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Grandstaff v. Hawks5/31/2000
nger not wearing a seatbelt did not cause or contribute to the collision and thus did not cause injury to the person or property of others. Nevertheless, the passenger's failure to wear a seatbelt may have contributed to his or her own injuries. See, e.g., Alvarez v. Keyes, 887 P.2d 496, 499 (Wash. Ct. App. 1995); Bentzler v. Braun, 149 N.W.2d 626, 640 (Wis. 1967).
Our courts have also recognized the distinction between a passenger's duty to exercise reasonable care for his or her own safety and a passenger's duty to the public to prevent collisions. Passengers have a duty to exercise reasonable care for their own safety. See Harrison v. Pittman, 534 S.W.2d 311, 315 (Tenn. 1976); Rollins v. Winn-Dixie, 780 S.W.2d at 768. Accordingly, in order to protect themselves, they are expected to warn drivers of unseen dangers, to protest excessive speed, and to refrain from riding in a vehicle being operated by an intoxicated or reckless driver. See Cole v. Woods, 548 S.W.2d 640, 650 (Tenn. 1977); Schwartz v. Johnson, 152 Tenn. 586, 592, 280 S.W. 32, 33 (1926). However, passengers owe no duty to the public to control, or even attempt to control, the operation of a vehicle unless they have a right to do so, either through their relationship to the vehicle itself or to the driver. See Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn. 1978); Nichols v. Atnip, 844 S.W.2d 655, 661-62 (Tenn. Ct. App. 1992).
The facts of Cecil v. Hardin dramatically illustrate the distinction between a passenger's duty to him or herself and a passenger's duty to others. The parents of a bicyclist who was killed by an intoxicated driver filed a wrongful death suit against the driver and the driver's passenger. The trial court directed a verdict for the passenger on the grounds that there was no evidence that his negligence caused the driver to strike the bicyclist or that the driver's negligence should be imputed to the passenger. The Tennessee Supreme Court affirmed the directed verdict because there was no evidence from which the jury could have concluded that the passenger had a right to control the operation of the vehicle, as opposed to the right to make suggestions which the driver was at liberty to disregard. See Cecil v. Hardin, 575 S.W.2d at 270.
The distinction between fault contributing to a collision and fault contributing to one's own injuries becomes crucial in a multi-party action in which the drivers have claims against each other. Comparing the fault of a passenger who did not contribute to the collision along with the fault of the drivers can potentially reduce the percentage of fault attributable to each driver, thereby affecting the drivers' rights of recovery against each other. Modified comparative fault accentuates changes in the attributed percentages of fault because these changes may very well affect the right of either or both drivers to recover.
An example illustrates this phenomenon. Driver 1 ("D1") and Driver 2 ("D2") are involved in a collision. Passenger 1 ("P1") is a guest in D1's vehicle. P1, D1, and D2 are all injured. P1 sues both D1 and D2. D1 sues D2, and D2 sues D1. Neither driver sues P1. Both drivers were negligent, and both of their actions contributed to causing the collision. P1 was also negligent, but P1's negligence only contributed to P1's own injuries, not to the collision itself or the drivers' injuries. The trial court instructs the jury to allocate 100% of the fault among P1, D1, or D2. This instruction places the jury in a dilemma. While the jury desires to reduce P1's damages because he contributed to his own injury, the jury cannot accomplish this without affecting the amount of fault allocated to each driver. Every percent of fault allocated to P1 is a per
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