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CAP Talk  |  General Discussion  |  The Lobby  |  Topic: Moral leadership, a 'just' society, and a duty to assist
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Author Topic: Moral leadership, a 'just' society, and a duty to assist  (Read 718 times)
Live2Learn
Seasoned Member

Posts: 397

« on: July 21, 2017, 02:17:25 PM »

This is an interesting article that discusses the reactions of a group of teens when presented with an ongoing  live-threatening emergency situation.  The situation, outcome, and video of the event which was later posted on social media by a witness/participant has deep implications for what it means to be a 'good' citizen'.  What this group of teens did is the antithesis of "good citizenship".  It might be fodder for a discussion of moral leadership, perhaps.

http://www.bbc.com/news/world-us-canada-40680895
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1st Lt Thompson
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Unit: GLR-MI-063

« Reply #1 on: July 21, 2017, 03:14:01 PM »

I couldn't imagine watching someone die and not at least calling 911.....let alone standing on the shore and mocking the poor guy!
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1st Lt Matt Thompson
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Mitchell - 31 OCT 98 (#44670) Earhart - 22 MAY 01 (#11401)
Ozzy
Seasoned Member

Posts: 319
Unit: NY

NY-288 Squadron Website
« Reply #2 on: July 21, 2017, 03:19:39 PM »

It is an interesting issue... the biggest issue I think is that they did not at least call 911 to report the emergency. As we have it here in CAP, you can only treat what you are trained and certified to do, going above could open you and CAP to either lawsuits or even injury to yourself. A drowning person could easily cause you to drown as well
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Ozyilmaz, TSgt, CAP
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Mordecai
Salty & Seasoned Contributor

Posts: 1,015
Unit: SI

« Reply #3 on: July 21, 2017, 03:32:22 PM »

It is an interesting issue... the biggest issue I think is that they did not at least call 911 to report the emergency. As we have it here in CAP, you can only treat what you are trained and certified to do, going above could open you and CAP to either lawsuits or even injury to yourself. A drowning person could easily cause you to drown as well

But we'd still call it in to the IC/911 and/or look for a line to throw in the water or something...
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KASSRCrashResearch
Member

Posts: 92

« Reply #4 on: July 23, 2017, 06:25:58 PM »

Quote
As we have it here in CAP, you can only treat what you are trained and certified to do, going above could open you and CAP to either lawsuits or even injury to yourself

The kids who shot that video are probably sociopaths judging by how they acted.  "Moral leadership" doesn't fix that.  All you can do is identify them and try to contain them before they hurt anyone. 

You yourself, not likely since to be successfully sued, you would have to do something pretty egregious.  There are multiple elements the plaintiff is going to have to prove in order to prevail if they are claiming either negligence: namely duty of care, breach of that duty and actual or proximate causation (such as the substantial factor test....

...or intentional torts namely intent (duh), the act, result and causation.  Basically they have to prove that you intended to make the situation worse or cause harm.

Assuming you're not intentionally trying to make things go from bad to complete goat rodeo, let's look at negligence as it actually works under US tort law.
 
You have to have an affirmative duty to help someone for that and in the US, no such caveat exists except maybe as an isolated local regulation.  Even police officers on duty have been ruled to not have an unwavering requirement to render assistance (see Warren v District of Columbia).  That's like civil procedures 101.  Ask any first year law student. Without a duty to act in the legal sense, there can be no civil liability unless you did something that a prudent person would not have done (basically you did something that any rational person would go "What the **** were you thinking?" which is the proximate cause of the harm or death).  Technically one can even argue that violation of the duty to act or duty of care such as following a safety regulation etc is excusable if it is done for reasons of greater safety than would otherwise be offered. (an example being Tedia v Ellman).

The breach criterion has to be met by showing that defendant failed to exercise a reasonable amount of care (this is where the "prudent" or "ordinary" person standard comes in).  Conduct is not normally considered to be imprudent or unreasonable unless it gets to the the point of being obvious.  That is called a "violation of custom" breach although it has been successfully argued that just because something is customary does not make it point of fact evidence that the conduct or belief is reasonable or prudent.  The Klein ruling argued that it is strong evidence to that but it is not something which on its face is conclusive.   Similarly, in rare instance of what is probably just egregious stupidity or hubris, argue res ipsa loquitur (Latin for "the thing speaks for itself" although it is probably better colloquially translated as "No ****ing ****") but that is pretty uncommon and unlikely to apply because of the strict standard of control which has to be demonstrated and the secondary requirement that the action or inaction is obviously the result of negligence. There's also strict liability which is usually reserved- in terms of the setting we are talking about- for things that are so dangerous that you don't have to be negligent to be found liable.  The classic example used in legal teaching is the escape of a tiger.  If your tiger escapes and hurts someone, you're going to pay for it no matter how much effort you put into keeping him in his cage.  I cannot think of any remotely reasonable action that would even apply to an attempted rescue which would meet strict liability. It is basically the one thing that negates pretty much everything including fault, negligence or culpability (mens rea if you want to look at it from the criminal side of things).  The simplest way to think of it is imposition of legal liability without finding of fault which is why it is more normally associated with product liability.

Alternatively, one can look at Hand's famous "math of breaches" rule the burden of a greater degree of care is less than the severity of expected damage, harm or loss times the probability of harm, loss or damage (in other words B < LP) then they are generally considered to not acting in a reasonable in the level of care exercised.  In other words, they violated the duty of care if they had one (see US v Carroll Towing Co).  There are a few other ways you can demonstrate breach but those are the two common ones.

