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MOTOR VEHICLE ACCIDENTS

and

PASSENGER MISCONDUCT

By LTJG LEO J. COUGHLIN, JR., USNR*

M

OTOR VEHICLE ACCIDENTS are the result of causes ranging from stupidity to misadventure. They represent the leading source of peacetime casualties to members of the Navy and Marine Corps. During the year 1960, 506 marines and sailors died in motor vehicle accidents, and well over 5,000 more suffered nonfatal injuries.1 These statistics mean appalling human and economic losses.

Each one of these accidents in which naval and Marine Corps personnel die, are maimed or become unable to perform their duty in excess of 24 hours is the morbid consideration of investigative effort, and a fact-finding body must investigate and report the incident. These investigations seem incidental relative to the preservation (by prevention of accidents) of human life, but they are a necessary part of the administrative process.

The Judge Advocate General and other elements in the Navy receive a multitude of inquiries from wives, mothers, fathers, and other next of kin, who quite naturally consider the life of their son or husband a precious commodity, and who cannot be satisfactorally answered other than by adequate reports of the incidents. By congressional directive, a person in the military service who loses time (is physically unable to perform duty) as the result of an act which is not in the line of duty (misconduct, etc.) is ordinarily required to make up that time to fulfill his enlistment contract.2 In addition, the government will not be a person's insurer (pay disability benefits) if the person

*Lieutenant (junior grade) Leo J. Coughlin, Jr., U.S. Naval Reserve, is currently serving as an attorney in the Investigations Division of the Office of the Judge Advocate General. He received the B.S. degree from Canisius College and the LL.B. degree from the Fordham Law School. He is a member of the New York Bar, the American Bar Association and Secretary of the Navy-Marine Corps Junior Bar Association. Lieutenant Coughlin is a certified trial and defense counsel.

1. Motor Vehicle Accidents, Navy and Marine Corps, 1960 (article in NavMed P-5028 of August 1961, satistics of Navy Medicine). 2. 10 USC 972.

3. 10 USC 1207.

does not care that the consequence of his act will be injury to himself. A person who unnecessarily disregards the prospect of imminent injury cannot shift the financial consequences of his injury to the citizenry.

In order that a just determination may be reached on the question of responsibility for a person's injury, the report of the investigative body must provide the necessary information for complete understanding of the facts surrounding the incident. This is no less true when a passenger in a vehicle is injured, though reports submitted many times do not include information material to the passenger's injuries and require the costly and time consuming procedure of returning records for further investigation. The purpose of this article is to clear up the apparent misconceptions in the area of passenger misconduct, providing guidelines for fact-finding bodies in their search for essential information and more complete reports.

A passenger, because he is not operating the motor vehicle, does not abdicate his responsibility for his own safety. However, to breach his duty of responsibility, his act must constitute some form of negligence or his injuries must be intentionally incurred.

The relationship between negligence and personal injury is far reaching. It touches both civil and criminal law and is complicated by multiple forums (seats of judgment) and varying of the relationship both by statute and by court decisions. The words "reckless disregard" can be found in criminal indictments for differing degrees of murder or manslaughter and in complaints lying in personal tort asking relief by monetary judgments. Our focus will be on three concepts in the civil law which seem similar in application to the administrative determination of misconduct with regard to passengers. These three concepts are imputed negligence, assumption of risk, and contributory negligence. In the type of case where these concepts find application, the passenger

is suing to recover for his injuries from a person who is assumed to be at fault. The question is, then, whether the passenger's relationship or his personal fault during the incident prevents his recovery of monetary compensation for his injuries.

IMPUTED NEGLIGENCE

Under circumstances in which the doctrine of imputed negligence is applied, a person is held responsible for the negligence of another although he is not guilty of any personal negligence. The basis of responsibility is not personal fault but control over the person who was at fault. In civil law, a passenger may be charged with the negligence of his driver, thereby preventing the passenger's recovery for injuries received in the incident. The courts have exercised this doctrine where the driver and passenger joined to pursue a common purpose and where each was entitled to a voice in the control and direction of the vehicle. Imputed negligence has also been applied where a particular legal relationship (for example, principal and agent, or master and servant) existed between the driver and the passenger.5 The general rule of law is that the negligence of the driver is not imputed to the passenger where the passenger has no control or authority over the driver or the operation of the vehicle."

The doctrine of imputed negligence is inapplicable to the administrative determination of conduct status. In determination of conduct status, personal fault of the injured party is the deciding factor. However, the theory underlying a passenger's responsibility for his injuries where he possesses the control or authority over the operation of a vehicle is relevant to conduct status.

Failure to exercise proper control when the power of actual control resides in the passenger must be taken into account when determining the passenger's conduct. His failure to prevent the driver from acting in a grossly reckless manner may in itself be considered a grossly reckless act on the part of the passenger.

ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE

The doctrines of assumption of risk and contributory negligence, though not synonymous, have been applied to nearly identical fact situations as a defense in a passenger's law suit against the driver to recover for his injuries.

4. 5 AM. JUR. Automobiles § 500, § 501 (1941).

5. Note, 90 ALR 630 (1934).

6. Berry on Automobiles § 5.141 (7 ed. 1935).

The distinction between assumption of risk and contributory negligence varies from being clear and vital on one extreme to vague and insignificant at the other. However, it is not necessary for us to enter into the theoretical argument concerning these doctrines. It is sufficient, for our purpose, to describe assumption of risk as engaging in a course of action with knowledge of and consent to the dangers involved. The assumption of risk involved in an act can operate as an abandonment of the right to complain if an accident occurs.

Contributory negligence implies the doing of an imprudent act by the injured party, or the injured person's dereliction by failing to take proper precaution for his personal safety, and that the imprudent act or omission contributes to cause his injury. Contributory negligence does not vary in theoretical content from ordinary concepts of negligence; the term is for identification in usage.

The doctrines of contributory negligence and assumption of risk have been successfully raised in differing jurisdictions by a driver in a law suit against him instituted by a passenger who had prior knowledge of the driver's physical impairment (for example, intoxication) that caused the accident. This has also been the case where the passenger was aware of the driver's fatigue which caused him to fall asleep at the wheel of his automobile. The courts reason in such cases that a passenger by voluntarily continuing to ride with knowledge and appreciation of the hazard or danger is acting wholly inconsistent with his duty to secure his own safety. He is under a duty to exercise reasonable care to avoid injury to himself; to fail in this duty, or to assume the risks involved renders him as responsible for his own injuries as the driver, and his personal fault bars his action against the negligent driver. The negligence of another furnishes no excuse or relief to him from the consequences of his own action.

A passenger may to some extent, though not absolutely, rely that the driver will exercise reasonable care to avoid danger. Even so, it is well established that a passenger's conduct by commencing to ride or continuing to ride in a vehicle when he must have known that the driver was impaired is an act of independent negligence on his part.

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The Manual of the Judge Advocate General outlines the general principles to be applied to all incidents requiring conduct and line of duty determinations.

7. Note, 28 ALR 2d 12 (1953).

8. Huddy on Automobiles 908, 909 (6 ed. 1922).

MISCONDUCT DEFINED

A misconduct opinion is in order if the inury was either intentionally incurred or was he proximate result of gross negligence; i.e., an act which demonstrates a reckless disregard of the consequences." Thus, if an individual has been injured as a result of simple negligence on his part, the correct opinion is that his inury was not the result of his own misconduct. It is readily apparent that this involves both a difference in degree and also kind of negligence and is vital in ascertaining conduct status of njured personnel. Simple negligence is defined as "the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do." 10 Gross negligence has been defined as substantially higher in magnitude than simple inadvertence, but falls short of intentional wrong".11 These definitions are inadequate as a working rule to characterize what acts constitute misconduct. However, the requirement of "such gross negligence as to demonstrate a reckless disregard of the consequences" is illuminating in this regard.

Recklessness is a determination reached by evaluation of all facts in context and not by isolating and evaluating individual factors out of context.12 Criminal responsibility is predicated primarily upon conduct which is reckless towards others. In misconduct, the question of recklessness relates to the disregard of the individual for the safety of himself. Reckless conduct entails doing (or failing to do) an act under circumstances in which a reasonable man would realize that the act creates an unreasonable risk of harm to himself and that the risk involves a high degree of probability of substantial bodily harm.13 Thus, if the resulting generic type of injury is such that it could have been reasonably foreseen from the course of conduct (to use the magic words), and does in fact ensue, it is said to be the proximate result of such conduct.14

Clarification of these principles as they relate to passenger misconduct can best be accomplished by reviewing a few of the cases in which injuries to a passenger have been held to

9. JAG Manual sec. 0808a.

10. Black's Law Dictionary, 1184 (4 ed. 1951).

11. Supra at 1185.

12. MCM 1951, par. 190.

13. Restatement, TORTS § 502, comment a (1934). 14. JAG Manual sec. 0808a.

have resulted from his own misconduct. The fact situation which produces the majority of passenger misconduct determinations is one in which the passenger is riding with a driver who is manifestly unfit to operate the vehicle. Case 1: Driver Intoxication

An enlisted man, X, was ordered to have his civilian friend, Y, leave the base after both were found to be intoxicated but X was denied permission to depart. X was warned not to ride, or permit his friend to drive the latter's motor scooter because of Y's obvious alcoholic impairment and the consequent likelihood of an accident. Disregarding these warnings, X chose to ride as a passenger aboard the motor scooter driven by Y who, he knew, was intoxicated. Within 3 minutes after they left the base riding the motor scooter, they were involved in a collision when the driver (Y) attempted to pass another vehicle on the right and that vehicle made a right turn. Notwithstanding X's status as a passenger at the time, his injuries were held to have been incurred as a result of his own misconduct.15

17

The passenger's wrongful conduct consisted of voluntarily exposing himself to the unreasonable risk of substantial injury.16 Riding in a vehicle driven by a grossly impaired driver constitutes exposing oneself to substantial danger, an act of personal fault, and under the circumstances is an act of recklessness.18 It is reckless to perform an act involving unnecessary (unpermissible) risk which includes a high degree of probability that substantial harm will result.

