Shinn v. Allen
984 S.W.2d 308 (1998)
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Rule of Law:
A passenger who merely accompanies an intoxicated driver, drinks with them, and accepts a ride is not liable for the driver's tortious conduct under a concert-of-action theory without evidence of substantial assistance or encouragement.
Facts:
- Jeremy Michael Faggard and Russell Martin Allen, both under 21 years of age, decided to 'hang out' one afternoon.
- Faggard drove Allen to a convenience store where Faggard alone purchased a twelve-pack of beer; Allen did not pay for or arrange the purchase.
- The two went to Faggard's house, where Faggard consumed six or seven beers and Allen consumed four or five.
- Sometime before 7:00 p.m., Allen asked Faggard to drive him home because his parents expected him for dinner.
- Allen stated he did not observe any signs that Faggard was intoxicated, such as slurred speech or stumbling, before or during the drive.
- While Faggard was driving Allen home, their vehicle collided with a vehicle driven by Robert Wayne Shinn.
- The collision killed Robert Shinn and seriously injured his wife, Gail Shinn.
Procedural Posture:
- Gail Shinn sued Russell Martin Allen for negligence in a Texas trial court.
- Allen filed a motion for summary judgment, arguing he owed no duty to Shinn.
- The trial court granted Allen's motion for summary judgment, dismissing Shinn's claim.
- Gail Shinn, as appellant, appealed the summary judgment to the Texas Court of Appeals, with Allen as appellee.
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Issue:
Does a passenger who drinks with a driver and then asks for a ride home substantially assist or encourage the driver's intoxicated operation of a vehicle, thus creating a duty to third parties under the concert-of-action theory?
Opinions:
Majority - Justice Davie L. Wilson
No. A passenger's conduct of drinking with a driver and asking for a ride home does not, without more, constitute substantial assistance or encouragement to hold the passenger liable under a concert-of-action theory. To determine whether a defendant substantially assisted a wrongdoer, the court analyzed five factors from the Restatement (Second) of Torts: the nature of the act, the amount of assistance, the relationship of the parties, the defendant's presence, and the defendant's state of mind. While driving while intoxicated is a dangerous act (factor 1) and Allen was present (factor 4), the court found the other factors weighed heavily against liability. Allen provided no meaningful assistance (factor 2), as he did not purchase the alcohol, encourage its consumption, or encourage reckless driving; his request for a ride was 'gratuitous.' The parties were mere acquaintances with no special relationship of control (factor 3). Finally, while a fact issue might exist regarding Allen's knowledge of Faggard's intoxication, knowledge alone is insufficient without accompanying acts of substantial assistance (factor 5). Therefore, the evidence conclusively disproved that Allen breached any duty to Gail Shinn.
Analysis:
This decision clarifies the high threshold for imposing passenger liability under the concert-of-action theory in Texas for a driver's negligence. It establishes that passive acquiescence, such as drinking with a driver and accepting a ride, is insufficient to constitute 'substantial assistance or encouragement.' The ruling reinforces the principle of individual responsibility, requiring future plaintiffs to demonstrate active, affirmative conduct by the passenger that directly contributed to the driver's tortious actions. This limits the expansion of vicarious liability and protects individuals from being held responsible for the independent choices of their associates.
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