Abstract
The article looks at the problem of tort liability for a failure to render assistance and compares the legal approaches to this issue. There are no European legal systems that regulate such a duty to render assistance directly in the provisions of private law. This is generally because most of them (with the exception of common law countries) have criminal law provisions that penalize a failure to rescue another person in need of assistance. This raises the question of the impact of criminal law on liability in private law. The paper discusses this issue in detail, accepting the opinion that, in those legal systems where a failure to render assistance is punishable as a criminal offence, the provisions of criminal law should determine the conditions and prerequisites for rendering assistance in private law and establish the boundaries of liability in tort law. In addition, the article aims to present universal guidelines that might be useful for courts in order to establish tort liability in other cases of a failure to render assistance.
Keywords
Introduction
The comparative literature has often considered the issue of the tortious liability of a person who did not assist another person in life- or health-threatening conditions. It is a controversial topic largely in terms of whether there is any obligation to act to protect another person from damage, and in terms of the scope of that obligation. Commentators are also divided on the potential premises of such a duty. Moreover, they often consider that issue against the background of the biblical parable of the priest, the Levite and the Good Samaritan. 1
The question is whether a person who does not attempt to rescue others can be held responsible for the damage that those others suffer, even if the person did not create the risk of the damage occurring. There are questions about when a witness to a dangerous situation can be passive, and when they are under an obligation to render assistance (and if so, to what extent and with what consequences). For example, in the comparative literature, some authors have considered the dilemma of whether a bystander who does not warn a blind person walking along the street about an open and unsecured drain is liable in tort for the damage that occurs; 2 whether a businessman hurrying to a meeting who sees a person drowning in a pond, but fails to save them despite being a good swimmer, could be responsible in tort; 3 or even the possible liability of a resident of a mountain village who does not correct a tourist's mistake, even though he knows that the tourist is inexperienced and has unknowingly chosen a dangerous and steep trail to the summit that is closed due to the danger of avalanches. 4
The answers to such questions differ significantly between the various legal orders. 5 The main question is whether private law (and tort law in particular) should regulate an obligation to render assistance (and, if so, to what extent). In the comparative literature, there are also views that this issue should generally remain the subject of morality rather than law, with a moral sanction rather than a private law one being appropriate in this respect. 6 The examples of such moral sanctions could be social stigmatization, social boycott, being ostracized, etc.
Liability for omissions – general grounds
All the situations described above relate to liability for omissions. A person who fails to render assistance does not act actively, but rather fails to undertake a specific behaviour to avert the danger from a person at risk. This applies equally to cases where the given person is entirely passive and situations where, after taking some preliminary steps to render assistance, the person gives up and does not continue their efforts. Despite the principle of ex nihilo nihil fit, commonly accepted in philosophy, there is no doubt in the field of civil liability that a causal relationship is normative and not only factual. 7 Therefore, an omission – namely a failure to act in a specific way, despite a legal duty to do so – may still leave the person in a causal relationship with the damage. In order to establish liability, first the existence of such a duty must be proven, along with the fact that it was infringed. 8 Since most continental legal systems base potential liability on the concept of fault, it will become necessary to prove that the person who failed to act was at fault (which includes – in most legal systems – proving the ‘objective element’ of fault, wrongfulness). 9
This paper does not deal with the liability of the person who creates the danger in the first place (or is the owner of the object constituting the source of danger), including through a lawful action that later becomes a potential danger. An example of this might be the liability of workers who, after completing roadworks, leave an unsecured and unmarked hole in the road, or an open maintenance shaft. In such situations, theoretically, it is easier to assign civil liability to workers for failing to render assistance to a third person later, because their initial active behaviour creates a duty to either remove the danger, or at least secure its source (precautionary duties). In such cases, although creating a potentially dangerous situation may not be unlawful in itself (it would be strange to consider as illegal such actions as digging an authorized hole in the road, or failing to close a maintenance shaft), a subsequent failure to remove a resulting source of danger that threatens other people may be considered unlawful. Then it is possible to conclude that there is a duty of care, the content of which is not to create a danger to others. 10
This paper also omits the case of people professionally obliged to provide help (for example, medical doctors, police officers, fire-fighters and people working in mountain or sea rescue organizations). These people may be obliged (by law or according to their function) to help others. Their failure to perform their duties may result in their personal liability, the liability of their supervisor, or the liability of specific public entities. 11 The mere existence of specific provisions recognizing such an obligation to render assistance should not, however, be the basis for a contrario reasoning that it is impossible to establish such a duty to rescue for people not covered by these provisions.
