The ongoing debate about the legal duty to rescue another person in peril is fraught with a familiar tension. On one side stands the traditional and distinctly American determination that freedom from such a duty is essential, that the technical rules of tort law and self-preservation instincts disdain such a requirement, and that the postulates of religion and morality are sure to fill in any legal gaps. On the other, a more recent humanitarian perspective-seen in revisions to the Restatement, case law, and some state statutes-advocates for requiring easy rescue, positing that religiously inspired morality and public good-doing are unlikely, and citing highly publicized incidents in which bystanders remained callously, though lawfully, inactive. But the classic dialogue between an autonomist's protection of the rescuer and the humanitarian protection of the rescuee has thus far neglected a thorough treatment of a figure viscerally affected by the slow erosion of the historical no-duty rule: the hero. The hero derives his meaning by acting in ways that are not legally required; in other words, the hero is valuable because he acts not as the law's "reasonable man," but as a figure wholly outside of it. This Note argues that as the duty to rescue expands, the moral realm in which the hero acts consequently shrinks, and that the values a hero inspires in society-hope, exemplary conduct, public celebration, societal reflection, and spiritual absolution-are likely to suffer as well. In this way, increasing the duty to rescue not only affects society but also runs the risk of confusing the law by deeming potentially heroic: action reasonable. This dual distortion of social and legal values merits a new and invigorated examination of the role of the hero as a real and meaningful concept-a concept that risks danger should the duty to rescue continue to expand.
Amelia H. Ashton,
Rescuing the Hero: The Ramifications of Expanding the Duty to Rescue on Society and the Law,
59 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol59/iss1/2