## Facts

- Kathy Ann Musso rode as a passenger in a 1980 Jeep driven by William Wirt Hines after they attended a party in Wake County, North Carolina.
- Earlier that day, Wirt had been drinking when he visited Musso at her workplace, and Musso stated they planned to drink before, during, and after the party.
- Musso’s employer warned her not to ride with Wirt and repeatedly offered to pick them up and drive them home regardless of the hour; Musso declined.
- Wirt and Musso purchased a 12-pack of beer and drank during the evening in each other’s presence; Wirt’s drinking that night occurred in Musso’s presence.
- On the return trip, the Jeep crashed on I-440 in Raleigh in a single-vehicle accident, killing Musso.
- Post-accident evidence showed Musso’s blood alcohol concentration was 0.16; Wirt’s was measured at 0.169, with evidence it would have been about 0.184 at the time of the crash.
- An investigating officer arriving within minutes observed it was obvious Wirt was under the influence.
- Wirt later pleaded guilty to manslaughter arising from Musso’s death.

## Issues

1. Whether Musso was contributorily negligent as a matter of law by voluntarily riding with Wirt when she knew or should have known he was intoxicated, barring the wrongful-death claim.
2. Whether, given evidence of Wirt’s willful and wanton conduct, Musso’s decision to ride with him constituted a similarly high degree of contributory negligence.
3. Whether the doctrine of last clear chance permitted recovery despite Musso’s contributory negligence.

## Decision

- The Court of Appeals affirmed summary judgment for defendants on the ground that Musso was contributorily negligent as a matter of law.
- The court held the summary-judgment record established: (1) Wirt was under the influence, (2) Musso knew or should have known it, and (3) she voluntarily rode with him despite that knowledge.
- The court concluded that to the extent Wirt’s intoxicated driving constituted willful and wanton negligence, Musso’s knowing and voluntary decision to ride with him established a correspondingly high degree of contributory negligence.
- The court rejected last clear chance based on the pleadings and, independently, because Musso had practical opportunities to avoid the risk before entering and remaining in the vehicle.

## Legal Principles

- A passenger is contributorily negligent per se when the passenger voluntarily rides with a driver the passenger knows or should know is under the influence of an intoxicant.
- For passenger contributory negligence in this context, the elements are: (1) driver intoxication, (2) passenger knowledge (actual or constructive), and (3) voluntary riding despite that knowledge.
- Where a driver’s conduct is willful and wanton and the passenger knowingly accepts the risk by riding with the driver, the passenger’s contributory negligence may be treated as similarly willful and wanton, preserving the contributory-negligence bar.
- Last clear chance does not apply where the plaintiff had meaningful opportunities to avoid the danger before voluntarily exposing herself to it, and it must be raised in a manner that provides notice in the pleadings.

## Conclusion

The court held that Musso’s estate could not recover for wrongful death because Musso knowingly and voluntarily rode with an intoxicated driver, establishing contributory negligence as a matter of law; last clear chance did not apply, and summary judgment for defendants was affirmed.


Coleman v. Hines, 515 S.E.2d 57 (N.C. Ct. App. 1999)