Treatment of Guest Passengers: Georgia Maintains Its Minority Rule

I. THE RISE AND FALL OF GUEST STATUTES A. Development Since the advent of the automobile, approximately half of the states have adopted guest statutes1 or guest rules." These statutes and rules

1. Twenty-nine states have had guest statutes at one time since the first one was passed in 1927. ALA. CODE § 32-1-2 (1975); ARK. STAT. ANN. § 75-913 (1979); CAL. VEH. CODE § 17158 (West 1971) (declared unconstitutional in Brown v. Merlo, 8 Cal. 3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973), and amended in 1973 to delete application of section to guests); COLO. REV. STAT. § 42-9-101 (1973) (repealed 1975); 1927 Conn. Pub. Acts 4404 (1927) (repealed 1937); DEL. CODE ANN. tit. 21, § 6101 (1979); FLA. STAT. ANN. § 320.59 (1978) (repealed 1972); IDAHO CODE § 49-1401 (1967) (declared unconstitutional in Thomp- son v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974)); ILL. ANN. STAT. ch. 95 /2, § 10-201 '(Smith-Hurd 1971) (restricted to hitchhikers by 1971 amendment); IND. CODE ANN. § 9-3-3- 1 (Burns 1973); IOWA CODE ANN. § 321.494 (West Supp. 1979); KAN. STAT. ANN. § 8-122b (1975) (repealed 1974, as well as declared unconstitutional in Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974)); 1930 Ky. Acts. ch. 85 (declared unconstitutional in 1932 in Lud- wig v. Johnson, 243 Ky. 533, 49 S.W.2d 347 (1932)); MIcH. CoMP. LAWS ANN. § 257.401 (1977) (guest passenger exception declared unconstitutional in Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, 232 N.W.2d 636 (1975)); MONT. REV. CODES ANN. § 32-1113 (1961) (repealed 1975, omitted from current code); NEB. REV. STAT. § 39-6.191 (1978); NEV. REV. STAT. § 41.180 (1977) (repealed in 1977, as well as declared unconstitutional in Laakonen v. Eight Jud. Dist. Court, 91 Nev. 506, 538 P.2d 574 (1975)); N.M. STAT. ANN. § 64-24-1 (1953) (declared unconstitutional in McGeehan v. Bunch, 88 N.M. 308, 540 P.2d 238 (1975), omitted from current code); N.D. CENT. CODE ch. 39-15 (1980) (declared unconstitutional in Johnson v. Hassett, 217 N.W.2d 771 (N.D. 1974), repealed 1979); OHIO REV. CODE ANN. § 4515.02 (Page 1973) (declared unconstitutional in Primes v. Tyler, 43 Ohio St. 2d 195, 331 N.E.2d 723 (1975)); OR. REV. STAT. § 30.115 (1977); S.C. CODE § 15-1-290 (1976); S.D. CODIFIED LAWS ANN. § 32-34-1 (1976) (repealed 1978); TEX. REV. CIv. STAT. ANN. art. 6701b (Vernon 1977) (rewritten in 1973 to limit application to certain relatives); UTAH CODE ANN. § 41-9-1 (1970); VT. STAT. ANN. tit. 23, § 1491 (1978) (repealed 1969); VA. CODE § 8- 646.1 (1957) (amended in 1974 to grant guest passengers a cause-of-action for ordinary negligence, now VA. CODE § 8.01-63 (1977)); WASH. REV. CODE ANN. § 46.08.080 (1970) (repealed 1974); Wvo. STAT. § 31-5-1116 (1977) (declared unconstitutional in Nehring v. Rus- sell, 582 P.2d 67 (Wyo. 1978)). 2. Three states have had judicially created guest passenger rules. Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168 (1917) (overruled, 1971 Mass. Laws ch. 865, § 1, current version at MASS. ANN. LAWS ch. 231, § 85L (Law. Co-op 1974)); O'Shea v. Lavoy, 175 Wis. 456, 185 N.W. 525 (1921) (overruled, McConville v. State Farm Mutual Auto. Ins. Co., 15 Wis. 2d 374, 113 N.W.2d 14 (1962)); Epps v. Parrish, 26 Ga. App. 399, 106 S.E. 297 (1921).

