Roy B. Oser, Esq.

She was young, blonde, expensively dressed, and lying on the floor of a concourse in the bus terminal in a pool of her own vomit, to which she was continuing to contribute. Others hurried by as if she were not there. Your gallant Eldercountry Lawyer, however, stopped, and . . . took out his cell phone to call the police. He did not lift the young woman’s head to make sure that she would not suffocate, or touch her at all.

Why was that? you may wonder. Partly because the area was well patrolled, and the police would come quickly. But mostly because generally, in this country, not only are we under no legal obligation to be our brother’s (or sister’s) keeper, but we risk legal liability if we make the attempt.

Under common law, there is no duty to render personal assistance to, or obtain help for, persons in distress. (Common law is accumulated legal precedent from earlier court decisions, as distinguished from statutory law.) On the other hand, under that common law, if you do take charge of a helpless person in order to provide assistance, you have a duty to exercise reasonable care to secure that person’s safety while in your charge. You also have a duty to continue your assistance if by discontinuing your aid and protection you would leave that person in a worse condition than before.

In the biblical parable of the Good Samaritan, Jesus praises the Samaritan, who stops to aid a man lying by the side of the road after he had been robbed and beaten, while other travelers pass the man without helping him. The Samaritan bandages the man’s wounds, puts him on his own donkey, and takes him to an inn. Under our modern Good Samaritan rules, if the Samaritan failed to use sterilized bandages and caused a serious infection as a result, or let his donkey kick the robbery victim, he could find himself a defendant in a lawsuit.

There are some limited exceptions to the general common law rule that we are not obliged to come to the aid of another who is injured or in danger. Courts have enforced a contractual obligation on the part of those in certain occupations, such as lifeguard, fireman, policeman, nurse, and baby-sitter, to render aid. Courts have also imposed an affirmative duty to assist where a special relationship exists between the witness and the person needing help, such as parent to child, spouse to spouse, employer to employee, or landowner to guest.

In addition, anyone who negligently imperils or injures another is under a duty to render reasonable assistance, and some courts have broadened this rule to apply to anyone whose conduct, negligent or innocent, has endangered or injured another.

A small proportion of states have enacted statutes that impose an affirmative duty to provide assistance in some form to an injured or endangered person. The duty imposed may be to give personal assistance, or to notify the police, or to summon aid. Violations of these state statutes are for the most part punishable only by fines and not by imprisonment, and the fines tend to be modest.

More commonly, state Good Samaritan statutes are designed to provide some legal protection to the bystander or onlooker who voluntarily comes to the aid of an injured or endangered individual. All states have passed statutes of this sort with respect to doctors.

Good Samaritan law in this country contrasts with the Good Samaritan law of many other countries. Generally, in this country, under the common law, if the young woman on the floor in the bus terminal had been in a swimming pool struggling to stay above water and calling for help, to apply a classic illustration, and you were standing by the side of the pool with a life preserver close to hand, you would not be legally obligated to throw her the life preserver, much less jump into the pool to try to save her.

If, on the other hand, the swimming pool in the illustration were in France, you would be under a legal obligation to use all reasonable means to try to save the young woman from drowning. “Reasonable means” would not include putting yourself in peril, so you would not be obliged to jump into the water to try and save her if you could not swim. You would be obliged, though, to throw her the life preserver, at least.

The French Good Samaritan law got some publicity in this country after Princess Diana’s fatal car crash in France, in 1997. It was alleged that photographers who had been following the car before the crash simply continued to take pictures of her after the crash, instead of trying to rescue her. Consequently, it was reported that among the charges facing those photographers was the charge that they had violated the French Good Samaritan Law, “non-assistance to a person in danger.” Violation of this law is punishable by a fine and jail time.

The Good Samaritan law in this country, or, at least, in Massachusetts, got publicity when it was key to the plot of the finale of “Seinfeld” on NBC, in May, 1998. In the finale, an improbable plot device brings Jerry, George, Elaine and Kramer to Latham, Massachusetts. The four of them are killing time when they witness an overweight man getting carjacked at gunpoint. Without a thought of trying to help him, they crack jokes about his size, and Kramer videotapes the incident. Then they walk away. When the victim reports their behavior to a police officer, they are arrested and prosecuted for violating the Massachusetts Good Samaritan law.

There is in fact a Massachusetts statute that imposes an affirmative obligation to be a Good Samaritan, but only under certain conditions and only to a certain extent. The obligation is imposed on a person who knows that another person is a victim of aggravated rape, murder, manslaughter or armed robbery, and is at the scene of the crime. Such a person is obligated to report the crime, to the extent that this can be done without danger to himself or others, as soon as “reasonably practicable.”

Accordingly, in Massachusetts, and in several other states, anyone behaving like the “Seinfeld” foursome under the facts presented by the finale could in fact be prosecuted for not coming to the victim’s aid, at least to the extent of calling the police. Beyond that, however, artistic aims prevail in “Seinfeld” over any attempt to portray the law realistically.

In “Seinfeld,” what the defendants are found guilty of, essentially, is bad character, and they are condemned to spend a year in prison together. This denouement is clearly meant to be suggestive of the ending of Jean Paul Sartre’s novel, No Exit, in which three irresponsible, thoughtless characters are condemned to an afterlife with only each other in a room they cannot leave. In the real world, bad character is not in itself a crime in this country, and violation of the Massachusetts statute is punishable by a fine but not by a prison term.

But aside from the relative handful of state statutes such as the Massachusetts statute, and the other limited exceptions to the common law rule in this country, we are not, legally speaking, our brother’s keeper. If we try to be, we may risk legal liability. In other words, if you do right, take care to do it right.

And the young lady in distress in the bus terminal? The terminal is heavily patrolled by police officers. Before I could press a button on my cell phone, one of them approached her. I turned, and like the priest and the Levite in the parable, walked away.