Tuesday Nov 15, 2022
Tuesday Nov 15, 2022
The Safety Doc welcomes attorney Lisa Linney back to show! Lisa was the guest on episode 157 and discussed the complex factors in play when parents sued school districts over masking or remote learning during the pandemic. In this show, she helps us understand the ‘law of necessity,’ or breaking a law or laws for an anticipated greater good. For example, what if you had to trespass in order to save someone from drowning? Lisa will also navigate the intersection of the ‘law of necessity’ and the civil-immunity granting Good Samaritan laws. How might the government better educate citizens about these types of laws? Should there be a “Good Samaritan Day?” Lisa discusses these issues on the show, but this discussion is not intended to be legal advice. ABOUT LISA LINNEY. Lisa Linney is a Texas attorney with over ten years of litigation experience. In the past year, she has focused on research and writing for litigation and transactional matters. She works from her home in Houston with her nine cats. It’s a long story. IS IT OK TO TRESPASS WHEN SEARCHING FOR A LOST PERSON? The initial person in charge of a search might not be from law enforcement or the fire department. It might be a school principal or the shift supervisor at an assisted living center. Especially in rural areas, several minutes might pass before emergency responders arrive on scene. Is it OK to trespass if searching for a lost person? To answer this, we need to become familiar with the "Law of Necessity." This is a legal defense in both common and criminal law. The 'necessity' definition in law is a defense that arises when a person is forced to break the law in an emergency situation to prevent a greater harm from occurring. If a child with autism is lost and wandering near a river, it is presumed that a 'reasonable' person would believe that harm or death might be a reasonably-expected outcome. The trespass, in this situation, would be of much greater societal value than a mere property trespass is detrimental. While this response is not legal advice and there's no way of determining how a fact finder would interpret one's application of the 'Law of Necessity,' it is essential that persons with discretion and ability to commit assets to a rescue effort not be hamstrung by the 'what-ifs' consequences of inaction. LAW OF NECESSITY. Necessity has been around for a very long time in common law. Most states also have statutes that address necessity as an available affirmative defense. It is a common defense in property law regarding trespass, but it is also present in criminal law as well. An affirmative defense must be brought up by the defendant and proven by the defendant, in order for it to apply. If it is successful, it becomes a complete defense to the crime and the defendant cannot be charged. Necessity is a defense that sometimes precludes liability for breaking a law, if it is more advantageous to society to do so. WHAT THE COURTS LOOK AT. “The courts do not look at the person's, who is acting, state of mind, but what the value of their actions are to society. The defendant is not arguing that they did not commit the crime, but that it was necessary to avoid a greater harm. Is it better to commit a trespass to save a life? Normally, the answer is yes (Cull, 2022)” Per attorney Lisa Linney, the following areas might help school leaders to better understand the elements of a Necessity Defense: (1) The elements of the tort of “intentional trespass to real property,” which is what a plaintiff has to prove. (2) Defenses: in Texas, some of the defenses are statute of limitations, immunity (not available for employees), plaintiff’s fault, consent to enter, and privilege to enter (Necessity Defense concept). (3) Damages available to a plaintiff. (4) Cost-benefit analysis, and (5) Liability if the searcher is injured while on private property. GOOD SAMARITAN LAWS. Good Samaritan laws are similar to the concept of the Necessity Defense. Good Samaritan Laws are in all states, but they vary from state to state. But, the contexts of “scene of emergency or accident” or “emergency care” are often noted in states’ Good Samaritan laws. In Wisconsin, under current law, any person who renders emergency care at the scene of any emergency or accident in good faith is immune from civil liability for the person’s acts or omissions in rendering such emergency care. [s. 895.48 (1), Stats.] Known as the “Good Samaritan” law, the provision encourages members of the public to aid others who need prompt emergency care, without fear of being sued. REFERENCES. Cull, Traci. (2022). Necessity Defense in Law - Elements, Definition, and Examples. SAFETY DOC WEBSITE, BLOG & BOOKS: www.safetyphd.com. The Safety Doc Podcast is hosted & produced by David P. Perrodin, PhD. This podcast and blog post represent the opinions of David P. Perrodin and his guests to the show. This is episode 194 of The Safety Doc Podcast published on 11-15-2022.
Purchase Dr. Perrodin’s Books:
- School of Errors – Rethinking School Safety in America. www.schooloferrors.com
- Velocity of Information - Human Thinking During Chaotic Times. www.velocityofinformation.com