Unfortunately, the holidays produce a spike in accidents involving driving while impaired or intoxicated. According to the National Highway Traffic Safety Administration, 32,719 people died in traffic crashes in 2013 in the United States including an estimated 10,076 people who died in drunk driving crashes, accounting for 31% of all traffic deaths that year.
What responsibility does a passenger hold for getting in the car with a driver who the passenger knows is intoxicated? Can the Defendant escape or diminish liability with an assumption of risk defense?
In theory, a passenger can be charged with assumption of risk. The relevant case law holds:
"A passenger who is aware that intoxication has deprived the driver of reasonable control of the automobile may be found to be negligent, Strychalski v Dailey, 65 AD3d 546, 883 NYS2d 586 (2d Dept 2009); Bergeron v Hyer, 55 AD2d 1001, 391 NYS2d 767 (4th Dept 1977); Verdino v Hayes, 10 AD2d 978, 201 NYS2d 853 (2d Dept 1960); Burnell v La Fountain, 6 AD2d 586, 180 NYS2d 52 (3d Dept 1958). To take the issue to the jury there must be evidence, in addition to the fact that the parties drank together, from which impairment of driving ability can reasonably be inferred, Eisenberg v Green, 33 AD2d 756, 305 NYS2d 769 (1st Dept 1969); see Coleman v New York City Transit Authority, 37 NY2d 137, 371 NYS2d 663, 332 NE2d 850 (1975)."
The jury charge in New York on this issue is PJI 2:87 Motor Vehicle Accidents-Comparative Negligence of Passenger:
"Generally, a passenger is not responsible for the negligence of the driver of the vehicle. A passenger is entitled to assume that the driver will use reasonable care and will obey the traffic laws until the passenger has knowledge of facts indicating that the driver will not do so. A passenger must, however, use reasonable care for his/her own safety. Reasonable care means that degree of care that a reasonably prudent passenger would use under the same circumstances. In deciding whether the Plaintiff used reasonable care, you should consider all the circumstances in connection with the accident and the facts as you find them, including ([use factors which the evidence supports, such as:] the condition of the highway, the traffic conditions, the condition of the weather and of visibility, the Plaintiff's knowledge and experience with respect to the highway, his/her knowledge of the competency, ability, skill and condition of the driver, and the driver's apparent awareness of potential dangers). If you find that the Plaintiff failed to use reasonable care for his/her own safety you will find that he/she was negligent and you must then consider whether such failure was a substantial factor in causing the Plaintiff's injury."
The case of Strychalski v Dailey, 65 AD3d 546, 883 NYS2d 586 (2d Dept 2009) is controlling law in the Second Department. Here, the the Plaintiff failed to establish as a matter of law that he was free from culpable conduct with regard to the causation of his injuries (see CPLR 1411; Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 490 N.Y.S.2d 751, 480 N.E.2d 365; Beck v. Northside Medical, 46 A.D.3d 499, 846 N.Y.S.2d 662; Regan v. Ancoma, Inc., 11 A.D.3d 1016, 782 N.Y.S.2d 480; Halvorsen v. Ford Motor Co., 132 A.D.2d 57, 522 N.Y.S.2d 272). An individual who accepts a ride in a vehicle, with knowledge that the operator may be intoxicated, takes a risk that injury might occur. That risk should be considered as part of the analysis of the comparative negligence of the passenger and the operator of the vehicle (see generally Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d at 166-170, 490 N.Y.S.2d 751, 480 N.E.2d 365; Beck v. Northside Medical, 46 A.D.3d at 500, 846 N.Y.S.2d 662; Regan v. Ancoma, Inc., 11 A.D.3d at 1016, 782 N.Y.S.2d 480; Halvorsen v. Ford Motor Co., 132 A.D.2d at 62, 522 N.Y.S.2d 272).
A complete investigation of the case is necessary to give an opinion on the ability to diminish an award to the Plaintiff based on comparative negligence. I suggest you obtain the plea allocution from the guilty plea the insured driver took to driving while intoxicated and vehicular assault. You can also make a FOIL request for his police file to ascertain his level of intoxication. Plaintiff's BAC should be on the toxicology screen in the hospital record. If they were both high numbers and they were both out drinking together, you have at least the building blocks of this defense.
In my experience, a jury is reluctant to charge a passenger with assumption of risk with a guilty plea of the driver to DUI and the serious injuries sustained by the passenger. You have a tough battle to prevail on that issue.