Emergency services - messed up "duty to act" case (fwd)

Author

messed up "duty to act" case (fwd)

danny burstein

2005-10-10, 9:38 am

This is wrong, wrong, wrongity wrong (I think....)
---------
" Experts disagree with jury verdict against woman in boy's drowning

" Wednesday, October 05, 2005
By Paula Reed Ward, Pittsburgh Post-Gazette

" Standing along the bank of a rain-swollen creek, Susan Newkirk watched
as the 2-year-old boy tumbled in and was swept away.

" She couldn't swim. Instead of diving into the raging waters after her
friend's son, she yelled to his father for help.

" The little boy died.

" Certainly, her defense attorney argued during her trial for endangering
the welfare of a child, his client had a moral obligation to try to save
the boy. But, he continued, she did not have a legal one.

" The jurors judging Ms. Newkirk's case obviously disagreed when they
convicted her in July. Last week, the Hollidaysburg woman was sentenced
to up to 18 months in jail.

[ snip ]

http://www.post-gazette.com/pg/05278/582741.stm

Dave S

2005-10-10, 9:38 am

She returned the child to the father once..

I guess no good deed goes unpunished..

Dave

danny burstein wrote:

> This is wrong, wrong, wrongity wrong (I think....)
> ---------
> " Experts disagree with jury verdict against woman in boy's drowning
>
> " Wednesday, October 05, 2005
> By Paula Reed Ward, Pittsburgh Post-Gazette
>
> " Standing along the bank of a rain-swollen creek, Susan Newkirk watched
> as the 2-year-old boy tumbled in and was swept away.
>
> " She couldn't swim. Instead of diving into the raging waters after her
> friend's son, she yelled to his father for help.
>
> " The little boy died.
>
> " Certainly, her defense attorney argued during her trial for endangering
> the welfare of a child, his client had a moral obligation to try to save
> the boy. But, he continued, she did not have a legal one.
>
> " The jurors judging Ms. Newkirk's case obviously disagreed when they
> convicted her in July. Last week, the Hollidaysburg woman was sentenced
> to up to 18 months in jail.
>
> [ snip ]
>
> http://www.post-gazette.com/pg/05278/582741.stm

Earle Horton

2005-10-10, 9:38 am

The child no doubt perceived Ms. Newkirk as a person with some authority
over him, because of her relationship with the father. He may have thought,
that she was a family member. She reinforced that perception, by taking an
active role. This is the same as assuming responsibility for care of a
patient. It looks as if the jury thought so too. She tried to transfer
care to the father, but either the child, or the father, or both, rejected
this gesture. Like it or not, this made Ms. Newkirk the de facto "guardian"
of the child.

This is somewhat more than a "good samaritan" decision. There is a more
primitive principle at work here, that all people have responsibility for
children, especially if they have a relationship with a parent or an
association with the child. If you don't like it, then stay away from
children. If you should happen to become aware that a child is in danger,
and you are the only adult around, then you have a responsibility to do
something, whether you are the child's official "guardian" or not, whether
you anticipated being put in the position of responsibility, or not.

The problem with laws, is that they are interpreted by human beings, whether
those human beings are a jury, a judge, a lawyer, or one's neighbors. The
position that Ms. Newkirk's public defender seems to be taking, is that Ms.
Newkirk was technically not responsible for the child. If her jury had been
a computer, or people who think 100% logically, then she might have gotten
off. I agree that there appears to have been an emotional element in the
verdict, but that is proper in this case. The problem with laws, that they
are not always interpreted in a logical manner, is also what is good about
our system of enforcement.

Earle

"danny burstein" <dannyb@panix.com> wrote in message
news:Pine.NEB.4.63.0510080223370.21053@panix5.panix.com...
> This is wrong, wrong, wrongity wrong (I think....)
> ---------
> " Experts disagree with jury verdict against woman in boy's drowning
>
> " Wednesday, October 05, 2005
> By Paula Reed Ward, Pittsburgh Post-Gazette
>
> " Standing along the bank of a rain-swollen creek, Susan Newkirk watched
> as the 2-year-old boy tumbled in and was swept away.
>
> " She couldn't swim. Instead of diving into the raging waters after her
> friend's son, she yelled to his father for help.
>
> " The little boy died.
>
> " Certainly, her defense attorney argued during her trial for endangering
> the welfare of a child, his client had a moral obligation to try to save
> the boy. But, he continued, she did not have a legal one.
>
> " The jurors judging Ms. Newkirk's case obviously disagreed when they
> convicted her in July. Last week, the Hollidaysburg woman was sentenced
> to up to 18 months in jail.
>
> [ snip ]
>
> http://www.post-gazette.com/pg/05278/582741.stm
>

