Reference no: EM132800897

Leslie Bender, professor of law at Syracuse University, has written about the ethic of care and how it might reframe the law of negligence. Instead of the traditional tort standard that measures whether a defendant has behaved "reasonably, or prudently by guarding against foreseeable harm," she imagines a standard that would measure whether a defendant has demonstrated "concern and responsibility for the well-being of others and their protection from harm." Turning to the "no duty to rescue" rule, and the first case in this chapter, Yania v. Bigan, Bender would have us look at Yania, the "drowning stranger," in the light of this "new legal perspective, informed by ... notions of caring, responsibility, interconnectedness and cooperation." What matters now, she writes, is that "someone, a human being, a part of us, is drowning and will die without some affirmative action."

The drowning stranger ... no doubt has people who care about him-parents, spouse, children, friends, colleagues; groups he participates in-religious, social, athletic, artistic, political, educational, work-related; he may even have people who depend upon him for emotional or financial support. He is interconnected with others. If the stranger drowns, many will be harmed....When our legal system trains us to understand the drowning stranger story as a limited event between two people, both of whom have interests at least equally worth protecting, and when the social ramifications we credit most are the impositions on personal liberty of action, we take a human situation and translate it into a cold, dehumanized algebraic equation. We forget that we are talking about human death or grave physical harms and their reverberating consequences.Footnote

Bender goes on to argue that any duty to act would be shaped by the particular context of the situation, in line with the ethic of care. How would a rule like this have played out in Yania? What might Bigan's duty have been? What are the pros and cons of adopting such a rule in other cases where accidental harm is not directly caused by defendants?