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"Drag Race" Passenger Barred from Suing Drivers

Is the passenger in a vehicle responsible for the driver's reckless actions? TheAppellate Division, Third Department, recently answered that question "yes" in the context of an illegal drag race that resulted in the permanent paralysis of one teenager. The appeals court found the victim's own account of the drag race prevented him from recovering damages from any of the drivers involved.

Hathaway v. Eastman

This unfortunate case began in 2008 in the small upstate town of Scott. A group of teenagers were drinking after a Fourth of July party. There were three cars present, and the group's discussion turned to which of the vehicles was fastest. A drag race followed. The plaintiff was one of two passengers in a Chevrolet pickup truck driven by another man. The vehicles raced at speeds approaching 100 miles per hour when the truck ran off the road, hit a tree and flipped over. The plaintiff was thrown from the truck and suffered severe spinal injuries that rendered him a quadriplegic.

The plaintiff sued the drivers and owners of the other vehicles. Cortland County Supreme CourtJustice Phillip R. Rumsey granted the defendants' motion for summary judgment, however, holding the plaintiff was an active participant in the drag race, and therefore responsible for his own injuries as a matter of law. Rumsey cited the plaintiff's own account of what happened. "The Chevy pickup left the road almost immediately after plaintiff encouraged the driver to accelerate in a final effort to defeat the other vehicle [in the drag race]," Rumsey said, proving the plaintiff "knowingly and willingly participated in the illegal act of aiding or abetting the drag race, precluding him from recovery for the injuries that he sustained in the resulting accident."

In a decision issued on November 6 of this year, a divided Third Department agreed with Rumsey. The majority noted the plaintiff's "status as a passenger" did not absolve him of his participation in the drag race, or the consequences he suffered as a result. The majority said the only way the plaintiff could survive summary judgment here would be to disregard his own "pertinent pleadings, allegations and testimony" about what happened that night.

One judge disagreed with the ruling. She argued the defendants denied there was a drag race that evening, and for purposes of deciding a defense motion for summary judgment, the courts must view the facts in the light most favorable to the plaintiff—even if that is not necessarily the plaintiff's version of the facts. The majority, however, said because the plaintiff "has shown no inclination to depart from or modify his drag racing theory," there was no need for this case to go to a jury.

Aside from the obvious lesson that drag racing is illegal, dangerous and potentially deadly to participants and bystanders alike, this case illustrates how a plaintiff can defeat his own personal injury claim. Here, the trial court and the Appellate Division used the plaintiff's own testimony against him. As the dissenting judge noted, this effectively meant a drunk and negligent driver was not held responsible for his actions.

But this case also presented a unique set of facts. Just because you get into a car with a drunk or reckless driver, that does not mean that driver cannot be held responsible for his actions. If you need to speak with an experienced New York personal injury attorney about the circumstances of your accident,contact our office today.

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