Jerome Senturia

2005-10-10, 9:38 am

danny burstein wrote:

> This is wrong, wrong, wrongity wrong (I think....)
> ---------
> " Experts disagree with jury verdict against woman in boy's drowning
>
> " Wednesday, October 05, 2005
> By Paula Reed Ward, Pittsburgh Post-Gazette
>
> " Standing along the bank of a rain-swollen creek, Susan Newkirk watched
> as the 2-year-old boy tumbled in and was swept away.
>
> " She couldn't swim. Instead of diving into the raging waters after her
> friend's son, she yelled to his father for help.
>
> " The little boy died.
>
> " Certainly, her defense attorney argued during her trial for endangering
> the welfare of a child, his client had a moral obligation to try to save
> the boy. But, he continued, she did not have a legal one.
>
> " The jurors judging Ms. Newkirk's case obviously disagreed when they
> convicted her in July. Last week, the Hollidaysburg woman was sentenced
> to up to 18 months in jail.
>
> [ snip ]
>
> http://www.post-gazette.com/pg/05278/582741.stm
Danny,

I cannot see how a person can be LEGALLY EXPECTED to "risk their life"
under these conditions. Even if New Jersey does not have a Good
Samaritan Law. In fact what would a Good Samaritan Law have done for
this case? It seems to me (as a citizen and potential jury member) that
a person who cannot swim and thus has a reasonable expectation of
death should not be held criminally liable for "failure to act".

Jerry

HorneTD

2005-10-10, 9:38 am

> "danny burstein" <dannyb@panix.com> wrote in message
> news:Pine.NEB.4.63.0510080223370.21053@panix5.panix.com...
>
Earle Horton wrote:[vbcol=seagreen]
> The child no doubt perceived Ms. Newkirk as a person with some authority
> over him, because of her relationship with the father. He may have thought,
> that she was a family member. She reinforced that perception, by taking an
> active role. This is the same as assuming responsibility for care of a
> patient. It looks as if the jury thought so too. She tried to transfer
> care to the father, but either the child, or the father, or both, rejected
> this gesture. Like it or not, this made Ms. Newkirk the de facto "guardian"
> of the child.
>
> This is somewhat more than a "good samaritan" decision. There is a more
> primitive principle at work here, that all people have responsibility for
> children, especially if they have a relationship with a parent or an
> association with the child. If you don't like it, then stay away from
> children. If you should happen to become aware that a child is in danger,
> and you are the only adult around, then you have a responsibility to do
> something, whether you are the child's official "guardian" or not, whether
> you anticipated being put in the position of responsibility, or not.
>
> The problem with laws, is that they are interpreted by human beings, whether
> those human beings are a jury, a judge, a lawyer, or one's neighbors. The
> position that Ms. Newkirk's public defender seems to be taking, is that Ms.
> Newkirk was technically not responsible for the child. If her jury had been
> a computer, or people who think 100% logically, then she might have gotten
> off. I agree that there appears to have been an emotional element in the
> verdict, but that is proper in this case. The problem with laws, that they
> are not always interpreted in a logical manner, is also what is good about
> our system of enforcement.
>
> Earle

If this is not reversed on appeal it will be a major change in US law.
The doctrine of rescue has heretofore been considered black letter law.
It holds that no one may be required to imperil themselves to rescue
another from their own folly. The idea that merely being in view of an
endangered child imposes on an ordinary person some duty to act is
ludicrous in the extreme.

You are correct in saying that there is a more primitive principle at
work here. That primitive principal is that the correct response to
tragedy is to find someone to blame it on. I don't believe that this
woman had a moral duty to enter swift water without training or
equipment let alone a legal duty to do so.
--
Tom Horne

Well we aren't no thin blue heroes and yet we aren't no blackguards to.
We're just working men and woman most remarkable like you.

HorneTD

2005-10-10, 9:38 am

Jerome Senturia wrote:
>
>
> danny burstein wrote:
>
>
> Danny,
>
> I cannot see how a person can be LEGALLY EXPECTED to "risk their life"
> under these conditions. Even if New Jersey does not have a Good
> Samaritan Law. In fact what would a Good Samaritan Law have done for
> this case? It seems to me (as a citizen and potential jury member) that
> a person who cannot swim and thus has a reasonable expectation of death
> should not be held criminally liable for "failure to act".
>
> Jerry

Jerry
I'm a swift water first responder which means I have had enough training
to know just how deadly swift water is. I am forbidden by my agency
policy from attempting a "live bate rescue" because I'm not qualified to
do so. I can swim but not expertly and I'm not qualified to the Swift
water rescue technician level. The minimum staffing for a swift water
rescue here is four sift water rescue technicians. Since the
environment is obviously Immediately Dangerous to Life and Health (IDLH)
it would be a category one OSHA violation for my employer to allow me to
enter that environment without a qualified backup team in attendance to
rescue the rescuer. Such a violation would lead to fines of ten
thousand dollars per occurrence.

