More Jury Instructions for West Virginia Personal Injury Trials – Passengers

I’ve often referred to jury instructions as being the best guide of what West Virginia law is with respect to personal injury cases, and automobile injury litigation in particular.  Here are some more having to do with passengers:

PASSENGER LIABILITY FOR INJURIES
CAUSED BY DRIVER’S INTOXICATION

    A passenger may be found liable for injuries to a third party caused by the intoxication of the driver of the vehicle in which he is riding, if the following conditions are met:

    (I)    The driver was operating his vehicle under the influence of alcohol or drugs which proximately caused the accident resulting in the third party’s injuries, and

    (2)    The passenger’s conduct substantially encouraged or assisted the driver’s alcohol or drug impairment.

Wheeler v.Mumhig, 452 S.E.2d 416 (W.Va. 1994)

JOINT ENTERPRISE

     When two or more persons undertake an activity involving an automobile for a common purpose, with the common right to control the use of the vehicle, then each is liable for any negligence of the other occupants of the vehicle that is committed during the operation of the motor vehicle. Therefore, the negligence of one of the occupants of the vehicle is imputable to the other occupants of the vehicle if there was a common right to control the vehicle by the other occupants of the vehicle.
    However, a passenger in a motor vehicle is not responsible for any negligent acts of the driver of the vehicle by the mere fact the driver and passenger were riding together to the same destination for a common purpose, when the passenger had no voice in directing and controlling the operation of the motor vehicle. 

Price v. Haistead, 177 W.Va. 592, 355 S.E.2d 380 (1987).

Wheelerv. Mumhu, 452 S.E.2d 416 (W.Va. 1995).

 
“JOINT VENTURE” INSTRUCTION

     A “joint venture” is an association of two or more persons to carry out a single business enterprise for profit. To constitute a joint venture, each party must contribute something promotive of the enterprise. This can be property, money, efforts, skill, knowledge or anything else which has value and “promotes” the common undertaking. The contributions of the respective parties need not be equal or of the same character. Where a joint venture exists, each joint venturer is liable for the negligence of his or her co-venturers committed within the scope of the enterprise.

Price v.Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987) Single v. Starr, 520 S.E.2d (W.Va. 1999)

   
SUBSTANTIAL ASSISTANCE AND ENCOURAGEMENT BY PASSENGER

    A guest passenger may be held liable for the consequences of the driver’s negligent operation of his motor vehicle, where the guest directs or encourages the negligent act, or personally co-operates therein. Ratification of the negligent conduct of the driver by a guest may be equivalent to command, and co-operation may be inferred from acquiescence where there is power to restrain.

Price v. Haistead, 355 S.E.2d 380 (W.Va. 1987)

“PASSENGER’S DUTY TO WARN DRIVER” INSTRUCTION

    The Court instructs the jury that in the ordinary operation of an automobile under circumstances and conditions which may be considered usual for the street and road being traveled, a guest in the automobile such ps the plaintiff, , is not required to be constantly at the height of attention and alertness in order to raise an instant alarm if danger should arise.

Darling v. Browning, 120 W.Va. 666, 200 S.E. 737 (1938).

“NEGLIGENCE OF PASSENGER RIDING WITH AN 
INTOXICATED DRIVER” INSTRUCTION
  
Contributory Negligence of Passengers in Automobile

     In order for you to find that [passenger] was contributorily negligent for getting into the automobile with [driver] as the driver or remaining in the automobile with Edriver] as the driver when [passenger] could have gotten out prior to the wreck that injured him, you must find (1) that [passenger] knew, or by the exercise of reasonable care should have known, [driver] was drinking, and (2) that [passenger] knew or in the exercise of reasonable care should have known that [driven's ability to drive was impaired. Unless you find that [passenger] knew, or by the exercise of reasonable care, could have known that [driver]’s driving was impaired before he entered [drivel's automobile or remained in it as passenger after being afforded the opportunity to get out, you cannot find that [passenger] was contributonily negligent.

    Further, if you find that (passenger] only discovered that (drivel’s driving was impaired when he began to speed and drive recklessly, and that [passenger] had no reasonable alternative but to stay in the car after protesting the driving to [driver], then, in that event, [passengerj could not be contributorily negligent.

Meade v. Meade, 147 S.E.2d 171 (Va. 1966)

 - John H. Bryan, West Virginia Car Accident Attorney.

Liability of Employers and Owners Whose Vehicles Are Involved in West Virginia Car Accidents

Some of my previous posts have covered topics of West Virginia car accident law by going over jury instructions that have been proposed by the West Virginia Supreme Court of Appeals for jury trials in car accident cases in West Virginia. In this posts I will go over some jury instructions – and hence West Virginia law – regarding situations where employees and owners of vehicles can be liable for the negligent or reckless acts of the person driving the vehicle. These are instructions on the law that are given to the jury by the judge after the trial, but prior to their deliberations. The purpose is to tell the jury what the law is, so that they can apply their findings of fact to existing West Virginia law.

Employer’s Liability for Employee’s Negligence

An employer is liable for all damages proximately caused by the negligence of his employee who is acting within the scope of his employment.

An employee is acting within the course of his employment when he is engaged in doing, for his employer, either the act directed by the employer or any act which can fairly and reasonably be deemed to be a natural, direct and logical result of the act directed by the employer. If in doing such an act the employee acts negligently, that is negligence within the course of the employment.

