Did Ryan Dunn’s Passenger Assume The Risk Of Riding With A Drunk Driver?

Big news across the internet yesterday after “Jackass” star Ryan Dunn and a passenger died in an early-morning one-car crash out near West Goshen, Pennsylvania:

Dunn, 34, of West Chester, was reportedly driving his 2007 Porsche at 2:38 a.m. on the Route 322 bypass westbound in the area of Route 100 when he went off the road, according to statement issued Monday morning by West Goshen Township police.

Police said that upon arrival they found the car off the road in the woods engulfed in flames. Scorch marks were still visible at the scene just before noon on Monday, as well as a mangled guardrail and splintered trees where the car apparently left the road.

About two hours before the crash a photo was posted on Dunn’s twitter page, depicting Dunn and two other men apparently drinking.

Jalopnik has a little more about the car and the circumstances. The passenger has been identified as Zac Hartwell. Roger Ebert may have summed up the thoughts of many, but let’s not forget that Dunn and his friends weren’t just drinking, they were paying customers at a bar. Pennsylvania’s Dram Shop Act, 47 P.S. § 4-493, makes it unlawful:

[f]or any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any minor…

As is well-settled law, proving a drunk driving lawsuit in Pennsylvania is a two-step process: “A violation of this statute is deemed negligence per se, and the defendant will be held liable if the violation is the proximate cause of the injuries. Thus, in order for [injured plaintiffs] to recover, they must prove two things: (1) that an employee or agent of Appellee served the decedent alcoholic beverages at a time when he was visibly intoxicated; and (2) that this violation of the statute proximately caused his injuries and ultimate death.” Fandozzi v. Kelly Hotel, Inc., 711 A. 2d 524 (Pa. Sup. Ct. 1998).

The photo on Twitter of Dunn and his friends doesn’t necessarily mean Dunn and his friends were “visibly intoxicated,” but it certainly doesn’t rule it out, either. An employee of the bar he was at, Barnaby’s, claims “he didn’t seem intoxicated,” but that’s no surprise — the alternative would be to admit illegally serving alcohol to a visibly intoxicated individual and thus admit liability.

[UPDATE: Since this post was written, Dunn's toxicology report has been released, showing a blood-alcohol level of 0.196, more than double the legal limit of 0.08. Although there's no BAC at which a person is, as a matter of law, visibly intoxicated, it seems more than a little suspect that Dunn "left hop, skip, jumping" and then had a BAC of 0.196 a half-hour later. He would likely, at a minimum, slur his speech and have lose his balance at 0.196, and would more likely be stumbling and near the point of blackout. The BAC level might be admissible at trial as evidence (Pennsylvania law isn't clear on that), but even if not, there's other evidence of intoxication to prove liability against the bar. Finally, although it appears the bar won't face criminal charges, the absence of a criminal conviction doesn't have any effect on a later civil lawsuit.]

The accident was just after 2am, when the liquor licensees close. Let’s assume for the moment that Dunn was “visibly intoxicated” and thus improperly served more alcohol or that, at a minimum, he was too impaired to drive. What would that mean for his Hartwell who, the bar’s insurance company will say, “willingly” got in a vehicle with a drunk individual known for his risk-taking behavior?

There’s a Pennsylvania case for that, Terwilliger v. Kitchen, 2001 PA Super 215:

Michael P. Stefancin (Stefancin) was a passenger in a car owned by Maryann B. Kitchen (vehicle owner) and driven by Kevin Eugene Kitchen (Kitchen). The car struck a telephone pole, killing Kitchen instantly. Stefancin sustained severe injuries from which he later died. On the evening of the accident, both Kitchen and Stefancin had been consuming alcohol at Klub Kix, a business establishment operated by appellant. Kitchen, who did not possess a valid driver’s license at the time of the accident, was found to have a blood alcohol content of .16% at or near the time of the accident while a urine sample revealed an alcohol content of .2%.

The club in that case tried to avoid liability entirely by arguing that the passenger “assumed the risk” of the drunk driver getting into an accident. The club lost:

Appellant next argues Stefancin’s estate should be barred from recovery due to Stefancin’s contributory negligence and/or his assumption of the risk.  [***17]  This argument is based on the trial court’s finding Stefancin to be contributorily negligent in agreeing to ride with Kitchen when he subjectively was aware Kitchen was too intoxicated to drive.

