostitute with twice the amount of heroin likely to be taken by a regular user. The defendants left her unconscious in the flat, returning the next day to find that she had died of the overdose. Had medical assistance been called, the girl would probably not have died. The unlawful act was supplying the drug but the death was caused by the quantity injected by the victim. The trial judge invited jury to consider liability on the basis of the defendants' failure to summon medical assistance. On appeal, the conviction was quashed because the brothers had not accepted a duty to act before she took the heroin.

Failure to provide medical treatment

In general terms, doctors and hospitals have a duty to provide appropriate care for their patients, and an omission may breach that duty except where an adult patient of ordinary capacity terminates the duty by refusing consent. There is a conflict in public policy. The policy of patient autonomy enshrines a right of self-determination—patients have a right to live their lives how they wish, even if it will damage their health or lead to premature death. Society’s interest is in upholding the concept that all human life is sacred and should be preserved if at all possible. It is now well established that the right of the individual is paramount. In Re C (Adult: Refusal of Treatment) (1994) 1 WLR 290, a patient diagnosed as a chronic, paranoid schizophrenic refused to allow his gangrenous foot to be amputated. This was permitted because his general capacity showed him capable of understanding the nature, purpose and effect of the life-saving treatment. In Re B (Adult: Refusal of Medical Treatment) (2002) 2 AER 449 the presumption that an adult has full capacity can be rebutted if:

(a) the person is unable to understand the information relevant to the decision, especially as to the likely consequences of having or not having the treatment; or

(b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at a decision.

Ms B was a competent but paralysed, ventilator-dependent patient, and she won the right to have the ventilator turned off. Although the switching-off had to be performed by a doctor, and this is an act intentionally causing death, the law characterises this as an omission because it amounts simply to a cessation of the ongoing treatment. The doctors’ conduct qualifies as lawful "passive euthanasia". If the particular doctor invited to omit further treatment has conscientious objections, a doctor who will undertake the omission should be sought. But, in more general cases of necessity, urgent surgery may not be unlawful to preserve life pending any judicial decision. Similarly, when the patient is a minor, emergency treatment to preserve life will not be unlawful (note the power to refer issues of consent to the courts under their wardship jurisdiction).

In death with dignity situations where a patient is incapable of communicating his wishes, a doctor may be relieved of his duty, as the House of Lords recognised in Airedale National Health Service Trust v Bland (1993) AC 789. Here a patient who had survived for three years in a persistent vegetative state after suffering irreversible brain damage in the Hillsborough disaster continued to breathe normally, but was kept alive only by being fed through tubes. It was held that treatment could properly be withdrawn in such circumstances, because the best interests of the patient did not involve him being kept alive at all costs. Lord Goff nevertheless drew a fundamental distinction between acts and omissions in this context:

... the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient's life to an end ... the former may be lawful, either because the doctor is giving effect to his patient's wishes ... or even in certain circumstances in which ... the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be.

Duty to act when contracted to do so

In R v Pittwood (1902), the defendant was convicted of gross negligence manslaughter after he failed to close the gate on a level crossing as he was contracted to do. This caused a train to collide with a hay cart, and the court ruled that "a man might incur criminal liability from a duty arising out of contract."

Preventing and prosecuting war crimes

Following the Nuremberg Trials international law developed the concept of command responsibility. It holds that military commanders are imposed with individual responsibility for war crimes, committed by forces under their effective command and control, they failed to prevent or adequately prosecute, if they:

either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.

Tort law

In the law of negligence, if the defendant's conduct took the form of an omission, rather than a positive act, then it will be more difficult to establish that she owed a duty of care to the plaintiff. The rationale is that a positive duty is more onerous to fulfill than a negative duty, and therefore limits more severely the liberty of the duty-bearer.

