Last week, a longtime Oscar director, Marty Pasetta, was killed in what has been called a bizarre car accident. The driver of the car had stopped to let Mr. Pasetta and another passenger exit the vehicle. The driver then got out of the car while the car was still in drive, and the car hit the two passengers who had walked in front of the car. Mr. Pasetta was declared dead at the scene of the accident, and the other passenger was taken to the hospital with injuries. The driver of the car was subsequently arrested for impaired driving.
Although the way in which Mr. Pasetta was killed in the accident is unusual, it is not uncommon for a passenger of an impaired driver to be injured or killed in a car accident. When an accident like this occurs in North Carolina, the issue of an injured passenger’s contributory negligence by riding with an impaired driver is raised. North Carolina is one of a handful of jurisdictions that follows the strict doctrine of contributory negligence, under which a 1% negligent plaintiff can be completely barred from recovering damages.
North Carolina courts have stated that “[a] guest in an automobile may assume that the driver will use proper care and caution while operating the vehicle until he has reason to believe otherwise.” Taylor v. Coats (N.C. App. 2006) When an impaired driver has been accused by negligence by a passenger, the driver must prove the following elements to show the passenger’s contributory negligence in riding with the impaired driver:
(1) the driver was under the influence of an intoxicating beverage; (2) the passenger knew or should have known that the driver was under the influence of an intoxicating beverage; and (3) the passenger voluntarily rode with the driver even though the passenger knew or should have known that the driver was under the influence of an intoxicating beverage.
Robinson v. Trantham (N.C. App. 2009)
In most cases, the contested issue is the second prong - whether the passenger knew or should have known that the driver was impaired. The conclusion is clear in a case where the passenger and driver have been consuming alcohol in large amounts and the driver exhibits signs of impairment. For example, in Goodman v. Connor (N.C. App. 1994), the plaintiff and the defendant consumed alcohol together and then decided to drive to South Carolina, on the way to which, they had an accident. The trooper investigating the accident noted that the defendant’s eyes were red and glassy and his speech was slurred. The defendant had a BAC of 0.10. The court of appeals affirmed the trial court’s holding that the plaintiff should have know that the defendant was impaired based on the defendant’s signs of impairment and their consumption of alcohol together.
However, the plaintiff does not have to see the defendant consume alcohol for this second prong to be met. In Taylor v. Coats (N.C. App. 2006), the plaintiff and defendant did not specifically consume alcohol together but were at a bar together for several hours celebrating plaintiff’s birthday, during which time a bartender told the two that she would give them a ride home so that they could celebrate together. The court noted that the plaintiff should have known that the defendant was impaired because of their time spent at the bar together and the fact that the “defendant blew a .18 on the breathalyzer.” Therefore, “[a]n ordinarily prudent man under like or similar circumstances ... would have known that she was appreciably impaired at the time they left the bar.” Furthermore, the “[p]laintiff … presented no evidence to contradict defendant's evidence that he knew or should have known that defendant was intoxicated.”
In addition, the defendant does not have to exhibit significant signs of impairment for this prong to be met if the plaintiff is aware that the defendant has consumed a large amount of alcohol. In Jansen v. Collins (N.C. App. 1988), the defendant consumed nine beers while he and the plaintiff were together. Although the plaintiff said that the defendant “walked and talked normally,” the court of appeals held that the question of "whether [the] plaintiff was contributorily negligent in voluntarily riding in a car driven by [the] defendant when [the] plaintiff knew or should have known that [the] defendant was under the influence of intoxicating beverages was a question for the jury."
So when does a plaintiff not meet this prong of the test for contributory negligence? In Robinson v. Trantham (N.C. App. 2009), the plaintiff saw the defendant drink only two beers before eating and there was no testimony showing that the defendant showed any signs of impairment prior to the accident. In that case, the court held that the trial court’s refusal to instruct the jury on the issue of contributory negligence was not an abuse of its discretion.
Occasionally, the third prong of the test will be at issue - whether the plaintiff voluntarily rode with the defendant. The plaintiff in the unpublished court of appeals case Bullins v. Walker (2009) raised this issue. In Bullins, the plaintiff was picked up and carried to the rear passenger door of the car which the defendant drove and later crashed. Prior to the accident, the defendant stopped at a gas station and a restaurant. The court noted that even though the plaintiff was picked up and carried to the passenger door, the plaintiff did not assert that she was forced into the car in her complaint. Furthermore, the court reasoned that the plaintiff remained in the defendant’s car at both stops and that there was no evidencing showing that she was kept from leaving the car. Therefore, the court affirmed the dismissal of the plaintiff’s claim.
The court of appeals has also held that the gross negligence defense for a plaintiff’s contributory negligence does not apply in a situation like this one. Typically, if a plaintiff can overcome a defendant’s defense of contributory negligence by showing that the defendant was grossly negligent. In motor vehicle cases, North Carolina court have determined that
Our case law as developed to this point reflects that the gross negligence issue has been confined to circumstances where at least one of three rather dynamic factors is present: (1) defendant is intoxicated, (2) defendant is driving at excessive speeds, or (3) defendant is engaged in a racing.
However, in cases where a passenger is contributorily negligent by riding with an impaired driver, the court of appeals has stated that facts establishing a defendant’s gross negligence also establish a "similarly high degree of contributory negligence on the part of" the plaintiff. Coleman v. Hines (N.C. App. 1999) The court in Coleman reasoned that
Tragically, [the plaintiff] consciously assumed the risk of entering a vehicle, and riding as a passenger in that vehicle while it was being driven by a person under the influence of alcohol. She was with the [defendant], ... when they purchased alcohol and she consumed alcohol along with him at a party. She knew in advance that they planned to consume alcohol and that [the defendant] intended to drive the vehicle home after drinking alcohol, and yet did not accept her employer's offer to drive them home regardless of the hour of the morning. We know of no principle of logic nor any overriding social policy which would militate in favor of allowing a recovery of damages under these facts.
If you have been injured in a car accident, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.