1061 1062 MERCER LAW REVIEW [Vol. 31 have the effect of denying recovery to a passenger injured in an automobile accident unless that passenger for some reason falls outside the coverage of the guest statute or rule. The several states have different defini- tions of the term guest, but most are similar to that outlined by the Georgia Court of Appeals in Taylor v. Austin.3 "[A] guest is a person gratuitously riding for his own benefit . . . ."' Jurisdictions lacking a guest rule' follow the common law and treat an automobile passenger like any other plaintiff - the driver is responsible for his ordinary negligence that causes an injury to the passenger. In contrast, in those jurisdictions maintaining a guest rule, the injured guest passenger must show a lack of care greater than ordinary negligence in order to recover from a negligent host. The exact degree of "lack of care" which must be shown varies from state to state.6 Although the reasoning behind the development of the guest statutes is not clear, there have been several explanations offered by various critics and courts to explain the development.7 The two reasons that are most often mentioned by the courts and commentators are the promotion of hospitality and the prevention of collusive lawsuits.' It was generally felt that to allow suits by gratuitous passengers was an affront to the generos- ity of the driver and also, that if recovery could be had against the host's° insurance carrier, collusion on the question of liability would be encouraged.' The initial challenge to the guest statutes was launched soon after the first such statutes were enacted in 1927 in Connecticut 0 and Iowa.11 The Connecticut statute was challenged in Silver v. Silver."' In that case a wife sued her husband for injuries sustained while a guest passenger in his automobile. The husband was distracted by his son and crashed into

3. 92 Ga. App. 104, 88 S.E.2d 190 (1955). 4. Id. at 105, 88 S.E.2d at 192. 5. For the sake of brevity, both guest statutes and guest rules will hereinafter be referred to as guest rules whenever a general reference is made. 6. For example, Georgia allows recovery when the host is guilty of gross negligence, Epps v. Parrish, 26 Ga. App. 399, 106 S.E. 297 (1921); Iowa when there is recklessness, IowA CODE ANN. § 321.494 (West Supp. 1979); Indiana when the host is guilty of willful and wanton misconduct, IND. CODE ANN. § 9-3-3-1 (Burns 1973); and Utah when the host is driving while intoxicated, UTAH CODE ANN. § 41-9-1 (1970). 7. See generally; 2 F. HARPER & F. JAMES, LAW OF TORTS § 16.15 (1956); W. PROSSER, LAW OF TORTS 187 (4th ed. 1971). 8. Id.; see also, Bickford v. Nolen, 142 Ga. App. 256, 258, 235 S.E.2d 743, 745 (1977). 9. The effective lobbying by liability insurers and the protection of drivers against suits by hitchhikers are two secondary reasons advanced for the rise of the guest statutes and rules. See generally, W. PROSSER, LAW OF TORTS 187 (4th ed. 1971). 10. 1927 Conn. Pub. Acts 4404 (1927) (repealed 1937). 11. 1927 Iowa Acts 112 (1927). 12. 108 Conn.371, 143 A. 240 (1928), affd, 280 U.S. 117 (1929). 1980] GUEST PASSENGERS 1063

the vehicle ahead. There was no evidence of the driver's "heedlessness or his reckless disregard of the rights of others."18 The trial court directed a verdict for the defendant at the close of the plaintiffs case on the basis of the Connecticut guest statute. The Supreme Court of Errors of Connecti- cut affirmed, construing the statute to require more than ordinary negligence before a guest would be allowed to recover. The court further found that the statute's classification of riders as paying and nonpaying passengers (guests) was not arbitrary or unreasonable, and hence, not a basis for an equal protection challenge." The United States Supreme Court upheld the constitutionality of the statute against an equal protection challenge. 5 In dealing with the equal protection issue, the Court found that the distinction between gratuitous passengers in automobiles and gratuitous passengers in other types of vehicles was a valid one." The rise of vexatious litigation, in the form of guests' suits, was seen as an evil that the guest statutes addressed. Justice Stone wrote, "It is enough that the present statute strikes at the evil where it is felt and reaches the class of cases where it most frequently 1 7 occurs."

