When a passenger and the driver are both hurt by another car

Attorney Answer

You each have your own claim. They are separate from the start, they are valued separately, and yours is very likely the stronger of the two — which is not a comment on your injuries but on how Alabama assesses fault.

Both of you have to establish the same thing: that a driver was negligent and that this caused the injury. Where you differ is in what can be said against each of you.

Alabama is one of a handful of states that still applies contributory negligence, and it changes everything about a claim here. If the person claiming is found to have been negligent themselves, and that negligence helped cause the injury, they recover nothing — not a reduced amount, nothing. There is no apportionment and no percentage.

Two things soften that, and both matter.

It is a defense the other side has to prove. Contributory negligence is an affirmative defense, so the burden is on the defendant to establish it rather than on the claimant to disprove it. And it is not established simply by showing carelessness: the defendant generally has to show the claimant knew of the danger, appreciated it, and failed to take reasonable care anyway. Alabama's courts have said that simple heedlessness is not enough, and that it is normally a question for a jury rather than something decided as a matter of law.

And it is no defense at all to wanton conduct. Where the other party's behavior goes beyond ordinary negligence to wantonness, contributory negligence does not bar the claim. That makes how the other driver's conduct is characterized one of the most consequential questions in an Alabama case.

A passenger is usually in a stronger position than either driver, and it is worth understanding exactly why. Contributory negligence is about the claimant's own want of care. A passenger was not steering, not choosing the speed and not deciding when to pull out, so the conduct a defense would normally attack simply is not there.

Stronger is not the same as immune. Alabama's courts have held that a passenger owes a duty of reasonable care for their own safety that exists independently of the driver's conduct, even without control of the vehicle — so a passenger is not outside the rule. But the same authority holds there is no automatic finding of contributory negligence where a rear-seat passenger simply failed to warn of a danger they knew about. The kinds of things that do get raised against a passenger are narrow: riding with a driver known to be drunk, urging them on, or interfering. Not wearing a seatbelt is not on that list. Ala. Code § 32-5B-7 provides:

Failure to wear a safety belt in violation of this chapter shall not be considered evidence of contributory negligence and shall not limit the liability of an insurer, nor shall the conviction be entered on the driving record of any individual charged under the provisions of this chapter.

And a passenger often has more than one route. The claim lies against whichever driver was at fault, and that may be the driver of the car you were in, the driver of the other car, or both. You do not have to choose between them at the outset, and being a guest in someone's car does not prevent a claim against them — it is their insurer that responds, not them personally.

So the driver of your car faces a question you do not. Even though the other car hit you, a defense will examine what your driver did — speed, lookout, position, whether the collision was avoidable. If anything there amounts to negligence that contributed, their claim fails outright. Yours does not depend on that at all: if your driver turns out to have been partly at fault, that does not defeat your claim, it just means your claim may lie against them as well as against the other driver.

Two practical consequences follow and they matter more than they sound.

First, your claims are separate even though you were in the same car and the same crash. Your medical treatment, your lost earnings and what the injury has done to your life are yours. They are not part of the driver's claim and they are not shared out of one pot.

Second, do not let the two of you be handled as a single matter by a single adjuster without thinking about it. Where there is any possibility your driver was partly at fault, your interests and theirs are not the same, however friendly things are between you. That is a reason for you to get your own advice, not a reason for a falling-out.

What you can do

1. Make sure both of you are recorded on the crash report as occupants, and check how it describes what happened. 2. Both of you should be seen by a doctor promptly and should keep following the treatment plan. Unexplained gaps are the standard argument against an injury. 3. Keep your own records — your bills, your time off, your expenses — separately from the driver's. 4. Identify the insurers for both vehicles. Your claim may lie against either driver or both. 5. Neither of you should give a recorded statement or accept an offer before taking advice. 6. Get your own advice rather than relying on arrangements made for the driver, particularly if there is any suggestion your driver was partly at fault. An Alabama attorney can tell you quickly whether your interests and theirs actually line up.

⏱ Time limits apply. Ala. Code § 6-2-38(l) gives two years: “all actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.” Evidence goes sooner — footage is overwritten and memories fade — so the practical deadline is usually much earlier than the legal one.

An Alabama attorney can tell you quickly how the facts here line up, and most will look at a matter like this at no cost.