The ‘general obligation’ to render assistance can also not be derived from the general prohibition not to cause harm to others (known as neminem laedere). 12 Many legal systems commonly emphasize the absence of such a duty not to cause harm to others. 13 It is also not possible to establish a general duty to prevent harm caused by another. 14 Even in those European legal systems that adopt a general clause of liability, the basis of that duty cannot derive from the general tort law provisions, or from general provisions protecting personal rights. 15 In addition, from an economic standpoint, it seems much more reasonable to order everyone not to endanger others through specific prohibited conduct, rather than to urge a person to behave in a general way for the benefit of another. 16 The indicated opinion, which deprives the neminem laedere principle of legal significance (creating generally applicable duties and prohibitions), does not mean that it cannot constitute ‘a framework norm’ for the legislator. It is obvious that certain norms should be formulated in such a way as to limit the situations in which one person's actions can lead to another person suffering damage. 17
Comparative remarks
Introduction and historical background
Comparative literature emphasizes that the existence of an obligation to render assistance does not raise any doubts from a moral perspective, where the person who should provide assistance would not be expected to endanger their own legally protected goods (such as their life and health). 18 However, it may be surprising that European legal systems often struggle to include such a moral obligation into a legal framework. There are no systems that regulate such a duty to rescue directly in the provisions of private law.
One of the reasons for this is the existence of tort liability in situations of pure omissions. This is due to the historical development of liability for omissions and the failure to adopt such liability in Roman law in the course of interpreting the lex Aquilia. 19 In Roman law, there was no tortious liability for failing to provide aid. 20 However, there were examples of cases of liability of professionals who, after starting certain activities, decided not to continue them, including refraining from rendering assistance. 21
The fact that no European legal systems regulate a duty to render assistance directly in the provisions of private law is also because the criminal law provisions penalize a failure to rescue another person. The duty to rescue is regulated, for example, in Article 223-6 of the French Criminal Code, § 323c of the German Criminal Code, § 95 of the Austrian Criminal Code, Article 128 of the Swiss Criminal Code, Article 422bis of the Belgian Criminal Code, Article 450 of the Dutch Criminal Code, Article 162 of the Polish Criminal Code and others. It raises the question of the impact of criminal law on liability in private law.
France
In France, the duty to rescue someone in need of assistance is regulated in Article 223-6 of the French Criminal Code (Code pénal). According to this article, anyone who is able to use immediate action to prevent a felony or misdemeanour against the bodily integrity of another person without risk to himself or to third parties, but who wilfully abstains from doing so, is punished by five years’ imprisonment and a fine of 75,000 euro. The same penalties apply to anyone who wilfully fails to offer assistance to a person in danger, which he could provide without risk to himself or to third parties, or by initiating rescue operations. 22
The French literature indicates that a violation of the obligation regulated in this article, in the situations it covers, may constitute a fault (faute) within the meaning of Article 1240 of the French Civil Code 23 and can therefore be the basis for tort liability. 24 It is emphasized in French law that, in general, the breach of a duty regulated by criminal law constitutes a fault within the meaning of private law provisions, and therefore such an action is also unlawful. 25 The jurisprudence of French criminal courts has emphasized that a violation of Article 223-6 of the French Criminal Code implies civil liability in situations where the endangered person suffers damage. 26 However, the civil courts are much more cautious in adopting such a conclusion in general. 27 For example, the literature emphasizes the difficulty of imposing civil liability on physicians who, when summoned by a patient by an emergency call, fail to provide him with timely assistance. 28
The French literature emphasizes that, apart from criminal law, there is no general obligation to rescue others in need. 29 Moreover, civil liability exists only in the situation of an intentional refusal to render assistance. 30 For example, there was a case of the father-in-law of a person who fell through ice on a canal and was drowning, who refused to help a passer-by who wanted to give the drowning man an iron rod to grab on to, and left both men alone. 31 Liability is excluded when a person does not understand that another is in a condition in which he should receive help, or is unable to provide assistance due to a lack of knowledge and skills. 32 For this reason, the jurisprudence assumes, for example, that children do not owe an obligation to render assistance. 33 For example, the courts excluded the liability of a child in tort and the existence of the child's ‘fault’ within the meaning of Article 1382 of the French Civil Code (currently Article 1240 of the French Civil Code), when the child did not intervene when another child had created a dangerous situation by throwing a detonator from a neighbouring construction site into the fire of a gas stove.