Proper operation of a motor vehicle depends upon attentive and dexterious manipulation and proper judgment by a driver in order to minimize the dangers to safety inherent in vehicular travel. There is no doubt that operation of a motor vehicle by a driver who is manifestly unfit by reason of intoxication is likely to end in an accident resulting in substantial injury or death. The exceptional dangerousness of riding with an impaired driver is the basis upon which recklessness is predicated.

The fact that the passenger was under the influence of alcoholic intoxicants himself does not absolve him of his reckless conduct.

An example of application of this principle can be found in Davis v. Brooks Transportation Co., Inc., 186 F. Supp. 366 (D.C. Del. 1960),

15. OP JAGN 1960/408 1 Nov 1960, 10 DigOps, LOD sec. 41.3. 16. See: Weber v. Eaton, 160 F. 2d 577, 579-580 (D.C. Cir. 1947). 17. Restatement, supra note 13, § 466.

18. Restatement, supra note 13, § 502.

where the court quoted from a case decided in another jurisdiction, viz:

an

It is plain common sense that one who has voluntarily become intoxicated as to be bereft of his faculties ought not to be held exempt from . . . assumption of risk when he voluntarily enters and remains in automobile driven by a drunken driver. One who has become so bereft ought to be held to the same degree of responsibility for protecting himself that he would be subject to if he were not intoxicated. . . . The decedent [passenger], if he was so drunk that he did not appreciate the hazard incident to riding in an automobile driven by a drunken driver, was guilty of the same kind and degree of recklessness for his own safety as was the recklessness of the . . . [driver] for the safety of others. Reckless conduct of the guest should have the same effect as to himself, that reckless conduct of the host has to others. [Emphasis supplied.]

...

That an individual may engage in reckless conduct while under the influence of alcohol is well recognized in military criminal law. It is pointed out in the discussion of Article 3 (Drunken or Reckless Driving), Manual for Courts-Martial, United States, 1951, that the same course of conduct may constitute both drunken and reckless driving. Furthermore, evidence of drunkenness might be admissible as establishing one aspect of recklessness and, similarly, relevant evidence of recklessness might have probative value as corroborating other proof of drunkenness.19 Drunkenness may be considered as affecting mental capacity to entertain a specific intent when such is a necessary element of the offense. However, even here the Court of Military Appeals has held that a showing of voluntary intoxication alone is not a defense, for its degree must be such that the mental faculties of an accused have been so impaired that he cannot form the particular intent."

20

It is not necessary that the circumstances surrounding the injury event be anticipated in detail. The natural and probable result of riding with an impaired driver is injury in an accident caused by his improper operation of the vehicle. Here the driver, beclouded by the effects of alcoholic consumption, took an unreasonable risk when he passed another vehicle on the wrong side while approaching an intersection, and without giving warning, during the darkness of night. An accident resulting from such improper operation of the vehicle is not an intervening cause breaking the sequence of events. It is, rather, the foreseeable consequence of the course of conduct. If, however, the passenger

19. MCM. par. 191.

20. U.S. v. Wright, 6 USCMA 186, 19 CMR 312.

was injured when the vehicle was hit from behind while properly stopping for a red light, there would be no relation between the passenger's reckless conduct of riding with a manifestly impaired driver and the injuries he received. The cause of his injuries would be a new unforeseeable cause, i.e., the independent negligence of a second driver, and the expected result of the passenger's (and his driver's) negligence did not materialize.

Case 2: Driver Fatigue

X was driving his vehicle with Y and Z riding as his passengers. X had consumed a few beers, fell asleep while driving, and narrowly escaped having an accident when he was awakened by Y. In spite of this, X continued to drive. While traveling at approximately 60 miles per hour, he again fell asleep and the vehicle left the road on a curve. The injuries to X, Y, and Z were determined to have been incurred as a result of their own misconduct.21

While the act of falling asleep, in itself, does not constitute recklessness, the act of continuing to drive in defiance of premonitory symptoms (or other manifestations of the likelihood of falling asleep) does. The consumption of a significant amount of alcoholic beverages, coupled with high speed, also evidence the driver's disregard for the consequences. The passenger's recklessness consisted in their failure to take reasonable corrective action despite the manifest fatigue of the driver. The dangerous event of X falling asleep at the wheel the first time would clearly demonstrate to a reasonable man that the driver was impaired and not in a condition to continue to drive. They took no corrective action to insure that X drove slower, to replace him as driver or to leave the vehicle. They exposed themselves to the risk of substantial injury by riding with a manifestly impaired driver and the accident was caused by that particular driver impairment. This is recklessness.

