Imputing a Driver’s Negligent Conduct to a Passenger
Ordinarily, in Alabama, a passenger in an automobile being driven by another person cannot be liable for contributory negligence, and ordinarily, you will be unable to impute any of the driver’s negligent acts to the passenger. For example, Dan Driver is driving and Pam Passenger is occupying Dan’s car in front of a truck being driven by Tom Tortfeasor. Dan quickly slams on his brakes without warning and for no apparent reason. Dan and Pam’s vehicle is struck by Tom. Dan and Pam claim injuries and file a lawsuit against Tom.
Tom might be able to assert the affirmative defense of contributory negligence against Dan, alleging that Dan contributed to the accident and his injuries were caused by his own actions, and Dan is therefore barred from recovering on his claims. Ordinarily, Tom would not be able to assert the same defense of contributory negligence against Pam, as long as she is just a passenger. See Johnson v. Battles, 52 So.2d 702, 707 (Ala. 1951). However, there are some circumstances that would allow Tom to impute Dan’s actions to Pam and raise the affirmative defense of contributory negligence against Pam and attempt to preclude her from recovering for her injuries as well.
In order for Tom to impute Dan’s conduct to Pam, Pam must have a right to control, manage, or direct Dan’s vehicle. Under Alabama law, the imputation of negligence of the driver to the passenger requires that the passenger “must have some right to a voice in the control, management or direction of the vehicle.” Johnson, 52 So.2d at 707; see also Barnett v. Norfolk Southern Ry. Co., 671 So.2d 718 (Ala.Civ.App. 1995). Even if Pam is a passenger at her own request, the burden is not met to allow Tom to impute Dan’s conduct to her; the law requires more than that. See Battles, 52 So.2d at 707. More specifically, Pam must have a right to direct and govern Dan’s movements and conduct, in order for his conduct to be imputed against her. See Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921, 923 (Ala. 1988).
Additionally, if Dan is Pam’s employee or otherwise in a subordinate position to Pam, Tom may be able to impute Dan’s conduct to Pam. Crescent Motor Co. v. Stone, 101 So. 49, 50 (Ala. 1924). If Pam owns the vehicle Dan (her employee) is driving, there is a presumption that Dan is the agent of Pam and is acting within the scope of his employment. See Durbin v. B.W. Capps & Son, Inc., 522 So.2d 766, 767 (Ala. 1988).
In summary, a defendant will not normally be able to impute the conduct of a driver to a passenger so as to find the passenger liable for contributory negligence and bar the passenger from recovering on her claims. But where (1) the driver is the employee of the passenger and/or (2) the passenger has a right to voice in control, management, or the direction of the vehicle, a defendant may be able to impute the driver’s conduct against the passenger.