Day on Torts
You know the general rule: absent a special relationship, one person does not have a duty to come to the aid of another. You can see someone drowning, calling out for help, and simply walk by listening to your Ipod and taking a another lick of your Maggie Moo’s ice cream cone. These is true even if you are a world-champion swimmer trained in life-saving.
The Superior Court, Appellate Division, of New Jersey recently faced an issue of whether two passengers in a car had a duty to aid a motorcycle rider who had been hit by the intoxicated driver of their car who was either unwilling or unable to come to the motorcyclist’s aid. The three men stopped after the incident, saw the injured man, and left the scene without offering or calling for assistance. (The three had cell phones with them.) The driver’s car broke down shortly thereafter, and the passengers fled the scene leaving the driver behind waiting for his girlfriend to pick him up. The passengers told the driver not to tell anyone that they had been present. The motorcyclist was left on the road, was hit by a car and died.
The trial judge dismissed a case brought against the auto passenger’s by the administrator of the motorcyclist’s estate. The Appellate Division reversed, in a fascinating opinion that takes the reader back to Torts 101. A brief excerpt:
"Governed by these principles, we are satisfied that the summary judgment record admits of sufficient facts from which a reasonable jury could find defendants breached a duty which proximately caused the victim’s death. In the first place, the risk of harm, even death, to the injured victim lying helpless in the middle of a roadway, from the failure of defendants to summon help or take other precautionary measures was readily and clearly foreseeable. Not only were defendants aware of the risk of harm created by their own inaction, but were in a unique position to know of the risk of harm posed by Mairs’ [the drivers’] own omission in that regard, as well as Mairs’ earlier precipatory conduct in driving after having consumed alcohol. Even absent any encouragement on their part, defendants had special reason to know that Mairs would not himself summon help, but instead illegally depart the scene of a hit-and-run accident, N.J.S.A. 39:4-129; see also N.J.S.A. 39:4-130, either intentionally or because of an inability to fulfill a duty directly owed the victim, thereby further endangering the decedent’s safety.
Juxtaposed against the obvious foreseeability of harm is the relative ease with which it could have been prevented. All three individuals had cell phones and in fact used them immediately before and after the accident for their own purposes, rather than to call for emergency assistance for another in need. The ultimate consequence wrought by the harm in this case – death – came at the expense of failing to take simple precautions at little if any cost or inconvenience to defendants. Indeed, in contrast to Mairs’ questionable ability to appreciate the seriousness of the situation, defendants appeared lucid enough to comprehend the severity of the risk and sufficiently in control to help avoid further harm to the victim. In other words, defendants had both the opportunity and ability to help prevent an obviously foreseeable risk of severe and potentially fatal consequence.
In our view, given the circumstances, the imposition of a duty upon defendants does not offend notions of fairness and common decency and is in accord with public policy. As evidenced by the grant of legislative immunity to volunteers afforded by the Good Samaritan Act, N.J.S.A. 2A:62A-1, public policy encourages gratuitous assistance by those who have no legal obligation to render it. Praet, supra, 218 N.J. Super. at 224. Simply and obviously, defendants here were far more than
innocent bystanders or strangers to the event. On the contrary, the instrumentality of injury in this case was operated for a common purpose and the mutual benefit of defendants, and driven by someone they knew to be exhibiting signs of intoxication. Although Mairs clearly created the initial risk, at the very least the evidence reasonably suggests defendants acquiesced in the conditions that may have helped create it and subsequently in those conditions that further endangered the victim’s safety. Defendants therefore bear some relationship not only to the primary wrongdoer but to the incident itself. It is this nexus which distinguishes this case from those defined by mere presence on the scene without more, and therefore implicates policy considerations simply not pertinent to the latter."
The Court also found potential liability under the Restatement (Second) of Torts, § 876 (1979), which provides as follows:
"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him [conspiracy], or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself [aiding-abetting], or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person."
This opinion is a must-read. Find Podias v. Mairs, DOCKET NO. A-6312-05T5 (N.J. Sup. App. Div. June 26, 2007) here.