Case 3: Joint Venture, Speed and Alcohol

Several servicemen were engaged in a trip during a 72-hour liberty period. They departed from San Francisco, California, with the intention of going to Medford, Oregon. Stopping along the way, they purchased beer and whisky which they drank while the automobile was in motion. As the journey proceeded, they alternated driving. X, the third driver, assumed the wheel after drinking a substantial amount of the whisky purchased. He drove at speeds

21. JAG:33.1:bmc Bnd #228-61 of 17 Feb 1961 (unpublished).

ranging from 60 to 80 miles per hour during the hours of darkness, and ran into the rear of another vehicle proceeding at a lesser speed in the same direction. Without stopping, X increased his speed to between 80 and 90 miles per hour. He lost control of the vehicle on a curve, left the road, and crashed over an embankment. All injured parties were held to have suffered their injuries as a result of their own misconduct.22 Every individual is responsible for his own safety and accepts the apparent risk which is inherent in the ventures that he joins. These individuals were involved in a joint venture with ever increasing clear manifestation of predictable danger and risk to each participant. They mutually contributed to create a dangerous situation, by jointly purchasing and consuming intoxicants while driving and by converting a period of travel into an underway party. The use of consecutive drivers despite the impaired physical condition and dangerous manner of vehicle operation by each new driver displayed a surrender of personal safety to group conduct. By adopting and assuming the course of group conduct as his own, an individual can not assert his isolation from group fault to avoid personal responsibility. The group conduct and, accordingly, each individual's conduct, in permitting an individual to drive who had consumed a substantial amount of alcohol, by accepting the dangerous driving practices of that individual in driving at high speeds at night, and by ultimately fleeing from the scene of an accident, was reckless in nature.

IN THE THREE CASES DISCUSSED above, driver impairment was an important factor. If the passenger had no personal contact with the driver or opportunity to observe his impairment prior to the accident, then the quality of recklessness is not present. The same is true if he discovers the driver's impairment after entering the vehicle and has no subsequent reasonable opportunity to depart or take other preventive action. The impairment of the driver must be of such a degree that a reasonable man-an objective legal standard-would realize that riding with him creates an unreasonable risk to himself. Thus, it must be readily observable that this particular driver is not in sufficient control of his faculties to safely operate the vehicle. As indicated, the act of exposing oneself to the observable risk must be unreasonable. A person is not required to refuse to ride with an impaired driver when such refusal would expose him to an equal or greater risk of harm.

22. JAG:33.1:bmc Bnd #4745-61 of 2 Jun 1961 (unpublished).

Illustratively, it may be safer to ride with a grossly intoxicated driver than to remain in a desert or blizzard without other means of relief.

Another situation involving passenger misconduct which is noteworthy, but which arises less frequently, is interference with the operation of the vehicle. Interference can take numerous variations, and each case must be decided upon whether the passenger's conduct was reckless under the circumstances. Generally, physical interference with another's operation of a vehicle is a grossly negligent act. However, where the driver is unaware of an impending emergency (e.g., the driver falls asleep) it would be reasonable for a passenger to assume control of the moving vehicle to prevent an accident. This action could not be considered misconduct because it is not wrongful conduct.

One other situation bears mentioning in which the position of each passenger in a vehicle, where and how they are seated, are pertinent facts. If a passenger assumes a position of unnecessary danger, for example, while traveling at high speed, riding on top of the back seat of an open convertible or riding with a leg or arm protruding from one of the doors or windows in such a way that it may come in contact with outside objects, such conduct may constitute recklessness on his part.

Incidents involving unauthorized use of a motor vehicle must be distinguished from all other categories of passenger misconduct. There is no requirement here that the injury be the proximate result of the wrongful conduct. It need only be established that the injury occurred while the passenger was engaged in the theft or wrongful appropriation of the vehicle, or while he was voluntarily participating in the use of the vehicle, knowing it to have been stolen or wrongfully appropriated.23 Once it has been ascertained that a passenger (or driver) falls within this category, special rules require a misconduct determination.

We have mentioned but a few of the multiple fact-situations involving passenger misconduct. A need for more comprehensive investigations in this area was recognized in section 0903b, Manual of the Judge Advocate General, which set forth the following illustrative list of information to be provided with respect to passengers:

(1) Conduct of any passenger and effect thereof on the driver.

(2) Prior relationship of passengers and driver which is relevant to knowledge by passenger of any

23. JAG Manual sec. 0809a.

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