If you’ve been following the latest scandalous news from China, my headline might seem a little contrarian. But I mean something particular by it, as I shall explain.
What’s the scandalous news? That a woman was run over and left lying on the street for minutes while pedestrians and cars moved around her as if she didn’t exist. Eventually she was run over by an SUV and died. Here’s the video (it’s not pretty to watch, and may, like an earlier video, have been removed from YouTube by the time you read this). Stuff like this seems to happen a lot in China; the ur-case–China’s Kitty Genovese case, if you will–was that of Yueyue, a 2-year-old who was similarly run over and ignored until a trash-collector finally took action.
All these cases have stirred national soul-searching (as described here by Ian Johnson in the New York Times): what’s the matter with us Chinese? One answer has been that it’s not that Chinese are cold and uncaring; it’s that they have too often been burned (or more likely read about others being burned) by people who are fake or real accident victims and claim compensation from those who help, even if the helper had nothing to do with it. (And there are such people in China: take a look at this video compilation of would-be traffic accident victims, which you’ll find incredible if you haven’t seen this kind of thing before.) In a famous case in Nanjing, a young man who helped an old woman who had fallen while getting off a bus was held liable by a judge who reasoned (in the absence of any other evidence), “Well, if you weren’t responsible, why did you take her to the hospital?” (As it turns out, it seems that the young man was in fact responsible, but the point is that the judge found him liable not because of any evidence, but solely on the basis of the above reasoning.)
And so the cry goes up for a Good Samaritan law. But what do people mean by “Good Samaritan” law? Wikipedia has a good summary of what these laws generally do: “Good Samaritan laws offer legal protection to people who give reasonable assistance to those who are, or who they believe to be, injured, ill, in peril, or otherwise incapacitated. The protection is intended to reduce bystanders’ hesitation to assist, for fear of being sued or prosecuted for unintentional injury or wrongful death.” And this is the kind of thing that Chinese Good Samaritan laws propose to do. A recently passed law in Shanghai, for example, goes a very limited way in this direction by providing that people who call emergency services and follow the telephone directions in providing first aid are not liable.
But the problem with all laws of this type is that they do not address the specific problem we see in China. The problem in China is not that those who come to the aid of accident victims end up being sued for injuries they inflict in the course of giving aid. The problem is that they are being held liable for the original injury. Good Samaritan laws neither do nor should relieve from liability those responsible for the original injury.
So where does the problem lie, then, and how can it be fixed? The problem lies in the way courts use tort law to assign liability for the original injury. And what the system tends to do is to look for someone–anyone–who can be made to share the loss; preferably someone with a deep pocket. Chinese tort law is strongly wealth-redistributive in its operation, and it doesn’t take much to be found the appropriate person whose wealth is to be redistributed. Cause is not necessary–just some kind of connection. I’m kind of overstating here: this is not of course official torts doctrine. But it’s a principle that you can observe in a lot of cases and norms. If you are unlucky enough to be connected in some way with someone who suffers a loss through accident, you might be made liable even if you are not at fault–and I’m not talking about the special cases of no-fault liability we see in, say, the US legal system (which in any case doesn’t necessarily mean “no-fault”, but rather simply that the plaintiff doesn’t have to prove fault). I’m talking about the (now-abolished) rule in Beijing that said that if a driver hit someone, the driver’s employer would ultimately (if necessary) be responsible for the loss–all regardless of whether the car was being driven on business, belonged to the employer, or had any other connection with the employer. I’m talking about the case in which an electricity company had to compensate the plaintiff for damage to his TV set caused by a power surge during an electrical storm, even though the court specifically found the electricity company not at fault.
Any legal system needs to have a way of assigning liability for the original injury. If courts and other authorities are doing it based on not much more than proximity, then nobody is going to want to get close. A Good Samaritan law cannot and should not relieve the original tortfeasor from liability, so Good Samaritans will always be liable to false accusations of original responsibility. The way to encourage Good Samaritans is to reduce the courts’ eagerness to make someone share the loss even when there is no real evidence (other than the victim’s contested say-so) that the person in question was at fault.