Has an insurance adjuster ever told you, the passenger, that you contributed to the accident because you distracted the driver or did something else. I recently had a client come in stating that this is what the adjuster had told her. I thought to myself that this insurance ploy is just another example of the unbalanced field on which you the injured are playing on without legal representation.
So, can a passenger in Oklahoma be contributory negligent. In almost every circumstance, the answer is no. In fact, the Defense lawyer cannot even get a jury instruction of such except in grievous circumstances. In showing how far insurance will go to avoid paying a claim, I even had a defense lawyer in a case assert my 11 year old client was somehow contributory negligent notwithstanding the important fact his driver plowed into my 11 year old client’s parents. Needless to say, the defense lawyers “defense” didn’t even make it before the jury.
Oklahoma law is exact on the issue of passenger contributory negligence. A recently Oklahoma Supreme Court opinion shows that it is extremely difficult to present any evidence to the jury of a passengers alleged contributory negligence. 2008 case of Beverly Snyder, in her capacity as Mother and Personal Representative of the Estate of Terri LeAnn Stout, deceased v. Maldonado Onefre Insurance Company et. al., OK, 2008 OK 53, May 27, 2008, addresses under what circumstances a passenger can be held contributory negligent. The case specifically states that "if there is no evidence of a preexisting condition and no evidence of an intervening change that was sufficiently significant to place a reasonable passenger on alert, there is no evidence of the passenger’s contributory negligence…the inference of contributory negligence is not permissible or reasonable." Therefore, unless direct evidence of contributory negligence exists, which it does not in this matter, no jury instruction can even be presented to the jury alleging such contributory negligence.