In this appeal we consider whether the passengers in a motor vehicle may be held liable for the negligence of their driver. The Circuit Court of Boone County dismissed the action against the defendants holding that the complaint failed to state a cause of action under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.
Our law respecting motions to dismiss is well established. We stated in Syllabus Point 1 of
McGinnis v. Cayton,
“ ‘The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) Motion, should not dismiss the complaint unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Syl. Pt. 2 of Sticklen v. Kittle, [168 W.Va. 147 ]287 S.E.2d 148 (1981).”
See also Mandolidis v. Elkins Indus., Inc.,
I.
The plaintiffs are the administrator of the estate of Kenneth C. Wall and Mr. Wall’s surviving wife, Louise Wall. The complaint alleges that on November 24, 1983, Mr. Wall was driving a pickup truck northbound on U.S. Route 119 near Peyto-na, West Virginia. His wife and two minor children were passengers in the truck. Stephen E. Garretson was driving in a southerly direction in an automobile owned by his mother, and in which the defendants were passengers. According to the complaint, Mr. Garretson was driving while under the influence of alcohol and marijuana and was traveling at an excessive rate of speed.
The complaint also states that both before and during the trip, Mr. Garretson and his passengers were consuming alcoholic beverages and smoking marijuana. All of the passengers were actively engaged in providing these substances to Mr. Garret-son. Mr. Garretson lost control of his automobile and struck the Wall’s vehicle head-on while attempting to pass another southbound vehicle. Mr. Wall was killed and his passengers received serious bodily injuries.
The plaintiffs advanced four theories of recovery against the defendants. First, they alleged that the defendants were engaged in a joint venture, the purpose of which was to “purchasfe] and/or utiliz[e] gas, beer, and marijuana” while joy riding. Second, they alleged the above described activities constituted a joint enterprise. Third, they alleged the defendants were negligent in failing to restrain or remonstrate Mr. Garretson when they knew or should have known he was driving while under the influence of alcohol and drugs. Finally, it is alleged that the defendants, knowing Mr. Garretson was driving while intoxicated, substantially assisted or en *595 couraged his tortious activity by providing him with additional drugs and alcohol.
II.
THEORIES OF JOINT VENTURE AND ENTERPRISE
A.
The plaintiffs attempt to impute liability to the passengers upon alternative theories of joint venture and joint enterprise. While at least one of our older cases apparently used these terms interchangeably, Hor
chler v. Van Zandt,
It is a single, isolated business pursuit which, as we said in
Nesbitt,
may be likened to a partnership, except “that a partnership relates to a general business ... while [a] joint adventure relates to a single business transaction.”
Here, there are no allegations in the complaint which would indicate that the occupants of the car were engaged in any type of business enterprise. Thus, the trial court was correct in dismissing this theory as a matter of law.
B.
A joint enterprise is distinguished from a joint venture by the fact that there is no business motive underlying the parties’ efforts in a joint enterprise. This point was made in a rather peripheral fashion in
Stogdon v. Charleston Transit Co.,
We have utilized the joint enterprise concept in suits involving automobile accidents where the negligence of the driver is sought to be imputed to the passenger. The most common fact pattern involves a motor vehicle passenger who sues the operator of another vehicle claiming that his negligence was the proximate cause of the accident. , This defendant then asserts that the passenger cannot recover because he was engaged in a joint enterprise with the driver of his vehicle, and that his driver’s negligence must be imputed to him.
In this case, the plaintiffs seek to hold the passengers directly liable for the negligence of their driver. It is generally recognized that a passenger can be held liable as a defendant for the negligence of his driver if they were engaged in a joint enterprise. This point is tersely stated in 7 A Am.Jur.2d Automobiles and Highway Traffic § 634 (1980): “It is a general rule that the negligence of a member of a joint enterprise causing injury to a third party is imputable to other members of the enterprise and that all may be held liable for the injury.” See also 60A C.J.S. Motor Vehicles § 444 (1969).
In applying a joint enterprise theory to occupants of a motor vehicle, we have emphasized as the critical element the common right to control the vehicle on the part of its occupants, as indicated by the single Syllabus of Stogdon:
“Where there is no showing of a common right to control the use of an automobile, an instruction to a jury that it may return a verdict based upon the *596 existence of a joint enterprise is erroneous.”
