Liable for backseat driving

A passenger who engages in reckless "backseat driving" may now be liable as an aider and abettor or co-conspirator for an ensuing vehicular collision. In Navarrete v. Meyer, 2015 DJDAR 7012 (June 22, 2015), the 4th District Court of Appeal reversed the trial court's grant of summary judgment for Hayley Meyer, a passenger in Brandon Coleman's vehicle who encouraged Coleman to drive fast on a residential street with numerous dips that could cause a vehicle to become airborne. The Court of Appeal found it is for the trier of fact to determine whether a passenger's actions constitute interference under Vehicle Code Section 21701 where a passenger encourages a driver to speed on a road that can render the car airborne.

In Navarrete, Coleman, with passengers Meyer and Levi Calhoun, drove over 80 miles per hour on a residential street with a 25 mile per hour speed limit. Meyer, who had been on the same street numerous times that day and knew it had dips that would cause a speeding car to become airborne, told Coleman, "that it was fun to drive fast on them, and that he should do it." Thereafter, Meyer told Coleman to "go faster." Coleman accelerated, lost control of the car and crashed into Navarette's parked vehicle where Navarette's husband, Esteban Soto, was attempting to put one of their children into a car seat. Soto was killed by the impact.

Navarette and her minor children sued Coleman and Meyer, alleging causes of action against Meyer for violation of California Vehicle Code Section 21701 and for civil conspiracy. Section 21701 provides in part that "No person shall wilfully interfere with the driver of a vehicle or with the mechanism thereof in such a manner as to affect the driver's control of the vehicle." Navarette alleged that Meyer wilfully interfered with Coleman and affected his control of the car, resulting in the fatal accident. Navarette further alleged that Coleman and Meyer "formed an oral and/or implied agreement [to] commit a wrongful act," and such conspiracy caused injuries to Plaintiff and the decedent.

Meyer moved for summary judgment on the grounds that the undisputed facts showed she did not interfere with Coleman's control of the vehicle, and there was no evidence of a tacit agreement between them to support a conspiracy cause of action. Navarette argued the evidence demonstrated a plan to commit a wrongful act because Coleman began accelerating in response to Meyer's instructions, and Meyer's encouragement interfered with the safe operation of Coleman's vehicle under Section 21701. The trial court granted Meyer's motion, finding no evidence that Meyer's instruction to drive faster affected Coleman's control of the vehicle.

On appeal, Navarette argued that Meyer encouraged Coleman to engage in an unlawful exhibition of speed under Vehicle Code Section 23109, and, based on Agovino v. Kunze, 181 Cal. App. 2d 591 (1960), Meyer owed a duty under that statute against aiding or abetting Coleman in such an act, thereby making her jointly liable for the resulting damages.

In finding a triable issue as to Meyer's secondary liability, the Court of Appeal recited Section 876(b) of the Restatement Second of Torts, which provides: "For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he [or she] ... (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself." Those who "lend aid or encouragement to the wrongdoer ... are equally liable with him. [¶] Express agreement is not necessary, and all that is required is that there be a tacit understanding." Sindel v. Abbot Laboratories, 26 Cal. 3d 588, 604 (1980). Notably, such group liability applies where "the act encouraged is known to be tortious." Cadlo v. Owens-Illinois Inc., 125 Cal. App. 4th 513, 521 (2004). These doctrines have repeatedly been likened to aiding and abetting, and have been applied by courts in civil contexts like drag racing to support liability for both drag racers even where the defendant's car does not strike the plaintiff. Chavers v. Gatke Corp., 107 Cal. App. 4th 606, 616 (2003).

The 4th District extensively discussed Agovino, in which the court found that whether a drag racing driver was acting in concert with another driver was for the jury to determine and there was sufficient evidence to support a finding that the defendant aided and abetted in a speed contest. The Court of Appeal noted that the fact that Meyer was a passenger in the same vehicle as Coleman supported the inference that she encouraged and incited him. Like the defendant in Agovino, Meyer was familiar with the road and its characteristics such as dips or the presence of other vehicles and people.

While Meyer argued that the evidence did not show Coleman engaged in an exhibition of speed within the meaning of Section 23109, the court, relying on In re Harvill, 168 Cal. App. 2d 490 (1959), and People v. Grier, 226 Cal. App. 2d 360 (1964), reasoned that an exhibition or display of speed was a broad term that could be intended to impress persons inside or outside the vehicle. The court noted that a jury could infer that Coleman accelerated the vehicle at Meyer's request so she could observe and experience the car "gain air," an exhibition of speed.

Regarding her conspiracy claim, Navarette argued liability could arise from verbal encouragement and solicitation to commit a wrongful act. The court found there was a triable issue for the jury as to Meyer's liability for civil conspiracy. Importantly, the court stressed that Meyer had an independent duty not to encourage or assist Coleman under the Vehicle Code.

Additionally, Meyer argued that the evidence did not support a finding that she or Coleman intended to harm anyone through a conspiracy because Navarette only alleged Coleman was negligent. However, the Court of Appeal stated that, under California law, civil conspiracy requires an express or tacit agreement to commit a civil wrong or tort. Thus, the court reasoned that a jury could conclude Meyer and Coleman expressly or tacitly agreed that Coleman would engage in an unlawful exhibition of speed, which is "sufficiently intentional" to support a claim for civil conspiracy.

Navarette further argued that Meyer unreasonably interfered with the safe operation of Coleman's car under Section 21701 when she encouraged him to "go faster." Interpreting the statute, the court reasoned that direct physical interference is not strictly required, and a person could interfere with the driver's control of the vehicle in other ways. Thus, Meyer only had to take some intentional act that would in some way affect Coleman's control.

While an alarmist reading of Navarette might encourage defense counsel to fasten their seatbelts, the Court of Appeal noted that the "critical fact" was that when Meyer encouraged Coleman to drive faster, she did so with "special knowledge" of the likelihood that his speeding vehicle would leave the road, even if it was not his intent. Based on the decisional law analyzed by the Court of Appeal, the application of this decision arguably appears to be limited to highly dangerous activities involving vehicles.