A Dialogue on the Constitutionality of the Guest Statute

THE EXCITEMENTS OF CHANGE: A DIALOGUE ON THE CONSTITUTIONALITY OF THE GUEST STATUTE

J. PATRICK GREEN*

INTRODUCTION In the first wave of attacks on the constitutionality of guest statutes generated by the California decision in Brown v. Merlo,' the constitutionality of Nebraska's Guest Statute was challenged upon both federal and state constitutional grounds. 2 It withstood those challenges in Botch v. Reisdorff.3 An attempt to avoid the Botch decision by challenging constitutionality solely on federal 4 grounds in United States District Court was equally unsuccessful. Thus, the issue as to the constitutionality of the Guest Statute appeared to be closed. Since the Legislature has shown no inclina- tion to repeal the statute, the learning concerning passengers,

* Professor of Law, Creighton University School of Law. B.A., Creighton Uni- versity, 1963; J.D., 1965. 1. 8 Cal. 3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973). 2. The Nebraska Constitution does not contain a general equal protection clause. However, Article I, Section 1, which deals with equal rights and Article I, Section 3, which deals with due process, both have been read as containing a mandate to equality of treatment in like cases. Skagway Dep't Stores, Inc. v. Grand Island, 176 Neb. 169, 188, 125 N.W.2d 529, 540-41 (1964). Likewise, Article III, Section 18, which prohibits special legislation, particularly because of its catch-all provision that "in all other cases where a general law can be made applicable, no special law shall be enacted," contains a mandate to equal treatment of like classes. State ex rel. Rogers v. Swanson, 192 Neb. 125, 136, 219 N.W.2d 726, 733 (1974). The Nebraska Court has not engaged in refined differentiations of the various mandates to equality. It has applied the usual presumption of constitutionality, American Fed'n of State, County and Mun. Employees v. Department of Pub. Inst., 195 Neb. 253, 255, 237 N.W.2d 841, 842 (1976); Wilkinson v. Lord, 85 Neb. 136, 141-42, 122 N.W. 699, 701 (1909), and has only condemned a classification where "the classification is wholly arbitrary or has no reasonable relationship to the objects sought to be attained by the Legislation." Fraternal Order of Police v. Nebraska Liquor Cont. Comm'n, 199 Neb. 712, 717, 261 N.W.2d 106, 110 (1978); Warren v. Papillion School Dist. No. 27, 199 Neb. 410, 421-22, 259 N.W.2d 281, 287 (1977); Thompson v. Board of Regents, 187 Neb. 252, 256, 188 N.W.2d 840, 843 (1971). 3. 193 Neb. 165, 175, 226 N.W.2d 121, 128 (1975); Circo v. Sissons, 193 Neb. 704, 713, 229 N.W.2d 50, 55 (1975); Lubash v. Langemeier, 193 Neb. 371, 372, 227 N.W.2d 405, 405 (1975). 4. Stoehr v. Whipple, 405 F. Supp. 1249, 1251-52 (D. Neb. 1976). The futility of federal challenges standing alone is demonstrated by Sidle v. Majors, 536 F.2d 1156, 1157 (7th Cir.), cert. denied, 429 U.S. 945 (1976). CREIGHTON LAW REVIEW [Vol. 14 guests, and gross negligence appeared to be a permanent fixture of Nebraska law. However, recent developments indicate that the Botch decision may be due for reconsideration. In Kreifels v. Wurtele,5 the Chief Justice and two judges of the Nebraska Supreme Court indicated their willingness to overrule Botch.6 The day after the opinion in Kreifels was released, the Iowa Supreme Court reversed its position on the Guest Statute and declared the 7 Iowa Guest Statute unconstitutional. The resurgence of interest in a constitutional challenge to the Nebraska Guest Statute provides an appropriate occasion for the reexamination of the debate concerning those statutes. The statutes survived early constitutional challenges and had been around for many years with few doubts expressed as to their constitutionality.8 Then suddenly in the mid '70's a rash of cases struck down Guest Statutes.9 In retrospect this change is not surprising. It was the product of two developments: on the one hand, an increased willingness of judges to use constitutional provisions to promote what they regarded as beneficial social change; and on the other hand, a changing understanding of the functions of tort law. The change in judicial attitude will not be the focus of this study.10