Germany
Under German law, the obligation to rescue a person in danger is also regulated by criminal law. According to § 323c sec. 1 of the German Criminal Code (Strafgesetzbuch – ‘StGB’ 34 ), anyone who does not render assistance in the case of an accident or a common danger or emergency, although it is necessary and can reasonably be expected under the circumstances, in particular if it is possible without substantial danger to that person and without breaching other important duties, incurs a penalty of imprisonment for a term not exceeding one year, or a fine. 35 In addition, anyone who obstructs a person who is rendering or wishes to render assistance to another person in such a situation incurs the same penalty (§ 323c sec. 2 StGB). 36
The German literature presents the view that a breach of the obligation provided for in the criminal law provision may be also grounds for assigning the perpetrator civil liability. For some authors, this norm directly protects the rights of the citizens (‘protective norm’ – Schutzgesetz) within the meaning of § 823 sec. 2 BGB. 37 According to this opinion, in § 323c sec. 2 StGB, the legislator establishes a ‘legal and ethical minimum of human behaviour.’ 38 The jurisprudence has accepted this view. 39 It recognizes, for example, that anyone who is a passive observer of a woman being raped in a car is then obliged to pay her compensation for damage. 40 According to the courts, the purpose of § 323c of the German Criminal Code is to protect the legal interests of people in need, which includes protection against the risk of damage. 41 The jurisprudence also indicates the statutory justification underlying this solution, 42 taking the view that the codification materials do not support the opinion that this regulation only intends to establish a general interest in protecting a functioning community based on mutual solidarity. 43
However, this view has often come under question, with some authors indicating that the protective purpose of the criminal obligation to render assistance is not to protect people in danger, but to protect society (and its public order), as well as relations between the members of society. 44 These authors indicate that it cannot be assumed that the rational goal of criminal law is for a person who fails to stop the perpetrator of a crime or the occurrence of a fortuitous event to be held liable under private law for damage to the same extent as the direct perpetrator of a tort (for example, a criminal) or a person who created a dangerous situation. 45 Unlike criminal law, the rules on civil liability are not able to ‘adapt the severity of the sanctions’ with the lower level of complicity in the crime. 46 Therefore, a person liable under tort law for failing to render assistance would be responsible for the damage sustained by the injured person to the same extent as the person whose actions or omissions caused the injured person to require assistance. 47 Nor can it be acceptable that a person who did not render assistance should be obliged to compensate for damage resulting entirely from the actions of a third party or forces of nature. 48 Some authors point out that this would lead to a significant extension of tort liability. 49
In the German literature, there is also an opinion suggesting that the basis for the tort liability of a person not rendering assistance may be § 826 BGB (Sittenwidrige vorsätzliche Schädigung), which sanctions deliberate behaviour taken contrary to good morals. 50 In order to assume the perpetrator's fault, it is sufficient to prove that they were aware that a failure to render assistance would cause damage to the person at risk. 51 Passivity in an emergency is contrary to good morals only in exceptional situations. It happens when there exists an immediate threat to the life of another person, and where it is possible to remove the danger without excessive efforts from the potential rescuer. 52
Common law
