24

Supposing A gives B food that contains an ingredient that, unknown to A, B is violently allergic to, and B collapses. A refuses to call an ambulance, saying that B is just being dramatic, and continues to do so even when C confirms that B does, in fact, have this allergy and it is life-threatening. (Suppose that A is the only one present whose phone is working).

In jurisdictions with a "duty to rescue" law, if B dies as a result of this, is "I thought C was exaggerating" likely to be a sufficient excuse?

8
  • 5
    Is the question about whether it was reasonable for A to conclude that B was overacting, whether it was reasonable to discount C's information about B's allergy, or both? In addition, this hypothetical implicates factual analysis beyond the scope of the purely legal question in the title. In other words, the hypothetical turns the question into "Is 'I didn't think it was serious' a good defence against 'duty to rescue' when the defendant arguably should have known that it was serious?"
    – phoog
    May 1, 2023 at 8:21
  • 3
    Also, I do not understand the purpose of the word "usually" in this question. Do you mean "in most circumstances," or "in most jurisdictions with a duty to rescue," or something else?
    – phoog
    May 1, 2023 at 8:23
  • 2
    This might be relatable to cases where a medical-doctor disregards a patient's claimed symptoms due to not believing them.
    – Nat
    May 1, 2023 at 22:30
  • 1
    FWIW, very few U.S. jurisdictions have a duty to rescue law, although a minority do have a duty to report that someone is at risk law. en.wikipedia.org/wiki/Duty_to_rescue Mostly citing volokh.com/2009/11/03/duty-to-rescuereport-statutes Only Vermont has a true legal duty to rescue as opposed to merely notifying authorities.
    – ohwilleke
    May 2, 2023 at 19:14
  • 1
    Given an equal chance that B is acting with the consequence that B will have to pay for an unneeded ambulance, and that B is an bad enough trouble to die without help, it seems entirely unreasonable not to call an ambulance.
    – gnasher729
    May 3, 2023 at 13:12

6 Answers 6

42

You have the duty to help others even if they cannot articulate that.

There was a case recently where people stepped over an unconscious person to get money from an ATM, thinking it was a homeless person sleeping inside the rather warm entrance to the public bank building. Turned out it was a normal elderly customer who had a medical emergency. Three customers walked around them and did not get help. Only the fourth customer called an ambulance about 20 minutes later. The person died in hospital, doctors said the delay in treatment did not cause the death, the person would have died even if help had been available earlier. Police used the banks security cameras to prosecute all who had just ignored the person and "thought it was okay, they were just sleeping".

Newspaper Article: For example Der Spiegel.

The actual text of the verdict: AG Essen-Borbeck, 18.09.2017 - 3 Ds - 70 Js 654/16 - 252/17, 3 Ds 252/17

In this case it was monetary fines, but if the person had actively asked for an ambulance, like in your case, and were actively denied instead of ignored, I'm pretty sure that would have made it way worse for the defendants.

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    – Dale M
    May 4, 2023 at 10:35
20

If you have a duty, you must do what a reasonable person would do in the circumstances

In general, in common law jurisdictions (civil law is different), you do not have a duty to rescue unless your acts or omissions have placed the person in danger. Here A has caused the hazard so they do have a duty.

It doesn’t matter what A thinks or believes. Their duty is to do what a reasonable person in the circumstances should do. A reasonable person would call an ambulance.

This is the standard for civil liability.

If A were to be charged with a crime, then there will be specific elements the Crown will need to prove. They almost always require more than mere negligence. Some crimes require intent (which appears to be lacking here), some require recklessness (which is possible), and some require gross negligence (which is more possible).

