In 2007, plaintiff Edward Rogers and defendant Charles Duffy drank one or two beers and Duffy’s girlfriend’s apartment, then went to a bar and had another beer or two. Afterwards, Duffy and Rogers left the bar with Duffy driving and Rogers as a passenger in Duffy’s vehicle. At some point Duffy lost control of the vehicle, veered of the road and struck a telephone pole. Rogers allegedly sustained injuries, sued Duffy, and moved for summary judgment on the issue of liability. After his motion was denied by Westchester County Supreme Court, plaintiff appealed.

The Second Department affirmed the order because Rogers “failed to establish as a matter of law that Rodgers was free from culpable conduct with regard to the causation of his injuries.” The Second Department has held that a passenger in a vehicle, with knowledge that the operator may be intoxicated, takes a risk that injury might occur. That risk should be considered as part of the analysis of the comparative negligence of the passenger and the operator of the vehicle. Therefore, in order to prevail on this motion, plaintiff would presumably need to demonstrate that he was not aware that Duffy was intoxicated, which he likely would not have been able to do.

Thanks to Brian Gibbons for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06832.htm