In order to recover against (name of employer), the plaintiff has the burden of proving by the greater weight of the evidence that (name of employee) was the employee of (name of employer), that (name of employee) was negligent while acting within the scope of his employment, and that this negligence proximately caused damage to the plaintiff.

Courtless v. Jolliffee, 507 S.E.2d 136 (W.Va. 1998)

Liability of Corporation for Acts of Employees, Agents, or Officers

A corporation acts by and through its officers, agent, and employees, and if you find that an officer, agent or employee of the defendant corporation, ___________________ was negligent in the performance of his duties, then such negligence is attributable to the corporation and considered negligence on the part of such corporation, including the failure to comply with applicable automobile and road safety laws.

Family Vehicles – a.k.a., the “Family Purpose Doctrine”

When the owner of a motor vehicle purchases and maintains an automobile for his family’s comfort, convenience, pleasure, entertainment and recreation, then any family member who uses the automobile for such purposes is regarded as the agent of the owner. Consequently, if a family member operates the automobile in a negligent manner the owner of the automobile will be liable for damages sustained by a third person which occurred as a result from the negligent operator of the vehicle.
Cole v. Fairchild, 482 S.E.2d 913 (W.Va. 1996)

A Defense to Employee/Owner Liability is Alleging the Driver was an “Independent Contractor”

If ___________ was acting as an independent contractor, then D________ has no responsibility for _________’s acts. If _______is an agent of D _______ , then ____________ is responsible for any of _________’s negligent acts. Whether or not ________is an independent contractor or agent depends on whether D__________controlled, or had the right to control, the work of _________. Control in this sense means the right to determine where and in what manner the work would be done. It does not matter that D___________ never actually exercised control over _________, as long as D_________ reserved to itself the right to do so.

If you find that D________ had the right to control the work of ___________, and then D__________ is liable for any negligent acts or omissions of ________’s employees, including their failure to comply with applicable automobile and road safety laws.

Paxtori. v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245, 252 (W.Va. 1990) Sanders v. Georae of Pacific, 159 W.Va. 621, 225 S.E.2d 218 (W.Va. 1976)

You can visit the Supreme Court’s website to view the jury instructions in full here.

– John H. Bryan, West Virginia Car Accident Attorney.

WV Car Accident Law Regarding Pedestrians

Unfortunately, there have been many accidents in WV lately involving pedestrians who have been seriously injured or killed. It is important to look at what WV law actually says about situations where pedestrians are struck by cars and suffer personal injuries or death. What better way to look at this than to examine jury instructions that are actually given to juries considering these issues. Following you will find proposed jury instructions that instruct jurors in personal injury cases as to WV law regarding pedestrians. These jury instructions were provided by the State of West Virginia, and can be found here.

Pedestrians Crossing Highway Other Than Crosswalks

Every pedestrian crossing a roadway, at a point other than a marked crosswalk, shall yield the right-of-way to all vehicles upon the roadway. Nevertheless, every driver of an automobile shall exercise due care to avoid colliding with any pedestrian so crossing upon any roadway and shall give warning by sounding the horn when necessary.

Statutes: 17c-1O-3; 17c-1O-4
Caselaw: Kretzer v.Moses Pontiac Sales, Inc., 201 S.E.2d 275

Pedestrians Crossing Highway Within a Crosswalk

When traffic control signals are not in place or not in operation at a crosswalk, the driver of a motor vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the motor vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger. Every driver of a motor vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary.

However, no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a motor vehicle which is so close that it is impossible for the driver to yield.

Statutes: 17c-1O-2; 17c-1O-4

General Instruction Concerning Duty of Driver to Pedestrian

Every driver of a motor vehicle shall exercise due care to avoid colliding with a pedestrian upon any roadway and shall give warning by sounding the horn when necessary.

Statute: 17c-10-4

Duty of Driver to Child, Confused or Incapacitated Person Upon the Roadway

Every driver of a motor vehicle shall exercise due care to avoid colliding with a pedestrian upon any roadway and shall give warning by sounding the horn when necessary. In addition, the driver of a motor vehicle shall exercise proper precaution upon observing any child, or any confused, or any incapacitated person upon the roadway.

Statute: 17c-10-4

Passing a Vehicle Stopped at a Cross Walk When a Pedestrian is Present

Whenever any vehicle is stopped at a marked crosswalk, or at any unmarked crosswalk at an intersection to allow a pedestrian to cross the roadway, the driver of any other vehicle approaching the stopped vehicle from the rear shall not overtake and pass such stopped vehicle.

Statute: 17c- 1O-2b

Lastly, regarding these statutes, violation of a statute by a driver itself is prima facie evidence of negligence. Thus, usually the following jury instruction is given regarding violation of a statute:

Violation of a Statute Instruction

Prima fade evidence of negligence is evidence that is sufficient in and of itself to establish a given fact. In other words, if you find that the defendant violated any of the statutes regarding the operation of motor vehicles in the State of West Virginia, then the establishment of that fact is in and of itself sufficient to establish negligence on the part of the defendant.

For the defendant to overcome this evidence, the defendant must present evidence himself that said negligence was not a proximate cause of the plaintiffs injuries and damages.

Caselaw: White v. Lock 332 SE. 2d 240 (W Va. 1985).

– John H. Bryan, West Virginia Car Accident Attorney