Sam Fisher, a gold medalist swimmer observed a small toddler falling into a swimming pool and assumed the lifeguard on duty would see the child and save her. However, the toddler drowned as a result. Does Sam Fisher have any legal liability toward the toddler?
What is Sam’s duty to the toddler? Under common law jurisdictions, and in Tort Law of Nonfeasance, a person does not owe a duty for not acting to the rescue of another in peril or in grave danger unless there is 1. A duty of care toward that person, e.g. Parent/Child, Teacher/Pupil, Employer/Employee[1]. 2. That you caused the danger or the injury to that person. Or 3. That through your actions you formed a duty of care to that person at the time the person was in danger e.g. You jumped in to save the toddler but decided not to. There is no legal duty on a person where there is no special relationship to rescue another only that of moral duty. A person cannot be held liable for failure to act.
It is however understood in Criminal law that breach of duty of care is a negligent act in which a person can be held liable for not acting where there is an act or omission (failure to act) by the defendant.[2] This can come under 1. Under Contract, where the defendant is employed to protect the public. This was seen in the case of R v. Pittwood (1902)[3] where the employee failed in his duty, resulting in a person been killed due to his negligence and was convicted of manslaughter based on his contractual obligation to the public. 2. Under Statute, this imposes a statutory duty on people to act as seen in Section 40.1. (a) Road Traffic Act, 1961[4] where a person must hold a current driving licence to operate a mechanically propelled vehicle on public roads and failure to produce the licence when asked by Gardai will be guilty of an offence. 3. Under Common Law, Public Officials such as the Garda Síochána have a duty of care owed to the public. This was seen in the case of DPP v. Bartley (1997)[5] where a Garda received a complaint of a felony but did not under a common law duty to investigate the complaint. Failure to investigate will render the Garda liable for prosecution.
It can clearly be seen that Sam had no legal duty to act to save the toddler as he had no special relationship with the toddler nor did he cause the danger or the injury to the toddler. He was also not employed by the hotel to have a contractual obligation to the child. However, the hotel can be held liable for the death of the child as it was the lifeguard who had a duty of care for the toddler.
[1] Kathleen Moore Walsh, Make that Grade: Irish Tort Law (3rd edn, Gill & Macmillan 2010) 125.
[2] Conor Hanly, An Introduction to Irish Criminal Law ( Gill & Macmillian 1999) 42.
[3] R v Pittwood [1902] TLR 37.
[4] Road Traffic Act 1961, Section 40.1.(a).
[5] DPP v. Bartley [1997] IEHC 94.
Jen's Law 