Passengers Have Duty to Aid Crash Victims, N.J. Court Rules

June 28, 2007

Two passengers who witnessed their intoxicated friend crash his car into the back of a motorcycle had an obligation to help the injured man, a New Jersey appellate court has ruled.

The driver and his passengers made 44 cell phone calls within 21/2 hours, but none for emergency assistance, court records show. Instead, they agreed to keep quiet and fled, and the rider was struck by another car and 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,” the court found.

The 3-0 ruling reinstates a lawsuit against the passengers by the rider’s widow.

The crash happened on the Garden State Parkway in Middletown on Sept. 27, 2002, at about 2 a.m., when a car driven by Michael Mairs rear-ended a motorcycle ridden by Antonios Podias.

Podias, 40, of Berkeley Township in Ocean County, was thrown from his bike, while the car left the southbound local lanes, crashed through a guardrail and stopped on grass by the express lanes. There were no witnesses.

Mairs and his passengers, Andrew K. Swanson Jr. and Kyle Charles Newell, were returning to Monmouth University from a party in Matawan. Mairs, of Matawan, had been drinking.

Swanson saw the motionless Podias, and told the others he thought the cyclist was dead. They drove away, but Mairs’ car broke down within minutes. Mairs waited for his girlfriend to get him, while the other young men ran into the woods.

The three, who were all were 18 at the time, made 44 cell phone calls within 21/2 hours, but none for emergency assistance.

“They could have very easily called 911, or stayed with the body to prevent someone from running over it,” said Jeffrey A. Peck, a lawyer for the widow, Sevasti Podias. “Newell and Swanson called everybody but the police.”

Indeed, a car driven by another Monmouth University student, Patricia Uribe, ran over Podias. She and others stopped. That impact crushed the man’s chest and punctured his heart, and Podias immediately bled to death, Peck said.

The victim, who ran a restaurant in Irvington, also left two sons, now in their teens, Peck said.

According to the opinion, Mairs, who was below the legal drinking age, still appeared drunk when tracked down by state troopers hours after the crash. He initially claimed he had been alone in the car and said he was unaware he hit the motorcycle. More than three hours after leaving the party, his blood alcohol level was .085, below the legal limit at the time, but above the current threshold of .08. Months later, Mairs admitted he had passengers and lied about the crash.

The widow sued both drivers, the two passengers, the party host, and some of their parents.

Mairs settled for $1.075 million. After being indicted for witness tampering and other charges, he pleaded guilty to leaving the scene of an accident, underage drinking and driving after consuming alcohol. He served 13 months in jail, Peck said.

Swanson and Newell were dismissed from the lawsuit by state Superior Court Judge Edward M. Oles, who sits in Toms River.

Oles ruled that even if the two passengers knew that Mairs had a duty to call 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.”

The widow appealed, with Peck arguing that there was evidence that the three argued about what to do immediately after the crash.

“They were interested only in saving their own behinds, with no thought given to the victims,” Peck said. “There are disputed questions of fact, which a jury must decide.”

Newell’s lawyer, Frank P. Menaquale Jr., declined to comment on the ruling or whether he would appeal.

A message seeking comment from Swanson’s lawyer, Aldo J. Russo, was not immediately returned.

The other defendants in the lawsuit have resolved their cases. The party host, Thomas Chomko, and his parents settled by paying $300,000, Peck said. Uribe went to trial, where a jury assigned her 10 percent of the blame for Podias’ death and she paid $80,000, Peck said.


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