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Supposing A gives B food that contains an ingredient that, unknown to A, B is violently allergic to, and B collapses. A refuses to call an ambulance, saying that B is just being dramatic, and continues to do so even when C confirms that B does, in fact, have this allergy and it is life-threatening. (Suppose that A is the only one present whose phone is working).

In jurisdictions with a "duty to rescue" law, if B dies as a result of this, is "I thought C was exaggerating" likely to be a sufficient excuse?

sleske
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A. B.
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6 Answers6

43

You have the duty to help others even if they cannot articulate that.

There was a case recently where people stepped over an unconscious person to get money from an ATM, thinking it was a homeless person sleeping inside the rather warm entrance to the public bank building. Turned out it was a normal elderly customer who had a medical emergency. Three customers walked around them and did not get help. Only the fourth customer called an ambulance about 20 minutes later. The person died in hospital, doctors said the delay in treatment did not cause the death, the person would have died even if help had been available earlier. Police used the banks security cameras to prosecute all who had just ignored the person and "thought it was okay, they were just sleeping".

Newspaper Article: For example Der Spiegel.

The actual text of the verdict: AG Essen-Borbeck, 18.09.2017 - 3 Ds - 70 Js 654/16 - 252/17, 3 Ds 252/17

In this case it was monetary fines, but if the person had actively asked for an ambulance, like in your case, and were actively denied instead of ignored, I'm pretty sure that would have made it way worse for the defendants.

nvoigt
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If you have a duty, you must do what a reasonable person would do in the circumstances

In general, in common law jurisdictions (civil law is different), you do not have a duty to rescue unless your acts or omissions have placed the person in danger. Here A has caused the hazard so they do have a duty.

It doesn’t matter what A thinks or believes. Their duty is to do what a reasonable person in the circumstances should do. A reasonable person would call an ambulance.

This is the standard for civil liability.

If A were to be charged with a crime, then there will be specific elements the Crown will need to prove. They almost always require more than mere negligence. Some crimes require intent (which appears to be lacking here), some require recklessness (which is possible), and some require gross negligence (which is more possible).

Dale M
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Probably not, as it would make any duty-to-care legislation toothless, as the excuse could be tried in all circumstances: "Your Honor, after I drove into the pedestrian, he was under my car, but I was sure he got there voluntarily, so It couldn't have been that bad".

Since A is not a medic, he's unable to make up an appropriate diagnosis of B's state. That's not expected of him, but common sense would expect him to know the real signs of e.g. respiratory distress. Yes, that probably means touching the patient, but nobody is able to diagnose somebody without looking and touching. And "Well, he looked like he's simulating" or worse still "Well, he looked like an impostor" is unlikely to convince the judge.

Normally, you can't do much wrong by calling an ambulance. Even though there have been disputes about who had to pay for the ambulance when the victim didn't actually need nor want it, this is likely the smaller problem than the sentence you'll face for not helping. Also, this doesn't apply here, as B is arguably unable to say anything.

Note: While googling, I found this report, which states that particularly in China, calling for help is a common fraud scheme. Particularly elderly people simulate an accident, and when someone helps them (and brings them to a hospital) the helper is accused of an assault.

PMF
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I'll use the Diamond Ranch Academy tragedy as an example since they used the "we thought she was being dramatic, it wasn't serious" excuse.

Reference: Teen vomited on multiple days before dying of infection at Utah boarding school, state finds (NBC News)

They didn't get her help (for over a month) because "she was being dramatic". Unfortunately, since this happened in the troubled teen industry — they have so far been given a pass to keep operating — so I guess you can get away with the excuse "I didn't know it was serious".

Laurel
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Michael Reed Schmidt
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Probably not a good excuse

"Non-assistance à personne en danger" is fairly transparent, it's the crime of failing to provide assistance to someone in danger. The relevant law is Code Pénal Art 223-6, but the service-public website gives a more layman overlook of it.

The summary in English is there are three elements necessary for this crime:

  • Imminent and grave danger, which is assumed in the premise;
  • The witness being aware of this danger, which would be the main point of contention;
  • The witness voluntarily doesn't help the victim and/or doesn't call emergency services, which is also assumed in the premise.

Witness A may argue that they didn't think the danger was serious. This is weakened by Witness C telling them the danger is real.

Ultimately, it would be up to the judge to decide what to believe, but I wouldn't want to make that bet. I don't think that "I thought B was faking it" and/or "I thought C was exaggerating" is very convincing. Perhaps there is an history between the three that can mitigate this, but in a vacuum that's not reasonable, especially when you consider just how ridiculously low the threshold is for providing assistance: calling emergency services.

AmiralPatate
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The case as presented seems clear: A is provided the necessary information to act but they don't. I'm following this site and similar ones which prepare students for the bar exam in Germany here.

First of all, the objective side:

  • An emergency was present.
  • It required intervention by A.
  • The intervention was possible.
  • The intervention would have been effective.

Then the subjective side:

  • The necessary intervention could be reasonably expected by A. (For example, it did not put A in danger.)
  • The last point is your question: A didn't understand the emergency (let's take A's statement at face value). In principle, this can be exculpatory: If A is objectively not able to recognize the emergency there is no duty to help, even if it would have been possible and reasonable. (Say, somebody dies silently in the chair next to A: A could have saved their life but could objectively not recognize the emergency.) In this case, A is obviously not guilty.

Here and in other instances, German law and jurisdiction try to square the circle. They decide based on what one could call "objective subjectivity". They put a virtual standard "reasonable" ("verständigen") observer in the shoes of A and decide based on what they would have thought.

And unless B and C have a history of questionable pranks or it was April 1st, a reasonable observer like me would say that A should have recognized the emergency.

As an aside, §323c is not exhaustive: In addition to the violated duty to rescue, negligent homicide or homicide by omission may be applicable.

Peter - Reinstate Monica
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