5. 206 Neb. 491, 293 N.W.2d 407 (1980) (Krivosha, C.J., dissenting). 6. 206 Neb. at 497-99, 293 N.W.2d at 410-11. 7. Bierkamp v. Rogers, 293 N.W.2d 577, 585 (Iowa 1980) overuling Keasling v. Thompson, 217 N.W.2d 687 (Iowa 1974). 8. The Guest Statutes withstood an early constitutional challenge in Silver v. Silver, 280 U.S. 117, 123-24 (1929) and thereafter matters were quiescent until the early 1970's. 9. The cases declaring Guest Statutes unconstitutional include Brown v. Merlo, 8 Cal. 3d 855, 106 Cal. Rptr. 388, 506 P.2d 212 (1973); Thompson v. Hagen, 96 Idaho 19, 523 P.2d 1365 (1974); Bierkamp v. Rogers, 293 N.W.2d 577 (Iowa 1980); 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. Eighth Judicial 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); Ramey v. Ramey, 258 S.E.2d 883 (S.C. 1979); Nehring v. Russell, 582 P.2d 67 (Wyo. 1978). The cases which have continued to support the constitutionality of Guest Statutes, in addition to Botch v. Reisdorff, include Beas- ley v. Bozeman, 294 Ala. 288, 315 So.2d 570 (1975); White v. Hughes, 247 Ark. 627, 519 S.W.2d 70 (1975); Richardson v. Hansen, 186 Colo. 346, 527 P.2d 536 (1974); Justice v. Gatchell, 325 A.2d 97 (Del. 1974); Sidle v. Majors, 264 Ind. 206, 341 N.E.2d 763 (1976); Duerst v. Limbocker, 269 Or. 252, 525 P.2d 99 (1974); Behrns v. Burke, 89 S.D. 96, 229 N.W.2d 86 (1975); Tisko v. Harrison, 500 S.W.2d 565 (Tex. Civ. App. 1973); Cannon v. Oviatt, 520 P.2d 883 (Utah 1974); Brewer v. Copeland, 86 Wash. 2d 58, 542 P.2d 445 (1975). 10. The change in judicial attitude is probably not a central issue in Nebraska in any event. While the Nebraska cases articulate deference in the usual terms, e.g., Botch v. Reisdorff, for the Nebraska Supreme Court deference has always been a sometimes thing. See Green, The Public Plaintiff Comes to Nebraska: An Essay on the Limits of State Judicial Power, 13 CREIGHTON L Rav. 31, 68-69 (1979) and authorities there cited. 1980] GUEST STATUTE

However, once issues about judicial deference to legislative judgment are stripped aside, the issue as to the constitutionality of the Guest Statute presents a naked choice between two competing models or sketches of the negligence system. It is to the competi- tion between these two models that this study will be addressed. The issue of the constitutionality of a Guest Statute under each of these alternative sketches has characteristics of what New- man called a "night battle."" Under one sketch, the one I call the safety sketch, conceptulizing negligence law as a device for assur- ing minimal acceptable standards of safety in conduct and for compensating those injured by dangerous activities, the Guest Statute makes little sense. Under the other sketch, which I call the expectancy sketch, conceptualizing negligence law as a device for vindi- cating reasonable expectations of safety engendered by the conduct of others, the issue of the constitutionality of the Guest Statute hardly arises. Only after a court has chosen its picture of negligence can it proceed to address the constitutionality of a Guest Statute. In my view the merits of the sketches are irrelevant to the constitutionality of a Guest Statute. It is the sketch which best describes a state's tort law which must serve as the basis of judgment. In Nebraska, we are in a transition from the expectancy sketch to the safety sketch, but we have a distance yet to travel before our Guest Statute stops making sense.

THE LINE THE GUEST STATUTE DRAWS

THE ATrACK

The law of negligence imposes upon actors the duty of due care. One who undertakes to act must act carefully. 12 His duty to act carefully arises out of the risk his activity creates and runs in favor of anyone within the ambit of foreseeable harm from the negligent conduct of his activity.13 If a person within the zone of risk

