CHAPTER FIFTEEN ACCIDENTS INVOLVING MULTIPLE PARTIES
| Jurisdiction | Maryland |
CHAPTER FIFTEEN ACCIDENTS INVOLVING MULTIPLE PARTIES
DAVID M. KOPSTEIN was born in Champaign, Illinois on May 1, 1954. He was educated at the University of Wisconsin (B.A. 1976) and the Georgetown University Law Center (J.D. 1979). He is admitted to practice in Maryland, Virginia, and the District of Columbia. He is a Fellow of the National College of Advocacy.
Mr. Kopstein has served as the President of the Maryland Association for Justice and is a member of the Maryland State Bar Association, the American Association for Justice, the Maryland Association for Justice, the Virginia Trial Lawyers Association, the Prince George's County Bar Association, and the Fairfax Bar Association. Mr. Kopstein has written various articles published in TRIAL Magazine. He has extensive experience handling state and federal appeals. Mr. Kopstein litigated numerous complex personal injury, business, and insurance cases in Virginia, Maryland, D.C., and elsewhere.
I. INTRODUCTION
This chapter is intended to provide only a brief overview of the variety of theories of liability that may come into play in an accident involving more than one person. Also consult the chapter in this book that deals with a particular type of accident for more specific discussions of the liability that might be involved.
II. AGENCY
A. Employers
In accord with customary principles of agency, an employer is liable for the negligent conduct of an employee, servant, or agent if the agent is acting within the scope of his or her authority. The employer is liable only if the employee's conduct was in furtherance of the employer's business and authorized by the employer.1 The existence of the agency relationship and the scope of authority normally are jury questions.2 However, it has been recognized as a matter of law that, absent special circumstances, an employer cannot be held vicariously liable for the negligent conduct of an employee that occurs while the employee is traveling to or from work.3
B. Owners
There is a presumption that the negligent operator of a vehicle is the agent, servant, or employee of the owner acting within the scope of employment.4 This presumption may be rebutted, however, by evidence that the operator was not, in fact, acting as the agent, servant, or employee of the owner.5
While the owner may be held liable for the negligent operation of his vehicle by an agent, the owner cannot ordinarily be held liable for the negligence of third persons who are permitted to use the vehicle by the agent without the owner's permission.6
C. Spouses
The usual rules of agency are applicable to situations involving spouses. Thus, a husband-owner of an automobile may be held vicariously liable for the negligence of his wife when she is operating a motor vehicle as his agent.7
III. ASSUMED RISK BY PASSENGERS
Under the doctrine of Assumption of Risk, injured plaintiffs may not recover if the injury resulted from taking a risk that they should have known would result in injury. This defense will apply where the passenger knows or ought to know that a driver is too intoxicated to drive safely.8 It has also been applied where the passenger knowingly rides with a driver who had a bad driving record.9 A person helping a learner-driver does not, as a matter of law, assume the risk of any accident resulting from the driver's inexperience.10
IV. CONTRIBUTORY NEGLIGENCE BY PASSENGERS
A passenger in a motor vehicle has certain duties as passenger, and the breach of those duties may constitute contributory negligence. For example, passengers have a duty to protest excessive speed11 or the driver's lack of attention.12 Passengers may be guilty of contributory negligence in failing to see and warn of the approach of another vehicle.13 They may have a duty to take the wheel away from an intoxicated driver.14 A passenger is not negligent in riding with an intoxicated driver if the passenger is unaware of the intoxication and does not notice anything which would arouse the suspicions of a person of ordinary prudence.15
It remains to be seen, however, whether a passenger can be contributorily negligent in a situation where the driver's duty is nondelegable. For example, by statute, a motorist may not change lanes "until the driver has determined that it is safe to do so."16 This duty has been held to be nondelegable.17 This is consistent with case law recognizing that a driver who fails to yield the right of way cannot avoid liability by proving that he was "waved on" by another person.18
V. IMPUTED NEGLIGENCE
A. Generally
It has long been recognized that in certain relationships, the negligence of the driver may be imputed to the passenger in a motor vehicle without regard to the nature of the expedition during which the accident occurred. In that regard, the theory of imputed negligence differs from that of agency as a basis for transferring negligence of the driver to a passenger or third person.19 Over time, however, the doctrine of imputed negligence has so greatly weakened that it may no longer survive.
