Pleading With Particularity
The rules of civil procedure in Tennessee ordinarily require that a plaintiff make a "short, plain statement.." There is an exception - Rule 9 of the TRCP requires pleading with particularity when fraud or mistake are alleged.
Nothwithstanding the general rule, some people believe that more is better. Here is an example, from a real complaint in a real case:
Plaintiff was operating said vehicle in a safe and prudent manner, lawfully and under conditions commensurate with road and weather conditions on or about January 1, 2009, on Highway X in Some County, Tennessee, when Plaintiff fell asleep and drove off the roadway. Upon exiting the roadway, the vehicle came to a sudden stop when it collided with a culvert along the side of the roadway. The vehicle was equipped with airbags which did not deploy in the accident.
(The date and location of the incident has been deliberately changed.)
I thought I was familiar with the "rules of the road," but was unaware that a driver could safely, prudently, and lawfully fall asleep while driving and run off the road.
You learn something every day.
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.