The Finale

From Wikipedia, the free encyclopedia

"The Finale"
Seinfeld episodes
Episode nos.	Season 9 Episodes 23/24
Directed by	Andy Ackerman
Written by	Larry David
Production code	923/924
Original air date	May 14, 1998
Running time	56 minutes
Guest appearances
Wayne Knight as Newman Stanley Anderson as Judge Arthur Vandelay Philip Baker Hall as Lt. Joe Bookman Estelle Harris as Estelle Costanza Jerry Stiller as Frank Costanza Phil Morris as Jackie Chiles John Pinette as Howie James Rebhorn as District Attorney Hoyt Peter Riegert as NBC President James Kimbrough
Episode chronology
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Seinfeld (season 9)
List of episodes

"The Finale" is an episode of the American television sitcom Seinfeld. As the two-part series finale, it comprises the 179th and 180th episodes of the show and the 23rd and 24th episodes of the ninth season. It aired on NBC on May 14, 1998, to an audience of 76 million viewers. Its initial running time was 1 hour and 15 minutes.

In this episode, Jerry and George's Jerry pilot is finally picked up as a series by NBC. However, when their private plane is forced to land in a small town in Massachusetts, Jerry, George, and their friends Elaine and Kramer unknowingly violate a local duty to rescue law (referred to as a Good Samaritan law in the episode's dialogue) and are put on trial. Co-creator Larry David, who departed from the series after the seventh season, returned to write the script for this last episode.

Plot

Elizabeth Clark calls Jerry and George from the office of NBC President James Kimbrough, offering a deal to produce their pilot Jerry as a series. Jerry and George will be moving to California to begin work. Jerry is given use of NBC's private jet and he, George, Elaine, and Kramer decide to go to Paris for "one last hurrah". Elaine calls her friend Jill. First, she can't get any reception with her cell phone on the street. Then, Jerry calls her with news of the pilot pickup and Elaine hangs up on Jill to take the call.

On the plane, Kramer desperately tries to get the water out of his ears from a trip to the beach by jumping up and down. He stumbles into the cockpit, causing the pilots to lose control. They make an emergency landing in the town of Latham, Massachusetts. While waiting for the airplane to be repaired, they witness an overweight man named Howie getting carjacked at gunpoint. They make fat jokes while Kramer films the theft on his camcorder. Howie tells an officer nearby, who arrests the group on a duty to rescue violation that requires bystanders to help out in such a situation.

Jerry calls on Jackie Chiles to represent them for the upcoming trial. The prosecution has the eyewitness testimonies of Howie and the responding officer and Kramer's camcorder recording as proof of their violation, but because this is the first case implementing this law, District Attorney Hoyt stacks the case against them as much as possible by summoning numerous character witnesses. Nearly everyone the defendants have met over the past nine years is brought in to testify to their unethical behavior, both real and assumed, to the point where the judge calls a halt to the testimonies in the simple interest of time.

The jury finds Jerry, George, Elaine, and Kramer guilty of criminal indifference, and the judge sentences them to a year in prison. While awaiting their prison transport, Kramer finally gets the water out of his ears. Elaine decides to use her one phone call from prison to call Jill, saying that the prison call is the "king of calls". While sitting in their cell, Jerry talks about the placement of buttons on George's shirt (alluding to the first conversation of the first episode). George asks if they had this conversation before and Jerry says he believes so.

Jerry performs standup in the prison cafeteria in front of George, Kramer and the rest of the inmates. Nobody other than Kramer is laughing. As Jerry is being heckled and forceably being taken off the stage he says "Hey, you've been great! See you in the cafeteria!"

Cast

"The Finale" featured a massive cast. As usual for Seinfeld, the four regular cast members all appeared:

• Jerry Seinfeld as himself
• Jason Alexander as George Costanza
• Julia Louis-Dreyfus as Elaine Benes
• Michael Richards as Cosmo Kramer

The following actors headed up the Latham cast:

• Stanley Anderson as Judge Arthur Vandelay
• John Pinette as Howie
• Jeff Johnson as Thief
• James Rebhorn as District Attorney Hoyt
• Scott Jaeck as Officer Matt Vogel

The Seinfeld team made an effort to recruit as many guest stars from previous episodes as possible for "The Finale". However, only a handful of them were given significant roles:

• Phil Morris as Jackie Chiles
• Peter Riegert as NBC President James Kimbrough
• Wayne Knight as Newman
• Estelle Harris as Estelle Costanza
• Jerry Stiller as Frank Costanza

The rest were limited to cameo appearances, in many cases simply summarizing the events of the episode they appeared in to the courtroom or watching the trial in silence from the gallery. Geraldo Rivera, Jane Wells, and Keith Hernandez played themselves in the episode.

