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Can Negligent Driver Sue Vehicle Owner for Driver's Own Negligence?

Peter J. Weishaar
Nov 30, 2020
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Following a car accident, the person injured can sue the driver of the car that caused the accident.  Car accident attorneys also name the owner of the car as an additional defendant.  This is permitted by the vehicle and traffic law, which provides that:

Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. 

[N.Y. Vehicle and Traffic Law §388].  Whenever the driver of the car causing the accident is negligent, the owner of the car will also be liable.  This vicarious liability is imposed on the owner of the vehicle to ensure that persons injured by a negligent driver have access to a financially responsible insured person against whom to recover. 

What happens if the injured person is the one driving the car.  Can that driver sue the owner of the car for the driver’s own negligence?  Earlier this month, the Appellate Division held that the statute imposing vicarious liability does not permit a negligent driver to recover damages against the owner for injuries resulting from the driver’s own negligence.  [Shepard v. Power, 2020 N.Y. Slip Op. 06568 (2d Dep’t 2020)].

In this case, the estate of the driver who suffered fatal injuries in a single-car accident sought to recover from the car’s owner, based on the theory that the owner of the vehicle is vicariously liable for any injuries caused by the driver’s negligence.  The plaintiff’s decedent was killed when he lost control and struck a guardrail.  The car was owned by the defendant, who had given the decedent permission to drive it.  

Thankfully for the plaintiff, the complaint alleged multiple causes of action arising out of the owner’s negligence.  Only the cause of action based on vicarious liability was dismissed. 

A review of the record reveals that the car was actually a Lamborghini Gallardo coupe.  According to the complaint, the defendant was aware that decedent was “a young, newly licensed, relatively inexperienced driver as of [the date of the accident and] he was only 18 years old.”  The complaint also alleges that the defendant was aware that the decedent had been drinking, and that the car had tires with inadequate tread depth, brakes work beyond a safe level, and the vehicle had “numerous check engine warning lights on at the time of the subject incident.”  These issues were not impacted by the court’s dismissal of the vicarious liability claim.

Car accidents can result in serious injuries or even death.  If you are injured in an accident, our car accident attorneys can work with you to get you the compensation you deserve.

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About the author:  Peter Weishaar is the firm’s managing partner.   He is a trial lawyer with more than 20 years of experience working to resolve disputes in state and federal trial and appellate courts.  Since joining the firm in 1996, his practice has always included representation of individuals seriously injured by the negligence or misconduct of others.  Please feel free to contact Peter Weishaar at or (585) 512-3542.  Peter also writes a law blog, the Rochester Law Review, covering legal developments, cases of interest, and events happening in all of the key areas of his practice.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.