Traditional tort theory emphasizes individual liability, which is to say that each particular defendant who is to be charged with responsibility must be proceeding negligently. Ordinarily, then, mere presence at the commission of the wrong, or failure to object to it, is not enough to charge one with responsibility inasmuch as there is no duty to take affirmative steps to interfere. Because of that reluctance to countenance inaction as a basis of liability, the common law has persistently refused to impose on a stranger the moral obligation of common 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 common law rule imposes no independent duty of rescue at all and relieves a bystander from any obligation to provide affirmative aid or emergency assistance, even if the bystander has the ability to help. The underlying rationale for what has come to be known as the innocent bystander rule seems to be that by passive inaction, a defendant has made the injured party's situation no worse, and has merely failed to benefit him by interfering in his affairs.
Defendants were passengers in a car driven by their friend when their vehicle struck a motorcyclist. Defendants continually told the driver not to get them involved. Eventually, all of them left the scene and the motorcyclist was struck by another vehicle and killed. The court agreed that, in circumstances where the driver of an automobile may either be unwilling or unable to seek emergency aid for an individual struck by the car, the passengers' inaction in failing to take simple precautions at little if any cost or inconvenience to them, was actionable based either on an independent legal duty to act or, vicariously, as aiders or abettors who substantially assisted the driver's misconduct by encouraging him to abandon the scene.
Do passengers in a car, in certain circumstances, owe a duty to a pedestrian struck by a driver who is either unwilling or unable to seek emergency aid or assistance himself?
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, public policy encourages gratuitous assistance by those who have no legal obligation to render it. 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.