Persons who are considered mentally deficient by reason of insanity, weak-mindedness or old age are held to the standard of care for their own safety for which they are capable and for which reasonable persons with the same mental capacity would be capable of avoiding danger. Horton v. Niagara Falls Memorial Medical Center, 51 A.D.2d 152, 380 N.Y.S.2d 116 (Fourth Dept. 1976).
Intoxication If there has been drinking, even if you have a passenger, your case may be very weak or even without merit. There are several defenses to be familiar with before you sign up the client and before you make representations about what a great case he has. If both parties have been drinking and are intoxicated, then the courts commonly hold that this was a "joint participation and contribution" and dismiss the action upon summary judgment motion at the completion of discovery. This doctrine is found in Harris v. Hurlburt, 373 N.Y.S.2d 480 (Sup. Ct, Seneca County, 1975). There both the driver and passenger were intoxicated. The passenger, who ended up as a paraplegic, was "no caused" and the verdict sustained. See also, Prunty v. Keltic's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 (Second Dept. 1990); (Rev. 1,7AX» General Obligations Law §11-101. But see, Ciserano v. Sforza, 130 A.D.2d 618, 515 N.Y.S.2d 548 (Second Dept. 1987). Ciserano, a passenger case, was not dismissed despite significant testimony indicating the passenger's culpability. Testimony was given that the passenger was "hanging out" of the window on the passenger side with a bottle of liquor as the vehicle traveled between 60- and 80-miles per hour. The Appellate Division held that the question of whether the passenger assumed the risks inherent in riding with a known intoxicated driver and his comparative negligence should be contained in one jury question. Ciserano v. Sforza, supra. The recognized exception is where you are able to establish that the passenger/plaintiff not only did not contribute to the driver's intoxication, but also was not even aware of the fact. That can occur where they were on opposite sides of the room during the evening and when they left, the driver "appeared" sober and in control. These are facts you must establish. There may be another collateral claim and additional coverage here if the intoxicated driver was underage. If he had been provided alcohol by a third party, not the claimant, then that third party might be a proper party and his homeowners' coverage would apply, even in this automobile situation. If the driver was supplied additional alcohol once he appeared to be impaired, even where ho was not underage, the person supplying the alcohol can be liable to injured third parties under the New York Dram Shop act. General Obligation Law §11-101