Torts II, Pages 728–730

Smalich v. Westfall

Supreme Court of Pennsylvania, 1970

Facts:

Smalich was killed in an accident between her own vehicle, being driven by Westfall, and that of Blank. Smalich's estate sued both Westfall and Blank in both a wrongful death action and a survival action.

Procedural History:

Jury found that Westfall's negligent operation of Smalich's vehicle was a proximate cause of the collision. The court ruled that Westfall's contributory negligence must be imputed to Smalich as owner of the vehicle, precluding recovery against Blank.

Issue:

Is the owner of a vehicle liable for the negligence of the driver thereof when the owner is a passenger?

Rule:

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[O]nly a master-servant relationship or a finding of a joint enterprise to the text of the note will justify an imputation of contributory negligence.

Reasoning:

It is unlikely that an owner-passenger and driver would agree that the owner reserves a right to control the physical details of the driving. Such a relationship would only be one of agency then, not a master-servant relationship.

Holding:

No, the owner of a vehicle is not liable for the negligence of a driver thereof while the owner is a passenger. Judgment vacated. Remanded for judgment for plaintiff against Blank.

Concurring Opinion:

Roberts: A passenger cannot safely exercise operation control over a vehicle he is riding in, even if he is the owner. It is also not justified to impute contributory negligence to an owner just because the driver's negligence was imputed.

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