B. Decline In 1937, the Connecticut legislature repealed the guest statute which had been so vigorously defended in Silver. 8 This was the only successful challenge to the guest statutes until the 1960's when the Wisconsin guest rule was struck down on policy grounds,' and the Vermont statute was repealed.2 This was the start of a trend that would accelerate in the 1970's and leave the guest rule as a minority rule at the decade's end. The trend toward repeal can be explained by developments in tort law and insurance coverage. First, there is a general dissatisfaction with the guest rule's treatment of injured guests in light of the general trend in tort law to provide compensation to a wider class of injured plaintiffs.2' Second, when a state with a guest rule institutes a no-fault plan of auto-

13. 108 Conn. at -, 143 A. at 241. 14. Id. at -, 143 A. at 243. 15. Silver v. Silver, 280 U.S. 117 (1929). 16. Id. at 123. 17. Id. at 124. 18. See note 10 supra. 19. McConville v. State Farm Mutual Auto. Ins. Co., 15 Wis. 2d 374, 113 N.W.2d 14 (1962). 20. No. 194, § 1, 1969 Vt. Laws Adj. Sess. 70 (effective 1970). 21. The trend in torts toward compentating a wider range of plaintiffs is reflected by the lead of enterprise liability in holding manufacturers more accountable for the harm caused by their products. It is also evidenced by the abrogation of some traditional immunities. See text and accompanying notes 50-51 infra.. 1064 MERCER LAW REVIEW [Vol. 31 mobile insurance which provides for the compensation of injured passengers, an anomaly is created that allows such passengers to be compensated up to the no-fault threshold22 without having to prove the higher degree of negligence that is required to sustain a cause of action under 28 the guest rule. Some states, instead of repealing their guest statutes, have amended them to narrow their scope of application. This approach has been taken by Illinois and Texas. In 1971, Illinois amended its guest statute so that it now applies only to hitchhikers. 4 Texas limits the application of its guest statute to family members who are "related within the second degree of consanguinity or affinity to the owner or operator of a motor vehicle."2 5 Under present Illinois and Texas law, other guest passengers now fall under the common law and are afforded a cause of action for their host's ordinary negligence. The guest rules have faced increasing challenges in the courts.2 6 The leading case is Brown v. Merlo27 in which the California Supreme Court found that the California guest statute violated the equal protection guar- antees of both the California2 8 and United States Constitutions.2 9 In a lengthy opinion, written by Justice Tobriner, the court found the opera- tion of the California guest statute to have two fatal flaws. It was found that the guest statute's traditional justifications, the promotion of hospitality and the prevention of collusive lawsuits, did not provide a rational basis for the statute's classification scheme. Second, the court found that the number of "loopholes" in the guest statute undermined any other reasonable basis for the classifications.8 " The court distinguished Silver on the basis that in Silver the guest statute was attacked solely on the

22. Most no-fault plans provide for some type of compensation for an injured party (re- gardless of whether a passenger or not) up to a specified monetary amount. This amount is commonly referred to as the threshold. 23. This was the situation in Florida before that state's guest statute was repealed. FLA. STAT. ANN. §§ 627.730 to .741 (Harrison 1974). This same anomalous situation presently exists in Georgia. GA. CODE ANN. ch. 56-34B (1977 and Supp. 1979). 24. ILL. ANN. STAT. ch. 95 1/2,§ 10-201 (Smith-Hurd Supp. 1978). 25. TEx. REv. CIv. STAT. ANN. art. 6701b (Vernon 1977). 26. The courts' abrogation of the guest rules started in 1962 when the Supreme Court of Wisconsin, in McConville v. State Farm Mutual Auto. Ins. Co., 15 Wis. 2d 374, 113 N.W.2d 14 (1962), renounced the judicially created guest rule of O'Shea v. Lavoy, 175 Wis. 456, 185 N.W. 525 (1921). The court struck down the guest rule as being no longer consistent with sound policy and noted that it was in conflict with Wisconsin's comparative negligence statute. See note 1 supra for a complete list of the statutes that have been judicially abrogated. 27. 8 Cal.3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973). 28. CAL. CONST. art. 1, §§ 11 and 21. 29. U.S. CONST. amend. XIV. 30. 8 Cal. 3d at 860, 506 P.2d at 215, 106 Cal. Rptr. at 391. 1980] GUEST PASSENGERS 1065

ground that a distinction was made between automobile guests and guests in other vehicles. The California court noted that the court in Silver did not consider two additional distinctions the California statute made: (1) the distinction between guests and paying passengers, and (2) the distinc- 31 tion between different statutory categories of guests. Since 1973, the lead of the California Supreme Court in overturning its guest statute has been followed in eight other states.3 2 The result of these decisions is that the guest rule is now followed in only a minority of jurisdictions."

