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FTCA. This in an FTCA claim in which P sues the government, and would thus get only compensatories if successful. Amelia H. Ashton, Rescuing The Hero: The Ramifications Of Expanding The Duty To Rescue On Society And The Law, 59 Duke L.J.69 (2009)Historical justifications for “no duty” rule. Several essential philosophical and legal concepts supported “no duty” rules. (1)Autonomy. Idea that you should be free to do whatever you want, so long as you aren’t hurting anyone. Requiring action seen as an offense toliberty so grave that it equates to “making a man a slave.” This is about other costs too (time, involvement w/ other people).(2)Consent-of-the-governed. Government is a legitimized by citizens’ consent, which reflects their autonomous choices. (3)Harm principle. A legal wrong is only inflicted where harm is inflicted. (4)Common law psychological underpinnings. Rescuing someone from adangerous situation runs counter to the natural law principle of self-preservation. (5)Norms. Assumption that strength of moral aspirations and social norms, particularly religion, would compensate for the lack of formal legal duty. Moral obligation there to encourage people to step up as heroes, thus, noneed for the law to play a role. Utilitarian evolution and erosion of “no duty” rules. Utilitarian legal perspectives and humanitarian concerns have led to a slow but steady promulgation of duty to rescue.(1)Changing social conditions lead constantly to the recognition of new duties. 50
(2)Decreasing role of religion presents a greater space for duty in the law, bc social norms can no longer be entrusted to spur moral action. (3)Courts have softened the harshness of the no-duty rule(4)Legislatures have responded to horrible stories about bystanders doing nothing(5)Rising call in legal literature Progress. 3 ways:(1)Restatementsection outlining 4 specific scenarios requiring duty to rescue(2)Development of a body of cases(3)Good Samaritan LawsExceptions to the No Duty RuleTraditional Exceptions: prior conduct, promissory estoppel, special relationships, and volunteer rescuePolicy basedApply to case where parties are involved in the transfer per state government policy by public health officials of recovering COVID patients from hospitals to nursing homes where the transferees get arguably suboptimal care and the staff and regular residents are exposed to an unexpected additional viral loads. [AP Count: Over 4,500 virus patients sent to NY nursing homes, AP News]a.Volunteer RescueDuty of Volunteer RescuersoVolunteers in aid have a positive duty to use ordinary care in performing the task once you begin the rescueoDuty begins once you agree to do something and then begin the actoIf you left the person in an equal or better position than they would have been in without your involvement, there is no duty.