Question: Under Indiana law, can a motorcycle passenger be personally liable for negligence if the passenger’s conduct—such as intentionally using a selfie stick while riding and then dropping it—creates a foreseeable hazard that causes the motorcycle driver to lose control and someone is injured?
Answer: I.C. §34-51-2-7 requires the factfinder to consider the fault of all persons who caused or contributed to cause injury. Indiana’s definition of “fault” includes negligent acts or omissions.
While a passenger has a duty to exercise reasonable care, our Supreme Court has expressly recognized that where the passenger has no control over the management of the vehicle, he or she may ordinarily rely upon the assumption that the driver will exercise proper care and caution and need not keep a lookout in order to satisfy that duty. Therefore, if the evidence establishes: the passenger was using the selfie stick; the passenger dropped it; the dropped stick interfered with the motorcycle or driver; the interference caused the driver to lose control; and the loss of control caused the plaintiff’s injury, the passenger could potentially be found negligent and have a percentage of the damages allocated to him or her.
The critical issue is proximate cause—whether the passenger’s conduct was a natural and reasonably foreseeable cause of the accident. The Indiana Supreme Court has explained that the jury first determines whether an actor’s negligence was a proximate cause and then allocates comparative fault among the responsible actors. Again, it is important to note that a passenger normally may rely upon the driver to exercise ordinary and reasonable care when the passenger has no control over the motorcycle. However, the rule of law does not mean passengers do not have liability for their negligent conduct, since passengers have an independent duty to act with reasonable care. A prime example is that passengers have a duty to warn of impending dangers when passengers see that the operator of the vehicle is not aware of a pending danger that the passenger becomes on notice of that danger.