Now let me be clear, I think every driver at fault should be fully responsible for any and all medical bills of any injured passengers. My goal here was to come up with a solid legal argument for why the defendant driver, Donna Defendant, driving a used Toyota (or similar vehicle) shouldn’t be responsible for the difference in cost between repairing a typical car and repairing Linda Luxury’s Ferrari, Tesla, McLaren, or other such high end car, even when Donna Defendant is completely at fault for the accident.
Lane Changes = $$$$
Ever been driving down the road behind a typical car (say, a Toyota sedan) and had an expensive car merge in front of you? Ever thought to yourself, “Wow, if this car stops short and I wind up in a fender bender, my liability for the damage to the car in front of me just went up at least ten-fold?”
If not, that’s why I’m here: to propose that courts use the secondary assumption of risk doctrine to find that owners of high end cars, such as Ferraris, Teslas, McLarens, etc., assume the risk of the significant additional cost necessary to repair their cars.
Drive Down Memory Lane
In case I haven’t painted a picture you can identify with yet, here’s a true story for you:
Back in high school, I had a friend whose dad bought a really high end car (it was worth at least $100k), and on the drive home from the dealership, someone hit the car from behind, causing significant damage. That poor soul who hit my friend’s dad’s car never in a million years would have set out to purchase that high end car, but suddenly that poor soul was going to be paying off that high end car for years to come.
Recently, I’ve asked a few people about their thoughts on this. While generally those I’ve talked to believe there should be some sort of recourse for property owners, there is also a general consensus that if you didn’t set out to purchase a $100k vehicle, you should never have to shell out that kind of cash to pay for someone else’s car—even if you are fully at fault for the accident.
Argument Grounded in Law
In my quest for solid legal footing for my argument, I tried to find scenarios where a liable party was not held responsible for the damaged party’s extravagance. I found a study done in South Korea which proved that the high cost to repair foreign cars (on average, five times the cost to repair domestic cars of similar size) resulted in an additional liability cost to all drivers. But as far as U.S. legal precedent for holding a plaintiff liable for their own extravagance, I hit a dead end. What I did find, however, was the doctrine of assumption of risk, and scenarios where the court applied assumption of risk to recreational activities and sports. So I stretched the court’s reasoning a bit to come up with this:
Assumption of Risk
Per Fordham Intellectual Property, Media and Entertainment Law Journal, the doctrine of assumption of risk is “based on the public policy that one who voluntarily takes a risk should not be permitted to recover money damages from those who might otherwise have been liable.” (Assumption of Risk: An Age-Old Defense Still Viable in Sports and Recreation Cases). As applied to high end car owners, the public policy would be that one who voluntarily takes a risk in driving a car which is costly to repair should not be permitted to recover money damages —in the form of the increased repair costs—from those who might otherwise have been liable—that is, the hypothetical defendant driver, Donna Defendant.
Secondary Assumption of Risk
In California, there are two types of assumption of risk: The first type affects the duty analysis and is not applicable in this context. The secondary assumption of the risk affects the damages analysis. (Shin v. Ahn, supra, 42 Cal.4th at p. 498.) In secondary assumption of the risk, the defendant owes the plaintiff a duty, but the plaintiff shares the fault for his or her injury, and therefore, the damages must be apportioned between the parties. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 480.)”
“The most important elements of assumption of risk are that the person voluntarily and knowingly assumed the risks inherent to the dangerous activity. Furthermore, it is necessary for the defendant (the person the lawsuit was brought against) to demonstrate that the plaintiff knew of all risks at the time of the injury.” (Assumption of Risk: Definition, Doctrine & Examples)
In Walker v. Memorial Hosp., 187 Va. 5, 45 S.E.2d 898, the court found that “every pedestrian who ventures out in inclement weather with precipitation on [the] ground is risking chance of fall.” (Assumption Of Risk Cases Summarized By Injury Attorney).
Voluntarily and Knowingly
As applied to pedestrians, Pete Pedestrian would assume the risk of fall in the aforementioned case because Pete Pedestrian voluntarily chose to venture—that is, Pete did not need to venture out in inclement weather with precipitation on the ground. Further, Pete knew that walking on the ground when the ground was wet resulted in an increase in Pete’s risk of falling.
