In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3651

LYNNE STOCKBERGER, both personally and as the

representative of Maurice Stockberger, deceased,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. TH 00-247-C-M/H—Larry J. McKinney, Chief Judge.

____________

ARGUED APRIL 16, 2003—DECIDED JUNE 11, 2003

____________

Before POSNER, COFFEY, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. The plaintiff in this suit under the

Federal Tort Claims Act appeals from the grant of summary judgment to the United States. Maurice Stockberger,

an employee of the federal prison at Terre Haute, Indiana,

was an insulin-dependent diabetic and known to be such

by his coworkers—many of whom, indeed, were medical

workers. He had hypoglycemic episodes (episodes in

which his blood sugar would fall to dangerously low

levels), observed by and known to be such by them, in
2 No. 02-3651

which he would exhibit personality changes, becoming

hostile, suspicious, unresponsive, agitated—and sometimes denying that he had a medical problem. When his

coworkers noticed that he was in one of his hypoglycemic

states, they would urge him to eat, or to drink Ensure, a

nutritious liquid food substitute. On the day of his death,

one of his coworkers noticed that Stockberger, who was

complaining about feeling ill and said that he wanted to

go home, was having one of his hypoglycemic episodes,

and offered him Ensure, which he drank. This made him

feel better but he said he still wanted to go home. His

coworkers wanted him to remain at the prison “until he

recovered,” but he was adamant about leaving. The coworker who had given him Ensure thought that Stockberger was in no condition to be driving, but he did not

offer to drive Stockberger or try to take away his car keys;

nor did he try to contact Stockberger’s supervisor or wife.

The prison had often in the past provided transportation

for sick employees, including diabetic employees—including in fact Stockberger. But it had no written policies

concerning the treatment of sick employees.

Stockberger got into his pick-up truck and began driving

home. He drove very erratically, no doubt because of his

hypoglycemia, veering off the road and then back onto

it, knocking down traffic signs, and eventually colliding

with a tree. His truck burst into flames when it hit the

tree, and he died.

The plaintiff makes two separate claims. The first is

that the federal prison system was negligent in failing to

have a policy of providing transportation for employees

who become dangerously ill at work. This claim is clearly

barred by the discretionary-function exception to the tort

claims act. 28 U.S.C. § 2680(a). The question how far an

employer should go in providing medical assistance for
No. 02-3651 3

employees who become ill at work involves an exercise of

judgment (concerning for example the responsibility of

subordinate employees, such as Stockberger’s coworkers,

to evaluate symptoms and report to supervisors or the

prison doctor) rather than the straightforward, unarguable

application of settled principles of tort responsibility.

See Fang v. United States, 140 F.3d 1238, 1242 (9th Cir.

1998); cf. Williams v. United States, 242 F.3d 169, 175 (4th Cir.

2001); Kiehn v. United States, 984 F.2d 1100, 1106-07 (10th

Cir. 1993).

The plaintiff’s second and more substantial claim is that

the prison’s action (or rather inaction) in allowing Stockberger to drive in his hypoglycemic condition was a breach

of the duty of care imposed by Indiana tort law, the law

that, in accordance with the Federal Tort Claims Act,

furnishes the rule of decision for the plaintiff’s claim. The

claim invites consideration of the broader question of the

tort duty if any to rescue a person in distress. The common

law traditionally took a hard line, rejecting any legal duty

to be a good Samaritan. If A saw that B was about to be

struck on the head by a flowerpot thrown from a tenth-story

window, and A knew that B was unaware of the impending catastrophe and also knew that he could save B with

a shout, yet he did nothing and as a result B was killed,

still, A’s inaction, though gratuitous (there was no risk or

other nontrivial cost to A) and even reprehensible, would

not be actionable. E.g., Mullin v. Municipal City of South

Bend, 639 N.E.2d 278, 284 (Ind. 1994); Hurley v. Eddingfield,

59 N.E. 1058 (Ind. 1901); Zelig v. County of Los Angeles, 45

P.3d 1171, 1182-83 (Cal. 2002); City of Douglasville v. Queen,

514 S.E.2d 195, 198-99 (Ga. 1999); Rhodes v. Illinois Central

Gulf R.R., 665 N.E.2d 1260, 1270 (Ill. 1996); Harper v. Herman,

499 N.W.2d 472 (Minn. 1993); Yania v. Bigan, 155 A.2d 343

(Pa. 1959); Richard A. Epstein, Torts § 11.3, p. 290 (1999). The

common law rule has been changed in some states, see, e.g.,
4 No. 02-3651

Vt. Stat. Ann. tit. 12, § 519(a); Melvin A. Eisenberg, “The

Duty to Rescue in Contract Law,” 71 Fordham L. Rev. 647,

653-54 (2002), but not in Indiana. Statutory modifications

of the common law rule are common, such as requiring a

driver who has caused an accident to remain at the scene

even if he was not culpable, see, e.g., Fuentes v. Reilly, 590

F.2d 509 (3d Cir. 1979) (N.J. law); Brooks v. E.J. Willig Truck

Transportation Co., 255 P.2d 802 (Cal. 1953), or forbidding

a hospital emergency room to turn away a patient brought

to it before his condition has been stabilized. Thomas

v. Christ Hospital, No. 02-3373, 2003 WL 1948836, at *3

(7th Cir. Apr. 25, 2003). But none is applicable to this case.

Various rationales have been offered for the seemingly

hardhearted common law rule: people should not count

on nonprofessionals for rescue; the circle of potentially

liable nonrescuers would be difficult to draw (suppose

a person is drowning and no one on the crowded beach

makes an effort to save him—should all be liable?); altruism makes the problem a small one and liability might

actually reduce the number of altruistic rescues by depriving people of credit for altruism (how would they prove

they hadn’t acted under threat of legal liability?); people

would be deterred by threat of liability from putting

themselves in a position where they might be called upon

to attempt a rescue, especially since a failed rescue

might under settled common law principles give rise to

liability, on the theory that a clumsy rescue attempt may

have interfered with a competent rescue by someone

else. E.g., Jackson v. City of Joliet, 715 F.2d 1200, 1202-03

(7th Cir. 1983) (Illinois law); Farwell v. Keaton, 240 N.W.2d

217 (Mich. 1976); Stiver v. Parker, 975 F.2d 261, 272 (6th

Cir. 1992) (also Michigan law).

Whatever the validity of these explanations for the

common law rule, they have been held to be overborne in
No. 02-3651 5

three types of case. The three types are typically said to

involve a “special relationship” between rescuer and victim,

e.g., Donaldson v. Young Women’s Christian Ass’n, 539 N.W.2d

789, 792 (Minn. 1995), but that seems to us an unhelpful

label because of its vagueness.

The first type of case is where the rescuer had either

assumed, explicitly or implicitly, a contractual duty to

rescue the victim, e.g., Mastriano v. Blyer, 779 A.2d 951, 955

(Me. 2001); Nickerson v. Mall of America Co., 593 N.W.2d 723,

726-27 (Minn. 1999); Folsom v. Burger King, 958 P.2d 301,

311 (Wash. 1998); Randolph’s Administrator v. Snyder, 129

S.W. 562 (Ky. 1910), or had created in the victim a reasonable expectation that he had assumed such a duty. E.g.,

Municipal City of South Bend, supra, 639 N.E.2d at 284-85;

Board of Commissioners v. Hatton, 427 N.E.2d 696 (Ind. App.

1981); Nickerson v. Mall of America Co., supra, 593 N.W.2d

at 726; Stiver v. Parker, supra, 975 F.2d at 271-72; Wilmington General Hospital v. Manlove, 174 A.2d 135 (Del. 1961);

3 Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, The

Law of Torts § 18.6, p. 717 (2d ed. 1986).

In the second type of case, the victim was in the rescuer’s

custody and thus without access to alternative rescuers.

E.g., Norman v. Turkey Run Community School Corp., 411

N.E.2d 614 (Ind. 1980); Donaldson v. Young Women’s Christian Ass’n, supra; Murdoch v. City of Keene, 623 A.2d 755, 756-

57 (N.H. 1993); Beach v. University of Utah, 726 P.2d 413, 415

(Utah 1986); Continental Southern Lines, Inc. v. Robertson, 133

So. 2d 543 (Miss. 1961); Fagg’s Administrator v. Louisville &

Nashville R.R., 63 S.W. 580 (Ky. 1901). Typical cases of this

type are ones in which the victim is a prison inmate or a

patient in a mental hospital. E.g., Overall v. State, 525 N.E.2d

1275 (Ind. App. 1988); Iglesias v. Wells, 441 N.E.2d 1017 (Ind.

App. 1982); Murdock v. City of Keene, 623 A.2d 755, 756-57

(N.H. 1993); Salazar v. City of Chicago, 940 F.2d 233, 237 (7th
6 No. 02-3651

Cir. 1991); Clements v. Swedish Hospital, 89 N.W.2d 162, 165-

66 (Minn. 1958). These cases are readily assimilated to cases

of the first type through the concept of an implicit contractual duty.

The third class consists of cases in which the victim’s

peril had been caused by the putative rescuer himself—even

if he had caused it nonnegligently, e.g., Palace Bar, Inc.

v. Fearnot, 381 N.E.2d 858, 865-66 (Ind. 1978); L.S. Ayres &

Co. v. Hicks, 40 N.E.2d 334 (Ind. 1942); Tippecanoe Loan &

Trust Co. v. Cleveland Cininnati Chicago & St. Louis Ry., 104

N.E. 866 (Ind. 1914); South v. National Railroad Passenger

Corp., 290 N.W.2d 819 (N.D. 1980); Zylka v. Leikvoll, 144

N.W.2d 358 (Minn. 1966); Thomas v. Casey, 297 P.2d 614

(Wash. 1956); Montgomery v. National Convoy & Trucking

Co., 195 S.E. 247 (S.C. 1938); Maldonado v. Southern Pacific

Transportation Co., 629 P.2d 1001 (Ariz. App. 1981); Scatena

v. Pittsburgh & New England Trucking, 319 N.E.2d 730

(Mass. App. 1974), but a fortiori if he had caused it negligently or otherwise culpably. E.g., Carlisle v. Kanaywer, 101

Cal. Rptr. 246 (App. 1972).

Another exception to the common law rule, though not

described as such in the cases, is the doctrine of last

clear chance, which requires a potential injurer to take

measures to avert a peril that it has created, even if

nonnegligently. E.g., Kumkumian v. City of New York, 111

N.E.2d 865 (N.Y. 1953). Indiana has replaced contributory

negligence with comparative negligence and in the

course of doing so has discarded the last clear chance

doctrine, Miller v. Ryan, 706 N.E.2d 244, 249 (Ind. App.

1999), but that does not affect the principle. The last clear

chance cases are a subset of the peril-caused-by-rescuer

cases.

In short (and setting to one side the doctrine of last

clear chance), when the rescuer either has assumed explic-
No. 02-3651 7

itly or implicitly a duty of rescue, or has caused the injury,

the reasons behind the common law rule fall away and

the rule is bent. And thus had the prison promised to

protect Stockberger from the consequences of hypoglycemia, or induced his hypoglycemic episode by denying

him access to insulin, or ordered him off the premises

knowing that he was in no condition to drive (thus

putting him in a zone of danger), the plaintiff would have

a good case. But none of these things is true. The fact that

the prison had sometimes accommodated the needs of a

sick employee by providing him with transportation

home or to a hospital did not create a contractual duty or

reasonable expectation that a hypoglycemic employee

would be restrained against his wishes from driving home.

Stockberger was adamant that he wanted to go home

and intended to do so the same way he had gotten to work,

namely by driving his truck. His coworkers may have

been negligent in failing to restrain him, just as A in our

flowerpot hypothetical was negligent in failing to shout,

where negligence is determined in Hand formula terms

by comparing the burden of precautions (close to zero in

both cases) with the harm from failure to take them discounted (multiplied) by the probability of injury. See, e.g.,

United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d

Cir. 1947); Bammerlin v. Navistar Int’l Transportation Corp.,

30 F.3d 898, 902 (7th Cir. 1994); Brotherhood Shipping Co. v.

St. Paul Fire & Marine Ins. Co., 985 F.2d 323, 327-29 (7th

Cir. 1993); Dobson v. Louisiana Power & Light Co., 567 So. 2d

569, 574-75 (La. 1990). Probably the burden to Stockberger’s coworkers of delaying his departure was less than

the risk of a serious accident. The fact that he wanted to

go home need not have weighed seriously in the calculus

of negligence. His thinking may have been impaired and

his coworkers may have known this on the basis of their
8 No. 02-3651

experience with his previous hypoglycemic episodes, in

which he had exhibited irrational thinking.

For the plaintiff to prevail, however, the exceptions to the

rule that there is no “good Samaritan” liability would have

to be enlarged, to encompass the case in which an employee becomes ill at the workplace for reasons unrelated to

his work and the employer fails to use due care to treat

the illness. The exception could not be cabined so; its logic

would embrace the common situation in which a customer becomes ill in a store, or a guest in a private home.

Indeed, either would be the stronger case for imposing

a duty of rescue. Employees learn about conditions (including employer provisions for their safety) on the job to

an extent that a shopper is unlikely to learn about the

dangers of the stores in which he shops or a guest the

dangers of his host’s home. Employees, moreover, can

negotiate for more safety or demand compensation for

risks; and to add to wages that reflect risks compensation

in tort if the risks materialize would be double counting.

The rule toward which Stockberger’s claim gestures is

that the owner of premises has a duty of care toward any

invitee in peril, even if the invitee’s illness or injury was in

no wise caused or aggravated by the owner or his employees. Such a rule could be defended by reference to

hypothetical-contract analysis—by asking whether employees, customers, and guests have a reasonable expectation that if they suddenly collapse on the premises of their

employer, business invitor, or host, they will not be left

to die; that the employer, business invitor, and host have

at least a duty to dial 911. The custodial situation in the

case just put, as in a prisoner case, thins the ranks of

potential rescuers. And the reasons that support the common law rule are attenuated in these settings, although it

could be argued that the employer, business invitor, or
No. 02-3651 9

social host who is burdened with a duty to care for a sick

employee, etc., will be reluctant to invite chronically ill

people, such as diabetics; we have also suggested reasons

for treating employees differently from other invitees.

Hypothetical-contract analysis is a powerful tool for

understanding tort law and determining its scope. It is easy

to imagine that if drivers and pedestrians, say, could

contract with regard to safety, they would agree that drivers would take cost-justified measures to avoid hitting

pedestrians and pedestrians would take cost-justified

measures to avoid being hit; for that is the form of contract

that would minimize all relevant costs—the costs of accidents and the costs of avoiding accidents. And it is possible that such an analysis would lead to the conclusion

that when an invitee suddenly becomes helpless and in

peril on the premises of his invitor, the invitor has a duty

to take at least minimal steps to save him, since that is

the solution that minimizes all the relevant costs. This

conclusion might make as much sense as the other exceptions to the common law’s rejection of good Samaritan

liability, all of which by the way can be rationalized on

similar hypothetical-contract grounds—for example, one

can easily imagine a contract between potential victims

and potential injurers whereby the latter would agree to

assist the victim even if the injury itself was not culpable;

for the injurer will usually be in the best, and often in the

only, position to minimize the costs of the injury to the

victim.

Indiana, however, has not yet taken the step of imposing good Samaritan liability on invitors, L.S. Ayres & Co.

v. Hicks, supra; J.A.W. v. Roberts, 627 N.E.2d 802, 809

(Ind. App. 1994), though some other states have. See, e.g.,

Pridgen v. Boston Housing Authority, 308 N.E.2d 467, 475-78

(Mass. 1974); Southern Pacific Co. v. Henricks, 339 P.2d 731,
10 No. 02-3651

733 (Ariz. 1959); Carey v. Davis, 180 N.W. 889 (Ia. 1921);

Tiedeman v. Morgan, 435 N.W.2d 86 (Minn. App. 1989);

W. Page Keeton et al., Prosser and Keeton on the Law of Torts

§ 56, p. 376 (5th ed. 1984); see also Hutchinson v. Dickie,

162 F.2d 103 (6th Cir. 1947) (admiralty). A dictum in the

Roberts opinion instances the relation of landowner to

invitee as a “special relationship” that would take a case out

of the common law rule, but without elaboration beyond a

citation to a case that involved not rescue but the landowner’s liability for a dangerous condition that injured a

social guest. Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991).

Since cases of the type illustrated by the present case

arise but seldom, and since the plaintiff had no choice but

to bring her suit in a federal court—she had no opportunity

to ask an Indiana court to join the trend toward imposing

good Samaritan liability on invitors, because a suit under

the Federal Tort Claims Act can be brought only in federal court—we cannot refuse the difficult challenge of

predicting whether Indiana will join the bandwagon when

a suitable case presents itself. This is not a case in which

a plaintiff who has a choice between suing in a state court

or a federal court chooses the federal court and asks it

to adopt a venturesome interpretation of state law, as in

Great Central Ins. Co. v. Insurance Services Office, Inc., 74

F.3d 778, 786 (7th Cir. 1996).

But the plaintiff in her briefs and at argument has not

tried to persuade us that Indiana would adopt the emergent rule. Instead she has tried without success to fit her

case into existing Indiana case law. Even if we were so

confident of the soundness or inevitability of the rule as

to be willing to predict its adoption by Indiana, its application to situations in which due care requires restraining

a person’s freedom of movement would have to be very

cautious, probably too cautious to give the plaintiff in this
No. 02-3651 11

case any relief. The cases that we have cited that imposed

liability on invitors for failures to rescue involved extreme situations, such as, in Carey v. Davis, the failure of a

yachtsman to try to rescue a guest who fell overboard.

It would not be sensible either to place employers or other

invitors on a razor’s edge where they face a suit for false

imprisonment if they don’t let the ill person leave or a

suit for negligence if they do, or to turn employers and

other invitors into nannies required, for example, to take

the car keys away from an employee or customer or social

guest because the roads are icy and the individual is

known to be an unskillful driver. Stockberger was emphatic in wanting to drive himself home, said that he was

feeling better and appeared to be, and could be presumed

(for his diabetes was of long standing) to have known his

fitness to drive as well as his skeptical coworker did. Of

course in such a case there might be a legal duty to persons

injured by the employee’s foreseeable accident, Myers

v. Quesenberry, 193 Cal. Rptr. 733 (App. 1983), but such a

case would not present an issue of good Samaritan liability.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-11-03