Heavyweight Olympic Powerlifting champion Hulk Humongous, who holds the world and

Olympic records for deadlifting 1,250 pounds, is now in the prime of his career. Hulk works at a

local gym in New Jersey and as such, is required to have up-to-date CPR certificates and

training. Hulk, almost fully recovered from a back injury sustained while trying to lift too much

weight, is training for a competition scheduled to start next week in which, if he wins, he will

walk away with $1,000,000 in prize money and a sponsorship from Nike worth $10,000,000 over

the next 5 years. During his last workout session at the gym, his trainer tests his back injury and

tells Hulk that he needs to take it easy for the rest of the time before the competition as

the likelihood of aggravating the injury and thus losing the competition is high.

While leaving the gym after work, Hulk witnesses a tree fall on a car in which a pair of identical

twin infants were left sitting in the back seat. Three people rush over and attempt to move the

tree but they aren't strong enough and one of them, recognizing Hulk, calls for him to help.

Hulk, thinking of the competition and his injury and not wanting to get involved, decides against

using his cell phone to call for help and ignores their pleas for help, gets into his car and drives

off. 3 minutes after Hulk leaves, another gym member rushes over and successfully helps them

remove the tree from the car and free the twins but it is too late, the twins succumb to their

injuries. The medical examiners said that if the twins would have been removed just 30 seconds

sooner, they would have survived.

In view of these facts, analyze and justify your decision from a legal and ethical standpoint by

answering the following issues:

Can Hulk be held liable for the death of the twins? Utilize the elements found in Podias v. Mairs N.J. Superior Court, 2007 926 A.2d 859 (found in your textbook in chapter 1) and apply each to the facts provided to determine liability. Use IRAC (issue, Rule, Analysis and Conclusion

