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Unpublished Paper
Negligence, Responsibility, and the Clumsy Samaritan: Is There a Fairness Rationale for the Good Samaritan Immunity?
ExpressO (2012)
  • Dov A Waisman
Abstract
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. This Article represents the first serious attempt in the literature to 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, altruistically 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 novel challenge to the view of corrective justice theorists like Ernest Weinrib, who contend that the duty to repair an injury caused by negligence rests on the culpable disrespect the injurer evinces in failing to act with due care. 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 case of the clumsy Sa-maritan shows in a compelling way that the moral basis for negligence liability has to be the injurer’s moral responsibility for the consequences of her dangerous, even in non-culpable, conduct.
Keywords
  • good samaritan immunity,
  • negligence,
  • corrective justice
Disciplines
Publication Date
February 26, 2012
Citation Information
Dov A Waisman. "Negligence, Responsibility, and the Clumsy Samaritan: Is There a Fairness Rationale for the Good Samaritan Immunity?" ExpressO (2012)
Available at: http://works.bepress.com/dov_waisman/1/