Prestenbach v. Sentry Insurance

The plaintiffs sue to recover for the wrongful death of their son, Michael Pres-tenbach, age 18. Michael was drowned when the vehicle driven by his friend Blan-co, age 19, left the highway and overturned in an adjacent water-filled borrow pit.

The trial court awarded judgment against the defendant, Blanco’s liability insurer. The court of appeal reversed, holding that Michael Prestenbach had assumed the risk of Blanco’s negligence. 329 So.2d 840 (La.App. 1st Cir. 1976).

We granted certiorari, 332 So.2d 860 (La. 1976), because we thought, in so doing, the court of appeal overlooked the proper test for barring recovery on the basis of assumption of risk.

The ultimate issue

The ultimate issue is: May recovery be barred on the basis of assumption of risk in an action for the death of a passenger against his host driver, when the accident is caused by the driver’s intoxication, but the driver is not so obviously intoxicated as to charge the passenger with knowledge of his driver’s intoxication?

Facts

The accident occurred about 2:30 in the morning. At approximately 8:00 p. m. on the preceding evening, Blanco and Banks, a co-worker, left their place of employment in Morgan City, rode around a short while in Blanco’s Mustang, and bought two fifths of strawberry wine (9 per cent alcohol). The two boys continued to ride about the city, Blanco, the driver, drinking half of his bottle and Banks drinking all of his and the remainder of the other.

Blanco drove to his home to change his clothes. He telephoned the plaintiffs’ son, Prestenbach, and another boy, Marino, and invited the two to join Banks and him for the evening.

Prestenbach and Marino joined the group at approximately 9:30 or 10:00 p. m. Pres-tenbach, Banks, and Marino then purchased a fifth of strawberry wine apiece. The boys then drove about, drinking wine. The survivors of the group testified that although Blanco, the driver, did not purchase wine, he did take a few sips as the bottles were passed amongst the boys.

At about 10:00 p. m., the four boys then drove to a Burger King and each purchased a large hamburger, french fries, and a milkshake. They then met Mike Dragna, who they picked up later in the evening.

The five boys then traveled to a party at Bayou Vista, a nearby community, arriving around 10:30 p. m. Although the testimony is contradictory, it does appear that alcoholic beverages were available. The boys who survived the mishap which occurred later in the evening, testified that they had not drunk at the party, neither had they seen the driver have a drink.

From the testimony adduced at trial it appears that the boys mingled at the party and had little knowledge as to what the driver actually did.

Banks and Marino left the party for approximately twenty minutes to take Drag-na back to Morgan City. When they returned, Juanita Green asked for a ride home. The group (Blanco and Miss Green in the front seats; Marino, Prestenbach, and Banks in the rear) left the party at approximately 11:30 or 12:00 p. m.

The group purchased two six-packs of beer in Berwick and continued on to Morgan City. The survivors testified that Blanco drank one, maybe two beers while driving.

The group then decided to drive to a nightclub in Houma. Arriving in Houma, the group decided to go to a lounge tended by friends. It appears that the boys went inside and ordered each a beer. Shortly thereafter, Blanco returned to the car to tend to Miss Green, who was ill. Approximately twenty minutes later, the other boys rejoined Blanco and Miss Green, and the group left for Morgan City.

As they traveled on Highway 90, Blanco accelerated to approximately 100 to 110 miles per hour. It is unclear from the testimony at which point Blanco accelerated. It can be concluded, however, that this occurred just prior to the accident; for seconds before the mishap, Prestenbach told Blanco to slow down because the engine could not take the strain and a bridge ahead could not be negotiated at that speed.

Blanco did not slow down. Seconds later, the vehicle left the highway and overturned in the pit. Blanco and Prestenbach drowned. (Their companions survived.)

At 6:30 a. m., four hours after the accident, blood-alcohol tests were performed on Blanco and Prestenbach and disclosed .124 percent by weight of alcohol in Blanco’s blood and .044 in Prestenbach’s. (In Louisiana criminal law, a level of .100 gives rise to a presumption of intoxication. La.R.S. 32:662. In several other states, the expert testimony shows, the presumed level of intoxication is .150. In either case, however, as the court of appeal held, there is no such statutory presumption of intoxication in civil cases.)

Those who survived the accident testified that Blanco appeared “normal” during the course of the entire evening. All who testified stated that the driver did not appear to be intoxicated.

The witnesses at trial testified that the most they had seen Blanco drink was two or three beers, half a bottle of wine, and a few sips of wine from another. Mr. Wilde and Mr. Olivier, who tended bar at the lounge where the boys made their last stop that night, testified that although Blanco was in a good mood, a “party mood,” he did not appear to be intoxicated. His speech was not slurred, nor were his reflexes impaired.

Dr. Lester Sykes testified that a lay person cannot detect that a person having a blood-alcohol reading of .124 is actually intoxicated. The survivors testified that Blanco drove at a normal rate of speed up to a short time prior to the accident. Drag-na did testify that he had told Banks and Marino, “Y’all watch Harley. He don’t look like he’s acting right tonight.” However, from the record, it can be concluded that the comment was made in reference to Blanco’s problems with his girlfriend.

