A recent motorcycle accident in Farmington, Ontario County, New York provides food for legal thought. The Geneva Finger Lakes Times reports that on Monday a motorcyclist, James W. Evans of Victor, drove his motorcycle into the rear of a van that was attempting to make a left-hand turn into a driveway. The motorcycle driver was charged and arraigned on both DWI charges and for not having a valid license. The Finger Lakes Times reports that a passenger on the motorcycle sustained serious physical injuries from the accident.
Here's our legal query: What are Evans' passenger's legal rights to compensation for her injuries? Since the van driver was not at-fault, and Evans clearly was, she must look to suing Evans for his negligent, and drunk, operation of the motorcycle. Surely he is liable to her and, if he had liability insurance on his bike (not likely since he was driving it without a license), she can look to his insurance for compensation for her pain and suffering, lost wages, medical expenses and other loses.
If she brings such a claim, though, she can expect Evans' motorcycle accident lawyer to argue that she herself was at least somewhat to blame for her own injuries because she assumed the risk of climbing on a motorcycle with an intoxicated driver. Whether this argument prevails (and it usually doesn't) will depend in large part on what the passenger knew about Evans' alcohol consumption that day. Was she drinking with him? Did she see how much he drank? Or did he merely pick her up after he had already been drinking? Did he look or act drunk? In sum, did she or did she not know or suspect that he was intoxicated? If a jury decides to blame her somewhat, her case will not get "nixed". Instead, the judge will instruct the jury to "apportion" the blame between her and Evans. For example, if the jury determines that her injuries should be compensated to the tune of $1 Million, but the jury says she was 30% responsible and Evans 70% responsible, then she will get a verdict of 70% of $1 Million, that is, $700,000.
In any event, I think we can all agree it is not a good idea to get into a car whose driver has been drinking. This is even more true for motorcycles, since even minor collisions easily produce major injuries where the passenger is on a motorcycle..