Can The Negligence Of A Driver Be Imputed To The Owner Who Is A Passenger In His Own Car?

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Akin to the subject of Vicarious Liability is the question of Imputed Liability.  The case of Rocky Mountain Produce Trucking Co. v. Johnson, 78 Nev. 44, 369 P.2d 198 (1962) discusses the question of whether an injured owner-passenger can be tagged with the liability of the negligent driver to reduce or eliminate the owner’s his claim for damages against the driver using the theory of Comparative Fault.  Interestingly enough, the Rocky Mountain Produce Trucking opinion is at odds with Nevada’s Pattern Jury Instruction on the topic.  Let’s take a look.

In Rocky Mountain Produce Trucking, the tractor-trailer ran out of fuel.  The driver, Mr. Ence, pulled pull the rig to the side of the road with the right tires on the unpaved shoulder and the left tires still on the highway’s pavement.  Ence caught a lift to Ely, Nevada, bought some fuel, and hired a taxi to drive him to where his tractor-trailer was stopped.  By the time he got back to the truck, it was dark.

It just so happened that Johnson and Hildebrand had been out hunting that day.  They took Johnson’s car.  Before heading home, and they had a few beers.  Part way home, Johnson asked Hildebrand to drive because he was tired.  Johnson then fell asleep in the front passenger seat.

In the meantime, Ence had refueled and just started to pull his rig back out onto the highway when he was hit from behind by Hildebrand and Johnson.  Johnson was killed and his survivors sued Hildebrand for wrongful death.

The court gave two instructions to the jury.  The first instructions said in essence that if Johnson “authorized” Hildebrand to operate the Johnson car, then the jury could presume that Hildebrand was the agent of Johnson and that Hildebrand’s negligence would be imputed to Johnson, thus depriving the survivors of any recover.  The second instruction said that if Johnson “did not retain control of the direction over the automobile” that the driver’s negligence could not be imputed to Johnson” giving the survivors a recovery.  The Nevada Supreme Court approved these instructions leaving the decision of “control” up to the jury.

In contrast, the applicable Nevada Pattern Jury Instruction follows the position advocated by Johnson’s survivors saying:

The negligence, if any, of the driver of the vehicle in which the plaintiff was a passenger may not be imputed to the plaintiff.

The Pattern Jury Instructions were published after the Rocky Mountain Produce Case.  Why it was not followed is anyone’s guess.  And what the Nevada Supreme Court will do when faced with this question is also up in the air.  Just an interesting note to consider.