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Treatment of Guest Passengers: Georgia Maintains Its Minority Rule

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Treatment of Guest Passengers: Georgia Maintains Its Minority Rule 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 § 42-9-101 (1973) (repealed 1975); 1927 Conn.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 Acts 4404 (1927) (repealed 1937); DEL.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 § 320.59 (1978) (repealed 1972); IDAHO CODE § 49-1401 (1967) (declared unconstitutional in Thomp- son v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974)); ILL.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 § 8-122b (1975) (repealed 1974, as well as declared unconstitutional in Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974)); 1930 Ky.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 § 32-1113 (1961) (repealed 1975, omitted from current code); NEB.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 § 41.180 (1977) (repealed in 1977, as well as declared unconstitutional in Laakonen v. Eight Jud.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 CODE ch. 39-15 (1980) (declared unconstitu- tional in Johnson v. Hassett, 217 N.W.2d 771 (N.D. 1974), repealed 1979); OHIO REV.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 neg- ligence, now VA. CODE § 8.01-63 (1977)); WASH. REV. CODE ANN. § 46.08.080 (1970) (re- pealed 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 automo- bile accident unless that passenger for some reason falls outside the cov- erage 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 negli- gence before a guest would be allowed to recover. The court further found that the statute's classification of riders as paying and nonpaying passen- gers (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 ve- hicles 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.
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