POTENTIAL LIABILITIES ARISING FROM THE USE OF AN AUTOMOBILE

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This article addresses some possible liabilities which arise from the use and ownership of an automobile. Of course, any driving of a motor vehicle creates the risk that a driver will cause or allow his car to hit another vehicle, a pedestrian, or a building or other object. When this happens, who must pay?

Generally, a person who is negligent will be held liable (legally responsible) for the damages caused by his negligence. Negligence is either (a) doing something a reasonable person would not have done, or (b) failing to do something a reasonable person would have done. Simply put, negligence is not acting in a reasonable manner. Whether particular conduct is reasonable can be decided in one of three ways: (1) settlement among the parties, (2) a jury verdict, or (3) in cases in which the judge believes that "reasonable minds could not differ" as to the negligence of the parties, a decision by the judge.

In many auto accidents, there is one driver who is negligent and one driver who is not negligent (the "innocent" driver). The negligent driver may be found to be negligent because he was driving too fast, which is something a reasonable person would not have done.

A few auto accidents happen without any negligence on the part of either driver. For example, a young person who is thought of as the "picture of health" may suffer an unexpected heart attack while driving and, because of his heart attack, lose control of his car, which crashes into another vehicle. In that case, the driver who suffered the heart attack would quite surely not be found to be negligent, since he was not acting unreasonably.

However, consider the example of a person who suffers from epilepsy and who knows that he could be stricken with an epileptic seizure at any time. If he suffers a seizure while driving and therefore crashes his car into another vehicle, he will quite surely be negligent since a reasonable person who was subject to sudden epileptic seizures would not have been driving in the first place.

In some auto accidents, there may be more than one person who is negligent. For example, one driver may "roll" through a stop sign and have a collision with a driver who, although he had the right of way, was driving at an excessive rate of speed. In that case, both drivers would be negligent.

In a case where both drivers are negligent, their percentages of negligence must be compared. In Oklahoma, a jury would allocate 100% of the negligence between the two drivers, and any person found to be more than 50% percent negligent (i.e., more than 50% of the cause of the accident) would not be entitled to recover.

For example, if Joe suffers damages in the amount of $10,000 and was 25% negligent, and Sam suffers damages in the amount of $100,000 and was 75% negligent, then Joe's recovery would be reduced by his percentage of negligence (25%), so that he would recover only $7,500 ($10,000 reduced by 25%). Furthermore, since Sam was more than 50% negligent, he would recover nothing, despite the fact that he suffered $100,000 in damages, which were partly caused by Joe.

The foregoing covers the most common circumstances involving the negligence of the driver. However, there are other circumstances in which other persons, such as the owner of the vehicle or a passenger, can be held liable for damages arising from the use of a vehicle.

The law generally holds negligent persons responsible for the consequences of their negligence. While the driver of an automobile is usually the one who is held responsible to those injured in an auto accident, the driver is not the only person who can be held responsible for injuries arising from an auto accident.

Generally, anyone whose negligence causes or contributes to an auto accident can be held liable to those injured. Examples of persons other than automobile drivers who can be negligent are:

 A pedestrian or bicyclist who negligently darts in front of a car, causing the car driver to swerve and strike another car, regardless of whether the pedestrian or bicyclist is struck by either of the cars.

 A homeowner who parks his black trailer, which has no reflectors or lights, in the road at night, causing a car driver to be unable to see the trailer in time to avoid hitting it.

 A passenger who unreasonably fails to warn the driver of a danger, if a reasonable warning could have prevented the accident (a passenger being held liable for the acts of a driver is quite rare since most accidents occur with insufficient warning to allow a passenger to perceive a dangerous situation, communicate the danger to the driver, and have the driver perceive the warning and decide to act upon it).

However, it is possible for an accident to be caused, in whole or in part, by the negligence of a person who is nowhere near the scene of the accident, such as the case in which a husband who knows that his car's brakes have failed merely tells his wife to hurry home from her errand in the car. In that case, the husband would be negligent because it is not reasonable for the husband to fail to warn his wife that his car had no brakes.

