Just a Bystander or a Good Samaritan? An Insight on Multi-Jurisdictional Approach on Duties of Bystanders

INTRODUCTION

There have been a series of violent crimes in India and around the world, where it has been observed that due to lack of care towards others, the victims could not get the required help in time. Whereas, in situations where a witness or bystander to a crime or accident extended reasonable help to a victim, a life was saved or at least there was an attempt to save a life. This person who did not just stand there simply witnessing a crime but extended the help to another person in need, is called a good Samaritan. The Cambridge Dictionary defines ‘Good Samaritan’ as someone who helps people in trouble.¹ The Webster Dictionary also defines a ‘Good Samaritan’ as one who compassionately renders assistance to the unfortunate.² In 21st century, where the Society is inter-dependent, yet the people are ‘individualistic’, so there is sharp lack of care towards others. The biggest democracy of the world, the most populous country and the country so vocal about Karma, is silent on the subject of duty of bystanders towards victims of gruesome crimes. Interestingly, Karnataka is the only State to have a legal framework on good Samaritans which recognises their duties and rights for helping victims. There are several States around the world which impose a duty on witnesses or bystanders to assist the victims of a crime or an accident, which have been discussed further.

CONCEPT OF GOOD SAMARITAN-ORIGIN

A ‘Good Samaritan’ is equivalent to the idea of ‘helping the one in need without any expectations of reward’. The term good Samaritan originated from the parable of good Samaritan, the Gospel of Luke in the holy Bible, where Jesus was asked the question that who is a neighbour and who is to be loved? Jesus recited the tale of an injured traveller who had been robbed and deserted on the side of a street where neither a priest nor a Levite stopped to save him, but a Samaritan man was the one who stopped and cared to save him by tending to the traveller with oil and wine, and also paid for his lodging at an Inn.³

GOOD SAMARITANS LAWS-DEVELOPMENT

• COMMON LAW AND DUTY TO RESCUE/ ASSIST

The early Common Law did not recognize a duty to rescue strangers.⁴ The Common Law was individualistic, it was reluctant to impose responsibility on individuals for being a good Samaritan or help a person in peril, as it was considered a mere moral obligation and every individual was considered free to choose to help a person.⁵ Under Common Law there is no duty on the ordinary citizen to rescue another citizen.⁶ The Common law refuses to recognize such duty as it embodies the distinction between misfeasance and nonfeasance.⁷ Misfeasance means causing harm, while nonfeasance is merely allowing harm to take place through inaction. The Common law has an incorporated principle that inaction or nonfeasance will not give rise to legal liability.⁸ But with increasing mobility in the society there has been pragmatic shift in the legal duties towards other, there is duty of reasonable care towards people with whom there is an existing special legal relationship, such as an employer’s responsibility toward an employee⁹, parent’s responsibility towards a child¹⁰, innkeeper’s responsibility towards a guest¹¹, storekeeper to a customer¹², teacher’s duty towards students¹³ and jailer’s towards inmates.¹⁴ If an individual is in danger because of one’s own actions, there is a Common Law duty to assist the individual, irrespective whether the person is a stranger.¹⁵ On failure to extend reasonable care in such scenarios, there lies an action for negligence.¹⁶

• MULTI- JURISDICTIONAL APPROACH ON DUTY TO RESCUE/ ASSIST

1. EUROPEAN COUNTRIES

Today almost all the European countries have enacted statutes to enforce a general duty to rescue within their respective Criminal Codes, along with punishments consisting of both fines and sentences for failure to act.¹⁷ Portugal was the first nation to include the duty to rescue in its Portuguese Civil Code of 1867 (‘PCC, 1867’).¹⁸ Article 2368 of the PCC, 1867, extends a duty on the witnesses to a crime to help or assist the victim.¹⁹

France

The duty to rescue entered French criminal law in 1941.²⁰ Under the French Penal Code (‘FPC’), Article 223-6 casts a duty on a person to prevent by his immediate action a felony or misdemeanour, without any risk to himself or third person and incase the person willfully abstains from doing so, the FPC has provided for punishment of five years along with fine of Euro 75,000.²¹ The same penalty is also applicable to anyone who willfully fails to assist a person in danger.

The duty to rescue under the FPC, has been interpreted by Courts to be inclusive of the following four basic elements:

1. there must be a person in peril;

2. the defendant/ witness fails to render assistance, either by intervening personally or by calling for aid;

3. the defendant/witness must have been able to render the assistance without risk to himself, herself, or third person or other;

4. the defendant’s/witnesses’ failure to render assistance must be intentional.

