Are Passengers “Assuming the Risk” When They Ride with Drunk Drivers?

By Michael GrossmanApril 25, 2017Reading Time: 4 minutes

Everyone can probably agree that riding with a drunk driver is dangerous. However a passenger may have ended up in the vehicle (not knowing that the driver was intoxicated, or maybe even just drunk themselves) there's a significant measure of danger in sharing it with a drunk person behind the wheel.

If we were to delve into the morality of the second option--the passenger also being drunk--some might feel that he functionally "made his own bed" by deciding to ride under dangerous circumstances. Those that subscribe to this idea would likely argue that the decision to ride with an intoxicated driver would render the passenger to blame for any injuries sustained if the vehicle crashes. The law refers to this understanding of possible hazards as assumption of risk.

Legally speaking, are passengers assumed cognizant of the risks involved with riding in a car driven by a drunk person? The firm looked at this question after reading about a recent incident in South Texas.

San Antonio, TX: April 17, 2017

According to the San Antonio Police Department, 29-year-old Esteban Delacruz was swerving through traffic and driving at an unsafe rate of speed on Somerset Road around 6:30 p.m. Near its intersection with Southwest Military Drive, Delacruz lost control of his Ford Mustang and crashed into a concrete-and-metal fence.

The vehicle rolled several times after the collision, coming to rest upside-down. Delacruz managed to get free of the overturned vehicle and attempted to flee, but was apprehended a block down the road. His passenger, 34-year-old Martin Cruz Jr., was trapped in the car and died of his injuries at the scene.

Esteban Delacruz was charged with intoxication manslaughter and failure to stop and render aid. No mention was made as to whether Martin Cruz was also intoxicated at the time of the collision.

Responsibility Should Be Proportionate.

From a certain perspective, passengers are hostages to a driver's whim. That's a pretty dire way to put it, of course; I'm just saying that once they enter a car, passengers can't control where it goes. Sometimes this lack of control is benign, like a driver's last-minute decision to go to a different restaurant than the one originally planned. Other times, though, passengers are anxious to exit a vehicle when they realize their safety is at risk. Abductions and kidnappings come to mind as examples, as does a passenger's epiphany that a drunk driver is not as capable as he claimed to be in a bar's parking lot. So while it makes sense to say passengers assume some measure of risk in accepting that can't accelerate or steer the car, it seems in pretty unfair overall to say that they consciously chose to endanger themselves.

The law in some states (AL, MD, NC, VA, and DC though it's not a state) makes use of a theory of liability called contributory negligence. Under this somewhat-archaic standard, a plaintiff who is found to be even 1% at fault for an accident is barred from any recovery. Under such a system, the passenger by virtue of entering the vehicle with a drunk driver has likely contributed at least the 1% of negligence that will prevent a judgment in his favor. Fortunately, most states operate under a more nuanced system that tries to take into account multiple factors when assessing liability.

For example, Texas employs a more holistic approach known as modified comparative fault. In essence this means that the contribution of all involved parties (the passenger, the drunk driver, and the alcohol provider) is weighed by the court. Think of the injury as a pie chart, and the liability of each party becomes a slice. Their responsibility is assigned a percentage value, and that percentage corresponds to the total amount of damages potentially awarded to the plaintiff.

While the passenger may bear some responsibility for getting in the car with a drunk driver, it would be hard to argue that this choice did more to cause injury than the driver himself and the bar(s) that provided his alcohol. Furthermore, if an alcohol provider unlawfully served the passenger when they were obviously intoxicated, a compelling argument could be made that they helped the passenger achieve the impaired state, which may have contributed to the bad decision to get in the car with a drunk driver. In some instances, this can lead to juries placing a portion of what would have been a sober passenger's blame onto the alcohol provider.

Against this backdrop is the fact that the law places a heavy burden on drivers to safely get their passengers from point A to point B. This is why in many states (but not Texas unless the passenger is a minor) the driver can be ticketed when an adult passenger isn't wearing a seatbelt. It's also why when open containers or illicit drugs are found in a vehicle, there are circumstances where a driver can be held responsible, unless it is determined (or admitted to) that it was most likely a passenger who was breaking the law.

All of this is to say that drivers, by assuming the duties that come with driving, take on a far greater legal burden than a passenger. A passenger's contribution to his injuries, even when he chooses to ride with a drunk driver, is almost always far less than the driver's.

Passengers Aren't the Main Offender.

I'm not trying to suggest that passengers play no role whatsoever in an accident; they're responsible for their decision to get in someone else's vehicle. However, there's a wide gulf of rationality between the decision to get in a sober driver's car and one to enter a drunk driver's car, and once that choice is made, there's no guarantee that they retain any agency until they can once again exit the vehicle.

Modified comparative fault tries to accommodate the fluidity of a crash such as this. The accountability of each involved party is considered based on the facts presented, such as:

  • Was the driver sober, or drunk? What about the passenger?
  • If drunk, what was their Blood Alcohol Content (BAC) percentage?
  • Were they visibly intoxicated?
  • Did an alcohol provider over-serve them while they were in that state?
  • Were the driver and passenger wearing seat belts at the time of collision?

States that bar compensation for victims who contribute to their own injury, even in the slightest, actually reward drunk drivers and bars that unlawfully serve drunk patrons. The beauty of how the law works in Texas is that passengers who are injured by drunk drivers can get justice, while still bearing their share of the burden for an imprudent decision.