II. GEORGIA-LAGGING BEHIND Georgia's guest rule was announced by the court of appeals in 1921, in Epps v. Parrish.3 4 In Epps, plaintiff, an invited guest in defendant's automobile, was injured when the defendant negligently lost control of the vehicle and wrecked it. In her complaint, plaintiff alleged only ordinary negligence and carelessness. Defendant demurred that no cause of action was set forth and the trial court overruled this demurrer. The court of appeals reversed, observing, "[I]n order for an invited guest in an automobile to recover of the owner and driver of the car for an injury occa- sioned by the negligence of the driver, it must be pleaded that such negligence was gross negligence."" This rule was approved by the Georgia Supreme Court in a headnote opinion in Holland v. Boyett.3s Presently, Georgia is the only state that retains a judicially created guest rule. 7 The most recent challenge to Georgia's guest rule came in 1977, in Bickford v. Nolen."5 In this case the constitutionality of the guest rule was questioned by a plaintiff who clearly came within the rule's coverage. The court of appeals, applying a rational relation test, rejected both of the usual justifications for the guest rule. The court found that

31. Id. at 863 n.4, 506 P.2d at 217 n.4, 106 Cal. Rptr. at 393 n.4. 32. Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, 232 N.W.2d 636 (1975); Laakonen v. Eight Jud. Dist. Court, 91 Nev. 506, 538 P.2d 574 (1975); McGeehan v. Bunch, 88 N.M. 308, 540 P.2d 238 (1975); Johnson v. Hassett, 217 N.W.2d 771 (N.D. 1974); Primes v. Tyler, 43 Ohio St. 2d 195, 331 N.E.2d 723 (1975); Nehring v. Russell, 582 P.2d 67 (Wyo. 1978). 33. See Appendix for a summary of each state's treatment of this issue. Thirty-two states have had a guest statute or rule at some time or another. Twenty-two states have altered or abrogated the guest rules. Only ten states still retain comprehensive guest statutes or rules. 34. 26 Ga. App. 399, 106 S.E. 297 (1921). 35. Id. at 399, 106 S.E. at 298. 36. 212 Ga. 458, 93 S.E.2d 662 (1956). 37. See note 2 supra. 38. 142 Ga. App. 256, 235 S.E.2d 743, afl'd, 240 Ga. 255, 240 S.E.2d 24 (1977). 1066 MERCER LAW REVIEW [Vol. 31 mandatory liability insurance"' had destroyed the rule's traditional basis of promoting hospitality. The guest rule was found no longer to afford protection to generous hosts, but rather to afford this protection to insurance companies at the expense of injured plaintiffs.4" The court found the "prevention of collusion" argument to be overinclusive because it barred all actions. The court thought the judicial system contained adequate means of preventing collusion and fraud without denying causes of action to all injured guest passengers."' Having observed that it thought the guest rule unconstitutional, the court of appeals said that it would also decline to follow the rule on policy grounds because the guest rule was thought to be contrary to the public policies of both the no-fault law 2 48 and the comparative negligence statute. Having denounced the guest rule on both constitutional and policy grounds, the court of appeals, nevertheless, found itself powerless to overturn the rule since it was bound by supreme court precedent affirming the guest rule." If the rule was to be changed judicially, the change would have to come from the supreme court. The Georgia Supreme Court, refusing to accept the court of appeals' guidance, upheld the constitutionality of the guest rule.' 5 The court agreed that a rational basis test was to be applied since no fundamental right or suspect classification was involved. The court framed the issue in terms of "whether or not the classification is reasonable and bears a fair and substantial relation to the legitimate purpose of the statute."'6 In rebutting the argument that the traditional justifications of the guest rule were no longer valid, the court found that widespread insurance coverage had not entirely negated the hospitality argument and that the collusion argument was still valid.'7 Finding the rule to be constitutional, the court refused to overturn it on policy grounds and chose instead to defer the issue to the legislature. In dissent, Justice Hall, while agreeing that the rule was constitutional, urged that it be overruled on policy grounds."

