Avengers Academy and the Duty to Rescue
Today we have a great question that raises issues surrounding the duty to rescue and the duty of care owed when someone attempts a rescue. We’ve talked about the duty to rescue twice before, but this is a really great fact pattern. Any of our law student readers who are currently in a torts class should find this particularly interesting.
I have a question about Avengers Academy #37, which just came out.
It’s the final battle with supervillain Jeremy Briggs, whose transmutation powers are overpowering the team. He takes out X-23 by turning her sweat to acid, which is clearly killing her, so she stabs him in an artery [Ed. note: actually, Finesse pushes X-23's claws into him]. He begins to bleed to death, which breaks his concentration enough that he can’t use his powers.
Teammate Finesse, who has powers similar to Taskmaster and therefore an expert knowledge of the human body, begins to tie off his wounds. But he begins gloating that he will just come back and try again, and so she drops the cord and let’s him die.
Nobody sees this as her teammates were distracted (it’s not exactly clear with what, but they have clear reaction shots showing they didn’t witness the conversation), so as far as anyone knows after X-23 stabbed him there was no way to save him. Later a police officer taking statements says it looks like self-defence and he doubts there would be charges.
1. Finesse’s action does seem like clear self-defense. But could Finesse be charged with anything if it comes out that she had a chance to render medical assistance and did not?
2. Does it make a difference that she started to render medical aid and then withdrew it?
3. Finally, does Finesse’s knowledge of anatomy and first aid skills give her an extra obligation to help someone who is dying, compared to someone had only a vague idea of what to do?
I. The Duty to Rescue
As we’ve written about before, there is generally no duty to rescue or aid others, with some exceptions. Restatement (Second) of Torts § 314 For example, there is an exception for those who have a special relationship with the injured or endangered person (e.g. a parent and their child). § 314A. And a duty of ordinary care is created once someone undertakes a rescue. § 323. Finally, one who harms another to the point of helplessness has a duty to exercise reasonable care to prevent further harm. § 322. Those last two are the most relevant in this situation.
There are also a couple of states that have overruled the common law rule by statute. For example, Minnesota’s M.S.A. § 604A.01 subd. 1 provides:
A person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel. A person who violates this subdivision is guilty of a petty misdemeanor.
Similarly, Vermont’s 12 V.S.A. § 519(a) states:
A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.
But such laws probably wouldn’t apply in this situation, since trying to save Briggs would probably expose Finesse to danger, albeit not immediately. Still, the common law exceptions would seem to require Finesse to avoid causing further harm to Briggs and would require her to use reasonable care once she undertook a rescue.
So what is reasonable care in a case like this? Well, entirely ceasing the rescue attempt seems pretty unreasonable, even for an ordinary person without superhuman knowledge of anatomy. Once Finesse started administering first aid she had an obligation to try to finish the job.
However, that doesn’t mean she’s necessarily on the hook for any damages. As the Restatement (Second) of Torts § 323 explains:
One who undertakes … to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.
(emphasis added). Briggs was dying before Finesse stepped in and he was dying after, from the same injury, which was not really made worse by Finesse’s aborted rescue attempt. Similarly, § 324 states:
One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.
(emphasis added). Comment c to § 323 makes it clear that, as long as Finesse didn’t make things worse, she was free to discontinue the rescue for any reason:
The fact that the actor gratuitously starts in to aid another does not necessarily require him to continue his services. He is not required to continue them indefinitely, or even until he has done everything in his power to aid and protect the other. The actor may normally abandon his efforts at any time unless, by giving the aid, he has put the other in a worse position than he was in before the actor attempted to aid him. His motives in discontinuing the services are immaterial. It is not necessary for him to justify his failure to continue the services by proving a privilege to do so, based upon his private concerns which would suffer from the continuance of the service. He may without liability discontinue the services through mere caprice, or because of personal dislike or enmity toward the other.
It appears to me that she didn’t make things worse, and so she was free to let Briggs die.
II. Reasonable Care
So how is reasonable care defined? Is it what an ordinary person would do or is what an ordinary person would do if they had the knowledge, experience, and tools available to them that the rescuer had? The Restatement (Second) of Torts § 323 does not make it clear, but the Restatement (First) does:
One who gratuitously renders services to another, … is subject to liability for bodily harm caused to the other by his failure, while so doing, to exercise such competence and skill as he possesses
(emphasis added). At least one court has held that the Restatement (Second) should be interpreted in the same way. Frye v. Medicare-Glaser Corp., 219 Ill. App.3d 931 (1991). So reasonable care means what a reasonable person with Finesse’s skills would do if they undertook a rescue.
III. Good Samaritan Laws
Good Samaritan laws, in one form or another, exist in most if not all US jurisdictions. Basically they provide a legal shield for people who voluntarily administer medical aid to the injured in a non-professional setting. The idea is to encourage first aid by reducing the risk that the ‘Good Samaritan’ will be sued by the injured person. The exact details vary from state to state, but a common feature is that they only cover negligence, not gross negligence (aka recklessness) or intentional misconduct. In this case, Finesse’s actions seems to qualify as grossly negligent or even intentional. Gross negligence requires a conscious disregard of an unreasonable risk, and Finesse surely knew that if she ceased her efforts that Briggs would likely die. Indeed, that seems to have been her intent. So a Good Samaritan law would likely not apply here. Luckily, it doesn’t appear that Finesse is necessarily liable.
It may seem hard to believe, but it appears that Finesse is off the hook. The common law rule—no duty to rescue—may seem harsh, but that’s the common law for you. Thanks again to Joe for writing in!