With the holidays approaching soon, I expect that there will be many more opportunities for people to drive after consuming alcohol. Of course, most people know that a drunk driver who causes injury or death can be sued for this unlawful conduct. But, did you know that a passenger who knowingly rides with an intoxicated person can be held responsible for the passenger's own injuries or death arising from a drunk driving accident?

Yes, it's true. A case decided last October by the Washington Court of Appeals affirmed a jury's decision to hold a passenger 35% responsible for her own injuries after accepting a ride from a driver she knew to have consumed alcohol earlier in the evening.

In the case of Hickly v. Bare, 135 Wn. App. 676 (October 2006), the driver admitted to consuming at least 6 beers earlier that evening. The passenger (Hickly) admitted to consuming 3 drinks before the accident but testified at trial that she was not intoxicated when she got into the vehicle. Another passenger (the drunk driver's brother) testified that the driver appeared too intoxicated to drive, but he decided to get into the vehicle anyway. All 3 occupants had been at a tavern earlier in the evening where they consumed alcohol. The testimony established that all three were at the tavern for more than four (4) hours.

Shortly before they left the bar, Hickly spoke with the driver about whether he was able to drive. According to Hickly, the driver appeared fine to drive. She testified that he "walked fine, was able to handle his keys and functions of the vehicle, and did not slur his speech." The driver's brother however, disagreed with Hickly's observations of the driver. He testified that his brother was too drunk to drive. Shortly after Hickly got into the car, the driver lost control of the vehicle and nearly hit a telephone pole. He went off the roadway where the car flipped at least 3 or 4 times. A passerby who stopped to render aid testified that the driver appeared intoxicated. Hickly filed suit against the driver and alleged that she suffered permanent neck and back injuries due to the accident.

The driver admitted that he was intoxicated and that he caused the accident. But he also claimed that Hickly had also negligently caused or contributed to her own injuries by agreeing to ride with a driver that was intoxicated. Thus, the only issue before the jury was apportionment of fault and damages.

At trial the jury was instructed by the judge that Hickly could be held negligent for causing her own injuries if they found that she rode in a vehicle operated by a person known to be intoxicated. Apparently the jury agreed with the drunk driver's attorney by holding Hickly 35% responsible for her injuries when she accepted a ride from a person she knew, or should have known was intoxicated. Hickly's damages were then reduced by 35% to account for her own negligence.

The appeals court also said that if the jury had found that Hickly was intoxicated when she was injured, then her intoxication might have operated as a COMPLETE DEFENSE precluding recovery of damages altogether. But only if the drunk driver had established that (1) Hickly's intoxication proximately caused her own injuries; and (2) Hickly was more than 50 percent comparatively at fault in causing her injuries. Hickly was fortunate in this case because the jury did not believe that she was intoxicated even though she had consumed alcohol earlier in the evening.

The lesson from this case should be clear. Even if you don't consume alcohol, if you knowlingly get into a vehicle with a person whom you knew, or should have known, was intoxicated you could be held responsible for causing your own injuries if there is an accident. You can bet the insurance company will defend such a case vigorously by arguing this new case. Don't ever knowingly accept a ride from someone who has consumed alcohol.