In common law, civil liability for a failure to render assistance is very narrow. 53 In general, liability for pure omissions is rejected. 54 Moreover, in common law countries there are no criminal law provisions that penalize the failure to rescue another person. For example, English law does not regulate the criminal duty to rescue a person in danger and other provisions of law do not create a duty to save someone else's life if it is in danger. 55 Therefore, if the source of a threat is not related to a particular individual, that individual is not obliged to provide help to the person at risk. 56 For example, medical professionals who are bystanders at the scene of an accident may refuse to help an injured person, 57 or professional swimmers may refuse to jump into the water to save a drowning person. 58 There is also no liability in negligence on the part of a person who sees another person about to unwittingly walk over a cliff, but does not shout a warning. 59 The very extreme case of a person renting a canoe to another person (under the influence of alcohol) and then failing to provide help, despite calls, when the canoe overturned and he began to drown, is often cited in this regard. 60 In this drastic situation, the American courts found that the person renting out the canoe was not liable to the family members of the individual that drowned, as there was no duty of care towards him. Nowadays, the solution in the last case is considered doubtful in the vast majority of the literature, as it is assumed that the duty to render assistance may result from the special relationship existing between the parties (including an assumption of responsibility), 61 for example between the owner of the property and visitors there. 62 Therefore, the owner of a boat transporting tourists, for instance, would be obliged to help rescue a passenger who has fallen overboard. 63
The arguments against this responsibility tend to reference the idea of liberalism, the invasion of personal freedoms or the large and indeterminate class of people who would potentially be obliged to help (the ‘why pick on me’ argument). 64 There is also a fear of overburdening public entities with liability under laws that oblige them to combat specific crimes or threats in general. 65
The views expressed in jurisprudence have come under criticism in the literature as being inconsistent with reality and based on a nineteenth-century approach to the individual's role in society. 66 According to subject literature, basic social behaviour and the duty to provide minimal assistance to another human being (for example, warning a blind person or a passer-by that they are approaching a dangerous place) should be sanctioned. 67 Some authors have also pointed out that the number of cases concerning this issue is small in practice, and it appears much more often in the expressed orbiter dicta justifications of individual judgments. 68 As E. Quill stated, ‘there are very few cases directly in point, but there are many judicial dicta stating the common law aversion to affirmative duties to render assistance to others’ 69 and in the future, a radical change in the case law in this respect is in doubt. 70
Other European legal systems
The common law position can hardly be regarded as out-of-date. 71 Very little liability for a failure to render assistance is also assumed in Italy 72 or Greece, 73 for example. On the other hand, opinions accepting liability for a failure to render assistance based on the provisions of criminal law (similar to general opinions accepted in French and German law) are adopted in Swiss law (under Article 128 of the Swiss Criminal Code) 74 and in Polish law (under Article 162 of the Polish Criminal Code). 75 In the jurisprudence of the latter legal system, a failure to render assistance is classified as contrary to the principles of social coexistence (which is equivalent to the rules of morality), which requires a person to help a weaker person whose life is at risk, providing it does not pose a threat to the life and health of the refusing person. 76 This opinion is accepted in the literature. 77 There is also an opinion that this duty is only a non-legal obligation that does not form the basis for tort liability. 78
Austrian draft on liability law
On the other hand, the obligation to take affirmative action to protect other people from danger was provided for in the draft provisions of the new Austrian tort law prepared several years ago. According to § 1297 of the Austrian draft reform: Everyone has a duty to prevent damage that discernibly threatens another, if there is a special relationship towards the endangered person, if he opens facilities to the public or creates or maintains a source of danger, or if the threatened damage is grossly out of proportion to the burden of preventing it.