Germany

The Section 323c of the Strafgesetzbuch – StGB (German Criminal Code) provides for a duty to assist any person in case of accident or danger or emergency, without substantial danger to himself and breach of any other important duties. It also provides that if anyone obstructs a person who is advancing or rendering such assistance to another person in such situation, incurs a penalty of imprisonment not exceeding one year or fine.²² The Courts in Germany have settled that the duty to rescue in Germany arises when a person is aware that there is a victim of an emergency, incident or criminal attack in need of rescue and the person can rescue the victim without risk to his own safety or has an opportunity to rescue the victim.²³ In a Judgment by Federal Court of Justice, Germany, the Court held that the defendant had witnessed her tenants criminally abuse the victim and was aware of the fact that victim was in need for rescue, the defendant might not have had the opportunity to rescue her or stop the abuse because the defendant feared retaliation from the abusers as they were intoxicated and was aware of their criminal records.²⁴

2. UNITED STATES

“Danger invites rescue. The cry of distress is the summons to relief.”²⁵

Traditionally, there was absence of duty to rescue in US. There was no duty under the Anglo-American law to provide any kind of personal assistance to or obtain help or assistance for any person in distress, or to warn of imminent danger.²⁶ In 1942, L.S. Ayres & Co. v. Hicks²⁷, Chief Justice Curtis Shake observed that “there is no general duty to go to the rescue of a person who is in peril,” and this was the approach of the majority US States.In 1964, the murder of Kitty Genovese on a New York City Street horrified America.²⁸ Later, some US States departed from the Common Law rule and enacted laws which recognised the legal duty to rescue others with certain limits. Generally, duty to rescue in US is applicable to situations where the victim or person in peril and the rescuer or witness are strangers. Whereas, under Common Law, the duty to reasonable care towards others was applicable only in the case of existing special legal relationships as discussed above. Vermont, Minnesota, and Rhode Island passed these laws establishing the duty to rescue others from danger or peril.

Vermont

Vermont imposes on all persons a general duty to rescue a person in danger. 12 V.S.A. § 519 provides for Emergency Medical Care. It prescribes that when a person is aware that another person is in danger or exposed to grave physical harm, shall provide reasonable assistance to the person in danger, unless the assistance or care is provided by others. Assistance shall be provided to the extent that the person helping the other does not expose himself to any danger or peril or is not interfering with the duty of others. ²⁹ Any person who provides assistance or helps a person in danger is protected from liability of civil damages unless his or her acts constitute gross negligence or unless he or she will receive or expects to receive remuneration. The Vermont statute also imposes a fine of not more than $100 on any person who willfully violates the provision of providing reasonable assistance.³⁰ The duty to rescue in Vermont lacks duty to report or call for outside help for the victim, which prevents application or extension of the scope of duty to rescue on situations where witness was unable to intervene on accounts of his own safety.

Minnesota

Section 604A.01³¹ of the Minnesota Statutes provides for Good Samaritan Law. Any person who is at the scene of any emergency, knowing that the other person is exposed to grave physical harm, has a duty to give reasonable assistance to that person, to the extent that the person providing help, or any other person is not exposed to peril or danger. Reasonable assistance may include obtaining or attempting to obtain help or aid from law enforcement or medical personnel. The duty to help or assist includes obtaining or attempting to obtain aid from law enforcement or medical personnel. In case of violation of this provision, the person is guilty of petty misdemeanor.

Any person who without compensation or expectation of compensation renders emergency care, advice, or assistance, at the scene of an emergency or during transit to a location where professional medical care can be rendered, is not liable for any civil damages unless the person acts in a willful and wanton or reckless manner in providing the care, advice, or assistance. The immunity for liability is not applicable to any person who renders emergency care, advice, or assistance to the victim during the course of his regular employment and receiving compensation or expecting to receive compensation for rendering the care, advice, or assistance.³²

California

Section 1799.102 of the Health and Safety Code provides for good Samaritan law and protects the person from civil liability. It provides that any person who at the scene of emergency render emergency medical or non-medical care shall not be liable for any civil damages resulting from any act or omission, if he acts in good faith and not for compensation. The ‘scene of emergency’ has been described as not inclusive of emergency departments and other places where medical care is usually offered. However, the said provision is applicable only to the medical, law enforcement and emergency personnels. This provision also provides that it aims to encourage other individuals to volunteer to assist others who are in need during an emergency, without compensation.³³

