The Kindness of Strangers: Interdisciplinary Foundations of a Duty to Act

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In American tort law, one has historically been allowed to do nothing and not be held liable for injuries to others resulting from that inactivity. Viewed perhaps more charitably, tort law does not punish citizens for minding their own business. People generally have no affirmative duties to aid or protect others -- you can watch blind people walk into traffic and not be sued for failing to stop them. It's not nice, but it's not tortious. This essay examines the no duty to act rule in torts and the policy reasons typically offered in support of its enduring presence. It then explores state Good Samaritan statutes that provide immunity from liability in negligence if people decide to offer emergency assistance, and questions whether law should go further to enact Bad Samaritan statutes to compel citizens to assist strangers in emergency situations when they can reasonably do so. The essay analyzes feminist critiques of the no duty to act concept, but proposes instead a much different basis for criticizing the no duty rule. Drawing on works in anthropology, education, ecology, sociology, and social psychology, this essay makes the interdisciplinary case for a duty to act to assist strangers in peril.

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Washburn Law Journal