Olson v. Ische, s. C3-83-55
| Decision Date | 20 January 1984 |
| Docket Number | C5-82-1651,Nos. C3-83-55,s. C3-83-55 |
| Citation | 343 N.W.2d 284 |
| Parties | Melanie OLSON and Dennis J. Olson, Appellants, v. Ivan Marvin ISCHE, Defendant, Randy Lee Fritz, Respondent, Darrell St. John, Respondent, Knight Klub, Inc., and Dana J. Nelson, Respondents, United Fire and Casualty Company, Respondent, and ALL NATION INSURANCE COMPANY, Respondent, v. HOME MUTUAL INSURANCE COMPANY, plaintiff in intervention, Respondent. Melanie OLSON and Dennis J. Olson, Appellants, v. Randy Lee FRITZ, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Absent a special relationship between a driver-owner and his passenger, the passenger has no duty to members of the public to control the operation of the motor vehicle by the intoxicated driver-owner. Nor is the passenger liable to members of the public under theories of joint enterprise, joint tort liability, or "open bottle" violation.
2. Having ruled plaintiffs have no cause of action against the passenger in the other car, the question as to whether the passenger has insurance coverage for the plaintiffs' claims is moot.
O'Neill, Burke & O'Neill, Patrick H. O'Neill, Peter H. Grills and Michael B. Braman, St. Paul, for appellants.
Cousineau, McGuire, Shaughnessy & Anderson by Kathleen Drake, Minneapolis, for Home Mut. Ins. Co., respondent.
Peterson, Bell & Converse, Willard L. Converse, St. Paul, for Randy Lee Fritz, respondent.
Rothstein, Wolf, Kaplan & Goff, Howard L. Kaplan, St. Paul, for All Nation Ins. Co., respondent.
Kronick, Moskovitz, Tiedemann & Girard, Beth Ann Lane, Sacramento, Cal., for amicus curiae Mothers Against Drunk Drivers (in support of plaintiff-appellants).
Heard, considered, and decided by the court en banc.
Plaintiff, injured in an auto accident, sues the passenger in the other car. The companies insuring the passenger counter with a declaratory judgment action that their policies afford no coverage for the claims of plaintiff and her husband. On motions for summary judgment, the trial court held that plaintiffs have no cause of action against the passenger and that there is no insurance coverage for the claims. We affirm the judgment of no cause of action; the companion appeal on insurance coverage we dismiss as moot.
Although the trial court ruled on the insurance coverage question first, we will discuss first what is really the decisive issue, namely, whether plaintiffs have stated a tort cause of action against the passenger.
In the early evening of January 30, 1982, plaintiff-appellant Melanie Olson was driving her automobile on a highway near Norwood, Minnesota, when an oncoming car swerved into her lane causing a head-on collision. Melanie Olson sustained extremely serious injuries. She lost her unborn child, and Melanie, herself, is permanently comatose.
Traveling in the other car were driver-owner Ivan Ische and his passenger, defendant-respondent Randy Lee Fritz. Ische and Fritz were apparently returning to their homes in Norwood after having spent the afternoon in Waconia drinking and playing cards with Ische's brother and some friends. Ische and Fritz had decided, at about 7:15 p.m., to return to Norwood. Ische was noticeably intoxicated by this time; his brother told him not to drive and attempted, unsuccessfully, to take the car keys from him. A witness testified that Ische and Fritz each took a plastic cup of beer with them as they left. Fritz testified that Ische drove his own car and that he, Fritz, sat in the right front seat and made no attempt to operate or steer the car. Fritz does not remember anyone telling Ische not to drive. Ische remembers being at his brother's apartment, but he does not remember leaving it, nor does he remember anything else until some 4 or 5 days after the accident. Ische's blood sample, taken after the accident, had a blood-alcohol content of .17%.