Then they have to demonstrate that what you did or didn't do was the actual or proximate cause of the loss, harm or damage.  Ever heard a lawyer on television argue "But for the actions of the defendent..."? That's an actual cause argument. Then it gets really muddy in a strict sense- and one of the few cases where legal fictions are accepted- if you have multiple defendants who can try to blame each other although this seldom works since most jurisdictions hold the concept of joint and proportionate or severable liability (the latter being the case where the plaintiff can recover the full amount of the damages from any or all of the defendants; for example: if one is rich and one is poor). 

If you have multiple factors in play, that's where you get the application of the substantial factors test.  It gets really complicated at times but in this setting it would be you have a drowning person and you try to save them (assume you have a duty to act) but in the process hit them in the head with the stick that you were waving carelessly about trying to reach them with.  You knock them unconscious and they submerge and drown.  It then becomes an application of the factors test to figure out what degree of role the head injury caused in the death.  It gets murky (no pun intended) because of the counterargument that the person would have drown regardless if you hadn't tried.  Whether that would actually succeed as a defense would be questionable at best. 

Proximate cause is a bit simpler especially if you run with the Cardozo standard: Was the damage, loss or injury the result of the reasonable and predictable/foreseeable breach of duty by the defendant? Is the plaintiff a reasonably foreseen victim of the aforementioned breach? There are other standards which factor in things like direct vs indirect injury, temporal proximity (how closely related the supposed cause and the alleged effect are) and the presence of interfering or confounding causes that are not so bizarre as to make a reasonable person would think negates the argued chain of factors.

Honestly, the only tangible risk here- beyond a frivolous lawsuit that gets tossed out the first time it gets in front of a judge- is the one where you wind up as a dead idiot rather than the live hero that you wanted to be.

That said, as someone who is trained in swift water rescue, I will point out that trying to rescue a drowning person by jumping in yourself is incredibly stupid.  Unless you have a life jacket on, the odds of them pushing you under are greater than you getting them to stay on the surface.  One rescue, years ago, when I was 170 lbs and very little of it fat nearly ended up with both myself and the person I was trying to rescue- a 110 lbs 60-something year old woman- both drowning despite my wearing a Type I PFD (with 26 or 30 lbs of flotation plus whatever I got from the 10mm wetsuit I was wearing)  after she grabbed me by the throat and trying to climb on top of me to save herself.  I ended up punching her in the face, stunning her enough to get her under control.  Adrenaline associated with that sort of thing makes people freakishly strong and belligerent so...just a piece of advice: stay the hell out of the water.

I will point out that in most circumstances, even if you are qualified to do something, when off duty and not equipped to do it there is no legal duty to act beyond what a "prudent layperson" would do.  Even EMS providers are shocked to learn that you can count the number of states that require them to stop and render aid on one hand. Such requirements would impose a standard that if violated would constitute the breach element in negligence per se

You can get into moral vs legal duty to act but just remember: no matter what your safety takes precedence.   
« Last Edit: July 23, 2017, 07:57:18 PM by KASSRCrashResearch » Logged
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EMT-83
Salty & Seasoned Contributor

Posts: 1,792

« Reply #5 on: July 23, 2017, 07:38:53 PM »

Fox News is reporting that the teens have been charged with something, but police are not releasing details.
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KASSRCrashResearch
Member

Posts: 92

« Reply #6 on: July 23, 2017, 08:00:30 PM »

Fox News is reporting that the teens have been charged with something, but police are not releasing details.

Probably something like failure to report a death.  I doubt it had anything to do with failure to try to get him help.

EDIT: Yup.  Failure to report a death.  Funny how "police are not releasing details" but the news is stating what they were being charged with.  http://abcnews.go.com/US/police-recommend-misdemeanor-charges-teens-recorded-mans-drowning/story?id=48769120
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Mitchell 1969
Salty & Seasoned Contributor

Posts: 634
Unit: PCR-CA-051

« Reply #7 on: July 23, 2017, 10:57:12 PM »

Fox News is reporting that the teens have been charged with something, but police are not releasing details.

Probably something like failure to report a death.  I doubt it had anything to do with failure to try to get him help.

EDIT: Yup.  Failure to report a death.  Funny how "police are not releasing details" but the news is stating what they were being charged with.  http://abcnews.go.com/US/police-recommend-misdemeanor-charges-teens-recorded-mans-drowning/story?id=48769120

Not unusual at all. It doesn't appear to. be a police decision, but a prosecutor decision. Up to the prosecutor to release the details.
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KASSRCrashResearch
Member

Posts: 92

« Reply #8 on: July 24, 2017, 11:06:47 AM »

Fox News is reporting that the teens have been charged with something, but police are not releasing details.

Probably something like failure to report a death.  I doubt it had anything to do with failure to try to get him help.

EDIT: Yup.  Failure to report a death.  Funny how "police are not releasing details" but the news is stating what they were being charged with.  http://abcnews.go.com/US/police-recommend-misdemeanor-charges-teens-recorded-mans-drowning/story?id=48769120

Not unusual at all. It doesn't appear to. be a police decision, but a prosecutor decision. Up to the prosecutor to release the details.

Anything but preliminary charges (if you arrest someone on scene) are the prosecutor's discretion.  The details insofar as charges, perhaps with names redacted due to it involving minors, are public record. The prosecutor cannot refuse (aside from a very narrow set of circumstances that relate to national security) to release a list of the charges.

My point was that it's off that the chief of police in one article gave the information but another outlet is saying they refused to comment.
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