Reply #103: there's a Cdn case that would cover this

[iverglas]

hahahahaha.

I studied it in first-year torts, way back when. My torts textbook has ended up in a box in the basement somewhere, and I've never managed to locate a reference to the case on line. I believe it was called MacLaren v. <somebody>.

A bunch of the guys were out boating on Lake Ontario, and -- totally illegally -- enjoying a two-four. That's a 24-pack of beer. One of them fell overboard. The one in charge of driving the boat started backing it up and failed to get alongside the overboard guy. The other guy on board, frustrated at how the undertaking was being botched by the driver, jumped in to save his friend. The whole thing was pretty much a keystone-sailors episode. The two in the water ended up dead.

As I recall it, the one who fell in first died of heart failure from the cold water, almost immediately, as did the second. But the second wouldn't have jumped in if the driver hadn't made such a hash of the rescue attempt. If the boat driver had done what you're supposed to do with boats -- circle, rather than back up -- and if he hadn't been pissed, he could have got the boat where it needed to go and guy #2 wouldn't have jumped in and died.

Anyhow, what the court decided was that while there is no general duty to rescue, there was a duty on the boat driver; he had a duty of care, and performing it negligently, thus prompting someone else to endanger him/herself, made him liable for the resulting damage.

Aha, there is something on line; and I remembered the disposition wrong. The Court found that the boat driver had *not* been negligent; but if he had been, he would have been liable.

http://www.sarbc.org/goodsam.html

The case of Horsley v MacLaren, 1970, represents a controversial example of the right to compensation. A guest (Matthews) on a power boat (the Ogopogo) owned by the defendant (MacLaren) fell overboard into Lake Ontario. MacLaren tried to rescue Matthews but was unsuccessful. Meanwhile, the plaintiff Horsley (another guest) attempted to save Matthews but both men drowned. The court held that MacLaren had a duty to rescue Matthews because of a special relationship - a power boat operator owed a duty of protective care to the passengers - and if negligent, MacLaren would be liable to Matthews (or his dependents).

Horsley, on the other hand, was a good samaritan with no duty to rescue Matthews. His only recourse was against MacLaren and his right to compensation depended on whether MacLaren had been negligent to Matthews, which the Supreme Court found not to be the case. Since MacLaren was not liable to Matthews, he could not be liable to Horsley.

In the US SC case, the people who phoned emergency services were assured that officers were on the way. If they had not had that assurance, they would not likely have wandered into the midst of the on-going crime.

The authorities in question could have said "well, we don't know when we can get someone there, if we bother to send anyone at all". But they didn't. They assured the caller that officers were on the way, thereby assuming a duty of care, and then they did nothing. They were negligent, on the face of it. They should have been held liable for the resulting damage unless they had some pretty good explanation to show that they were not negligent.

An analogy to help grasp the concept: when I was in practice, I had no duty to provide legal services to anyone at all. But once I told someone that I was going to provide those services, I had a duty of care to the client: a duty to provide legal services competently. Ditto anyone who agrees to perform a service, thereby assuming the relevant duty of care.

As for the US SC decision itself, of course I wouldn't accept that as the last word on this or anything else. Municipal authorities collect taxes and agree to provide services in return; they pretty obviously assume a duty to provide services to the best of their abilities. They have a duty not to be negligent in the performance of those services. I see complete and utter negligence in the manner in which the authorities in the case in question failed to perform any services at all after expressly undertaking to provide them.

Certainly police and fire authorities could not have an absolute liability to rescue members of the public. But I fail to see how they could not be held liable for negligence in performing the duty that they very plainly do have, the US SC notwithstanding.