## Facts

- Late on September 27–28, 2002, three 18-year-old college students—Michael Mairs (driver), Andrew K. Swanson, Jr. (front passenger), and Kyle Charles Newell (rear passenger)—had been drinking beer at a friend’s home in Ocean County, New Jersey.
- Around 2:00 a.m., in rainy conditions, Mairs drove south on the Garden State Parkway, lost control in the center lane, and struck a motorcycle operated by Antonios Podias; the car went over the guardrail.
- The three occupants exited and gathered near the car. Swanson saw Podias lying face up in the center lane and, observing no movement or sound, told the others he thought the motorcyclist was dead.
- None of the three approached Podias, attempted to render assistance, or attempted to protect him from oncoming traffic.
- All three had working cell phones. Rather than calling 911 or police, Mairs called his girlfriend; Swanson made 17 calls and Newell made 27 calls over roughly the next 1.5–2.5 hours, none to emergency services.
- After about ten minutes, the three reentered the vehicle and left the scene. Swanson told Mairs not to mention Swanson’s name or involve him in what occurred.
- The car later became disabled; Mairs waited in bushes for his girlfriend, while Swanson and Newell ran into the woods.
- A second vehicle, driven by Patricia Uribe, subsequently ran over Podias. Podias died from injuries sustained in the initial collision and the later impact.
- The estate and surviving family pursued wrongful death and survivorship claims against multiple defendants, including Swanson and Newell, alleging their failure to summon aid was a substantial factor contributing to Podias’s death.

## Issues

1. Whether passengers in a vehicle that struck a motorcyclist may owe an affirmative duty to take reasonable steps to summon emergency aid when they know the victim is in grave and immediate peril and the driver is unwilling or unable to seek help.
2. Whether the record permitted a reasonable jury to find breach and proximate causation from the passengers’ failure to call for assistance, making summary judgment improper.

## Decision

- The Appellate Division reversed the summary judgment entered for Swanson and Newell and remanded for further proceedings.
- The court held the record contained sufficient evidence for a reasonable jury to find the passengers owed a limited duty to take reasonable steps to obtain emergency assistance and that failure to do so could be found a proximate cause of death.
- The court did not impose liability as a matter of law; it held that duty (under the circumstances presented) and breach should not have been removed from the factfinder at the summary-judgment stage.

## Legal Principles

- The common-law rule generally imposes no duty to rescue; nonfeasance is not ordinarily actionable absent a recognized basis for an affirmative duty.
- An affirmative duty to act may arise where the relationship between the parties and the surrounding circumstances, considered with foreseeability and policy considerations, justify requiring action.
- Actual knowledge of an identified person’s serious and immediate peril, coupled with the ability to reduce that peril with minimal burden, can support imposing a duty of reasonable action.
- In evaluating duty, courts weigh foreseeability and the magnitude of the risk, the ability and opportunity to exercise care, the parties’ relationship to the event, and considerations of fairness and public policy.
- Summary judgment is inappropriate where the evidentiary record would permit reasonable jurors to find duty, breach, and causation under the applicable duty framework.

## Conclusion

The court permitted the estate’s claims against the non-driving passengers to proceed because a jury could reasonably find that, given their involvement in the crash events, their awareness of the victim’s grave danger in an active highway lane, and their easy access to phones, they had a limited duty to seek emergency help and that their failure to do so may have contributed to the fatal outcome.


Podias v. Mairs, 394 N.J. Super. 338, 926 A.2d 859 (N.J. Super. Ct. App. Div. 2007)