This principle was further elaborated upon in Syllabus Point . 8 of
Frampton v. Consolidated Bus Lines, Inc.,
“The relationship of joint enterprise between the owner of an automobile driving the same and a guest passenger in the vehicle is not established by the mere fact that the driver and passenger were riding together to the same destination for a common purpose, where the passenger had no voice in directing and controlling the operation of the automobile.”
See also Blackburn v. Smith,
There has been a rather marked tendency to restrict joint enterprise liability in cases involving motor vehicle passengers. It is now generally agreed, as we held in
Frampton,
that something more is required to invoke the doctrine than an agreement to travel to a particular destination for a common purpose.
See generally
W. Prosser & W. Keeton,
Law of Torts
§ 72 (5th ed. 1984). Moreover, most courts now reject application of the doctrine of joint enterprise to arrangements to travel together for merely social or recreational purposes.
E.g., Begley v. Morgan,
From the allegations of the complaint, it appears that the passengers and the driver embarked on a common purpose, that of drinking and joy riding. This, however, would not be the type of endeavor that would give rise to a joint enterprise. Consequently, we find that the circuit court was correct in rejecting the joint enterprise theory as a matter of law.
III.
NEGLIGENCE
The plaintiffs' third theory begins with the often stated premise that a guest passenger in a motor vehicle may be guilty of contributory negligence if he fails to exercise reasonable care for his own safety by way of remonstrating the driver when the latter is driving in a reckless or negligent manner. This rule flows from the correlative rights and duties of the driver and his passenger, which we summarized in Syllabus Point 1 of
Herold v. Clendennen,
“Under the laws of this state, the driver of an automobile owes to an invited guest reasonable care for his safety; but the guest must exercise ordinary care for his own safety, and when he knows, or by due diligence should know, that the driver is not taking proper precautions, it becomes the duty of the guest to remonstrate; and failure to do so bars his right to damages in case of injury.” 1
See also Hutchinson v. Mitchell,
From these cases, the plaintiffs would derive a duty owed by automobile passengers to other motorists on the highway. The duty that our guest passenger law recognizes flows from the principle of contributory negligence, i.e., that a passen *597 ger has a duty to exercise reasonable care for his own safety. This duty to exercise reasonable care for his own safety cannot be converted into a general duty on the part of a passenger to exercise reasonable care toward third parties.
The general rule, as found in 7A Am.Jur.2d Automobiles and Highway Traffic § 635 (1980), is that there is no liability on the part of occupants of a vehicle for the negligence of the driver in the absence of a special relationship such as a joint enterprise or venture or master-servant:
“As a general rule, an occupant of a motor vehicle other than the driver is not liable for injury to a third person due to the negligence of the driver, in the absence of evidence that the occupant had some control over the driver, or that the driver was in the occupant’s employ, or that the driver and the occupant were engaged in a joint enterprise.” 2
The plaintiffs also rely on Section 298 of the Restatement (Second) of Torts, 3 but we find their reliance is misplaced as this section does nothing more than define what is meant by the lack of reasonable care. It presupposes that there has been an act doné, and the issue it addresses is whether the actor can be charged with failing to exercise reasonable care. Here, the actor is the driver and not the passengers.
For the foregoing reasons, we find the trial court was correct in dismissing the plaintiffs’ third cause of action.
IV.
SUBSTANTIAL ASSISTANCE AND ENCOURAGEMENT
Finally, the plaintiffs rely upon a theory of joint concerted tortious activity as defined in Restatement (Second) of Torts § 876(b) (1966): “For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ... (b) knows that the other’s conduct constitutes a breach of duty and. gives substantial assistance or encouragement to the other so to conduct himself.” 4 Specifically, *598 they allege the defendants lent substantial aid and encouragement to Mr. Garretson in his negligent operation of the vehicle. This theory is sometimes termed as aiding and abetting a tort. The basis for imposing liability under an aiding and abetting theory is that if the breach of a duty by the actor was substantially encouraged by the conduct of a third party, then this party may also be found liable. This theory is by no means novel and is expressed in 7A Am.Jur.2d Automobiles and Highway Traffic § 635 (1980):
“[A] guest may be held liable for the consequences of the driver’s negligent operation of his motor vehicle, where the guest directs or encourages the negligent, act, or personally co-operates therein. Ratification of the negligent conduct of the driver by a guest may be equivalent to command, and co-operation may be inferred from acquiescence where there is power to restrain.”