The idea that an ordinary person who cannot swim can be charged with
endangering the welfare of a minor under this set of facts is mind
boggling.
--
Tom Horne

Well we aren't no thin blue heroes and yet we aren't no blackguards to.
We're just working men and woman most remarkable like you.

Earle Horton

2005-10-10, 9:38 am

"HorneTD" <hornetd@mindspring.com> wrote in message
news:4347F216.4010904@mindspring.com...
---snippy---
>
> If this is not reversed on appeal it will be a major change in US law.
> The doctrine of rescue has heretofore been considered black letter law.
> It holds that no one may be required to imperil themselves to rescue
> another from their own folly. The idea that merely being in view of an
> endangered child imposes on an ordinary person some duty to act is
> ludicrous in the extreme.
>
According to you it is ludicrous, but many people believe it. I don't have
all the facts, but according to my experience of the human condition, that
is probably why a guilty verdict was given in this case. Remember, a child,
especially a child of two, is not entirely the same as an adult person under
the law. People feel, that everyone has a responsibility to protect
children, even "from their own folly". If you ever find yourself in a like
situation, be ready to do the right thing, and to explain later why it was
the right thing. If you are seen as hiding behind the letter of the law, a
jury might not like that.

> You are correct in saying that there is a more primitive principle at
> work here. That primitive principal is that the correct response to
> tragedy is to find someone to blame it on. I don't believe that this
> woman had a moral duty to enter swift water without training or
> equipment let alone a legal duty to do so.

We don't have access to all the facts here. Such words as "rain-swollen
creek", "swept away", "raging waters" and others in the article may not
accurately reflect the situation. Doubtless there is an objective criterion
for "swift water", too, but it doesn't really say in the Post-Gazette
article whether that was met. I know what the letter of the law says too,
but in my heart I feel that this woman had a moral obligation to at least
get her feet wet. Put me on a jury, and I would act on that feeling. That
is one reason we have juries in our culture. They act as the "conscience of
the community".

Earle

Dave S

2005-10-10, 9:38 am

I wonder how this would have played out if she had walked away moments
before, and the child was left alone....

or if she had left the child with the father, and walked away..

Dave

HorneTD

2005-10-10, 9:38 am

Earle Horton wrote:
> "HorneTD" <hornetd@mindspring.com> wrote in message
> news:4347F216.4010904@mindspring.com...
> ---snippy---
>
>
> According to you it is ludicrous, but many people believe it. I don't have
> all the facts, but according to my experience of the human condition, that
> is probably why a guilty verdict was given in this case. Remember, a child,
> especially a child of two, is not entirely the same as an adult person under
> the law. People feel, that everyone has a responsibility to protect
> children, even "from their own folly". If you ever find yourself in a like
> situation, be ready to do the right thing, and to explain later why it was
> the right thing. If you are seen as hiding behind the letter of the law, a
> jury might not like that.
>
>
>
>
> We don't have access to all the facts here. Such words as "rain-swollen
> creek", "swept away", "raging waters" and others in the article may not
> accurately reflect the situation. Doubtless there is an objective criterion
> for "swift water", too, but it doesn't really say in the Post-Gazette
> article whether that was met. I know what the letter of the law says too,
> but in my heart I feel that this woman had a moral obligation to at least
> get her feet wet. Put me on a jury, and I would act on that feeling. That
> is one reason we have juries in our culture. They act as the "conscience of
> the community".
>
> Earle
>
>

Which is why the Judge should not have allowed the case to go to a jury.
The prosecuter appears to have failed to meet his burden to show a
prima facia case. You cannot endanger a child by inaction unless you
have a duty to that child. Your standard is that anyone who does not
end up drowned with the kid is guilty of endangering the welfare of a
minor.
It is obvious to me that the woman did the right thing. A year and a
hald in jail beats the hell out of drowning. It really is far better to
be judged by twelve than to be carried by six.
--
Tom Horne

Well we aren't no thin blue heroes and yet we aren't no blackguards to.
We're just working men and woman most remarkable like you.

John Filangeri

2005-10-10, 9:38 am

Are we missing part of the story here?

It says that she was convicted of "endangering the welfare of a child."

It seems to me that she was more likely convicted of not supervising the
child so as to prevent him from falling in. Or, maybe even taking him to
edge of the creek without regard for the danger. That seems much more
logical. It may not say that in the article, but it wouldn't be the first
time that the press incorrectly reported a story.