There is also a legal theory known as "negligent entrustment," which provides that an owner or provider of a vehicle has a duty to use ordinary care to avoid lending it to another person whom he knows, or reasonably should know, is intoxicated, careless, or incompetent to drive. This theory can be applied to many different situations, such as:

 A father who allows his sixteen-year-old son to take the son's own car out for a Saturday night, despite the father's knowledge that the son frequently drives under the influence of alcohol. If the son's drunk driving causes an accident, the father can be held liable if he is found to have acted unreasonably.

 A woman lends her motorcycle to her friend, despite the woman's knowledge that her friends has never operated, and does not know how to operate, a motorcycle. If the friend's inability to operate the motorcycle causes an accident, the woman can be held liable if she is found to have acted unreasonably.

 A daughter lends her car to her elderly father, whom the daughter knows can barely hear and see. If the father's poor hearing or eyesight causes an accident, the daughter can be held liable if she is found to have acted unreasonably.

These examples should not be interpreted to mean that every parent whose child has ever consumed alcohol or received a traffic citation should be automatically deprived of the privilege of having his own car, or that every person with an aging parent should hide the parent's car keys. Rather, these examples should be read with the emphasis on the qualifier that the person entrusting the vehicle will be responsible for the entrustee's negligence if the entrustor acted unreasonably.

We have discussed the different ways in which a person can negligently cause or contribute to an automobile accident and thereby become legally responsible to those injured in the accident. Although a negligent person is in many circumstances the only person who can be held legally accountable for the injuries he caused, there are certain situations in which completely "innocent" persons can be held legally accountable for the negligence of others.

One of the most common situations in which an "innocent" person is held responsible for another person's negligence is when an employee negligently causes an accident while he is on company business (or, in legal terms, "within the scope of his employment"). In such situations, the law imposes liability upon the employer even though the employer was not negligent. For example, if the owner of a wrecker service sends his employee to a specific location to tow a broken-down vehicle, and the employee negligently causes an accident while driving the wrecker to or from the broken-down vehicle, the owner-employer will be held liable for the employee's negligence, even though the owner was himself in no way negligent.

This imposition of liability on the nonnegligent owner may initially seem a bit harsh, but it is based upon the public policy of making business owners--those who profit from their business--also bear the risks created by the operation of their business. The imposition of liability upon a nonnegligent business-owner is generally limited to situations in which the employee was negligent at a time he was intending to serve his employer or doing something reasonably related to serving his employer.

For example, if an employee causes an accident in his own personal vehicle after hours, his employer will generally not be responsible. In Oklahoma, employees are generally considered to be not on company business when traveling to work to begin a shift, when traveling from work after a shift, or when traveling to or from work on their lunch hour. Therefore, an employer will usually not be held liable for any negligence of his employee committed during one of these times.

However, there are many situations which are not as clear-cut as the foregoing examples. Consider the situation in which an employer says to his employee, "You're going by the office supply store on your way back from lunch, so stop and pick up some copy paper." In that situation, while the employee is on his way back from lunch, he may be said to be serving two purposes: (1) the personal purpose of getting to work, and (2) the purpose of assisting his employer in obtaining office supplies. In Oklahoma, the employer will probably not be held responsible for the employee's negligence committed while going to lunch (since the trip to lunch was purely personal), but would probably be held responsible for the employee's negligence committed while returning from lunch (since the employee was serving his employer, even though the employee combined the employer's trip with his return from lunch).

Whether an employee was acting within the scope of his employment in these "hybrid" cases is a factual question of whether the employee was intending to serve his employer or doing something reasonably related to serving his employer. Like other factual questions, this question must be decided by a jury (unless the parties reach a settlement).

This "Legal Update" is provided as a public service of Garvin, Agee, Carlton & Mashburn. It is intended to provide general information about the law, and is not a substitute for the advice of an attorney as to specific facts and circumstances. Anyone having any questions regarding the matter contained in this article, or needing advice as to specific facts or circumstances, should contact an attorney practicing in the appropriate area of the law.

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