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Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance. If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other's act. The assistance or participation by the defendant may be so slight that he is not liable for the act of the other. In determining this, the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind are all considered.
Plaintiffs Alex Price were the administrator of the estate of Kenneth C. Wall and Mr. Wall's surviving wife, Louise Wall. The complaint alleged that in November 1983, Mr. Wall was driving a pickup truck northbound with his wife and two minor children as passengers. On the other, Stephen E. Garretson was driving in a southerly direction in an automobile owned by his mother, and in which the defendants Larry Halstead, Bobby Gillenwater et al., were passengers. According to the complaint, the driver was driving while under the influence of alcohol and marijuana and was traveling at an excessive rate of speed. The complaint further stated that both before and during the trip, defendants were consuming alcoholic beverages and smoking marijuana. That all of the passengers were actively engaged in providing these substances to the driver. Defendant driver then lost control of his automobile and struck the vehicle head-on while attempting to pass another southbound vehicle. The incident resulted where the driver was killed and his passengers received serious bodily injuries. Plaintiffs filed a complaint against defendant passengers and advanced four theories of recovery against them. The complaint alleged that defendants were engaged in a joint venture, in a joint enterprise, that defendant passengers were negligent in failing to restrain or remonstrate defendant driver, and that defendant passengers substantially assisted or encouraged defendant driver's tortious activity by providing him with additional drugs and alcohol. The lower court dismissed the complaint under W. Va. R. Civ. P. 12(b)(6) for failure to state a cause of action. Plaintiffs sought review of the decision.
Should defendant passengers in a motor vehicle be held liable for the negligence of the defendant driver?
The court reversed and remanded in part. The court held that defendant passengers were alleged to have directly participated and have encouraged the defendant driver to continue to drink and smoke marijuana when he was already visibly intoxicated. Thus, the court noted that the allegations in the complaint stated that defendant substantially contributed to and assisted the defendant driver's continued use of alcohol and drugs while he was already impaired; that impairment was the proximate cause of the accident. However, the court affirmed the dismissal of the negligence theory after finding that the trial court was correct in dismissing the joint venture and joint enterprise theories of liability because the defendant driver was the actor. Also, the court found that there were no allegations in the complaint which would indicate that the occupants of the car were engaged in any type of business enterprise.