Torts II, Pages 728–730

Smalich v. Westfall

Supreme Court of Pennsylvania, 1970


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.


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


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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.


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.


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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