Plaintiff operated vehicle “in a safe and prudent manner”

In New York, falling asleep at the wheel will almost always be found to be negligent. I say almost always because the cases don’t quite go that far – they allow the driver to proffer a non-negligent explanation for falling asleep. Problem is, I see no cases where such an explanation has even been offered, no less succeeded. If a driver knows he’s in danger of falling asleep and continues driving he may be found negligent as a matter of law. Jorif v. Jorif, 591 NYS2d 48 (2d Dept. 1992). More to the point of your post, one wonders when and if so why when a driver falls asleep and causes an accident an injured person in the car can recover from a non-driver for his pain and suffering caused in a single car accident. That’s what was tried in Diaz v. Vasques, 793 NYS2d 27 (1st Dept. 2005) but the defendant was granted summary judgment on plaintiff’s claim that in acting as general contractor under a road paving contract it should have installed an impact attenuator that may have avoided or reduced the injuries when a car crashed into a concrete construction barrier. Since the contractor was justified in relying on the plans and specs provided in its contract with the NYS Dept. of Transportation, the claims against it were dismissed. That leaves the open question: what if there were active negligence on the part of the contractor and what if it were the sleeping driver suing? Should recovery be permitted under that circumstance? I think most would say no. The courts will surely address this again.