Production

Seinfeld co-creator Larry David, who had left the series after season seven, returned to write this episode. This freed up co-creator/star Jerry Seinfeld, who had had his hands full running the show without David, to put together an opening stand-up comedy routine for the first time since David left the show.

Utmost secrecy was maintained around the production: The table read was held on one of the sets, immediately after the read all but one copy of the script was destroyed, and the extras and studio audience were selected from among the producers' and cast's family and friends, all of whom were required to sign a legally binding agreement not to reveal the episode's details. A fake working title for this show, "A Tough Nut to Crack", was created to keep outsiders from discovering it was the finale. In addition, a fake version of the verdict scene was created in which the characters are found not guilty (although, as seen in an Easter egg on the season 9 DVD set, this "alternate ending" was simply the broadcast version of the scene with the word "guilty" replaced by "not guilty" and stock footage of the Rosses inserted as a reaction shot).

Immediately prior to the live taping, Jerry Seinfeld said to his three co-stars, "For the rest our lives, when anyone thinks of one of us, they will think of all four of us. And I can’t think of three people I’d rather have that be true of." George actor Jason Alexander and Elaine actress Julia Louis-Dreyfus both recalled this speech in interviews decades later.

Initially the episode ended with Jerry, George, Elaine, and Kramer in their holding cell. David and Seinfeld decided at the last minute that this was the wrong note to end the series on, and came up with the closing stand-up scene, which was filmed after the wrap party had already taken place.

Jerry and George's conversation in the holding cell about the "second [shirt] button being the most important" is the same conversation that begins the pilot episode. George remarks, "Haven't we had this conversation before?", and Jerry answers, "Yeah, I think we have."

Broadcast and reception

The top price for a 30-second commercial during the U.S. broadcast was approximately $1 million, marking the first time ever on American television history that a regular primetime television series (as well as a non-sport broadcast) had commanded at least $1-million advertising rate (previously attained only by Super Bowl general telecasts).

In its original American broadcast, 76.3 million U.S. television viewers tuned into "The Finale", becoming the fourth most watched overall series finale in the U.S. after M*A*S*H, Cheers and The Fugitive. When this episode originally aired on NBC, TV Land paid tribute by not programming any shows opposite it, instead just showing a still shot of a closed office door with a pair of handwritten notes that said "We're TV Fans so... we're watching the last episode of Seinfeld. Will return at 10pm et, 7pm pt."

Entertainment Weekly's Ken Tucker declared the episode "off-key and bloated", particularly criticizing the near-complete lack of jokes, and the lameness of the majority of what few jokes there were. He also found closing the series with a stern lesson in morals to be both misguided and unnecessary, pointing out that the characters had already suffered for most of the wrongdoings brought up in the trial. However, he praised Jerry's prison stand-up routine, and gave the episode a C−.

Although Larry David has consistently stated he has no regrets about how the show ended, a 2010 Time article reported that most viewers considered the episode "downright awful" and noted that the Seinfeld reunion during the seventh season of Curb Your Enthusiasm "was viewed by many as his attempt at a do-over." A 2021 Vanity Fair article recounted how "the next day, even the shock jocks on the radio were complaining about [the finale]." Co-creator Jerry Seinfeld has had more reservations about "The Finale" than David did, commenting that while bringing back all their favorite guest stars and crew was a fun thing to do, it did not make for good comedy. Their differing views were referenced in the seventh-season finale of Curb Your Enthusiasm, in which Jerry says "We already screwed up one finale" with David responding "we didn't screw up a finale, that was a good finale!" In 2007 David said if he were to redo it he would have kept the plot of the finale less of a secret, since this heightened expectations.

