BYSTANDER EFFECT AND THE DUTY TO RESCUE

In 1964, Catherine “Kitty” Genovese was raped and brutally murdered outside of her New York apartment complex.  It was alleged that many families who lived in very close proximity to one another, effectively did very little to save her. This story invokes feeling of sadness and unrest for most people. Why did everyone fail to act? One bystander was said to have stated: “I didn’t want to get involved.” This statement has later became famous for typifying bystander behavior.

The story of Kitty Genovese is often used in the study of psychology to explain a phenomenon known as the “Bystander Effect”.  The Bystander Effect is used to describe a unique pattern of behavior exhibited by most individuals, that behavior being: when a large number of people are present, it becomes less likely for any one person to come forward to offer assistance.

Most social scientist hypothesize that there are two factors at play under the Bystander Effect. The first factor is the concept of a “diffusion of responsibility”; most individuals will be less compelled to be the responsible party when there are more people around them.  The responsibility to act is “shared” by the group and the individual feels less imposed upon to do something themselves.  The second factor is our strong need to behave in a socially acceptable manner in front of others, the old “monkey-see monkey-do” behavior we can all remember on the elementary school playground.

Social science is extremely fascinating, but this brings us to the legal consequences of inaction.  Does a person have a duty to rescue another in need? The answer here in Nevada is fact intensive. However, of major importance is the relationship between the bystander and the victim.

In Nevada, there is generally no duty to rescue another person in need or aid those in peril. However, a duty to rescue has been imputed under the following circumstance and between certain individuals:

1.  If you have created the accident or situation that has harmed another, you have a duty to rescue them from the situation.[1]

2.  If there is a special relationship between you and the victim, then you have a duty to rescue.  These special relationships include:

  • A parent for their child; a caregiver or school official to a child in their care
  • Common carriers to their customers.
  • Employers to their employees.
  • Homeowner to their invitees.
  • Spouses to one another.

The duty to rescue, when triggered, requires that the bystander take reasonable care and take reasonable affirmative steps to ensure the victim is aided.

Bystanders may also be nervous to provide aid or help for fear of being blamed or sued for an ineffective or “negligent” rescue attempt. Unfortunately in our ever-litigious society, this is a valid concern. In order to combat this dilemma, the Nevada legislature enacted Nevada Revised Statute 41.500, commonly known as the Good Samaritan Statute. The purpose was to promote citizen aid when there is an immediate need.

The statute states that those who render emergency care or assistance in an emergency, gratuitously, and in good faith are not liable for civil damages as a result of any act or omission; excluding acts or omissions stemming from gross negligence. It also provides necessary protection for volunteers that drive ambulances, members of state appointed search and rescue teams, and volunteer fire-fighters.

This statute is limited only to those who do not have a duty to rescue mentioned above.  It also limited to true emergencies.  An “emergency” has been defined as a situation that is: 1) unexpected, 2) there is a need for immediate action, 3) and there is a lack of time for measured evaluation of the circumstances.

In conclusion, the loss of Kitty Genovese to a serial rapist and murderer is a compelling story of an average bystander and the dilemmas they may face during an emergency situation.  Under Nevada law, the neighbors did not have a duty to rescue Kitty, unless they were in a special relationship with Kitty, or unless they caused the accident or crime themselves.  However, if they had attempted to rescue Kitty, and they did not do something grossly negligent, they would have been protected from a civil lawsuit against them personally by way of the Good Samaritan Statute.

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[1] Under the rescue doctrine, if you have created the situation or accident that causes harm to the bystander who attempts to rescue the victim, you will also be liable for any injury to the bystander caused to him or her during the rescue attempt.

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