Wednesday, October 22, 2014

Recent developments in three states may challenge the notion that there is "no duty to help"

As you probably know, as a general rule, the Common Law does not recognize a duty to go help someone in need. There are a few exceptions to this rule, and the general rule may be affected by statutes, but it remains the general rule.

Interestingly, this month I saw a few stories that in one way or another raise concerns regarding the duty to help issue.

For example, the "a public defender" blog had a couple of comments (here and here) on a recently adopted statute in Connecticut mandating disclosure of possible child abuse. By creating such a duty, which applies to members of the clergy and appears to apply to some lawyers, I wonder if the legislature has opened the door to possible civil liability in cases where people do not disclose. This is an issue discussed in Perry v. SN and SN, 973 SW2d 301 (Tex 1998), which you may have read in law school.

Given that the statute apparently applies to some lawyers, it also raises the issue of a conflict between the lawyer's duty of confidentiality and the duty imposed by the statute. Assume a client tells the lawyer about the abuse as part of the representation. Does the statute create a duty to disclose (akin to the duty recognized in Tarasoff v. Regents of the Univ of California) regardless of the professional duty to maintain the information confidential? I only know of one case that discusses the issue in the context of the practice of law (Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979)) and it only holds that given the facts of the case the duty did not apply.

Meanwhile, in response to the slayings at the University of California at Santa Barbara in May, California Gov. Jerry Brown signed a new law to allow family members to petition for the temporary seizure of guns from relatives who are a threat to themselves or others. Supporters say the measure could help prevent suicides as well as mass shootings. More on the story here.

The law does not impose a duty on anyone to take action, but I wonder if, again, the law will open the door to more possible arguments that there should be a duty to act. What if a person does not take the chance to ask a court to take someone's guns away and that person then uses the guns to attack a group of students at a school. Will the victims be able to sue everyone to whom the new law applies for not taking action?

Finally, in Illinois voters will have a chance to vote on a proposed amendment to the state constitution that seems to raise similar issues although, in the end, the amendment also makes it irrelevant.

The amendment recognizes a "victims bill of rights" which states, among other things that crime victims have the right "to be reasonably protected from the accused throughout the criminal justice process." Although it does not state who shall do the protecting, it seems obvious the right is one that can be raised against the state, thus making the state responsible. In other words, if approved, the state seems to be adopting a duty to protect crime victims from criminal defendants during the criminal proceedings. That means the state now would have a duty to help.

The problem is that in another section, the amendment states that "nothing in the section or any law enacted under this section creates a cause of action ... for compensation ... or damages against the State, a political subdivision of the State, an officer, employee, or agent of the State or of any political subdivision of the State, or an officer or employee of the court."

In other words, the proposal states that the State has a duty to help and that the victim has a right to demand that help, but the victim has no right to sue for compensation if he or she suffers an injury for the violation of that right.

No comments: