Two Trains, a Switch, and Causing Harm

In her article “Legal Liability and Criminal Omissions,” Patricia Smith argues that acts of omission can cause harm and, thus, can be criminalized and the person can be held legally liable. Acts of omission are when someone has a duty to do something, but they fail to carry out their duty. For example, if a child was drowning next to me and it would be easy to reach over and save him, it would be an act of criminal omission to let the kid drown.

Smith gives an example of two trains that will collide if a worker does not flip a switch. However, the worker wants to watch a basketball game while on the job. He tells his friend to remind him to flip the switch at 9:02. The game is entertaining, and they both forget to flip the switch. At 9:03, the trains crash, causing hundreds of deaths.

If we talked to people on the street, everyone would say that the negligent worker caused those deaths. However, while this seems like the intuitive response, causality is difficult to prove. The friend could have pulled the switch just as easily as the worker. Both had full knowledge of the situation. How can the worker be a cause of the harm but not his friend?

According to Smith, the answer lies in the worker’s duty. Since the worker is a worker, he has the duty to do his job by flipping the switch. However, the friend has no such duty. By not fulfilling his duty, the worker is actually causing harm by his inaction — by his omission.

Since the worker has caused harm, he can be held legally responsible. According to the harm principle, any action that causes harm to people can be justly legislated against.