Stopping a rescue when someone is willing to perform may create liability

Barnes v. Dungan et al., 261 A.D.2d 797; 690 N.Y.S.2d 338; 1999 N.Y. App. Div. LEXIS 5556

Supervisor prevented an employee from performing CPR on co-employee having a heart attack.

This is an odd and disturbing case. On top of that we never really learn all the facts. The appellate Court opinion stated the following facts.

An employee of the defendant Peace Plantation Animal Sanctuary suffered a heart attack while working. Another employee who was certified in CPR responded and offered to perform CPR. The responding employee’s supervisor, the defendant Dungan prevented her from performing CPR. The employee suffering the heart attack died.

The surviving spouse of the deceased sued Dungan, Peace Plantation Animal Sanctuary and the National Humane Education Society over the death of his wife. The last two defendants were never clearly articulated as to their relationship with the Peace Plantation, but appear to be associations affiliated somehow with the defendant plantation. The lawsuit was based on a claim of intentional interference with lifesaving medical assistance. The theory was if the CPR has been performed the decedent would still be alive.

The defendants filed a motion to dismiss claiming:

“no legal duty existed which required them to render emergency medical assistance; that workers’ compensation provided the exclusive remedy for decedent’s injuries…”

The trial court denied the motions to dismiss and the issues were immediately appealed. The appellate court looked at the issues and based its decision supporting the trial court on two issues.

The first was the Restatement Second of Torts §326 which states:

One who intentionally prevents a third person from giving to another aid necessary to prevent physical harm to him, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving

The second is a decision from Idaho, Riggs v Colis (107 Idaho 1028, 695 P2d 413) which held that for a viable claim to be proved there must be three people: “the victim, a rescuer, and on
e who prevents or interferes with the rescuer–and the aid must have been actually prevented.”

The court applying the Restatement and the analysis of Riggs, id., that the three “parties” were present and the rescue was denied.

The court sent the case back to the lower court for trial.


None of the cases quoted by the court in this case had the clear facts which allow such an easy analysis. However, after reading the case, you are dying to find out what happened after the case was sent back. The case also is just disturbing to people who have continually trained and studied to render aid such as the people working in the outdoor recreation community.

Now we will never find out why the defendant Dungan prevented the rescue.
However, it is easy and clear that if you prevent someone from offering or rendering first aid, without a valid reason, you may be liable.

This case will not apply for lapses in time to survey the scene or to stabilize the scene. Valid arguments on why rescue was delayed or not provided should always protect the rescuer. The issue will be if someone has the skills to save someone and those skills are prevented from being used by another person.

This is very different from the issue that there is no duty to rescue. Unless you placed the victim in the peril from which the victim now needs rescued, there is no duty to rescue anyone. This is a basic tenant of US law and has been this way for centuries. Even a physician or EMT is allowed to drive past a car accident with no liability, unless they caused or where part of the accident.

That was an issue in this case. If there was no duty to rescue, the defendants argued there could be no liability for preventing the rescue. However, the court stated that having no duty to rescue was different and not a defense to preventing rescue.

So Now What?

This is a rare case; in fact, I’ve found no other case like it. To some extent, it is bothersome in that it creates another way to litigate in the US. To a major extent, it is comforting to know that people are willing to try and keep each other alive. There is some comfort in knowing that if someone prevents someone from rescuing you, saving your life, then at least their life will be miserable for a while.

For the outdoor industry, there is really nothing to learn from this case; however, it is one you should know about, to use when you are elbowing your way through a crowd to provide first aid to someone who needs it.
Remember unless you are the reason why the rescue is needed you have no duty to rescue. Once you start you cannot stop until you are relieved by a higher medical authority.

What do you think? Leave a comment.

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