Plaintiffs contend that their son’s death was caused by Blanco’s negligence. It is contended by defendant that the driver was intoxicated, the accident was caused by his intoxication, and Prestenbach assumed the risk as he knew or should have known of the driver’s intoxication.

Legal Principles Applicable

The law is well settled that a guest passenger riding with a driver who has been drinking excessively assumes the risk of injuries received in an accident caused in whole or in part by the driver’s negligence, if the alcohol-induced impairment of the driver’s ability is a substantial contributory cause of the driver’s negligence and if the guest passenger knows or should have known of the driver’s condition and nevertheless voluntarily rides with him. Marcotte v. Travelers Ins. Co., 258 La. 989, 249 So.2d 105 (1971); Jones v. Continental Casualty Co., 246 La. 921, 169 So.2d 50 (1964).

As with other affirmative defenses, the defendant who pleads contributory negligence or assumption of the risk bears the burden of proving it. La.C.Civ.P. art. 1005; McInnis v. Firemen’s Fund Insurance Company, 322 So.2d 155 (La.1975); Marcotte v. Travelers Ins. Co., cited above. In the present case, this means that, to defeat recovery for damages caused by the driver’s undoubted negligence, the defendant must prove by a preponderance of the evidence that: (1) the driver was intoxicated; (2) his intoxication was a cause of the accident; and (3) the plaintiffs’ decedent knew or should have known of the driver’s condition. Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, such proof shows that the fact or cause sought to be proved is more probable than not. Marcotte v. Travelers Ins. Co., supra; Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971).

The driver’s intoxication and its cause of the accident

The evidence preponderates that the driver of the automobile had been drinking intermittently for approximately six hours prior to the accident. The scientific evidence produced at trial reveals that the blood-alcohol content of the driver when taken produced a reading of .124.

Expert testimony was adduced at trial that a person’s driving ability and judgment is impaired at that level of blood-alcohol. This evidence reasonably shows that this degree of intoxication could account for the driver’s sudden acceleration in speed and subsequent loss of control of the vehicle.

Under this evidence and the testimony as to the accident, the defendant has adequately proved the driver’s intoxication and its causal contribution to the accident.

Passenger's knowledge of the driver’s condition

As we stated in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971), “the determination of whether a plaintiff has assumed a risk is made by subjective inquiry . . . .” See also McInnis v. Firemen’s Fund Ins. Co., 322 So.2d 155 (La.1975); Prosser on Torts, pp. 447-450 (4th ed., 1971).

In order for a plaintiff to assume a risk, he must knowingly and voluntarily encounter the risk which causes his injury. McInnis v. Firemen’s Fund Ins. Co., cited above. “Knowledge” is the mainstay of this defense, and it must be proved by a preponderance of the evidence.

Recovery is denied if the plaintiff knew or should have known of the risk involved. The defendant argues, and the court of appeal also held, that Prestenbach should have known of the driver’s condition, simply since he had spent most of the evening with him.

However, for purposes of a knowing assumption of risk, we impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when he actually makes those observations and, from them, should reasonably have known that a risk was involved.

In the instant case, all testimony adduced at trial indicates that Blanco did not appear intoxicated. The defendants have presented ho evidence that would indicate that Prestenbach had knowledge of the driver’s intoxicated condition or that, from his personal observations of the driver’s pri- or activities and condition, he should reasonably have known of this condition.

In Jones v. Continental Casualty Co., cited above, the evidence showed that the group of teenagers had been drinking together for a number of hours; at one time they had been seen parked on the side of the road engaged in a drinking party, “hollering and carrying on”. There, the evidence showed that the automobile had been driven at a terrific rate of speed and in the right lane of traffic for some distance. Although all participants were killed and it could not be ascertained that the passengers had actual knowledge of the driver’s condition, from the facts presented, we stated in Jones that the passengers should have known of his intoxication.

In summary, we find no error in the trial court’s conclusion that the defendant failed to prove the defense of assumption of risk, and in its factual finding that the evidence does not preponderately prove that Presten-bach knew or should have known of Blan-co’s intoxication: There is substantial evidence that Blanco did not exhibit such overt manifestations of intoxication as would have placed a guest passenger on notice of his condition and that, during the intermittent periods they were together over the course of the evening, Prestenbach’s observation of Blanco’s drinking and conduct was insufficient to put him on notice of Blanco’s possible intoxication. Marcotte v. Travelers Ins. Co., cited above; Jones v. Continental Casualty Co., cited above; Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir. 1976), certiorari denied, 332 So.2d 805 (La.1976); Galmiche v. Smith, 269 So.2d 490 (La.App. 4th Cir. 1972), certiorari denied, 263 La. 995, 270 So.2d 126 (1972); Johnson v. Allstate Ins. Co., 254 So.2d 91 (La.App. 3d Cir. 1971).

Conclusion

The damages awarded by the district court were within the “much discretion” of the trier of fact. Civil Code Article 1934.

For the reasons assigned, the judgment of the court of appeal is reversed, and the judgment of the trial court in favor of the plaintiffs is reinstated. The defendant to pay all costs of these proceedings.

COURT OF APPEAL JUDGMENT REVERSED, AND TRIAL COURT JUDGMENT REINSTATED.

SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents for reasons assigned by SUMMERS, J.