Section 1: What is Negligence?

Duty to Take Action

There's no duty to take action — only a duty not to create risks. Thus, there is no legal duty on anyone to rescue someone who is drowning. However, the person in the water does have a duty of care toward anyone who attempts a rescue. This is because it's foreseeable that if you start drowning, someone may try to rescue you. If that person is hurt in the attempt and a court decides that it was your own fault you were drowning, he or she could successfully sue you.

There are exceptions to the general rule that there is no duty to take action:

• If you cause a dangerous situation (for example, if you knock a sign onto the highway), you must act to remove the danger.

• If you put someone in peril, you have a duty to rescue that person (for example, if your reckless driving forces a cyclist into the ditch).

• If you begin a rescue, you have a duty to carry it out in a reasonable way, since other possible rescuers may not help when they see you already there.

• If you ordinarily do act to protect people, you create a duty to do so all the time because they rely on you.

• If the government has passed a law that says you must take some action to protect other people, you may be liable if you fail to act.