Florida

Florida has an Act titled ‘Good Samaritan Act’, which provides that any person, including licensed medical practitioner, who gratuitously and in good faith renders emergency care or treatment either in response to emergency situations related to and arising out of a public health emergency shall not be liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person providing help acts as any ordinary reasonably prudent person would have acted under the similar circumstances.³⁴

Florida also has a duty to report sexual battery.³⁵ Section 794.027 of the Florida Statutes provides for duty to report sexual battery. If any person who observed the commission of sexual battery and has reasonable grounds to believe that they have observed the commission of such offence and can seek assistance for the victim by immediately reporting such offence, and would not be exposed to any threat of physical violence for seeking such assistance, fails to seek such assistance is guilty of misdemeanor for the first degree.³⁶

Massachusetts

Section 13 of the General Laws of Massachusetts provides for Good Samaritans. If any person in good faith, provides or attempts to provide assistance to victim of a crime, shall not be liable for civil damages as a result of any acts or omissions in providing or obtaining such assistance, unless such acts or omissions constitute willful, wanton or reckless conduct.³⁷ Section 40 casts a duty to report crimes to law enforcement officials. A person who is at the scene of an aggravated rape, rape, murder, manslaughter or armed robbery and knows that another person is a victim of any the said crimes, has a duty to report such crime to an appropriate law enforcement official to the extent that such person can do so without any danger to himself or others. Any person who fails to report such crime shall be punishable with a fine of not less than $500 and not more than $2500.³⁸

Rhode Islands

Rhode Islands has good Samaritan laws along with duty to notify a law enforcement official and provide assistance. Section 11-56-1 of the General Laws requires a person who is at the scene of an emergency, knowing that another person is in danger, to provide reasonable assistance to that person, without any danger or peril to himself or others. A penalty of $500 or imprisonment for term not exceeding six months is imposed for violating this provision and is considered a petty misdemeanor.³⁹

A good Samaritan has immunity from liability under Section 9-1-27.1 of the General Laws, but the immunity is not applicable to acts or omissions which constitute gross negligence or willful or wanton conduct.⁴⁰

There is also a duty to report sexual assaults.⁴¹ If any person knows that in his presence, first degree sexual assault is taking place or attempted, they have a duty to notify the State police or the police department of the city or town in which the assault or attempted assault is taking place of the crime. Any person who knowingly fails in reporting such sexual assault is guilty of misdemeanor and upon conviction shall be punishable with imprisonment for not more than one year or fined not more than $500, or both,⁴² there is also civil and criminal immunity for person making such report in good faith.⁴³

Hawaii

The State of Hawaii requires a person at the scene of a crime to assist the victim⁴⁴, who is suffering from serious physical harm by obtaining aid from law enforcement or medical personnel, without any danger to himself or any other person. Violation of this provision is considered as a petty misdemeanor. However, any person who provides reasonable assistance has immunity from civil damages⁴⁵ unless the acts constitute gross negligence or omissions or unless that person is receiving or expecting remuneration.

3. CANADA

Quebec

The Charter of Human Rights and Freedoms of the Quebec Province has a fundamental right that every human being whose life is in peril has a right to assistance. It provides that every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.⁴⁶

4. INDIA

The Manusmriti in its verse lays down that in their own defence, in order to protect a women and Brahmanas, in a strife for the fees of officiating priests, anyone who under such circumstances kills in the cause of right, commits no sin.⁴⁷ Duty to rescue, assist and the obligation of being a good Samaritan was in existence in Vedic India. However, today India has limited laws to the extent of imposing duty an individual to assist or rescue another in peril or danger. In India, there is recognition of good Samaritan laws in case of an accident. An individual has a duty to inform the police or emergency services about a person who met with a road accident. But there is lack of imposition of duty on a bystander or witness to a crime to assist the victim in any whatsoever manner possible.

The Supreme Court in Savelife Foundation v. Union of India⁴⁸ incorporated guidelines for protection of good Samaritans from harassment at hospitals, Police Stations and Courts who assisted road accident victims, and also incorporated standard operating procedures for examination of good Samaritans by Police and during the trial. Following the directions of the Supreme Court, The Ministry of Road Transport and Highways issued the following Standard Operation Procedure⁴⁹ :

1. The Good Samaritan shall be treated respectfully and without any discrimination on the grounds of gender, religion, nationality, caste or any other grounds.