In a somewhat related vein, we have held that the employer of a motor vehicle operator could be liable to a third party who was injured when the employee fell asleep and lost control of his automobile.
Robertson v. LeMaster,
“One who engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a duty to exercise reasonable care to prevent the threatened harm.”
See also Cavender v. Consolidated Rail Corp.,
In the present case, the facts are even more egregious than in
Robertson
as the passengers are alleged to have directly participated and to have encouraged the driver to continue to drink and smoke marijuana when he was already visibly intoxicated. There can be no question that if the driver was driving under the influence of alcohol or drugs, this would, be a violation of our motor vehicle statute. W.Va.Code, 17C-5-2 (1983). We have in the past held on-a number of occasions that the violation of a provision of our motor vehicle statutes is
prima facie
evidence of negligence.
E.g., Kretzer v. Moses Pontiac Sales, Inc.,
In
Perry v. Melton,
“Bailey, while driving with a blood-alcohol content of .19 percent, sought to pass a tractor trailer going about fifty-five miles per hour by traveling in excess of that speed in the far right-hand lane designed for emergency parking only. This was, as a matter of law, at least ordinary negligence.”
We implicitly recognized in
Hensley v. Erie Insurance Co.,
Furthermore, if there is any area of social policy on which there has been virtual unanimity of agreement between courts and legislatures it is the need to stem the tide of injuries and deaths arising from driving under the influence of alcohol and drugs. Courts have increasingly expanded the tort law to hold those who dispense alcoholic beverages liable for injuries inflicted on third parties by those who have consumed.too much alcohol. 5
*599
Several courts have addressed the issue of whether passengers can be liable to a third party when they actively encourage the driver, who is already under the influence of alcohol or drugs, to continue its use and such encouragement leads to an accident. In
Aebischer v. Reidt,
“We conclude that a reasonable jury could, find from the plaintiffs evidence that defendant provided substantial assistance to Smith’s negligent driving by continuing to refill the pipe and passing it to him, or knowing Smith would grab it from him, when he knew or should have known that the marijuana would contribute to Smith’s intoxication and further impair his ability to drive. That evidence and the evidence that marijuana can impair driving ability and that Smith was affected by the marijuana was sufficient to present a jury question on Reidt’s liability.”74 Or.App. at 696 ,704 P.2d at 533 .
The defendants cite several cases which they contend stand for an opposite result, but we find them not necessarily contrary. In
Cully v. Bianca,
There is no question that the passengers’ involvement in encouraging the driver
*600
must be substantial in order to affix Section 876 liability. We would agree with the result in
Olson v. Ische,
Nor do we find
Slicer v. Quigley,
A case more analogous to the present one is
Cecil v. Hardin,
What we discern as a proper rule is that a passenger may be found liable for injuries to a third party caused by the intoxication of the driver of the vehicle in which he is riding, if the following conditions are met: (1) the driver was operating his vehicle under the influence of alcohol or drugs which proximately caused the accident resulting in the third party’s injuries, and (2) the passenger’s conduct substantially encouraged or assisted the driver’s alcohol or drug impairment.
In view of the fact that the allegations in the complaint stated that the passengers had substantially contributed to and assisted the driver’s continued use of alcohol and drugs while he was already impaired and that the accident was the proximate cause of his impairment, the defendants’ motion to dismiss as to the plaintiffs’ fourth count should not have been granted. Consequently, the judgment of the circuit court is reversed and this case is remanded.
Affirmed, in part, Reversed, in part, and Remanded.
Notes
. This syllabus point, as it relates to the passenger’s contributory negligence, has been modified by
Bradley
v.
Appalachian Power Co.,
. This is in accord with the general rules found in Sections 314 and 315 of the Restatement (Second) of Torts (1966) with regard to the duty to protect others:
Section 314: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose, upon him a duty to take such action.”
Section 315: "There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
“(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
"(b) a special relation exists between the actor and the other which gives to the other a right to protection."