79
The content of the proposed provision is a novelty to the current ABGB regulations, 80 although most literature assumes that the breach of the obligation to provide assistance, regulated in § 95 of the Austrian Criminal Code (‘Strafgesetzbuch’ - StGB) may result in tort liability. 81
The Austrian literature emphasizes the need to explicitly regulate the obligation to render assistance in law and define situations in which a failure to help will result in tort liability. 82 The draft met with criticism, indicating that the phrases contained in it are imprecise and that it mixes legal obligations with moral obligations. 83 There were also voices of approval, 84 among which the opinion of Pierre Widmer is worth looking at. According to this author, the duty to assist established in the draft is based on the fundamental principle of tort law – liability for a culpable act. The culpability consists in the violation of the elementary duty of loyalty and solidarity towards another human being. 85 In addition, private law not only creates the rights of individuals, but also imposes duties in certain situations. 86
Principles of European Tort Law
The proposal to explicitly regulate the discussed issue was also included in the Principles of European Tort Law (PETL). According to Article 4:103 PETL (‘Duty to protect others from damage’) a duty to act positively to protect others from damage may exist if the law so provides, or if the actor creates or controls a dangerous situation, or when there is a special relationship between parties, or when the seriousness of the harm on the one side and the ease of avoiding the damage on the other side point towards such a duty. 87
Against the background of the draft provision, the literature indicated that tort liability should be imposed not only on the person that creates or maintains the source of the danger itself, but also on all those entities that find themselves in a situation where they are in a position to help people in need. 88 The obligations contained in the PETL go beyond most of the European legal systems and provide further duties of care in view of the special relationship between the parties, the seriousness of the impending harm on the one hand and the ease of avoiding the damage on the other hand. 89
In the context of the PETL (and identically the draft of the ABGB), the ‘special relationship’ justifying the obligation to render assistance does not require the existence of a unique legal relationship in the form of a solely contractual or family relationship (for example affinity). 90 It may simply be a social relationship. 91 In this context, the example of two friends who agree to climb the Matterhorn together is given. 92 As Helmut Koziol stated, the duty of one of them to help the other is independent of the contractual obligation or family relationship between them. The common enterprise, the fact that each is dependent on the other and that each is reliant on the other for support, establishes more intensive duties to stand by the other and actively to protect the companion. 93
The solution adopted in the draft of the ABGB and PETL, whereby the obligation to render assistance exists in situations where the size of a given threat is disproportionate to the ways of avoiding it, is the result of the general idea that, when establishing duties of care in tort law, ‘the interests of both parties have to be taken into account and weighed’. 94
Criminal law norms as a basis for tortious liability?
General remarks
In a comparative perspective, it seems necessary to distinguish those legal systems that provide for liability for a failure to render assistance in criminal law (as most continental European legal systems do), and those that do not expressly provide for such a duty. 95 Then we must determine whether the existence of criminal offences influences liability in tort law. This will be analysed in this section.
Moreover, one can consider whether, apart from situations covered by criminal law, there might be ‘additional’ cases creating tortious liability for a failure to render assistance. This analysis will require an indication of universal circumstances, the fulfilment of which could speak in favour of the potential existence of a duty to render assistance in any legal system. This will be analysed further in the next section. The analyses will involve both legal systems that provide for liability for a failure to render assistance in criminal law as well as those that do not.
The role of criminal law norms in the law of torts
Any further analyses presuppose the adoption of even minimum preliminary assumptions related primarily to the nature of criminal law standards in continental European systems. One may accept that the criminal law provisions contain two types of conjugated norms – sanctioning (specifying the duty) and sanctioned (imposing sanctions for their violation). 96 Therefore, in criminal law, only conduct contrary to the norm sanctioned by criminal law is unlawful. 97 This distinguishes criminal law regulations from tort law, where such a ‘clear contradiction’ with the legal norm is not required and damage must occur in order to attribute civil liability to a given tortfeasor. 98
In most European legal systems, because of the broad scope of protection of criminal law, it is difficult to present a case of immoral or careless behaviour that would not also constitute a felony or a misdemeanour. 99 Therefore, in the literature of many European countries, there is a prevailing opinion that duties to act can derive from the provisions of criminal law (criminal offences), meaning that their non-observance creates wrongfulness in tort law. 100 Therefore, in order to attribute liability in tort law to a person acting against the norms of criminal law, it may be sufficient to assume that the wrongfulness of conduct in criminal law should generally also determine its wrongfulness in tort law 101 (based on the assumption that the prohibition of a certain conduct in criminal law protects the legal interest concerned and not only the public order 102 ). Some may even say that the wrongfulness is monistic – it must have uniform content throughout the legal system. 103
However, this view could be controversial. The unlawfulness of a given behaviour in criminal law should not always automatically prejudge unlawfulness in tort law. 104 This is because different branches of law have different functions (for example, private law has a different function from criminal law, tax law or environmental law). Therefore, conduct that would be deemed unlawful in one of them should not automatically be wrongful in another. Moreover, some may even argue that private law should not go beyond the criteria of assessments specific to criminal law. 105
However, in the context of the duty to rescue others in a situation that poses an immediate threat of loss of life or damage to health, it is hard to assume that private law provides protection to fundamental goods related to a human being to a narrower extent than criminal law. Hence, the opinion should be accepted that a violation of criminal law duties protecting human life and health should also give rise to civil liability. 106 Although the concept of wrongfulness in continental legal systems is sometimes narrow, an act prohibited by criminal law should be unlawful in other areas of law. Hence, in those legal systems where a failure to render assistance is punishable as a criminal offence, those provisions of criminal law should determine the conditions and prerequisites for rendering assistance and establish the boundaries of liability in tort law.