5
  • manslaughter is certainly a crime, even if done in gross negligence.
    – PMF
    May 1, 2023 at 13:09
  • 2
    So doesn't this hinge on whether the hypothetical "reasonable person" would think they were in serious trouble or exaggerating?
    – Barmar
    May 2, 2023 at 14:12
  • Would it be fair to say that "I didn't think a condition was serious enough to merit intervention" would be an excellent defense in cases where most typical reasonable people would have likewise thought that a condition wasn't serious enough to merit intervention, and a poor defense in cases where most reasonable people would not have thought likewise?
    – supercat
    May 2, 2023 at 15:01
  • @supercat: As mentioned in another answer, that's how it works in Germany, and in a comment, that's how it works in England and Wales as well. May 2, 2023 at 17:24
  • 3
    @supercat: In the situation posed in the question, where another person does try to confirm that B is actually having an allergic reaction, as I understand, the defense "A reasonable person would have thought it wasn't serious enough to merit intervention" almost certainly wouldn't work; they're getting additional confirmation of what a reasonable person would do in that situation during the situation. May 2, 2023 at 22:46
16

Probably not, as it would make any duty-to-care legislation toothless, as the excuse could be tried in all circumstances: "Your Honor, after I drove into the pedestrian, he was under my car, but I was sure he got there voluntarily, so It couldn't have been that bad".

Since A is not a medic, he's unable to make up an appropriate diagnosis of B's state. That's not expected of him, but common sense would expect him to know the real signs of e.g. respiratory distress. Yes, that probably means touching the patient, but nobody is able to diagnose somebody without looking and touching. And "Well, he looked like he's simulating" or worse still "Well, he looked like an impostor" is unlikely to convince the judge.

Normally, you can't do much wrong by calling an ambulance. Even though there have been disputes about who had to pay for the ambulance when the victim didn't actually need nor want it, this is likely the smaller problem than the sentence you'll face for not helping. Also, this doesn't apply here, as B is arguably unable to say anything.

Note: While googling, I found this report, which states that particularly in China, calling for help is a common fraud scheme. Particularly elderly people simulate an accident, and when someone helps them (and brings them to a hospital) the helper is accused of an assault.

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  • 9
    On the other hand, "B pretended to suffer an allergic reaction the last eight times I gave him something to eat" would make for a reasonable "I didn't think it was serious" claim.
    – Mark
    May 2, 2023 at 1:25
  • 3
    @Mark Precedent is the case of Boy Who Cried Wolf v. Town
    – Barmar
    May 2, 2023 at 14:13
  • "Probably not, as it would make any duty-to-care legislation toothless, as the excuse could be tried in all circumstances" - this makes no sense May 3, 2023 at 1:39
  • @user253751 The point I'm trying to make is that if this excuse would work, defendants would likely try it all the time. This could go to the point where the prosecution would have to proove the fact that the defendant knew that the victim was not simulating. We should still be able to assume that whover calls for help (or looks like he needs help) is in fact needing it. Deliberatelly calling an ambulance (or the police, fire brigade, etc.) for nothing might get you into legal trouble, too.
    – PMF
    May 3, 2023 at 6:06
  • That Chinese scam boils down to one sentence the judges said: "It is common sense that the defendant would not have accompanied the old woman to the hospital if he had not knocked her over himself" (translation from German). I can only guess that judges there have an incentive to collect more fines, which outweighs the fear of dying without help when they become old people themselves. May 3, 2023 at 9:17
13

I'll use the Diamond Ranch Academy tragedy as an example since they used the "we thought she was being dramatic, it wasn't serious" excuse.

Reference: Teen vomited on multiple days before dying of infection at Utah boarding school, state finds (NBC News)

They didn't get her help (for over a month) because "she was being dramatic". Unfortunately, since this happened in the troubled teen industry — they have so far been given a pass to keep operating — so I guess you can get away with the excuse "I didn't know it was serious".