.. Section 298 of the Restatement (Second) of Torts (1966) provides:
“When an act is negligent only if done without reasonable care, the care which the actor is required to exercise to avoid being negligent in the doing of the act is that which a reasonable man in his position, with his information and competence, would recognize as necessary to prevent the act from creating an unreasonable risk of harm to another.”
. The remaining portions of Section 876 are:
"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
“(a) does a tortious act in concert with the other or pursuant to a common design with him, or
******
“(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.”
In comment d to Section 876 of the Restatement (Second) of Torts (1966), these statements are made relative to Section 876(b):
"Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance. If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act....
"The assistance or participation by the defendant may be so slight that he is not liable for the act of the other. In determining this, the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind are all considered.”
. Justice Bogdanski, dissenting in
Slicer v. Quig-ley,
"Most ... courts ... [hold] that the furnishing of alcoholic beverages may be the proximate cause of injuries sustained by third parties. Alaska: Vance v. United States,355 F.Supp. 756 (D.Alaska 1973) (commercial vendor): Arizona: Thompson v. Bryson,19 Ariz.App. 134 ,505 P.2d 572 (1973) (commercial vendor); California: Coulter v. Superior Court,21 Cal.3d 144 ,145 Cal.Rptr. 534 ,577 P.2d 669 (1978) (social host); Vesely v. Sager,5 Cal.3d 153 ,95 Cal.Rptr. 623 ,486 P.2d 151 (1971) (commercial vendor); Delaware: Taylor v. Ruiz,394 A.2d 765 (Del.Super.1978) (commercial vendor); District of Columbia: Marusa v. District of Columbia,484 F.2d 828 (D.C.Cir. 1973) (commercial vendor); Florida: Prevatt v. McClennan,201 So.2d 780 (Fla.App.1967) (commercial vendor); Davis v. Shiappacossee,155 So.2d 365 (Fla.1963) (commercial vendor); Illinois: Colligan v. Cousar,38 Ill.App.2d 392 ,187 N.E.2d 292 (1963); Indiana: Brattain v. Herron,159 Ind.App. 663 ,309 N.E.2d 150 (1974) (social host); Iowa: Williams v. Klemesrud,197 N.W.2d 614 (Iowa, 1972) (social host); Kentucky, Pike v. George,434 S.W.2d 626 (Ky.Ct. of App. 1968) (commercial vendor); Louisiana: Pence v. Ket-chum,326 So.2d 831 (La.1976); Massachusetts: Adamian v. Three Sons, Inc.,353 Mass. 498 ,233 N.E.2d 18 (1968) (commercial vendor); Michigan: Grasser v. Fleming,74 Mich.App. 338 ,253 N.W.2d 757 (1977) (commercial vendor); Minnesota: Trail v. Christian,298 Minn. 101 ,213 N.W.2d 618 (1973) (commercial vendor); Mississippi: Munford, Inc. v. Peterson,368 So.2d 213 (Miss.1979) (commercial vendor); Montana: Deeds v. United States, 306 F.Supp. 348 (D.Mont.1969) (commercial vendor); New Hampshire: Ramsey v. Anctil,106 N.H. 375 ,211 A.2d 900 (1965); New Jersey: Rappaport v. Nichols,31 N.J. 188 ,156 A.2d 1 (1959) (commercial vendor); Galvin v. Jennings,289 F.2d 15 (3d Cir.1961) (commercial vendor); New York: Berkeley v. Park,47 Misc.2d 381 ,262 N.Y.S.2d 290 (1965); Ohio: Taggart v. Bitzenhofer,35 Ohio App.2d 23 ,299 N.E.2d 901 (1972) (commercial vendor); Oregon: Campbell v. Carpenter,279 Or. 237 ,566 P.2d 893 (1977); Pennsylvania: Giardina v. Solomon,360 F.Supp. 262 (M.D.Pa.1973) (social host); Tennessee: Mitchell v. Ketner,54 Tenn.App. 656 ,393 S.W.2d 755 (1964) (commercial vendor); Washington: Callan v. O’Neil,20 Wash.App. 32 ,578 P.2d 890 (1978) (commercial vendor).” (Footnote omitted).
.
Akins v. Hamblin,