A car was following Ische's car prior to the accident. The driver, by affidavit, described the Ische car as speeding, weaving on the road, and then colliding with the Olson car in Olson's lane. This witness stated that after the accident there was a strong smell of alcohol in the Ische vehicle. Affidavits of a highway patrolman and a deputy sheriff, who investigated the accident, were also submitted. An investigator hired by plaintiffs' attorney stated by affidavit that Ische had told him that he was surprised he was headed away from Waconia at the time of the accident because his girlfriend was working the night shift in Waconia. The car was headed toward Norwood where both Ische and Fritz lived. 1
Plaintiff Melanie Olson and her husband Dennis commenced their personal injury action against defendant-passenger Fritz and others. Viewing the evidence most favorably to the Olsons, a trier of fact could find that Ische, the owner-driver, was intoxicated and driving while under the influence; that his passenger Fritz was also under the influence of intoxicants; and that the passenger knew or should have known the driver was drunk, disobeying the law by driving, and likely to cause harm to others on the highway. Assuming this to be so, the trial court ruled there was no causal legal relationship between defendant Fritz' occupancy of the Ische car as a passenger and Melanie Olson's injuries and, accordingly, held that there was no legal basis on which passenger Fritz could be responsible for Melanie Olson's injuries. 2
It is undisputed that Ivan Ische, not Randy Fritz, was the owner of the car; therefore, Fritz lacked the legal rights of an owner to exercise control over the car in which he was riding. Further, as a matter of law, there was no showing that defendant Fritz in any way interfered with the owner-driver's operation of the motor vehicle. Defendant Fritz simply sat in the righthand front seat as a passenger.
The trial court's ruling of no causation would appear to be correct unless plaintiffs are able to establish some new legal theory that would, on the given set of facts, impose a duty of care on passenger Fritz. Plaintiffs propose such a new legal duty. They also, together with amicus, propose theories of vicarious and joint tort liability.
Plaintiff-appellant Olsons first argue that a passenger in a car owes a duty of reasonable care to others on the highway to act so as not to subject those other persons to unreasonable risks of harm. Restatement (Second) of Torts Sec. 298 (1965). The manner in which plaintiffs claim this duty is to be discharged is less clear. Plaintiffs state they do not contend that the passenger has a legal duty to physically restrain an intoxicated driver; instead, they argue that the passenger has a duty "to take precautions not to in any way assist, aid or encourage an intoxicated person to operate a motor vehicle." In view of plaintiffs' concession that there is no duty to physically restrain the driver, it is unclear just how and to what extent this duty not to assist is to be exercised and what would constitute a breach thereof.
The case law is contrary to appellants' position. Other courts have refused to impose a duty on a passenger to control or influence the driver, at least where the passenger is not the owner of the car or has not interfered with the operation of the motor vehicle by the driver. See Fugate v. Galvin, 84 Ill.App.3d 573, 573, 40 Ill.Dec. 318, 319, 406 N.E.2d 19, 20 (1980) (); Danos v. St. Pierre, 383 So.2d 1019, 1022 (La.App.1980) (); Sloan v. Flack, 150 So.2d 646 (La.App.1963); Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn.1978) (); Hulse v. Driver, 11 Wash.App. 509, 524 P.2d 255 (1974). See also Sports, Inc. v. Gilbert, Ind.App., 431 N.E.2d 534, 538 (1982) ().
A passenger has, of course, a legal duty to use care for his own safety, and his contributory negligence will bar or diminish his own claim. He may also have a moral duty owed to others not to encourage the driver to drive when he should not be driving. But to impose a legal duty on the passenger, which makes him liable to others on the highway for what the driver himself chooses to do, seems to us, as a general proposition, inappropriate. Such a rule assumes, incorrectly, that a passenger somehow shares in the management of the motor vehicle, and it further assumes the driver is amenable to the passenger's influence. For Fritz to join Ische in the car ride as he did here may be encouragement of a sort, but not the kind that creates legal liability. Significantly, plaintiffs do not claim Fritz had an affirmative duty to dissuade Ische from driving; the efforts of Ische's brother in this regard were to no avail. Nor do plaintiffs claim Fritz had a duty to physically restrain Ische, a duty that could make a bad situation worse. And although plaintiffs prefer to limit their proposed duty to intoxicated drivers, the problem nevertheless arises regarding what should be the passenger's duty to control a driver who is only inattentive or otherwise driving negligently. See Restatement (Second) of Torts, Sec. 315, comment (b) (1965) (suggests no duty on the passenger to prevent an accident in such a situation).
Section 315 of the Restatement (Second) of...
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