TO: FROM: DATE: CASE:

Urbina and Associated, Law Firm Garry Morales March 31, 2014 Michael Syklist v. Southwest Bike Tours

FACTS Plaintiff, Michael Syklist, was participating in a paid bicycle tour guided by Southwest Bike Tours (defendant) across the American Southwest. Mr. Syklist departed his motel at 5:00 A.M., an hour and a half before the scheduled departure time of the group, notifying no one of his early departure. Mr. Syklist is now frivolously suing Southwest Bicycle Tours for monetary compensation in the amount of $$$$ as well as punitive damages.

ISSUE Will the Good Samaritan Law grant in favor of the defendant, as the act of taking the Plaintiff from the accident site to the hospital was seen as primary action to do under the circumstances of unknowing how long the Plaintiff had been with no medical attention nor his location after the Plaintiff left earlier the group? RULES The Good Samaritan Law will allow the defendant to grant in his favor because it protects his actions when the Plaintiff was in peril and under the circumstances that defendant never knew about the location of the Plaintiff. ANALYSIS Good Samaritan laws are meant to protect those who come to the aid of others for no other reason than kindness or sympathy that only help if the rescuer (or would-be rescuer) is acting without any expectation of reward. In other words, if you are getting paid to rescue, then you are not a Good Samaritan. Paid rescuers are expected to do their jobs correctly and can be held accountable for mistakes. Depending on the state, getting rewarded after the fact can also count as expectation of reward. If you help someone at a car accident and then are rewarded monetarily or otherwise, you may be excluded from Good Samaritan protection. In some states, Good Samaritan laws only cover medically trained rescuers, while other states extend protection to the general public. The Good Samaritan concept is commonly applied

in the courts, which means a case going that far may still be ruled in favor of the rescuer who was trying to help. What Good Samaritan laws do for rescuers is provide a get-out-of-court-free card. In other words, unpaid rescuers may prevail in court with or without a Good Samaritan law, but it is a lot cheaper if they have the protection. In this case, the defendant does not apply as a rescuer as he only acted at the scene for not losing time and prevent his client of die. In New Mexico the rule is: Notwithstanding any provision of law to the contrary, no person who provides assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened release of hazardous materials, or in preventing, cleaning up or disposing or attempting to prevent, clean up or dispose of such release, shall be subject to civil liabilities or penalties of any type. Also for persons rendering emergency care; release from liability: No person who shall administer emergency care in good faith at or near the scene of an emergency, as defined herein, shall be held liable for any civil damages as a result of any action or omission by such person in administering said care, except for gross negligence; provided that nothing herein shall apply to the administering of such care where the same is rendered for remuneration or with the expectation of remuneration or is rendered by any person or agent of a principal who was at the scene of the accident or emergency because he or his principal was soliciting business or performing or seeking to perform some services for remuneration. Having said this, the best way to protect oneself from possible liability when helping others is to always act on behalf of the victim by avoiding to be a hero rather than not to help out a fellow human; if so, you risk at making the types of mistakes will not be covered by Good Samaritan laws. However, they do not protect you from everything. It is human nature to make mistakes. Good Samaritan laws take this into account and protect helpful citizens if the mistakes made are reasonable. In this particular case, the defendant can appeal to the following Instruction 13-1617 under Sudden emergency: A person who, without negligence on [his] [her] part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence or the appearance of an imminent danger to [himself] [herself] or another, is not expected nor required to use the same judgment and prudence that is required of [him] [her] in the exercise of ordinary care in calmer and more deliberate moments. [His] [Her] duty is to exercise only the care that a reasonably prudent person would exercise in the same situation.

If, at that moment, [he] [she] does what appears to [him] [her] to be the best thing to do and if [his] [her] choice and manner of action are the same as might have been followed by any reasonably prudent person under the same conditions, then [he] [she] has done all that the law requires of [him] [her], even though, in the light of after events, it might appear that a different course would have been better and safer. Since defining "reasonable" is so difficult -- even those covered under the Good Samaritan law may find themselves defending a lawsuit. One example is what happened to California's Good Samaritan law. A woman pulled an accident victim from a car following an accident. She followed the typical tests: she did not plan on getting any sort of reward and she acted in the best interests of the victim. Despite the fact that she should have been covered under typical Good Samaritan doctrine and definitely should have fallen into California's Good Samaritan law, she was sued (USA Today). The case in California led to a complete rewrite of California's Good Samaritan law. Usually, Good Samaritan laws work just like they are supposed to. Most lawyers make judgments about when to file lawsuits based on an examination of their return on investment. Since the plaintiff does not usually pay up front, the lawyer must decide to take the case on contingency. That means "reasonable" is defined by the lawyer which means those lawsuits that will most likely lose in court will not ever get there. CONCLUSION Despite of the existence of many precedents that the Good Samaritan Law has been applied, most the cases are of rescuers that were trying to assist a victim of an accident at duty and then the victim sued them to get some compensation. The owner of the Bike Tours Company is not a rescuer; however, at some point this law can be applied as the defendant acted in good faith and also, according to the scene, it seemed as the Plaintiff really needed to be driven to a hospital to be treated. The defendant never tried to assist the Plaintiff as a professional rescuer does because he has no knowledge on how to do it; for example, if the defendant would have made something different the Plaintiff might be in a more serious situation but what he did is to save time while an ambulance would come and hence buying time in favor of the Plaintiff to be attended by professionals. CITATIONS Good Samaritan Law May Not Apply - USATODAY.com." Good Samaritan Law May Not Apply - USATODAY.com. N.p., 3 Mar. 2007. Web. 27 Mar. 2014. "New Mexico One Source of Law." New Mexico One Source of Law. N.p., n.d. Web. 15 Mar. 2014.

"New Mexico Good Samaritan Law." New Mexico Good Samaritan Law. N.p., n.d. Web. 28 Mar. 2014.