When should the duty arise?
What is the scope of potential liability?
As mentioned in section 3, most European systems accept (even to a limited extent) situations in which a failure to render assistance results in tort liability. Nevertheless, the scope of this liability in those countries is controversial. 107 Therefore, the literature sometimes indicates the need to articulate this duty clearly in the provisions of tort law (for example in Austria). 108 In other legal systems that do not provide for solutions whereby a failure to render assistance leads to liability in tort, the literature also suggests that those solutions should be adopted, even if only to a limited extent. 109 Hence, the Principles of European Tort Law – as a transnational scientific project – recognized the need to regulate the general duty to protect others from damage, and defined the scope of responsibilities. Undoubtedly, the unspoken basis for the existence, introduction or expansion of such opinions and solutions are references to the rules of morality existing in the given societies and the generally accepted standards of conduct.
The law should protect (and in practice does protect) certain moral norms because law and morality are based on common axiological assumptions. 110 The law is not chronologically the first nor the most widely accepted, nor the most excellent set of norms of conduct functioning in society. 111 It is also clear that the law has been built on socially accepted morality. 112 As a result, statutory regulations most often reflect the moral norms of society. Solidarity with others is one of those norms. One may identify it with the term ‘fraternity’, proclaimed as one of the slogans of the French Revolution. References to the obligation of solidarity in various places in many legal systems may indicate the existence of such a norm of behaviour, meaning that its treatment by the general public has become a commonly recognized moral norm. 113 From a moral point of view, there should also be no objections that one of the primary moral norms that are universally accepted is the duty to rescue a person whose life or health is at serious risk. 114
In most European legal systems, the scope of criminal liability based on specific criminal offences covers most of the factual situations considered in the comparative literature. The existence of other explicit statutory regulations (for example, relating to medical doctors, police officers or firefighters) could indicate that, according to the legislator, other certain behaviours do not exceed a certain moral minimum and cannot be grounds for tortious liability. However, even in those legal systems that provide for criminal liability for a failure to render assistance, the question may always arise as to whether a tort liability could potentially rise outside the scope of situations covered by the provisions of criminal law. One could imagine, for example, a situation where a failure to help another person would leave them exposed to moderate damage (for example, in the case where a blind person falls into a moderately deep pool). Similarly, one could ask a question about possible liability in situations in which a potential rescuer could themselves suffer moderate damage to their health, or about possible liability in the absence of help in saving property of a significant value. Therefore, one may consider potential premises for such liability that could theoretically apply in any legal system.
Are there any universal circumstances of liability?
There are several general requirements that, if met jointly, would support the potential existence of a duty to render assistance in tort. 115 The existence of those premises could be the guidelines for the courts to resolve those cases in practice. 116
First, the liability of the person refusing to render assistance should be limited to situations of an intentional failure to act or an intentional omission. Therefore, they must be aware of the dangerous situation the other person is in. Moreover, they need to be aware, or able to imagine, that the person at risk does not know about the danger (see the above example of the blind man walking into an unsecured maintenance hole) and cannot save himself from the threat. The potential rescuer must also be aware of how they might be able to help the person at risk in a given situation.
