On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-000138-03.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo and Sapp-Peterson.
At issue is whether passengers in a car may, 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. Plaintiff Sevasti Podias, Administratrix of the estate of decedent Antonios Podias (Podias), appeals from the summary judgment dismissal of his wrongful death and survivorship action against defendants Andrew K. Swanson, Jr. and Kyle Charles Newell, which concluded that defendants owed decedent no such duty as a matter of law. We now reverse.
We view the facts of record in a light most favorable to the plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). 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 passenger 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, placing seventeen calls in the next oneand-one-half hours. Twenty-six additional calls were made from Newell's cell phone in the two-and-one-half hours after the accident, the first just three minutes post-accident and to Matawan, where Chomko resides. 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 eventually lost sight of Swanson. Before they deserted him, Swanson again reminded Mairs that "there was no need to get [Swanson and Newell] in trouble . . ." Mairs thought Swanson was "just scared" and that both defendants were concerned about Mairs "drinking and driving." Meanwhile, 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 symptoms 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. It was not until months afterwards that Mairs admitted that defendants were passengers in the car on the evening of the accident and that he had lied to the police because "he was doing what his friends asked him to do." Consequently, when defendants were separately interviewed three months after the accident, they each confirmed the police officers' initial observations. Newell told State Police that Mairs appeared intoxicated from "[t]he way he was acting" and "the odor of his breath." "He had a wobble walk and his speech was slurred a little." Swanson attributed the accident to "[f]irst and foremost, Mike's intoxication." Swanson also claimed that Mairs threatened to leave him at the scene after he told Mairs he had struck the motorcycle and possibly killed the cyclist.
Plaintiff, individually and on behalf of decedent's estate, filed a complaint against several defendants, all of whom save Swanson and Newell, either settled or were found liable after jury trial. Following discovery, defendants Swanson and Newell moved for summary judgment, which the motion judge granted, dismissing plaintiff's complaint with prejudice, finding defendants had no legal duty to volunteer emergency assistance to one whose injury they neither caused nor substantially assisted another in bringing about. As to the latter, the judge reasoned:
I find that the Plaintiff has not established sufficient facts to permit a rational factfinder to resolve any dispute in issue in favor of the Plaintiff concerning the actions of Mr. Newell and Mr. Swanson that would indicate a concert[ed] action. Even assuming that the defendants individually should have known of the duty of Mr. Mairs to call the police, there is absolutely no testimony that either Newell or Swanson encouraged Mairs not to call the police and to leave the scene of the accident or to substantially assist Mr. Mairs in that endeavor. ...