III. CONCLUSION The result of the supreme court's decision in Bickford is that Georgia

39. See GA. CODE ANN. § 56-3401b (1977). 40. 142 Ga. App. at 258-59, 235 S.E.2d at 745. 41. Id. at 259, 235 S.E.2d at 745-46. 42. See GA. CODE ANN. § 56-3407b (1977). 43. See GA. CODE ANN. § 105-603 (1968). 44. 142 Ga. App. at 262, 235 S.E.2d at 747. 45. Bickford v. Nolen, 240 Ga. 255, 240 S.E.2d 24 (1977). 46. Id. at 257, 240 S.E.2d at 26. 47. Id. at 257-58, 240 S.E.2d at 26-27. 48. Id. at 259, 240 S.E.2d at 27. 1980] GUEST PASSENGERS 1067 follows a judicially created rule that has been severely criticized by the body that created it.'4 In upholding the guest rule, the supreme court refused to follow the trend in today's tort law toward providing compensation for a wider class of injured plaintiffs. This trend is evidenced by such diverse manifestations as the rise of strict liability0 and the abrogation of various common law immunities.5 1 An example of this trend in Georgia is Georgia's enactment of no-fault legislation. 2 Under the no- fault scheme, an injured passenger may recover without the necessity of showing that the host driver was grossly negligent.5 3 However, such a passenger may recover only up to the limit of the host's coverage.5 4 To obtain compensation beyond the applicable no-fault limits, the injured guest passenger must show that the host was grossly negligent or be barred by the strictures of the guest rule. The coexistence of the guest rule and no-fault insurance creates an anomaly that is particularly cruel to the severely injured guest passenger. Such a passenger is afforded an incomplete recovery while his less seri- ously injured counterpart is fully compensated under the no-fault

49. Compare Epps v. Parrish, 26 Ga. App. 399, 106 S.E. 297 (1921), with Bickford v. Nolen, 142 Ga. App. 256, 235 S.E.2d 743 (1977). 50. Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1962), is the leading case in the area of strict liability. In Greenman, plaintiff was allowed to recover by proving that he was injured while using a to6l in the way it was intended to be used and that the injury resulted from a defect in the design or manufacture of the tool which made the tool unsafe for its intended use and of which plaintiff was unaware. 51. While stillrecognizing a general charitable immunity, Georgia has severely limited this doctrine. In Executive Committee of the Baptist Convention v. Ferguson, 95 Ga. App. 393, 400, 98 S.E.2d 50, 56 (1957), it was said, "A charity hospital owes the same duty to a paying patient as does hospital operated for pecuniary gain ...." In Cox v. De Jarnette, 104 Ga. App. 664, 123 S.E.d 16 (1961), it was held that there should be no immunity from tort liability afforded a charity to the extent that the charity is insured by a policy of liability insurance. California is an example of a state that has totally rejected the doctrine of charitable immunity. Malloy v. Fong, 37 Cal. 2d 356, 232 P.2d 241 (1951). It is doubtful that interspousal immunity would be upheld after Orr v. Orr, 440 U.S. 268 (1979). The immunity's gender-based classification would be fatal. See 15 ENCYCLOPEDIA OF GEORGIA LAW Husband and Wife § 2 (1980). Georgia municipal corporations do not enjoy full sovereign immunity. Municipal corporations are liable for the negligent performance of ministerial functions. GA. CODE ANN. § 69- 301 (1976). 52. GA. CODE ANN. ch. 56-34B (1977 and Supp. 1979). 53. GA. CODE ANN. § 56-3407b (1977), provides in part, "The insurer of a motor vehicle ... shall pay basic no-fault benefits without regard to fault .... " 54. This may be the minimum coverage required by GA. CODE ANN. § 56-3403b (1977), or the more generous optional coverage provided under GA. CODE ANN. § 56-3404b (1977). Whether this optional coverage is available to an injured passenger will depend upon whether or not the host has purchased the additional coverage. 1068 MERCER LAW REVIEW [Vol. 31 scheme. 55 This system undercuts the no-fault act's socially beneficial purpose of compensating injured accident victims by spreading the risk of loss among all of the state's motoring public. The guest rule leaves all of the financial burden on the shoulders of the hapless guest passenger, thereby limiting the no-fault act's ability to fully compensate accident victims which it was designed to do. This incompatability alone should provide the impetus for the rejection of the guest rule, by either the supreme court or the legislature. Additionally, denying recovery to injured guest passengers is contrary to the presumed intention of Georgia's comparative negligence statute." This statute seeks to soften the harshness of the common law contribu- tory negligence doctrine by affording recovery to a plaintiff who "may in some way have contributed to the injury sustained. ' 57 At common law a contributorily negligent plaintiff would have been barred completely from recovery. Georgia has evidenced an intent to allow an injured plaintiff to recover more easily by subscribing to the comparative negligence doctrine. It is contrary to the intent of this doctrine to deny recovery to a totally blameless guest passenger solely on the basis of the passenger's status as a guest. It would be more in keeping with the national trend of affording recovery to a wider group of plaintiffs to allow the injured guest to recover if the host driver were simply guilty of ordinary negligence. This would not put the guest into any preferred status, but merely would put him on a par with others whom a negligent driver might injure. Considering the aforementioned trends and the criticisms of the rule, it is obvious that there is no valid reason to maintain the guest rule. It is archaic to artificially limit the types of plaintiffs who may recover after having been injured due to the negligence of an automobile driver. The Supreme Court of Georgia should seize the next opportunity to overturn the doctrine. If the supreme court fails to act, the Georgia state legislature should assume the leading role and abrogate the guest rule for the protection of the citizens of Georgia. As Justice Hall said in his dissent in Bickford, "May it some day rest in peace.' 's