In the final Top Ten List of the Late Show with David Letterman, presenter Julia Louis-Dreyfus jokingly criticized the episode by thanking Letterman for letting her take part in "another hugely disappointing series finale", much to the faux chagrin of fellow presenter Jerry Seinfeld, who had workshopped the joke with Letterman's writers.

Syndication version

Since the episode originally aired in a highly unorthodox 75-minute time slot, when packaged for syndication it was edited down to two episodes with 30-minute time slots. This version cut several scenes from the original episode and rearranged some parts, including the testimonies of Donald Sanger and George Steinbrenner, the scene between Jerry and Elaine before the jury re-enters the courtroom, Jerry's opening stand-up comedy act, and the scene in Monk's Cafe. The scene with Jerry, Elaine, George and Kramer having a meal in their cell was used for the credits of the first part.

Duty to rescue

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Duty_to_rescue 

A duty to rescue is a concept in tort law that arises in a number of cases, describing a circumstance in which a party can be held liable for failing to come to the rescue of another party who could face potential injury or death without being rescued. In common law systems, it is rarely formalized in statutes which would bring the penalty of law down upon those who fail to rescue. This does not necessarily obviate a moral duty to rescue: though law is binding and carries government-authorized sanctions and awarded civil penalties, there are also separate ethical arguments for a duty to rescue even where law does not punish failure to rescue.

Common law system

In the common law of most English-speaking countries, there is no general duty to come to the rescue of another. Generally, a person cannot be held liable for doing nothing while another person is in peril. However, such a duty may arise in two situations:

• A duty to rescue arises where a person creates a hazardous situation. If another person then falls into peril because of this hazardous situation, the creator of the hazard – who may not necessarily have been a negligent tortfeasor – has a duty to rescue the individual in peril.
• Such a duty may also arise where a "special relationship" exists. For example:
  • Parents have a duty to rescue their minor children. This duty also applies to those acting in loco parentis, such as schools or babysitters.
  • Common carriers have a duty to rescue their patrons.
  • Employers have an obligation to rescue employees, under an implied contract theory.
  • In some U.S. jurisdictions, real property owners have a duty to rescue invitees but not trespassers from all reasonably foreseeable dangers on the property. Other jurisdictions, such as California, extend the duty to rescue to all persons who enter upon real property regardless whether they are classified as invitees, social guests or trespassers.
  • Spouses have a duty to rescue each other in all U.S. jurisdictions.
  • In the United States, as of 2009, ten states had laws on the books requiring that people at least notify law enforcement of and/or seek aid for strangers in peril under certain conditions: California, Florida, Hawaii, Massachusetts, Minnesota, Ohio, Rhode Island, Vermont, Washington, and Wisconsin. These laws are also referred to as Good Samaritan laws, despite their difference from laws of the same name that protect individuals who try to help another person. These laws are rarely applied, and are generally ignored by citizens and lawmakers.

Where a duty to rescue arises, the rescuer must generally act with reasonable care, and can be held liable for injuries caused by a reckless rescue attempt. However, many states have limited or removed liability from rescuers in such circumstances, particularly where the rescuer is an emergency worker. Furthermore, the rescuers need not endanger themselves in conducting the rescue.

Civil law system

Many civil law systems, which are common in Continental Europe, Latin America and much of Africa, impose a far more extensive duty to rescue. The duty is usually limited to doing what is "reasonable". In particular, a helper does not have to substantially endanger themselves.

This can mean that anyone who finds someone in need of medical help must take all reasonable steps to seek medical care and render best-effort first aid. Commonly, the situation arises on an event of a traffic accident: other drivers and passers-by must take an action to help the injured without regard to possible personal reasons not to help (e.g. having no time, being in a hurry) or ascertain that help has been requested from officials.

