Can a Passenger be Negligent or Assume the Risk?
by Steven J. Barber
Civil defense practitioners are often faced with Complaint allegations where an innocent passenger is the victim of the negligence of a vehicle operator and any resulting trial is likely to guarantee a recovery by the plaintiff for some damages.
There are some factual scenarios, however, where a passenger can be considered negligent. One obvious example is where the passenger interferes with the operation of a vehicle by grabbing the steering wheel.
Additionally, in the case of Miranda v. Griffith, Docket No. CV-11-6020523-S, the court (Judge Frechette) denied a plaintiff’s Motion to Strike the Defendant’s Special Defense of Comparative Negligence. The court agreed with the defendant’s argument and ruled that under the circumstances of this case, the defendant properly alleged the comparative negligence of the plaintiff/passenger. The court held that it was a question of fact whether the plaintiff’s actions in allegedly shifting her weight on a moped caused the moped operator to lose control and strike a parked car. The court also relied on Appellate Court authority from Caciopoli v. Acampora, 30 Conn. App. 327, 331(1993) in ruling that the defense was appropriate.
Defendant’s counsel may also consider raising the plaintiff passenger’s comparative negligence in the context of traveling in a vehicle with an operator who is intoxicated. When Connecticut enacted C.G.S. §52-572h (generally recognized as the comparative negligence statute), it abolished the harsh common law rule that the doctrines of contributory negligence, last clear chance, and assumption of the risk operated as a complete bar to recovery. This statute set forth a single standard of comparative negligence – to determine the relative negligence of each party.
In a recent case from the Spring of 2014, Norman v. Lamere, CV-13-6013701-S, the defendant attempted to raise the doctrine of assumption of the risk as a defense to the injury claim of a passenger injured when an intoxicated driver caused an accident. The plaintiff argued that the doctrine of assumption of the risk had been abolished. The defendant, however, argued that the defense was raised in the context of the plaintiff’s negligence which was not a complete bar to recovery, but merely afforded the jury an opportunity to consider whether and to what extent a plaintiff could be considered negligent for entering a car with an intoxicated driver. The court ruled that this defense was permissible because it was raised in the context of comparative negligence, not as an absolute bar to liability under a pure assumption of the risk defense. The defense maintained that the plaintiff’s injuries were caused by the plaintiff’s own negligence in voluntarily encouraging and facilitating the defendant’s intoxication and then entering the vehicle operated by the defendant at his own risk. While this defense was determined to be legally sufficient, the jury will have to determine whether the facts of the case warrant any finding for plaintiff’s alleged negligence.
The above examples demonstrate that simply because a plaintiff is a passenger in a vehicle does not always mean he/she cannot be determined to be comparatively negligent.