ADDENDUM

It is encouraging to note that in the session just past, the Georgia legislature enacted a bill that would have abolished Georgia's guest rule.5 '

55. GA. CODE ANN. § 56-3403b (1977). 56. GA. CODE ANN. § 105-603 (1968). 57. Id. 58. 240 Ga. 255, 261, 240 S.E.2d 24, 28 (1977). 59. S.B. 557, 1980 Ga. Legislature. This bill was passed by the Senate on February 12, 1980, and by the House of Representatives on February 29, 1980. The Conference Commit- 19801 GUEST PASSENGERS 1069

This represents a laudable move by Georgia legislators toward overturning an antiquated rule and seeking to bring Georgia's treatment of guest passengers into line with the majority of states. It is unfortunate that Governor Busbee vetoed this legislation on April 9, 1980. The reason given for the veto was that the governor thought that in this time of energy shortage, legislation should not be enacted that would in any way discourage drivers from sharing their automobiles with others. By adopting this line of reasoning the governor has accepted the promotion of hospitality argument that has been generally discredited since the adoption of mandatory liability insurance legislation. This argument also loses cogency when one considers how often people base a decision on whether to give another a ride upon knowledge that they are pro- tected by the guest rule. It is hoped that the governor will approach any similar future legislation from a more enlightened viewpoint.

ROBERT LEWIS BARLOW, II

Appendix States pres- States Have had guest ently having with Guest rule Guest rule rule at some comprehensive limited overruled repealed by point in time guest rule guest rule by the Courts legislature Alabama Yes X Alaska No Arizona No Arkansas Yes X California Yes X Colorado Yes X Connecticut Yes X Delaware Yes X Florida Yes X aeorgia Yes X Flawaii No [daho Yes X Ilinois Yes X :ndiana Yes X .owa Yes X Kansas Yes X X Kentucky Yes X .ouisiana No daine No d'aryland No

tee Report was subsequently adopted on March 8, 1980. 1070 MERCER LAW REVIEW [Vol. 31

Massachusetts Yes X Michigan Yes X Minnesota No Mississippi No Missouri No Montana Yes X Nebraska Yes X Nevada Yes X X New Hampshire No New Jersey No New Mexico Yes X New York No North Carolina No North Dakota Yes X X Ohio Yes X Oklahoma No Oregon Yes X Pennsylvania No Rhode Island No South Carolina Yes X South Dakota Yes X Tennessee No Texas Yes X Utah Yes X Vermont Yes X Virginia Yes X Washington Yes X West Virginia No Wisconsin Yes X Wyoming Yes X Totals Yes 32 10 2 11 12 No 18