Shipping

A duty to rescue arises under international shipping law. A ship that is in a position to provide assistance to persons in distress at sea must do so. The requirement is found in the United Nations Convention on the Law of the Sea and represents customary international law.

Regulations by country

Legend:

  Duty to rescue law

  Good Samaritan law

  No duty to rescue or Good Samaritan law

  No duty to rescue, no data about Good Samaritan laws.

In some countries, there exists a legal requirement for citizens to assist people in distress, unless doing so would put themselves or others in harm's way. Citizens are often required to, at minimum, call the local emergency number, unless doing so would be harmful, in which case the authorities should be contacted when the harmful situation has been removed. As of 2012, there were such laws in several countries, including Albania, Andorra, Argentina, Austria, Belgium, Brazil, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Israel, Italy, the Netherlands, Norway, Poland, Portugal, Russia, Serbia, Spain, Switzerland and Tunisia.

Argentina

Argentina has legislation on "abandonment of persons", Articles 106–108 of the Argentine Penal Code, which includes the provision in Article 106 that "a person who endangers the life or health of another, either by putting a person in jeopardy or abandoning to their fate a person unable to cope alone who must be cared for ... will be imprisoned for between 2 and 6 years" [emphasis added].

Brazil

In Brazil, the Article 135 ("Omission for help") of the Brazilian Penal Code states that: One who fails to provide medical assistance to an abandoned child (or lost) or invalid person (or harmed) who is in peril and no harm is present to himself (or herself), or does not call the public authority for help will be either imprisoned for a period ranging from one to six months or fined. The sentence is increased in half if the failure for help results in great personal injury and tripled if it results in death.

Canada

In Quebec, which makes use of civil law, there is a general duty to rescue in its Charter of Rights: "Every human being whose life is in peril has a right to assistance...Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason." Criminal law in Canada is under the exclusive jurisdiction of the federal government, so failure to comply with an article of the Charter in Quebec does not constitute a criminal offence except if by doing so a party also violates the Criminal Code.

Other provinces follow common law.

In Canadian air law, it is mandatory to make oneself and one's aircraft available to aid search-and-rescue efforts if the aircraft is in the immediate area and a distress signal is received.

Denmark

Under the Danish penal code, all persons must provide aid to the best of their ability to any person who appears to be lifeless or in mortal danger (§ 253), must alert authorities or take similar steps to prevent impending disasters that could cause loss of life (§ 185), must comply with all reasonable requests of assistance by a public authority when a person's life, health or well-being is at stake (§ 142), and must, if they learn of a planned crime against the state, human life or well-being, or significant public goods, do everything in their power to prevent or mitigate the crime, including but not limited to reporting it to authorities (§ 141), in all cases provided that acting would not incur particular danger or personal sacrifice.

Violations are punishable by up to three months (§ 142), two years (§ 185 and § 253) or three years (§ 141) in prison. Before 2004, the maximum penalty for § 185 and § 253 was only 4 and 3 months, respectively.

Outside hit-and-run incidents, § 253 is used only rarely, though a notable 2014 case saw a woman sentenced to a year in prison for abandoning another woman; the abandoned woman had become stuck in a bog and eventually died from exposure.

France

Anyone who fails to render assistance to a person in danger will be found liable before French Courts (civil and criminal liability). The penalty for this offence in criminal courts is imprisonment and a fine (under article 223–6 of the Criminal Code) while in civil courts judges will order payment of pecuniary compensation to the victims.

The photographers at the scene of the fatal car collision of Diana, Princess of Wales, were investigated for violation of the French law of "non-assistance à personne en danger" (failing to provide assistance to a person in danger), which can be punished by up to 5 years of imprisonment and a fine of up to €75,000.

