Duty to Act

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 What Is a Duty to Act?

A legal duty to act is a legal duty that requires a party to take necessary actions to prevent harm to another individual or to the general public. Under personal injury law, an individual can be held to a standard of reasonable care to prevent injury or harm.

What Are Personal Injury Accidents?

A personal injury accident occurs when an individual suffers an injury or harm that results from another individual’s carelessness or disregard. Claims involving personal injury accidents are filed in civil court.

In certain cases, a criminal charge may also be filed against an individual based on the same incident that caused the personal injury. Personal injury claims may fall into one of the following categories:

  • Intentional torts;
  • Negligence;
  • Strict liability.

A personal injury may also arise out of many different types of events. Common examples of accidents that may result in personal injury claims include, but are not limited to:

What Is an Omission to Act?

An individual may be held liable even if there was an explicit duty to act was not present. For example, as noted above, if an individual was drowning in a pool and a second individual attempted a rescue, the act of attempting the rescue would create a duty on that individual to complete the rescue.

In this type of situation, if the assisting individual gave up on rescuing the victim and, as a result, they were left in a worse situation, they may be liable. In addition, a duty that may not otherwise have existed may be self-imposed on the individual if they were the cause of the situation that resulted in the victim being in danger.

This means that if one individual’s actions cause a dangerous situation, that person will have a duty to act or a duty to aid.

What Are Some Examples of Duty to Act?

A duty to act often arises under a statute or based on a contractual relationship, for example:

  • A doctor’s duty to care for patients;
  • An owner’s duty to protect individuals who are invited upon their land;
  • A restaurateur’s duty to provide proper fire escapes for patrons;
  • A parent’s duty to act affirmatively to safeguard their children and safeguard third parties from their children.

Unless a statute or contract exists that creates a duty, typically, there will not be a duty to act. However, a duty to act may arise when an individual voluntarily assumes responsibility for another.

Who Has a Duty to Act?

Which individual has a duty to act will depend on several factors, including the situation under which the duty arose, the individual’s profession, and whether or not the duty arose based on an attempted rescue. As discussed above, a duty to act may be imposed based on a contract or statute, as discussed above.

Is There a Duty to Rescue?

Generally, there is not a duty to rescue. Typically, an individual cannot be prosecuted for not doing anything when another individual is in peril.

However, in some situations, if there is a certain type of relationship between the parties, an individual may be found liable for failure to rescue an individual who was in peril.

What Kind of Relationships Create a Duty to Rescue?

There are numerous different examples of relationships that may create a duty to rescue, which may include, but are not limited to:

  • A carrier owes a duty to its passengers to render assistance if they are in peril;
  • An individual who is in charge of a ship to rescue seamen who have fallen overboard;
  • An employer to aid its employee who is injured in the course of their employment;
  • An owner or occupier of their premises to give aid to their invitees;
  • A jailer to aid prisoners who are in their custody;
  • A host to aid their guest;
  • A school official to aid their students.

In some cases, a duty to rescue may arise from an injury or accident.

What Is Required of the Duty to Rescue?

In general, when a duty to rescue arises, that rescuer is required to act with reasonable care. Broadly speaking, this means that the rescuer does not increase the injury or severity of the injury that they seek to alleviate.

A rescuer will only be held liable if they engage in gross or wanton neglect. A rescuer will not be required to endanger themselves when conducting a rescue.

The rescue doctrine also allows the rescuer themselves to recover from their own injuries that they suffered as a result of the rescue. However, this doctrine will not apply if the rescuer was acting based on a duty that arose due to their own creation of the dangerous situation.

What Is a Good Samaritan Law?

There are some states that have Good Samaritan laws in place that may shield individuals from liability if they attempt to assist other individuals who are in danger or who are in need of help. If a rescuer accidentally causes the individual they are rescuing to have further injuries, the laws may provide them with protections from lawsuits if they acted reasonably given the facts and circumstances of the situation.

An example of this would be if an individual collapses in the middle of a road, and their rescuer acts quickly to remove them from traffic but accidentally breaks their arm in the process. Because the rescuer saved them from being struck by a vehicle, Good Samaritan laws would likely prevent them from being held liable for breaking the individual’s arm during the rescue.

However, it is important to note that most states will allow a victim to sue a good samaritan if they act negligently. One example of this issue would be if a good samaritan dragged the collapsed individual discussed above directly into a building that was on fire.

The laws would not likely shield the rescuer from a lawsuit based on the injuries that the injured party sustained while inside the burning building. This is due to the fact that a reasonable person would not have dragged an injured individual into a burning building.

When states enacted Good Samaritan laws, it was done in an attempt to encourage and protect innocent bystanders when they were assisting other individuals in emergency situations when they were able to do so. It is important to note, however, that an individual may not qualify as a Good Samaritan if they are required to assist another individual in an emergency situation that they created.

If an individual did not cause an emergency and the situation poses a great risk to their safety, the majority of states provide that the individual does not have to assist the injured party.

Do I Need a Lawyer?

If you have been sued as a result of an attempted rescue or if you believe you may have breached your duty to act, it is important to consult with a personal injury lawyer as soon as you possibly can. It can be difficult to determine liability for another individual’s injuries.

Your lawyer can advise you of any Good Samaritan laws in your state that may apply to your case as well as any potential liability you may be facing. No matter whether you were the rescued victim or the rescuer, it is essential to have a lawyer presenting your case.


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