2. Any person who makes a phone call to the Police control room or Police station to give information about any accidental injury or death, except an eyewitness may not reveal personal details such as full name, address, phone number etc.

3. Any Police official, on arrival at the scene, shall not compel the Good Samaritan to disclose his/ her name, identity, address and other such details in the Record Form or Log Register.

4. Any Police official or any other person shall not force any Good Samaritan who helps an injured person to become a witness in the matter. The option of becoming a witness in the matter shall solely rest with the Good Samaritan.

5. The Police officials concerned shall allow the Good Samaritan to leave after having informed the Police about an injured person on the road, and no further questions shall be asked if the Good Samaritan does not desire to be a witness in the matter.

Following the directions of the Supreme Court, the Ministry of Road Transport and Highways vide Notification dated 21-01-2016⁵⁰, provided that if required, the Police must examine a good Samaritan with utmost care and respect.

The Savelife Foundation Judgment brought a revolutionary shift in India’s good Samaritan laws. It somehow encouraged the good Samaritans to provide aid to the victims. The countrymen’s and public officers’ attitudes towards the good Samaritans also became positive.

In a press release in 2022, a scheme for good Samaritans by Ministry of Road Transport and Highways was announced which provides a grant of Award to the Good Samaritan who has saved life of a victim of a fatal accident involving a motor vehicle by administering immediate assistance and rushing to Hospital/Trauma Care Centre within the Golden Hour of the accident to provide medical treatment. As per the Scheme Guidelines, the amount of award for each Good Samaritan would be Rs. 5,000/- per incident.⁵¹

Protection of Good Samaritans from Liability

The Karnataka Good Samaritan and Medical Professional (Protection and Regulation During Emergency Situations) Act, 2016⁵² provides protection to Good Samaritans and Medical Professionals from civil and criminal liabilities. Section 3 of the Act protects good Samaritans from civil and criminal liability for any act or omission in good faith while providing emergency care to an injured person.⁵³ Protection from civil liability is not applicable if the good Samaritan is grossly negligent or reckless in connection with the act done or omission while providing emergency care.

Rights of Good Samaritans⁵⁴

The Good Samaritans are exempted from:

1. Furnishing their personal information such as name, telephone number, address at the hospital, unless provided voluntarily

2. Fulfilling any procedure relating to the admission of an injured person at the hospital.

3. Bearing any medical expenses for the treatment of an injured person at the hospital.

The Kerala Road Safety Authority has certain guidelines similar to Karnataka’s Good Samaritans Act, regarding the respectful treatment⁵⁵ good Samaritans by the police.⁵⁶

In a survey⁵⁷ by Savelife Foundation, it was found that nearly 84% percent people were unaware about the Good Samaritan law and 59% good Samaritans were reportedly detained by the Police despite the guidelines laid.

CONCLUDING REMARKS

India did take a head start in the right direction by way of incorporation of guidelines for good Samaritans by the Supreme Court in the Savelife Foundation Judgment, but the implementation of these guidelines or the rules laid down in Karnataka and Kerala have several impediments to them and is a major challenge, as noted by the survey conducted for Savelife Foundation. The situation regarding the duty to rescue and duty to care for others on the bystanders in India is quite clear with the gruesome murder of 16-year-old girl in Delhi⁵⁸, where a boy publicly brutally stabbed a girl several times and people clearly did nothing to help the girl. Such incidents are clearly evident about the care and duties people feel towards the victim. Therefore, India does require a legislative framework which casts a duty on the bystanders to help, assist, rescue a victim, by every means possible.

The International scenario as discussed above shows a pattern of duty to rescue and care provisions which the majority of States follow. There is a certain category of people on whom the duty is applicable such as the witness to a crime or anybody who is aware that a crime is taking place and there is a victim in their presence, the helper or the person providing assistance to the victim must do so with ‘good intent’, as required in various American States discussed above. The provisions discussed above also require the witness or helper to look out for their safety and the safety of others before providing assistance to the victims. There is involvement of penal provisions and penalty imposed for violation of the duty varying from State to State in order to ensure better implementation of the duty to care and rescue others. Thus, on comparison of India’s stand with the multi-jurisdictional approach for imposing a duty on the bystanders to rescue victims of a crime, India does require a provision on the subject. Indeed, there are good Samaritans guidelines for encouraging help towards the road accident victims, but the question for assistance to the victims of gruesome crimes such as murder, sexual assault by the bystanders remains lingering.

* Deeksha Dabas, Editorial Assistant has put this report together