March 11, 2011
Newbie driver sued by driver's license examiner
By ANDREW BERGH
Special to the Journal
Taking a driving test soon?
Then you had better be on your best driving behavior. Otherwise, you
might not only flunk the test but also wind up in a lawsuit.
During her 15 years as a driver's license examiner for the Missouri
Highway Patrol, Patricia Ivey had administered thousands of driving
tests to applicants like Clara Joe Nicholson-McBride. (We'll just call
her “Clara Joe” for short.)
So how old was Clara Joe when she appeared for her driving test?
Dunno. What's known, however, is that as Clara Joe approached an
intersection with a red light, she slammed on her brakes after Patricia
yelled “stop.” The examiner, who extended her right arm to brace
herself, injured her shoulder as a result of the abrupt stop.
Patricia later sued Clara Joe for damages in Jackson County Circuit
Court, alleging that her shoulder injury was caused by the license
The parties were later deposed.
According to Patricia's testimony, she twice told Clara Joe the
approaching light was red, and yelled for her to stop as she entered the
intersection because she failed to slow down or stop both times. Clara
Joe, on the other hand, testified that she only heard one verbal warning
and that she stopped before entering the intersection.
With regard to her employment, Patricia acknowledged at her
deposition that riding with inexperienced drivers is one of the risks of
her job, and that she had ridden with applicants who made abrupt stops
over 100 times.
Clara Joe later moved for summary judgment. The plaintiff's suit was
barred by the so-called “assumption of risk” doctrine, she claimed,
because her injuries resulted from a risk inherent to her position as a
driver's license examiner.
The trial court agreed.
Patricia “voluntarily and knowingly” assumed the risks of her
position as a driver's license examiner, said the court, while riding as
Clara Joe's passenger to assess her driving skills. Since she knew from
experience that the risks included a sudden stop by an inexperienced
driver, the court ruled that her claim was barred as a matter of law.
In the ensuing appeal, Patricia argued that the assumption of risk
doctrine didn't apply. The short version? That although her position
involved known risks, that fact didn't relieve Clara Joe of her duty to
exercise the duty of care imposed on all drivers.
About three weeks ago, the plaintiff got good news from a Missouri
According to a Missouri statute, all drivers in the Show Me State owe
a duty to drive their cars with the “highest degree of care.” This law
“obviously includes” an applicant for a driver's license, said the
court, because it applies to “every person” operating a motor vehicle.
The appeals court recognized that under Missouri law, driver's
license examiners are required to observe a given applicant's ability to
safely drive a car. But in conducting those examinations, said the
court, examiners don't “expressly or impliedly” relieve the applicant of
his or her duty of care, nor do they assume the risk of injury resulting
from an applicant's negligent driving.
The court used a sports analogy to drive home its point.
An athlete, the court explained, generally consents to injuries that
are “reasonably foreseeable consequences” of competition. Participants
in sporting events don't consent to injuries resulting from “negligent
conditions,” however, because the latter aren't reasonably foreseeable.
In short, although Clara Joe was apparently a newbie driver, the
appeals court said Patricia had “every right” to expect that she would
exercise the highest degree of care in demonstrating her driving skills.
Thus, by merely being present as a passenger in Clara Joe's car,
Patricia had assumed no inherent risks.
The bottom line? Since the assumption of risk doctrine didn't apply,
the trial court had no business dismissing Patricia's suit on that
ground. So given the factual dispute as to whether Clara Joe's abrupt
stop had resulted from negligence on her part, the appeals court
remanded the case for trial.
So does this mean the examiner — not the license applicant — is now
in the driver's seat? Not really, since Patricia must still persuade a
Jackson County jury that Clara Joe breached her duty of care.
If it were me, I would definitely want a panel of 12 licensed drivers
who had never flunked a driving test.
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