Michael Mairs, a college student, was driving drunk one night when his car hit a motorcyclist, Antonios Podias. The next case deals with this question: Did his friends who were passengers in his car have a legal responsibility to call for help? Notice how the New Jersey judge handles the no-duty-to-rescue rule. He mentions it, and goes on to point out that the "exceptions are as longstanding as the rule." He reviews those exceptions, and then decides whether the boys riding in Mairs' car were potentially liable. Podias v. Mairs N.J. Superior Court. 2007 926 A.2d 859 The opinion of the court was delivered by Judge Parillo ...In the evening of September 27, 2002 and early morning hours of September 28, eighteen-year-old Michael Mairs was drinking beer at the home of a friend Thomas Chomko. He eventually left with two other friends, defendants Swanson and Newell, both also eighteen years of age, to return to Monmouth University where all three were students. Mairs was driving. Swanson was in the front pas- senger seat and Newell was seated in the rear of the vehicle where he apparently fell asleep, It was raining and the road was wet. At approximately 2:00 a.m., while traveling southbound in the center lane of the Garden State Parkway, Mairs lost control of the car, struck a motorcycle driven by Antonios Podias, and went over the guardrail. All three exited the vehicle and "huddled" around the car. Swanson saw Podias lying in the roadway and because he saw no movement and heard no sound, told Mairs and Newell that he thought Mairs had killed the cyclist. At that time, there were no other cars on the road, or witnesses for that matter. Even though all three had cell phones, no one called for assistance. Instead they argued about whether the car had collided with the motorcycle. And, within minutes of the accident, Mairs called his girlfriend on Newell's cell phone since his was lost when he got out of the car. Swanson also used his cell phone, plac- ing seventeen calls in the next one-and-one-half hours. Twenty-six additional calls were made from Newell's cell phone in the two-and-one-half hours after the acci- dent, the first just three minutes post-accident.... None of these, however, were emergency assistance calls. As Swanson later explained: "I didn't feel responsible to call the police." And Newell just "didn't want to get in trouble."After about five or ten minutes, the trio all decided to get back in the car and leave the scene. Swanson directed, "we have to get to an exit." Upon their return to the car, Swanson instructed Mairs "not to bring up his name or involve him in what occurred" and "don't get us [Swanson and Newell] involved, we weren't there." The three then drove south on the parkway for a short distance until Mairs' car broke down. Mairs pulled over and waited in the bushes for his girlfriend to arrive, while Swanson and Newell ran off into the woods, where Newell eventu- ally lost sight of Swanson, Before they deserted him, Swanson again reminded Mairs that "there was no need to get [Swanson and Newell] in trouble ..." Mean- while, a motor vehicle operated by Patricia Uribe ran over Podias, who died as a result of injuries sustained in these accidents. In the ensuing investigation, when State Police located Mairs hours after the accident, Mairs claimed that he was alone in the car. He also denied striking the motorcycle, seemingly unaware of any impact despite being told otherwise by Swanson. At the time, the police officers observed that Mairs "manifested symp- toms of alcohol consumption and intoxication." Indeed, when blood was drawn at 5:12 a.m., more than three hours after the accident and well after his last drink at Chomko's house, Mairs' blood alcohol level was .085. ... [The survivors of the motorcyclist who was killed sued Mairs, Swanson, and Newell. On a motion for summary judgment, the trial court dismissed the case against the passengers. In this appeal, the court must decide whether those pas- sengers owed a duty to Podias.] Traditional tort theory emphasizes individual liability. Each particular defen- dant who is to be charged with responsibility must have been negligent. Ordi- narily, then, mere presence at the commission of a wrong is not enough to charge one with responsibility since there is no duty to take affirmative steps to interfere. Because of this reluctance to make "inaction" a basis of liability, the common law "has persistently refused to impose on a stranger the moral obligation of com- mon humanity to go to the aid of another human being who is in danger, even if the other is in danger of losing his life." ... The underlying rationale for what has come to be known as the "innocent bystander rule" seems to be that by "pas- sive inaction," defendant has made the injured party's situation no worse, and has merely failed to benefit him by interfering in his affairs. Of course, exceptions are as longstanding as the rule. For instance, if one already has a pre-existing legal duty to render assistance, then it is that duty which impels him to act, for which omission he may be liable. So too, at common law, those under no pre-existing duty may nevertheless be liable if they choose to volunteer emergency assistance for another but do so negligently. Over the years, liability for inaction has been gradually extended still further to a limited group of relationships, in which custom, public sentiment, and views of social policy have led courts to find a duty of affirmative action. In New Jersey, courts have recognized that the existence of a contractual relationship between the victim and one in a position to provide aid may create a duty to render assistance. In Szabo v. Pennsylvania R.R., for instance, the Court held that if the employee, while engaged in the work of his or her employer, sustains an injury rendering him or her helpless to provide for his or her own care, the employer must secure medical care for the employee. ... To establish liability, however, such relationships need not be limited to those where a pre-existing duty exists, or involving economic ties. Rather, it may only be necessary "to find some definite relation between the parties of such a charac- ter that social policy justifies the imposition of a duty to act," So, for instance, the general duty which arises in many relations to take reasonable precautions for the safety of others may include the obligation to exercise control over the conductof third persons with dangerous propensities. In J.S. v. R. T.H. (NJ 1998), the Court held that when a spouse has actual knowledge or special reason to know of the likelihood of her spouse engaging in sexually abusive behavior against a partic- ular person, the spouse has a duty of care to take reasonable steps to prevent or warn of the harm. So too, even though the defendant may be under no obligation to render assistance himself, he is at least required to take reasonable care that he does not prevent others from giving it. Soldano v. O'Daniels, (Cal. 1983). In other words, there may be liability for interfering with the plaintiff's opportunity of obtaining assistance. Whether or not there is a duty to act ...involves a complex analysis that weighs and balances several related factors, including: (1) the nature of the underlying risk of harm, that is, its foreseeability and severity; (2) the oppor- tunity and ability to prevent the harm; (3) the comparative interests of, and the relationships between or among the parties; and, (4) ultimately, based on con- siderations of public policy and fairness, the societal interest in the proposed solution... [The judge goes on to use these factors in analyzing the facts of this case.) In the first place, the risk of harm, even death, to the injured victim lying help- less 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' own omission.... 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 compre- hend 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. As to the relationships among the parties, 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 condi- tions that further endangered the victim's safety. Defendants therefore bear some relationship not only to the primary wrong- doer but to the incident itself. It is this nexus which distinguishes this case from those defined by mere presence on the scene without more...In our view, the imposition of a duty upon defendants is in accord with public policy. As evidenced by the grant of legislative immunity to volunteers afforded by [New Jersey's] Good Samaritan Act, public policy encourages gratuitous assis- tance by those who have no legal obligation to render it. Of course, it still remains a question of fact whether the primary wrongdoer was able to exercise reasonable care to summon emergency assistance or was prevented from doing so by defendants; whether, on the other hand, defendants knew or had reason to know that Mairs was unable or unwilling to do so, and thereafter were in a position to have influenced the outcome; whether the deci- sion to abandon the victim was otherwise Mairs' alone or the result of encour- agement, cooperation or interference from defendants; and finally, if the latter, whether the assistance was substantial enough to support a finding of liability. (That is for a jury to determine.] Reversed and remanded. QUESTIONS 1. Judge Parillo elaborates on several exceptions to the "no duty" rule. What are they? Which exception does he think might apply to the defendants in this case? 2. What are the four factors the judge uses to determine whether the defendants had a legal duty to act? Does he find that there was such a duty? 3. What is the likely next stage in this litigation? 4. On what basis might you argue that there is a duty to aid in each of the fol- lowing examples: (a) An elderly woman has a stroke while shopping at a department store. A sales clerk leads her to the stores infirmary, and leaves her unattended for six hours, during which her condition becomes irreparably aggravated. (b) A psychiatrist releases a violent psychotic who has threatened to kill his ex-girlfriend, without taking measures to warn the girlfriend or to assure that the psychotic is properly medicated. (c) A passenger on a commuter rail train tells the conductor he is in need of immediate medical attention. 5. Where do you think the line should be drawn on bystander liability