Appellant relies on Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970), for its contention that Stefancin’s negligence in the face of a known danger is extraordinary and as such, is an intervening superseding cause of his injuries, relieving appellant of any liability.

In Grainy v. Campbell, 493 Pa. 88, 425 A.2d 379 (1981), our Supreme Court made it clear the Restatement (Second) of Torts § 447 Negligence of Intervening Acts, is controlling on the issue of whether an intervening act of negligence relieves the first actor of liability.In section HN7447, the liability of the first actor continues whenever: (a) the first actor “should have realized” that the second actor might so act”; (b) a reasonable man would not regard the second actor’s action as “highly extraordinary”; or (c) the second actor’s conduct is a “normal consequence of the situation created” by the first actor and “not extraordinarily negligent.”

493 Pa. at 91-92, 425 A.2d at 381. The Grainy court noted that a plaintiff’s negligence in the face of a known danger will not preclude recovery since the focus of section 447 is on the foreseeability of the second actor’s conduct. Furthermore, the Grainy court expressly overruled cases inconsistent  [**1209]  with this analysis, including Whitner, supra, upon which appellant relies. Grainy 94, 425 A.2d at 382.

Applying section 447 of the Restatement to this case, appellant is the first actor, and Stefancin is the second. Appellant is not relieved from liability if it was foreseeable that Stefancin would accept a ride home from Kitchen. As we find it foreseeable that one may accept a ride with a driver one knows to be intoxicated, it was appropriate to not relieve appellant of liability.

Appellant also contends the affirmative defense of assumption of the risk should apply to this case, barring recovery completely. Appellant’s argument is based on the finding that Stefancin subjectively knew Kitchen was too intoxicated to drive safely when he accepted a ride from him. (Trial Court [***19]  Opinion, McFadden, J., 3/13/2000, at 10.)

Appellant relies upon Miller v. Brass Rail Tavern, Inc., 702 A.2d 1072 (Pa. Super. 1997), for its argument that Stefancin assumed the risk. In Miller, the appellant sued the appellee bar owner after appellant’s decedent driver died in a motor vehicle accident. Appellants claimed the decedent had been served alcohol in appellee’s bar while visibly intoxicated in violation of the Dram Shop Act. The doctrine of assumption of the risk was found not to apply since the decedent driver was too intoxicated to have been aware subjectively of the risks. Further, the case was, in fact, remanded for consideration of the defense of contributory negligence since it was held that the trial court was wrong to reject the defense initially. …

The trial court found Stefancin, knowing Kitchen was too intoxicated to drive, was contributorily negligent in agreeing to ride with Kitchen. Applying comparative negligence rather than assumption of the risk, Stefancin’s estate is not barred from recovery since Stefancin’s causal negligence was found to be twenty percent (20%), which is less than appellant’s sixty percent (60%).

It’s too early to know what exactly happened here other than two men went out drinking, got in a car, and died. The law in Pennsylvania is not so rigid as to make assumptions about what happened there; that’s for courts and juries to decide, to ensure justice is done and to work towards preventing it from happening again. As easy as it is to blame Dunn and Hartwell for their own demise — to even be grateful they didn’t end up also hurting others — let’s not overlook exactly how this dangerous situation may have come to pass.

Roger Ebert’s right that friends don’t let friends drive drunk; in turn, liquor establishments shouldn’t keep serving patrons alcohol to the point they forget that. That’s the law.

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  • http://www.dayontorts.com John Day

    I drink alcohol. Or at least a did -I rarely drink these days.
    I tended bar. Indeed, for two years I ran a bar with 26 part-time
    employees.
    So I understand the whole drinking thing.
    But the fact of the matter remains that alcohol sellers are drug sellers -
    they just happen to sell a drug that people have seen fit to legalize.
    Those who sell the drug of alcohol must be required to sell it consistent
    with the law. If the sellers of alcohol refuse to comply with law, they
    should be held accountable.

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