In some European legal systems, this reasoning may give rise to a charge of inference from subjective fault to objective wrongfulness. Nevertheless, intention (as an aim of a specific behaviour) can be an element found in the provisions of law from which wrongfulness derives. 117 Intention can be an element determining how a given behaviour is assessed from the point of view of general principles of law, and the historical context shows that it is indispensable in tort liability. 118 The tortfeasor's liability for damage caused intentionally, regardless of the existence of a provision stipulating this responsibility in a given situation, is commonly accepted in comparative law. 119 In those situations, the possibility of deducing wrongfulness, at least from the general principles of law, is generally accepted. 120 Therefore, deliberately causing damage to another entity's property as anti-social behaviour should always give rise to tort liability. 121
Second, the potential liability should be limited only to situations where the existing danger could lead to serious bodily injury, or at least the impairment of health, of the endangered person. We need to accept such a limitation because everyone is exposed to a number of potentially hazardous situations in everyday life, and it would be too far-reaching to require other members of society to intervene in every such case. 122 The nature of values such as life and health in society also obviously influences the extent of their protection. 123 Thus, the scope of the duty to render assistance must also depend on what legally protected goods are endangered. 124 Moreover, this interpretation is in accordance with many private law provisions referring to the need to evaluate legally protected goods (for example in a state of necessity). 125 Therefore, it is doubtful whether it would be possible to establish liability for a failure to render assistance in saving someone else's property, regardless of its value. 126 The prevalence of situations in which a threat to someone else's property arises in everyday life speaks entirely against the wide recognition of liability in this respect.
Third, such a duty may exist only when the cost of preventing or removing the danger would be significantly lower than the importance of the potentially violated rights. 127 According to some of the criminal law provisions described above, a person obliged to help should only expose his personal rights to slight or even moderate damage. 128 However, it would go too far to establish such a far-reaching obligation in private law in other situations, without a legal basis. 129 It would also be going too far to expect a potential rescuer to sacrifice their own life or health to protect another person. The law, if it is to be followed and remain efficient, cannot be too demanding. 130 The ‘unspoken norm’, which is addressed to society as a whole (and not to a narrow, specialized group of people with special qualifications), should not generally require a given person to take actions in the interest of someone else that involve a risk of damage to him or his property rights. 131 A different interpretation would go too far in its interference with personal rights and individual freedoms.
Fourth, it is necessary to distinguish between situations where the duty to act is universal, but the condition of a given person makes it impossible to perform, from situations where the person (due to his or her skills) is not subject to a duty to act. Such a duty can only exist if the person has a real opportunity, along with appropriate skills, to prevent or eliminate the existing danger, whether by providing help or support to the person at risk, or by informing people or institutions who are in a position to do so. Otherwise, the ‘potential rescuer’ is not the addressee of the duty to act, due to the lack of specific skills. An example of this might be the situation where a blind person does not have a duty to warn another blind person that there is a danger to their life or health.
Generally, a duty to help should exist when there is a specific factual relationship between the people involved, justifying the requirement to provide assistance to another person who needs it. This way of reasoning could be found in Principles of European Tort Law or the Austrian draft on liability law. No previous contractual relationship needs to exist, 132 although its existence may impact the duty to render assistance (for example, in the relationship between a guide and a guided group, after achieving the aim of the contract). Hence, in the example of the two friends climbing the Matterhorn, each of them will be responsible for helping the other. Each of them implicitly assumes that, as they are going to the mountains together, they will be able to demand help from the other in a life or health-threatening situation, which in theory may even cover circumstances not covered by criminal law (although, due to the nature of the risk related to mountain excursions, these will not be frequent cases). 133 The mere fact of remaining in a specific factual relationship may therefore create an obligation to cooperate that will potentially constitute the basis for one person claiming damages against another in the event of a breach by a failure to render assistance.
Conclusions
The arguments presented above could be objected to as a normatively unjustified attempt to incorporate certain moral obligations into positive law – the tort law. However, the aim of provisions establishing liability for damage based on the fault principle has always been to regulate certain behaviours, and even sometimes force them on society. In that context, it must be noted that sociological research shows that, in the cases described in the article, passivity is by far the most frequent reaction to the obligation to help another person. The literature often refers to it as the Genovese Syndrome, from a situation that took place in New York on 13 March 1964, in which – according to the press – 38 witnesses were aware of a crime being committed outside their windows, to which none of them reacted or even called the police. 134 In addition, it is difficult to assume that, since in tort law civil liability is associated with even the slightest fault or event (for example in cases of strict liability), the legislator should not impose specific obligations and sanctions on a person intentionally failing to help another person, even though he could do so without endangering himself or others. 135 Moreover, if such behaviour is penalized under criminal law, it should also affect private law.
Footnotes
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Polish National Science Centre (research project no. 2015/17/D/HS5/00739); it was based on an article published in Polish in Kwartalnik Prawa Prywatnego 1/2021.
