Assumption of the Risk and the Intoxicated Driver
August 5, 2020
The Court of Special Appeals upheld a jury’s finding that the Plaintiff assumed the risk of her injuries after she rode as a passenger in a car with the Defendant, whom she admitted appeared to be intoxicated.
The case stems from an accident which occurred on November 10, 2013. Kerry Evans filed a complaint grounded in negligence against Joshua Shores who was intoxicated when he drove her home from several different parties throughout the evening. Evans knew that Shores had been previously convicted of driving under the influence and had observed Shores drink several alcoholic beverages before attempting to drive her home.
The Defendant argued at trial that Plaintiff assumed the risk of her damages by getting into the vehicle with him after observing him drink throughout the course of the evening. The Defendant presented evidence that before attending a bonfire party with other friends, the Plaintiff observed him consume four beers and one shot of whiskey. Plaintiff and Defendant then left the bar and went to a liquor store where they purchased an eighteen pack of beer, and they each consumed one beer while en route to the bonfire party where Plaintiff personally observed the Defendant drink another four to five beers. Plaintiff testified at trial that, once Plaintiff got into the vehicle with Defendant, it took him several attempts to get out of the driveway. The Defendant crashed the vehicle into a ditch and he was then arrested for driving under the influence after being found to have a .15% blood alcohol content.
The Defendant also produced an expert toxicologist to testify about the physiological effects of having a .15% blood alcohol content. The expert testified that his level of intoxication would have been noticeable. The jury agreed and found that the Plaintiff voluntarily encountered a known risk when she allowed the Defendant to drive her home.
There are several factors that the court looks to when determining whether the passenger in a vehicle “assumed the risk,” that is whether they knew or should have known, the driver was intoxicated. Those factors include, close proximity to the driver throughout the evening before the accident, personal observation of the driver, and specific knowledge as to whether the driver had been drinking before driving.