So the Walker court is essentially saying that no one needs to venture out during inclement weather when there is precipitation on the ground, and if a pedestrian chooses to venture out, that pedestrian has made a voluntary choice to engage in an activity with increased risk of suffering injury.
As applied to drivers, Linda Luxury would need to voluntarily and knowingly assume the risk of costly repairs to her luxury vehicle. That is, the court would have to find that no one needs to drive a high end car and that by doing so, Linda Luxury knew that there was an increased risk of costly damage to her car and voluntarily chose to assume that risk.
Admittedly, driving a high end car is not a “dangerous activity” the same way that walking on wet pavement or transporting toxic chemicals is. For the sake of argument, just go with me on this one.
Known Risks at the Time of the Injury
As applied to pedestrians, Pete Pedestrian certainly knew when he ventured out that when there is precipitation on the ground and inclement weather, there is an increased risk of falling. The rule requires that Pete Pedestrian knew the risk at the time of his fall.
As applied to drivers, Linda Luxury would need to know that there was an increased risk of costly damage to her luxury vehicle at the time Donna Defendant hit Linda Luxury’s car.
Admittedly, the rule does not translate precisely. I’m not arguing that driving a high end car increases the risk of being involved in a car accident in the first place. In fact, let’s say that Linda Luxury was driving a Ferrari California, which retails for $200,000. A Ferrari California is actually the second least likely car to be involved in an accident (likely because no one ever drives the $200k car). Instead, I’m arguing that by driving a car like a Ferrari California, Linda Luxury is increasing the risk that she will be involved in an accident wherein she suffers costly damage. This is because, according to GuysGab, the Ferrari California cost an average of $82,112 to repair after a collision. In contrast, a typical car repair costs roughly $2500-3000, according to WPRI Eyewitness news.
That’s Worth Translating:
Recall, Donna Defendant is completely at fault in this hypothetical fender bender. Even so, should Donna Defendant really be liable for an extra $80,000 just because a Ferrari California pulled in front of her in traffic? Secondary assumption of risk for luxury car owner liability could hold that Linda Luxury assumed the risk that she would be liable for the difference in cost between repairing a typical car and repairing the high end car she elected to drive. That is, even though Donna Defendant is completely at fault for causing damage to Linda Luxury’s car, applying secondary assumption of risk would mean that the law would not hold Donna Defendant liable for the additional $80,000 it costs to repair the Ferrari that the plaintiff driver, Linda Luxury, was driving. Instead, the law would find that Linda Luxury voluntarily took a risk that she would be liable for the difference in the cost to repair her Ferrari versus a typical car. That is, Linda Luxury would be liable for $80,000 while Donna Defendant would be liable for $2,000.
A note on the current reality:
Uninsured Motorist Coverage
The Federal Rules of Evidence state that it is against public policy to permit either party to submit evidence of a party’s insurance coverage as evidence of that party’s liability. But from a common sense perspective, it’s worth noting that drivers of high end automobiles are generally advised to carry uninsured motorist coverage. Uninsured motorist coverage pays for the cost to repair the luxury car owner’s vehicle in the event that the party liable for the damage to the luxury car does not have car insurance. In essence, if Linda Luxury had uninsured motorist coverage, she already assumed the risk that Donna Defendant is not financially prepared to pay to repair the damage done to the Ferrari. So why not go one step further and make Linda Luxury’s assumption of risk official?
DMV Proof of Financial Responsibility
This is actually where my reasoning for an argument in favor of a property damage liability maximum began, so it’s only fitting that I end this post with this argument:
The California DMV provides several options for drivers to provide proof of financial responsibility in the case of a car accident. Though it is a minimum, not a maximum, it’s worth noting that one option for proving financial responsibility is to make a cash deposit to the DMV of $35,000. According to Kelley Blue Book’s 2016-17 New Car Buyer’s Guide, the average cost of a new “small car” is $20,000. So that $35,000 cash deposit could pay for a totaled new “small car” plus $15,000 in medical costs. That seems reasonable.
Unless we bring Linda’s Ferrari California back into the equation. Doing so results in not only insufficient funds to cover any medical costs, but that $35,000 cash deposit would barely make a dent in the Ferrari California’s $82,112 average repair cost. If nothing else in this post convinces you, perhaps taking note that Donna Defendant would face property damage liability over 2x the California financial responsibility minimum will push you to ponder whether a property damage liability maximum may be called for.