Germany

In Germany, unterlassene Hilfeleistung (failure to provide assistance) is a crime under section 323(c) of the German Criminal Code: any person is obligated to provide assistance in case of an accident or general danger if necessary, and is normally immune from prosecution if assistance given in good faith and following the reasonable person's (aka ordinary prudent person's) understanding of required measures turns out to be harmful. Moreover, any individual who hinders a person who is providing or willing to provide assistance to another person in need can also be punished under the same section. Also, the rescuer or responder may not be held liable if the action they should take in order to help is unacceptable for them and they are unable to act (for example when unable to act at the sight of blood). In Germany, knowledge of basic emergency measures and certified attendance of a first aid and CPR course are prerequisites for being granted a driving license.

Greece

In Greece, a citizen is required by law to provide help to anyone who asks for it in case of a tragedy or public danger, as long as providing help does not endanger him or her personally. According to article 288 of the criminal code, not providing help in those cases can impose a prison sentence of up to 6 months.

Israel

In 1998, Israel enacted the "Stand-not-idly-by-thy-neighbor's-blood Law", taking its name from Leviticus 19:16. It requires one to render assistance whenever one is in the presence of a person who, due to some sudden occurrence, is in severe and immediate danger to life, limb or health, provided that one can do so without placing oneself or a third party in danger. Notifying the authorities (e.g. the police or fire department, as relevant) or calling on others who can render assistance for aid is considered "rendering assistance" under the law. A person obliged to render assistance who fails to do so can be fined.

Netherlands

According to Article 450 of Dutch criminal law: "He who, being a witness to the instantaneous mortal danger of another, fails to provide or procure such help which he can provide or procure without reasonably needing to fear danger to himself or others, will, if the death of the person in need of help occurs, be punished with imprisonment of up to three months or a second category fine."

Norway

In Norway, Section 287 of the Penal Code states that "A penalty of a fine or imprisonment for a term not exceeding six months shall be applied to any person who fails to provide assistance to the best of his/her ability to a person at obvious risk of losing his/her life or suffering considerable harm to his/her body or health". This is applicable as long as providing help does not endanger him or her personally.

Poland

In Poland, Article 162 of the criminal code states that whoever does not render aid to a person in a situation posing an imminent danger of death or serious injury to health, and is able to do so without exposing himself or another person to a danger of loss of life or serious injury to health, shall be subject to the penalty of imprisonment for up to 3 years.

A person who fails to render assistance for which it is necessary to undergo a medical procedure, or in circumstances in which immediate assistance from an institution or a person appointed for that purpose is possible, shall not commit an offence.

Russia

In Russia, Article 125 of the criminal code prohibits knowingly abandoning people who are in life- or health-threatening situations when said people cannot help themselves. However it binds only those who are either legally obligated to care for said people or who themselves have put said people into life or health threatening situation. The maximum penalty is 1 year in prison.

Serbia

In Serbia, a citizen is required by law to provide help to anyone in need (after for example a major car accident) as long as providing help does not endanger him or her personally. Serbian criminal code Articles 126 and 127 state that should one abandon a helpless person and/or not provide aid to a person in need, one could receive a prison sentence of up to one year. If the person dies of injuries due to no aid having been provided by the bystander, a sentence up to 8 years in prison can be imposed.

Spain

In Spain, a citizen is required by law to provide or seek help to anyone in need as long as providing help does not endanger him or her personally. Not doing so is a criminal offence under Article 195 of the Spanish Criminal Code.

Tunisia

In Tunisia it is regulated by ،the article 143 of the Tunisian criminal code of 1913, and modified by the ordinance dated July 9, 1942, relating to the lack of "legal" assistance (Duty of rescue)، According to the mentioned article , the failure (on purpose) to assist a person in danger /or dangerous situation (i.e, Injured person, fire or a doctor who refused to give care ...) considered as a criminal offence and it's punishable.

Ethical justifications

Legal requirements for a duty to rescue do not pertain in all nations, states, or localities. However, a moral or ethical duty to rescue may exist even where there is no legal duty to rescue. There are a number of potential justifications for such a duty.

One sort of justification is general and applies regardless of role-related relationships (doctor to patient; firefighter to citizen, etc.). Under this general justification, persons have a duty to rescue other persons in distress by virtue of their common humanity, regardless of the specific skills of the rescuer or the nature of the victim's distress.

