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322Duty to Aid Another Harmed by Actor's Conduct, Restatement (Second) of Torts ...

Restatement (Second) of Torts 322 (1965)

Restatement of the Law - Torts
Database updated June 2014
Restatement (Second) of Torts
Division 2. Negligence
Chapter 12. General Principles
Topic 7. Duties of Affirmative Action
Title B. Duty to Aid Others and Services Gratuitously Rendered or Undertaken
322 Duty to Aid Another Harmed by Actor's Conduct
Comment:
Reporter's Notes
Case Citations - by Jurisdiction
If the actor knows or has reason to know that by his conduct, whether tortious or
innocent, he has caused such bodily harm to another as to make him helpless and in
danger of further harm, the actor is under a duty to exercise reasonable care to prevent
such further harm.

See Reporter's Notes.

Comment:
a. The rule stated in this Section applies not only where the actor's original conduct is tortious, but
also where it is entirely innocent. If his act, or an instrumentality within his control, has inflicted
upon another such harm that the other is helpless and in danger, and a reasonable man would
recognize the necessity of aiding or protecting him to avert further harm, the actor is under a duty
to take such action even though he may not have been originally at fault. This is true even though
the contributory negligence of the person injured would disable him from maintaining any action
for the original harm resulting from the actor's original conduct.
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322Duty to Aid Another Harmed by Actor's Conduct, Restatement (Second) of Torts ...

b. The words further harm include not only an entirely new harm due to the dangerous position
in which the other has been placed by the actor's tortious act (Illustration 1), but also any increase
in the original harm caused by the failure to give assistance (Illustration 2), and any protraction of
the harm which prompt attention would have prevented (Illustration 3).

Illustrations:
Illustrations:
1. A negligently or innocently runs down B on an unlighted country road. B is
unconscious. A leaves B lying in the middle of the highway, where another car
subsequently runs over him. This is an entirely new harm from which A should have
protected him and for which A is subject to liability to B, whether or not A would have
been liable for the original harm.
2. A, a hit and run driver, negligently or innocently runs over B, inflicting serious
wounds. Although A knows B's condition, he drives away and leaves B lying in the road.
The weather is exceedingly cold, and B, unable to move, contracts pneumonia from the
exposure. A is subject to liability to B for the illness, whether or not he would have been
liable for the original wounds.
3. A negligently or innocently runs down B on a little-frequented highway, rendering
B helpless. A does not take B to a nearby hospital. In consequence, B receives no
medical attention for twelve hours. Had B's wounds been immediately taken care of and
properly disinfected, they would have healed immediately. The delay retards the process
of healing for several weeks. A is subject to liability to B for the additional period of
healing, whether or not A would have been liable for the original harm.
c. Where the original conduct is tortious, the duty stated in this Section frequently is unnecessary
to the existence of liability for the further harm, since the connection between the original wrongdoing and the further harm is usually such as to make the actor's conduct in law the cause of such
harm. However, a failure to perform the duty here stated creates liability even though the actor's
original misconduct is not the legal cause of the further harm.
d. Effect of other's contributory negligence. The liability which this Section recognizes is not
imposed as a penalty for the actor's original misconduct, but for a breach of a separate duty to aid
and protect the other after his helpless condition caused by the actor's misconduct is or should be
known. It is therefore immaterial that the accident which rendered the other helpless to care for

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322Duty to Aid Another Harmed by Actor's Conduct, Restatement (Second) of Torts ...

himself was caused by his own contributory negligence as well as by the actor's misconduct, so
that he cannot recover for the original injury, nor, apart from the duty stated in this Section, for
any further harm which he suffers in consequence of it, although the actor's tortious conduct was
undoubtedly the legal cause thereof.

Illustration:
Illustration:
4. A and B are both driving carelessly along a lonely ill-lighted road. In consequence, a
collision occurs by which B is thrown out of the car into the middle of the road, bleeding
profusely and unconscious. A drives on without giving B any attention. A could easily
have checked the flow of blood by applying a tourniquet. His failure to do so results in
B's death. A is subject to liability under a death statute.
e. The rule stated in this Section expresses a duty of affirmative action imposed upon the actor
because his tortious or innocent conduct has rendered the other helpless. The rule is not an
extension of the principle of legal cause nor an extension of the doctrine of last clear chance.

Reporter's Notes
This Section has been changed from the first Restatement by broadening it to include situations
where the harm to the other has been caused by the actor's innocent, as well as his tortious conduct.
The change is supported by L. S. Ayres & Co. v. Hicks, 220 Ind. 86, 40 N.E.2d 334, 41 N.E.2d 195,
356 (1942); Holland v. St. Paul Mercury Ins. Co., 135 So.2d 145 (La.App.1961); and cf. Connelly
v. Kaufmann & Baer Co., 349 Pa. 261, 37 A.2d 125, 152 A.L.R. 555 (1944); Ward v. Morehead
City Sea Food Co., 171 N.C. 33, 87 S.E. 958 (1916). It may also be supported by Whitesides v.
Southern R. Co., 128 N.C. 229, 38 S.E. 878 (1901), although the basis of decision in that case is
not clear. Compare the rule stated in 321, where the actor's original innocent conduct has resulted
in a situation dangerous to the other.
As to injury resulting from originally negligent conduct, see Northern Cent. R. Co. v. State to Use
of Price, 29 Md. 420, 96 Am. Dec. 545 (1868); Trombley v. Kolts, 29 Cal.App.2d 699, 85 P.2d
541 (1938).

2014 Thomson Reuters. No claim to original U.S. Government Works.