Four friends of an intoxicated 18-year-old man who put him in the open bed of a pickup truck for fear he might vomit on them are not liable for his death in a traffic accident, the Tennessee Court of Appeals has ruled.

It is not known how Cody Downs ended up being hit by two oncoming vehicles as he tried to run across an interstate freeway. But his mother alleged his friends violated a duty of care by leaving him in the bed of the pickup after he got drunk at a party in February 2003.

All five men were initially riding in the vehicle's cab as they headed home on Interstate 65 from the party in Cool Springs, Tenn., to Downs' apartment in Nashville. After Downs became nauseous, they stopped alongside the freeway so he could throw up.

Someone then suggested that Downs travel the rest of the way in the bed of the pickup so he would not vomit on anybody. Several miles later, his friends realized he was no longer there but they continued on to his apartment without turning round to look for him.

Diane Downs based her negligence claim in part on the theory that her son's friends voluntarily assumed a duty when they agreed to take him home in his intoxicated state and then put him in the bed of the pickup. The defendants included Cody's roommate Ryan Britt, the pickup's owner Scott Hurdle, driver Jerry Eller, and passenger Mark Bush.

Under the Restatement of Torts, “One who ... takes charge of another who is helpless adequately to aid or protect himself” may be liable for any injury to the other person.

But in affirming a Davidson County judge's summary dismissal of the case, the Court of Appeals said Cody Downs had left the party “under his own control” and there was “no evidence upon which to base a finding that he was intoxicated to the degree to render himself helpless.”

Judge Frank G. Clement, writing for the court, also relied on a South Carolina precedent which said a defendant accused of failing to take charge of a helpless person must have “through affirmative action assumed an obligation or intended to render services for the benefit of another.” Carson v. Adgar, 486 S.E.2d 3 (1997).

Applying that standard, Clement concluded in his opinion, the actions that Downs' friends took to assist him “did not rise to the level of 'taking charge.'”

A passenger in the first vehicle to strike Downs testified she first saw him on the shoulder of the interstate in a position similar to that of a runner. A moment later, he ran onto the freeway immediately in front of her vehicle.

Clement said that even if Diane Downs could establish a breach of duty, her case would fail for lack of causation. “[W]e do not believe that any reasonable person would foresee a young man who, upon all accounts was happy and showed no signs of the intention to harm himself, would run into the interstate as the result of being 'put' or 'assisted' into the bed of the pickup truck,” he explained.

By Matthew Heller
9/7/07