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Anderson v. Austin6/7/1994
LEWIS, Judge.
Plaintiff commenced this action to recover for injuries sustained as a result of an automobile accident. Plaintiff alleged that he was a passenger in the car driven by defendant Curtis Dale Austin (hereinafter "Curtis"). Plaintiff sought to hold Ronald and Frances Austin, the parents of Curtis, liable under the family purpose doctrine and under the theory of negligent entrustment. The trial court directed a verdict in favor of defendant Ronald Austin and submitted the case to the jury. The jury found that Curtis negligently drove the car and that his conduct was willful or wanton. In addition, the jury found that plaintiff was contributorily negligent and that his conduct was also willful or wanton, and thus awarded plaintiff no damages. Accordingly, the jury did not address the issues of family purpose and negligent entrustment. From the order granting defendant Ronald Austin's motion for directed verdict, and from the judgment, plaintiff appeals. From rulings denying Curtis and Frances Austin's motions for directed verdict, defendants Curtis and Frances Austin appeal.
The evidence at trial tended to show that on the evening of 28 September 1990 at approximately 10:30 p.m., Curtis drove to John Michael Mitchell's (hereinafter "John") home in a 1974 Oldsmobile, which was titled in Frances Austin's name. When Curtis arrived, John and plaintiff were in the backyard drinking beer. Shortly thereafter, the three went to a nearby convenience store to purchase more beer, with Curtis driving plaintiff's car. They then returned to John's house and drank the beers. When they had finished all the beer, they went to the store to purchase more beer. On this occasion, Curtis was driving the 1974 Oldsmobile. As they left the store, Curtis was driving, John was in the passenger's seat, and plaintiff was in the back seat. Thereafter, at approximately 1:20 a.m., the car left the roadway and crashed, injuring all three men.
Medical testimony at trial showed that at the time of the accident, Curtis' blood alcohol level was approximately .234, and plaintiff's was between .11 and .13. Furthermore, urine tests of both plaintiff and Curtis revealed the presence of marijuana. Curtis testified, over plaintiff's objections, that he, John, and plaintiff would regularly meet at John's house to drink beer and smoke marijuana, and then drive in one of their cars. Curtis also testified, and plaintiff denied, that plaintiff knew that Curtis' driver's license had been revoked, and as of the date of the accident was still revoked, for driving while impaired.
Plaintiff's first contention on appeal is that the trial court erred in submitting to the jury the issue of plaintiff's willful or wanton conduct. Plaintiff argues that his conduct amounted to no more than simple contributory negligence, and therefore an instruction on a greater degree of culpability was improper. We disagree.
Plaintiff bases his argument on the holdings of Pearce v. Barham, 271 N.C. 285, 156 S.E.2d 290 (1967) and similar cases, which have stated that where the driver of a vehicle engages in willful or wanton conduct, the mere failure of the passenger to protest or remonstrate, or to ask the driver to stop and let him out, amounts to no more than simple contributory negligence, and will not bar recovery against the driver. However, in the present case, there was evidence tending to show that plaintiff did more than merely fail to protest or remonstrate, and that his actions rose to the level of willful or wanton conduct.
An act is willful when it is done purposely and deliberately in violation of the law, or when it is done knowingly and of set pu
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