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Carving out a limited exception to the “innocent bystander” rule, a New Jersey appeals court said a passenger may have a duty to summon help after an accident if the driver fails to do so. Central to the court’s ruling in Podias v. Mairs was that passengers were far more than innocent bystanders, whose passive inaction traditionally is not a basis for liability. Rather, they left a motorcyclist struck by their car in the road without summoning help, and he died. “It is the degree of defendants’ involvement, coupled with the serious peril threatening imminent death to another that might have been avoided with little effort and inconvenience, suggested by the evidence, that in our view creates a sufficient relation to impose a duty of action, Judge Anthony Parrillo wrote for the unanimous three-judge panel. Imposition of such an obligation “does not offend notions of fairness and common decency and is in accord with public policy,” he added. The fatal accident occurred at 2 a.m. on Sept. 27, 2002, when Andrew Swanson Jr. and Kyle Newell were riding in the car driven by Michael Mairs in the local lanes on the Garden State Parkway. After Mairs hit the rear of the motorcycle, and crashed through a guardrail into the express lanes, he stopped the car and the three got out. Newell and Swanson told Mairs, who appeared intoxicated, not to tell anyone they were with him when the accident occurred. Records showed that Newell and Swanson made numerous cell phone calls just after the crash – to girlfriends and roommates – but none to 911. Five or 10 minutes later, the three 18-year-olds got back in their car and left. The motorcyclist, Antonios Podias, was left in the middle lane of the parkway, where a few minutes later another car ran him over, crushing his ribs and liver and causing him to bleed to death. Podias’ widow filed a civil suit, receiving settlements of $1.075 million from Mairs and $300,000 from Daniel and Anne Chomko, whose home was the site of a party where Mairs consumed alcoholic beverages just before the accident. After a trial, a jury ordered Patricia Uribe, the motorist who ran over Podias, to pay $80,000. Monmouth County Superior Court Judge Edward Ohles dismissed Swanson and Newell, finding they had no duty to the victim. But noting that liability for inaction has been gradually extended to a limited group of circumstances, Parrillo wrote that the analysis of whether a duty exists is ultimately a question of fairness and public policy. This analysis requires a balance of the “nature of the underlying risk of harm, its forseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interests of, and relationships between or among the parties, and ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution,” Parrillo wrote. He cited J.S. v. R.T.H., in which the state Supreme Court held that a spouse with knowledge that her spouse is engaging in sexual abuse has a duty to take steps to warn of or prevent harm, and breach of that duty constitutes proximate cause of the resulting injury. “[W]e 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,” wrote Parrillo, joined by Judges Steven Lefelt and Paulette Sapp-Peterson. The court noted that Mairs was showing signs of intoxication that night, and when he was apprehended by police three hours after the accident, his blood-alcohol concentration was 0.085 percent, just over the legal limit of 0.08. But Swanson and Newell were more lucid and could appreciate the danger facing the motorcyclist lying in the road, as well as the minimal effort required to summon help, Parrillo wrote. “In other words, defendants had both the opportunity and ability to help prevent an obviously risk of severe and potentially fatal consequence,” Parrillo wrote. In addition, while Mairs is primarily responsible for the accident, the evidence suggests that Swanson and Newell knew they were riding in a car operated by a drunken driver, and acquiesced in the conditions that further jeopardized the victim’s safety, thereby elevating themselves above the level of innocent bystanders, Parrillo wrote. “Simply and obviously, defendants here were far more than innocent bystanders or strangers to the event. It is this nexus that distinguishes this case from those defined by mere presence on the scene without more, and therefore implicates policy concerns simply not pertinent to the latter,” Parrillo wrote. The lawyer for the Podias estate, Jeffrey Peck of Drinker Biddle & Reath, hailed the ruling. “I’d like to think if you or I were driving down the Garden State Parkway and we saw a body in the middle of the road, at the very least we would stop or call the state police. These kids did nothing.” The lawyer for Newell, Frank Menaquale of the Law Offices of Michael Dunn, declined to comment, citing the pending litigation. The lawyer for Swanson, Aldo Russo of Russo & Della Badia, did not return a call. This article originally appeared in the New Jersey Law Journal , a publication of ALM.

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