                              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 sum-
mary 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 some-
times 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 co-
worker who had given him Ensure thought that Stock-
berger 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—in-
cluding 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 Stock-
berger 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 impend-
ing 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?); altru-
ism makes the problem a small one and liability might
actually reduce the number of altruistic rescues by depriv-
ing 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 reason-
able 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; Wilming-
ton 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 Chris-
tian 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 contrac-
tual 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 negli-
gently 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 hypogly-
cemia, 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 dis-
counted (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 Stock-
berger’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 employ-
ee 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 cus-
tomer 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 (in-
cluding 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 em-
ployees. Such a rule could be defended by reference to
hypothetical-contract analysis—by asking whether employ-
ees, customers, and guests have a reasonable expecta-
tion 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 com-
mon 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 driv-
ers 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 acci-
dents and the costs of avoiding accidents. And it is pos-
sible 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 excep-
tions 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 impos-
ing 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 land-
owner’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 fed-
eral 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 emer-
gent 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 applica-
tion 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 ex-
treme 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 em-
phatic 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