B. Owner as Passenger
It has long been the law that the negligence of a driver may be imputed to a non-driving owner of a vehicle while he or she is in it.20 This is based on the assumption that the owner, although not behind the wheel, has the right to control the operation of the vehicle.21 This is a rebuttable presumption.22 When strictly applied, this doctrine not only renders the owner liable to others for the consequences of the driver's negligence; it also renders the owner contributorily negligent as a matter of law, thus barring any claim for the owner's injuries.23
In Seaborne-Worsley v. Mintiens,24 however, the Court of Appeals held that the doctrine would no longer be applied to hold an owner passenger contributorily negligent. While the Court declined to abrogate the doctrine of imputed negligence in its entirety (it being unnecessary to do so in the context of that case), the Court's reasoning strongly suggests that the doctrine will not survive much longer.
C. Passenger is Bailee
The negligence of a driver may be imputed to a bailee of a vehicle while he or she is in it.25
D. Joint Ventures
Where occupants of a vehicle are engaged in a joint enterprise, the negligence of one of them will generally be imputed to the other(s) in an action brought by a third party, but not in an action brought by one member of the enterprise against another member who owns or operates the vehicle.26
VI. JOINT TORTFEASORS
The Maryland Uniform Contribution Among Joint Tort-Feasors Act27 applies to auto torts.28 The driver and the owner collectively are considered only one share of liability for purposes of the Act.29 Successive tortfeasors have been distinguished from joint tort-feasors,30 but successive tortfeasors can be equally responsible where the damage is not divisible.31 Contemporaneously negligent parties can be found liable for the cumulative harms that results even if the onset of their negligence occurred at different times.32
VII. SERVING ALCOHOL
A bar owner, in serving alcohol to a bar patron, owes no duty to those injured by the negligent driving of the intoxicated bar patron and consequently has no "Dram Shop" liability to the injured persons.33 Likewise, a social host serving alcohol generally has no such liability.34 By contrast, however, an adult can be held liable if he knowingly and willfully allows an underage person to possess or consume alcohol in his home and the underage person then causes injury to others.35
VIII. LAST CLEAR CHANCE
If a plaintiff is negligent, such negligence will not bar recovery if the defendant had and was aware of a distinct, subsequent opportunity to avoid injuring the plaintiff and failed to do so. In order to invoke the doctrine of last clear chance, the plaintiff must show that there was time after obtaining such knowledge in which to make an effort to save the plaintiff from impending danger.36 For the doctrine to apply, the defendant's negligence must have been subsequent to, and not concurrent with, the plaintiff's own negligence.37 The doctrine cannot be invoked when the plaintiff's own act is the final negligent act.38
The doctrine has been applied where the plaintiff was:
1. a passenger riding in the back of a pickup truck;39
2. a pedestrian;40
3. in a vehicle stuck on railroad tracks;41
4. a worker on a platform extending into traffic;42 and
5. a passenger on the hood of a car.43
The doctrine has been found inapplicable in various situations where the plaintiff was:
1. a bicyclist who went through a stop sign;44
2. a skateboarder who violated the Boulevard Rule;45
3. a passenger in a truck stopped for one minute on the wrong side of the road;46
4. a cab driver who did not back off streetcar tracks;47
5. in a car stalled in an intersection for a long time;48 and
6. in a bus at a railroad crossing.49
IX. NEGLIGENT ENTRUSTMENT
An owner of a car may be found liable for the tort of negligent entrustment when the owner permits another to use the car when the owner knows, or reasonably should know, that the other person is likely to use the car in a manner likely to cause injury to others.50 This is a form of direct negligence rather than a theory of vicarious liability.51 Thus, in Kahlenberg v. Goldstein,5...
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