John

"danny burstein" <dannyb@panix.com> wrote in message
news:Pine.NEB.4.63.0510080223370.21053@panix5.panix.com...
> This is wrong, wrong, wrongity wrong (I think....)
> ---------
> " Experts disagree with jury verdict against woman in boy's drowning
>
> " Wednesday, October 05, 2005
> By Paula Reed Ward, Pittsburgh Post-Gazette
>
> " Standing along the bank of a rain-swollen creek, Susan Newkirk watched
> as the 2-year-old boy tumbled in and was swept away.
>
> " She couldn't swim. Instead of diving into the raging waters after her
> friend's son, she yelled to his father for help.
>
> " The little boy died.
>
> " Certainly, her defense attorney argued during her trial for endangering
> the welfare of a child, his client had a moral obligation to try to save
> the boy. But, he continued, she did not have a legal one.
>
> " The jurors judging Ms. Newkirk's case obviously disagreed when they
> convicted her in July. Last week, the Hollidaysburg woman was sentenced
> to up to 18 months in jail.
>
> [ snip ]
>
> http://www.post-gazette.com/pg/05278/582741.stm

Earle Horton

2005-10-10, 9:38 am

"HorneTD" <hornetd@mindspring.com> wrote in message
news:43486A60.2020402@mindspring.com...
---snippy---
>
> Which is why the Judge should not have allowed the case to go to a jury.
> The prosecuter appears to have failed to meet his burden to show a
> prima facia case. You cannot endanger a child by inaction unless you
> have a duty to that child. Your standard is that anyone who does not
> end up drowned with the kid is guilty of endangering the welfare of a
> minor.

I wondered about that. I doesn't say much in the article, but it appears
that the case hinged on the woman's role as the child's de facto guardian.
That is a question of fact, and proper for a judge to send to a jury. This
is what it does say, "Under the current case law, charging Ms. Newkirk
should have come down to whether she was aware of the duty to the child, Mr.
Henderson said."

I did not say that anyone would have a duty to "end up drowned with the
kid", only to "at least get their feet wet" in a rescue attempt. Again,
there is no plethora of evidence in the Post-Gazette article, but one could
form the opinion that the defendant didn't do much. I am sure that the jury
thought that too.

> It is obvious to me that the woman did the right thing. A year and a
> hald in jail beats the hell out of drowning. It really is far better to
> be judged by twelve than to be carried by six.

For sure, but I don't know that anyone ever suggested that the defendant
should have drowned herself.

Earle

> --
> Tom Horne
>
> Well we aren't no thin blue heroes and yet we aren't no blackguards to.
> We're just working men and woman most remarkable like you.
>

HorneTD

2005-10-10, 9:38 am

Earle Horton wrote:
> "HorneTD" <hornetd@mindspring.com> wrote in message
> news:43486A60.2020402@mindspring.com...
> ---snippy---
>
>
>
> I wondered about that. I doesn't say much in the article, but it appears
> that the case hinged on the woman's role as the child's de facto guardian.
> That is a question of fact, and proper for a judge to send to a jury. This
> is what it does say, "Under the current case law, charging Ms. Newkirk
> should have come down to whether she was aware of the duty to the child, Mr.
> Henderson said."
>
> I did not say that anyone would have a duty to "end up drowned with the
> kid", only to "at least get their feet wet" in a rescue attempt. Again,
> there is no plethora of evidence in the Post-Gazette article, but one could
> form the opinion that the defendant didn't do much. I am sure that the jury
> thought that too.
>
>
>
>
> For sure, but I don't know that anyone ever suggested that the defendant
> should have drowned herself.
>
> Earle
>
>
[vbcol=seagreen]
> I did not say that anyone would have a duty to "end up drowned with the
> kid", only to "at least get their feet wet" in a rescue attempt.

I should not have put words in your mouth and for that I apologize. The
idea that I'm taking strong acception to is the one I have excerpted
above. Anyone who has taken a swift water tactics course will tell you
that such a rescue attempt is more than likely to add to the death toll
of that incident. Those of us in rescue spend a fair amount of time
trying to educate the public on how to avoid becoming a victim. We tell
anyone who will listen to never enter moving water because there is
more force there than your body can withstand. Calf deep swift water
can take you off your feet. The national award given for contributions
to swift water rescue is nameed for one provider and one civilian would
be rescuer who died trying to save a life. Two deaths is not better
than one.

Again let me apologize for distorting your position.
--
Tom Horne

Well we aren't no thin blue heroes and yet we aren't no blackguards to.
We're just working men and woman most remarkable like you.