Dov Waisman, ‘Negligence, Responsibility, and the Clumsy Samaritan: Is There a Fairness Rationale for the Good Samaritan Immunity?’

The Good Samaritan immunity has been roundly criticized for failing in its stated goal of encouraging physicians and laypersons to volunteer assistance in emergencies. Yet in the half century since its inception, the immunity has been adopted in one form or another by all fifty states and shows no sign of disappearing any time soon. In this Article, I evaluate a rarely-discussed rationale for the immunity which may explain its persistence: that it is unfair to impose negligence liability on the clumsy Samaritan, i.e., someone who, without obligation, comes to the aid of another in an emergency, but does so ineptly.

Based on a close examination of different types of voluntary rescue cases, I conclude that fairness does require an immunity, but only in narrow circumstances: where a lay rescuer’s act of ordinary negligence leaves the victim no worse off than she would have been absent the intervention (i.e., where the gravamen of the action is that a lay rescuer negligently failed to alleviate the pre-existing peril). Outside of these circumstances, principles of fairness support holding the clumsy Samaritan liable for negligence in performing the rescue.

This, I argue, has an important and unappreciated implication for negligence theory. My analysis presents a challenge to the view, taken by some corrective justice theorists, that the obligation to repair a negligently-caused injury derives from a morally culpable attribute of the negligent act, e.g., that it evinces disrespect for the injured person’s physical security. Because, in the paradigm case of voluntary rescue, the rescuer acts selflessly and out of a profound respect for the physical integrity of the imperiled person, the intuition that liability may nevertheless be appropriate if the rescuer fails to exercise reasonable care supports a competing view of the moral basis for negligence liability. The obligation to repair a negligently inflicted injury rests not on the injurer’s culpable disposition toward other agents, but on the injurer’s responsibility for the consequences of his dangerous, even if non-culpable, conduct.

Waisman, Dov, Negligence, Responsibility, and the Clumsy Samaritan: Is There a Fairness Rationale for the Good Samaritan Immunity? (2011).

First posted 2012-02-24 15:58:54

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