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  • 4
    How often do teens "act dramatic" for attention? How often do troubled teens "act dramatic" for attention? I wouldn't be surprised if the workers there were 100% jaded (like cops get jaded).
    – RonJohn
    May 2, 2023 at 0:38
  • 5
    Or... maybe "teen girls act dramatic" is a myth, and the Diamond Ranch workers were just lazy.
    – RonJohn
    May 2, 2023 at 0:40
  • 4
    It might be arguable that bulimia bad enough enough to be vomiting that much in a short space of time is a real problem calling for seeing a doctor. (Also, it seems like, if this is a school that's specifically for "troubled teens", they'll be seeing a fair number of cases of bulimia and flippin' well should have someone on the premises who knows enough about it to distinguish it from a stomach infection).
    – A. B.
    May 2, 2023 at 8:15
  • 5
    There is also a difference between "acting dramatic" and "vomiting for DAYS". And even then, "acting dramatic" can still have serious consequences, if nothing is done about it.
    – Chieron
    May 2, 2023 at 10:05
  • 2
    While this is a chilling story, I don't see how this answers the question. In particular, it does not even mention any legal consequences.
    – sleske
    May 3, 2023 at 8:35
9

Probably not a good excuse

"Non-assistance à personne en danger" is fairly transparent, it's the crime of failing to provide assistance to someone in danger. The relevant law is Code Pénal Art 223-6, but the service-public website gives a more layman overlook of it.

The summary in English is there are three elements necessary for this crime:

  • Imminent and grave danger, which is assumed in the premise;
  • The witness being aware of this danger, which would be the main point of contention;
  • The witness voluntarily doesn't help the victim and/or doesn't call emergency services, which is also assumed in the premise.

Witness A may argue that they didn't think the danger was serious. This is weakened by Witness C telling them the danger is real.

Ultimately, it would be up to the judge to decide what to believe, but I wouldn't want to make that bet. I don't think that "I thought B was faking it" and/or "I thought C was exaggerating" is very convincing. Perhaps there is an history between the three that can mitigate this, but in a vacuum that's not reasonable, especially when you consider just how ridiculously low the threshold is for providing assistance: calling emergency services.

3
  • This would be true, legally speaking. But on a case by case basis, I don't know how much it works. In this article for example, a senior citizen was restrained inside his room in a retirement home because of Covid reasons (as in, he was literally tied to a chair for 15 days) and died because of it. The family said they would be filing a lawsuit, although the article does not mention how it turned out yet.
    – Clockwork
    May 2, 2023 at 10:34
  • 5
    @Clockwork That looks more like a case of elder abuse and/or malpratice. May 2, 2023 at 11:04
  • Yeah, although a part of me feels like they should have known leaving him to his own and not assisting him could only end badly. But that's just my own interpretation.
    – Clockwork
    May 2, 2023 at 11:06
6

The case as presented seems clear: A is provided the necessary information to act but they don't. I'm following this site and similar ones which prepare students for the bar exam in Germany here.

First of all, the objective side:

  • An emergency was present.
  • It required intervention by A.
  • The intervention was possible.
  • The intervention would have been effective.

Then the subjective side:

  • The necessary intervention could be reasonably expected by A. (For example, it did not put A in danger.)
  • The last point is your question: A didn't understand the emergency (let's take A's statement at face value). In principle, this can be exculpatory: If A is objectively not able to recognize the emergency there is no duty to help, even if it would have been possible and reasonable. (Say, somebody dies silently in the chair next to A: A could have saved their life but could objectively not recognize the emergency.) In this case, A is obviously not guilty.

Here and in other instances, German law and jurisdiction try to square the circle. They decide based on what one could call "objective subjectivity". They put a virtual standard "reasonable" ("verständigen") observer in the shoes of A and decide based on what they would have thought.

And unless B and C have a history of questionable pranks or it was April 1st, a reasonable observer like me would say that A should have recognized the emergency.

As an aside, §323c is not exhaustive: In addition to the violated duty to rescue, negligent homicide or homicide by omission may be applicable.

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  • 6
    Re: the "reasonable" observer; there's a similar principle in English and Welsh law with the delightful name of "the man on the Clapham omnibus". I just wanted to get that wonderful name out there.
    – Spratty
    May 2, 2023 at 9:40

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