Heymann on Trolley Problems, Private Necessity, and the Duty of Rescue

Laura Heymann has posted to SSRN Trolley Problems, Private Necessity, and the Duty of Rescue.  The abstract provides:

Laidlaw v. Sage is generally, at best, an oddity in Torts casebooks today. A case that captured the imagination of New York newspaper readers at the time, Laidlaw involved an explosion that, William Laidlaw argued, the wealthy Russell Sage survived only because, at the last moment, he pulled Laidlaw in front of him to absorb the brunt of the blast. As taught in Torts classrooms, Laidlaw is either a case about the intent requirement for battery or a case about causation. But the case, assuming the plaintiff’s story was true, also provides an interesting window into what would seem to be contradictory tort doctrines: the defense of private necessity and the lack of any duty to rescue. When one’s property is used without prior consent in an emergency situation, one is essentially being made an unwilling rescuer, even though one would not normally, absent a preexisting duty, be compelled to contribute to a rescue at all. This confluence of doctrines because even more heightened when one’s bodily integrity is at stake, such as in the classic trolley problem, where one individual is, essentially, forced to become an involuntary rescuer of five others by giving up their life. And while the trolley problem has been criticized on the basis of its departure from reality, the proliferation of autonomous vehicles will increasingly force us to determine how these tradeoffs should be made.