Back Seat Driver's License

Now Back Seat Drivers Can Be Held Liable

The CA 4th District Court of Appeal Just Said So…

Dear Clients, Colleagues, and Friends,

Josh and Jessica planned a Friday night movie date at home. They rented “Fast and Furious”, as they were both avid Nascar fans. They were ready to see some exhilarating action scenes. Then they discovered that they did not have any popcorn, so they jumped in the car for a quick trip to the store.

Jessica knew a short cut through the residential neighborhood. She also knew it contained dips that would cause a vehicle traveling at a high speed to become airborne — they could create their own fast and furious adventure! She encouraged Josh by saying, “It’s fun to drive fast on them! You should do it!” She continued encouraging him to increase his speed. Josh finally put the pedal to the metal!

Then it happened.

Josh lost control of the vehicle and collided at 71 miles per hour with a parked vehicle. A neighbor was putting one of his children in a car seat when Josh’s vehicle slammed into theirs, killing the husband upon impact.

The widow sued the driver and the passenger for violating Vehicle Code Section 21701, willful interference with the driver of a vehicle so as to affect the driver’s control of the vehicle, as well as for civil conspiracy. For the section 21701 violation, the widow claimed that the passenger, Jessica, egged on Josh to drive at an unsafe speed over a road which Jessica should have known would cause his vehicle to become airborne. As to the alleged conspiracy, the widow claimed Jessica and Josh formed an oral or implied agreement to commit a wrongful act by driving on the residential street at an unsafe speed, which caused injuries to plaintiff and decedent.

In her defense, Jessica moved for summary judgment, arguing that undisputed facts demonstrated she never interfered with Josh’s control of the vehicle for liability under section 21701. She further argued there was no evidence of an agreement between her and Josh to support a tort conspiracy. In opposition, the widow argued that verbal encouragement and solicitation to commit a wrongful act can constitute a civil conspiracy.

The trial court sided with the defendant. The plaintiff appealed, and the Court of Appeal reversed the trial court. The appeals court found sufficient basis for the case to go to a jury. The question was whether to impose joint liability on Jessica under theories of concert of action and conspiracy, and whether she unreasonably interfered with the safe operation of a vehicle. Would you want to be in the position of Jessica or her parents?

This case demonstrates there is now potential liability for someone other than the guilty party to have joint and several liability if their conduct contributes to harm. See [Navarette v. Meyer 2015 DJDAR 7012]

Parents: This is a serious situation. Your children can unwittingly expose you and your wealth to extreme risk of loss in a civil lawsuit, for which your insurance carrier is likely to decline coverage. In our practice, we often witness tragic situations for the victim and his or her family, as well as for the parents of the youthful defendant. When a young person makes a mistake, the parents get stuck with the tab and often with catastrophic results.

To what other areas of commerce might this theory of liability be extended? The prospects can be alarming. Please be extra vigilant, whether it’s your teenager behind the wheel or in the passenger seat, or whether you are engaged in a business or activity where someone else’s acts could result in your liability. And be prepared for any eventuality. Regardless of how a potential problem may arise, protect yourself with effective “firewall” estate and asset protection planning.

Posted in Client Alert.