You may be surprised to find that a passenger can sometimes be partially held responsible for his own injuries when the driver crashes the car he is in. This is most commonly found when there’s an allegation that the driver was intoxicated in the past and the passenger should’ve known that when he got into the car.
Let’s consider three fact patterns and what your decision might be after each one. What’s the passenger’s percent of fault for his own injuries?
- The passenger, hosting a party, serves the driver seven shots of whiskey and two beers before jumping in with the driver to go to a bar. The driver hits a tree when he passes out. The passenger is paralyzed.
- The passenger sees an old friend driving in a parking lot, and they agree to drive to get tacos. The passenger asks if the driver has been drinking, and driver said he had two beers earlier in the afternoon and is fine. But the driver loses control, injuring the passenger and tests positive for intoxication.
- The passenger gets into the car with the driver to be taken home because he cannot drive. He passes out on the way, and the driver later swerves from the road, intoxicated, and flips the car, injuring the passenger.
In Tennessee and most states now, we have what’s called “modified comparative negligence,” which means that, like a pie chart, responsibility for injuries can be divided among more than one person or entity.
In cases such as the ones above, facts and results may vary wildly. But under comparative negligence in Tennessee, if the passenger was ever held 50% at fault for his own injuries, he could not recover anything. Let’s say he was held 25% at fault, so then he would get 75% of the damages.
An interesting thought is that police do fairly extensive testing, including nystagmus observation, sobriety tests, breathalyzers or blood tests, etc. to determine if someone’s intoxicated.
What standard should there be for the passenger, who may not have such training?
What do you think?
DAVID PEEL, a Memphis-area attorney, seeks justice for those injured in truck, motorcycle and car crashes. He often addresses churches, clubs and groups without charge. He may be reached through PeelLawFirm.com, where his columns are archived.