These would justify cases of rescue and in fact make such rescue a duty even between strangers. They explain why philosopher Peter Singer suggests that if one saw a child drowning and could intervene to save him, they should do so, if the cost is moderate to themselves. Damage to their clothing or shoes or how late it might make them for a meeting would be insufficient excuse to avoid assistance. Singer goes on to say that one should also attempt to rescue distant strangers, not just nearby children, because globalization has made it possible to do so.

Specific arguments for such a duty to rescue include, but are not limited to:

• The Golden Rule: treat others as one would wish to be treated. This assumes that all persons would wish to be rescued if they were in distress, and so they should in turn rescue those in distress to the best of their abilities. What counts as distress requiring rescue may, of course, differ from person to person, but being trapped or at risk of drowning are emergency situations which this position assumes all humans would wish to be rescued from.
• Utilitarianism: utilitarianism posits that those actions are right which best maximize happiness and reduce suffering ("maximize the good"). Utilitarian reasoning generally supports acts of rescue which contribute to overall happiness and reduced suffering. Rule utilitarianism would look not just at whether individual acts of rescue maximize the good, but whether certain types of acts do so. It then becomes one's duty to perform those types of actions. Generally, having strangers rescue those in distress maximizes good so long as the rescue attempt does not make things worse, so one has a duty to rescue to the best of her or his ability as long as doing so will not make things worse.
• Humanity: the rules of humanity advise that the essence of morality and right behavior is tending to human relationships. Therefore, virtues (desirable character traits) such as compassion, sympathy, honesty, and fidelity are to be admired and developed. Acting out of compassion and sympathy will often require rescue where someone is in need. Indeed, it would not be compassionate to ignore someone's need, though the way one fulfills that need may vary. In cases of emergency, rescue would be the most compassionate act compared with allowing a person to remain trapped in rubble.

There are also ethical justifications for role-specific or skill-specific duties of rescue such as those described above under the discussion of U.S. Common Law. Generally, these justifications are rooted in the idea that the best rescues, the most effective rescues, are done by those with special skills. Such persons, when available to rescue, are thus even more required to do so ethically than regular persons who might simply make things worse (for a utilitarian, rescue by a skilled professional in a relevant field would maximize the good even better than rescue by a regular stranger). This particular ethical argument makes sense when considering the ability firefighters to get both themselves and victims safely out of a burning building, or of health care personnel such as physicians, nurses, physician's assistants, and EMTs to provide medical rescue.

These are some of the ethical justifications for a duty to rescue, and they may hold true for both regular citizens and skilled professionals even in the absence of legal requirements to render aid.

Case law

United States

In an 1898 case, Buch v. Amory Mfg. Co., 69 N.H. 257, 44 A. 809, 1897 N.H. LEXIS 49 (N.H. 1898), the New Hampshire Supreme Court unanimously held that after an eight-year-old boy negligently placed his hand in the defendant's machinery, the boy had no right to be rescued by the defendant. Beyond that, the trespassing boy could be held liable for damages to the defendant's machine.

In the 1907 case People v. Beardsley, Beardsley's mistress, Blanche Burns, passed out after overdosing on morphine. Rather than seek medical attention, Beardsley instead had a friend hide her in the basement, and Burns died a few hours later. Beardsley was tried and convicted of manslaughter for his negligence. However, his conviction was reversed by the Supreme Court of Michigan saying that Beardsley had no legal obligation to her.

Some states such as Minnesota, Vermont, and Rhode Island make it a misdemeanor offence if it is known that someone is in serious danger and someone can intervene safely or call 911 and they do not.

Germany

In 2016, an 83-year-old man collapsed in a bank lobby in Essen and later died. Several customers stepped over him without providing assistance. With the help of security camera footage, these customers were identified and sentenced to fines of several thousand euro each for failing to provide assistance. A customer who phoned emergency services was not indicted, as he was considered to have provided sufficient assistance.