Can a passenger be at fault

In considering the usual rules of negligence of a passenger we need only address those that relate to Lombardo since as to Green there was no objection to the charge, her actions are not challenged in this appeal, and she was not a person asserting a claim, at least in this appeal. A passenger has a duty not to interfere with the operations of the driver. See 61 C.J.S. Motor Vehicle § 486(5) (1970) (A passenger will be held contributorily negligent for interfering with a driver's operation and control of the motor vehicle.); Lind v. Slowinski, supra (450 N.W.2d at 357) (A passenger who interferes with a driver's operation of the motor vehicle may be liable to others.).

A passenger also has a duty to protect himself or herself. See Ambrose v. Cyphers, 29 N.J. 138, 150, 148 A.2d 465 (1959) (Weintraub, C.J.) ("[A] passenger is bound to exercise for his own safety the care of a reasonably prudent person under the circumstances."); Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 176, 113 A.2d 13 (1955) (General rule is that passenger is "bound to exercise such care for his own safety as the exigencies of the situation require."); Tabor v. O'Grady, 59 N.J.Super. 330, 337, 157 A.2d 701 (App.Div.1960), modified in part on reh'g, 61 N.J.Super. 446, 161 A.2d 267 (App.Div.1960) ("A passenger in an automobile must exercise such reasonable [**560] care and caution as an ordinarily prudent person would exercise under like circumstances.").

Such duty, however, is not without limitation. See Ambrose, supra (29 N.J. at 150-151, 148 A.2d 465); Tabor, supra (59 N.J.Super. at 337-339, 157 A.2d 701). In this regard, the trial judge instructed the jury:

When it should become apparent to a reasonably prudent person that the vehicle is being driven negligently, reasonable care requires the passenger to protest or remonstrate with the driver in an effort to persuade him to drive carefully. And if such protests are disregarded, he has a duty to leave the car when a reasonable opportunityis afforded, if a reasonably prudent man would do so in like circumstances.

While the negligence of the operator of an automobile is not chargeable to a passenger who has no control over the car, still the passenger is bound to exercise such care for his own safety as the circumstances of the case require. The [*55] passenger in a car, in the absence of any facts or circumstances indicating the contrary, is not required to anticipate that the driver, who has exclusive control and management of the vehicle, will enter a sphere of danger or may not exercise proper care, such as failure to keep the speed of the vehicle within normal limits. A passenger in an automobile is under the duty to exercise such degree of care for his own safety as the exigencies of the situation reasonably require. . . .

The test to be applied in determining whether voluntarily riding in a motor vehicle operated by a person under the influence of intoxicating liquor constitutes negligence on the part of the Plaintiff, is whether an ordinarily cautious and prudent person would under the same or similar circumstances have incurred the risk of riding with the driver. If you find that the Plaintiff voluntarily rode in an automobile operated by a person under the influence of or affected by intoxicating liquor after the Plaintiff knew, or in the exercise of reasonable care should have known of the driver's condition, and if you also find that an ordinarily cautious and prudent person would not have incurred the risk of riding with such a driver under the same or similar circumstances, you may find the Plaintiff guilty of contributory negligence provided the intoxication of the driver was a proximate cause of the accident and the injuries resulting therefrom. [Emphasis added.]

Lombardo v. Hoag, 269 N.J. Super. 36, 54-55 (App. Div. 1993)

This matter involves a single vehicle accident where the driver has admitted to operating the vehicle at a speed well in excess of the speed limit and that he lost control of the vehicle while attempting to negotiate a curve at that high rate of speed. There can be no material issue as to the negligence of the Defendant Scott Fuhs in the operation of the motor vehicle. The Plaintiff Samuel Resnick, a passenger in the vehicle, cannot be held negligent for the operation of the vehicle by the Defendant Fuhs and summary judgment is appropriate as a matter of law.

Simply put, the negligence of the operator of an automobile is not chargeable to a passenger who has no control over the car. See Lombardo v. Hoag, 269 N.J. Super. 36, 54-55 (App. Div. 1993). This is not a case where the passenger is alleged to have interfered with the operation of the vehicle, or where the passenger entered a vehicle with an intoxicated driver. The Defendant here operated the vehicle negligently and must be held accountable as a matter of law for that operation. Where there is no evidence of any liability on the part of a passenger, the issue of comparative negligence of the passenger is not an appropriate one for the jury. See
Jones v. Bennett, 306 N.J. Super. 476, 483 (App. Div. 1998).

The Legislature enacted the Comparative Negligence Act (Act), L. 1987, c. 146, to ameliorate the harsh results attendant to the common-law doctrine of contributory negligence. Ostrowski v. Azzara, 111 N.J. 429, 437, 545 A.2d 148 (1988). That doctrine foreclosed [**1370] recovery for any plaintiff found even marginally responsible for his or her injuries. Blazovic v. Andrich, 124 N.J. 90, 97, 590 A.2d 222 (1991). Instead of that "all-or-nothing" approach, HN1the Act permits apportionment of liability relative to fault. Ibid. Under the Act, the extent of each party's negligence, in the form of a percentage, is determined by the finder of fact. N.J.S.A. 2A:15-5.2b. The court then molds the judgment consonant with [***24] those percentages. N.J.S.A. 2A:15-5.2c. If a claimant's negligence is equal to or less than that of the defendant, that plaintiff's [*175] recovery is not barred, but merely reduced by his or her percentage of responsibility. N.J.S.A. 2A:15-5.1.

In 1987, the Legislature amended the Act and modified joint and several liability. L. 1987, c. 325; see Senate Judiciary Committee, Statement to Senate Bill No. 2703, at 1 (Oct. 30, 1986) (indicating specific legislative intent to modify joint and several liability). After those changes, HN2only a defendant determined to be 60% or more responsible for all damages is liable for the entire award. N.J.S.A. 2A:15-5.3a. A defendant found more than 20% but less than 60% responsible is liable for all economic damages but for only that percentage of noneconomic damages directly attributable to that defendant. N.J.S.A. 2A:15-5.3b. Defendants found 20% or less responsible for damages are liable for only that percentage of the award directly attributable to their negligence. n1 N.J.S.A. 2A:15-5.3c. Hill v. Macomber, supra, 103 N.J.Super. 127, 246 A.2d 731, on which the Appellate Division relied in holding that joint and several [***25] liability is appropriate in successive-impact cases if the injuries cannot be allocated, would appear to be inconsistent with the Legislature's modification of the common-law rule of joint and several liability.

Campione v. Soden, 150 N.J. 163, 174-175 (N.J. 1997)

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