11. The phrase "Night Battle" comes from one of the University Sermons. I somewhat misuse the phrase to refer to a situation in which debate becomes difficult because the parties appear to be using the same vocabulary, but have started with a radically different conceptual apparatus obscured by the similarity of termi- nology. Thus, the sketches of negligence law I have developed are two divergent understandings of what tort law means with the divergence obscured by the appar- ently similar vocabulary concerning negligence, unreasonableness and the like. My notion of a sketch is a rather abstract outline of an area of law designed to suggest a set of premises which unite the different rules in the area together as a coherent and interrelated set of rules for solving legal problems. 12. Simon v. O.P.P.D., 189 Neb. 183, 201-03, 202 N.W.2d 157, 168-69 (1972). 13. Scarborough v. Aeroservice, Inc., 155 Neb. 749, 761-62, 53 N.W.2d 902, 909-10 (1952). CREIGHTON LAW REVIEW [Vol. 14

is injured by negligence, the actor is liable to that person. 14 Since duty arises out of danger created, an injured party need not show that he has conferred any benefit upon the actor in order to sue for negligence. 15 Nor may an actor defend on the grounds that he was 16 attempting to confer a benefit upon the injured person. We have put aside the notion that the duty to safe- guard life and limb, when consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. 17 We have put its source in the law. Prior to the passage of the Guest Statute, the duties owed by a driver to a social guest in an automobile were measured by these principles. 18 The Guest Statute changes that. A passenger in an automobile is required to show that he purchased the obligation of due care; otherwise he cannot sue his host for ordinary negligence. 19 Under the Guest Statute the source of the obligation is

14. NEBRASKA JURY INSTRUCTIONS No. 3.41 (1969) blends the zone of danger and the direct and indirect chain approach to causation. Which position Nebraska in fact adopts was the subject of a spirited debate in Leistra v. Bucyrus-Erie Co., 443 F.2d 157 passim (8th Cir. 1971). 15. W. PROSSER, THE LAW OF TORTS § 56 at 343-44 (4th ed. 1971). 16. Id. 17. MacPhearson v. Buick Motor Co., 217 N.Y. 382, 389-90, 111 N.E. 1050, 1053 (1916). 18. Even prior to the Guest Statutes, there was case law support for a similar rule. See e.g., Massaletti v. Fitzroy, 288 Mass. 487, -, 118 N.E. 168, 170 (1917). How- ever, Nebraska rejected that approach at least in regard to negligence in the operation of a vehicle. Kelley v. Gagnon, 121 Neb. 113, 116-17, 236 N.W. 160, 162-63 (1931); Bauer v. Greiss, 105 Neb. 381, 384, 181 N.W. 156, 157 (1920). In Bauer, the court rejected the argument that a gross negligence rule applicable to a nonpaying passenger was supported by an analogy to the rule applicable to licensees on land. Id. Prior to the passage of the Guest Statutes there was case law support for an analogy between licensees and nonpaying passengers with regard to conditions of the vehicle. Waters v. Markum, 204 Wis. 332,-, 235 N.W. 797, 799-800 (1931). Subse- quent to the passage of Nebraska's Guest Statute, the court adopted this approach. It treated failure to warn of a known defect as gross negligence, while a failure to disclose a defect would not be actionable by a guest. Paxton v. Nichols, 157 Neb. 152, 161-62, 59 N.W.2d 184, 190-91 (1953); McGuire v. O'Byrne's Estate, 133 Neb. 750, 754, 277 N.W. 74, 76 (1938). 19. See NEB. REV. STAT. § 39-6,191 (Reissue 1978). The guest, like the licensee, is one who benefits only himself by the ride, while the passenger, like the invitee, contributes some tangible benefit to the operator. Luther v. Palling, 195 Neb. 679, 682-83, 240 N.W.2d 42, 44 (1976); Van Auker v. Steckley's Hybrid Seed Corn Co., 143 Neb. 24, 27, 8 N.W.2d 451, 454 (1943). Since the Guest Statute does not reach the paying passenger, the ordinary common law rule applies to him. The guest, however, must prove either gross negligence or intoxication. Gross negligence involves "negligence in a very high degree; the absence of slight care in the performance of duty; an entire failure to exercise care; or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the safety of others." Wag- ner v. Mines, 203 Neb. 143, 149, 277 N.W.2d 672, 676 (1979). 1980] GUEST STATUTE payment, where for others the source of the obligation is in the law. The common law draws a distinction between the duty of affirmative action and the duty to act carefully, where one undertakes to act at all. If an injured party claims that his injury resulted from the failure of another party to take an affirmative action to protect him, the injured party must point to some promise or relationship out of which the duty to act arises. 20 On the other hand, if a party has already commenced action, the law imposes upon him a duty of due care running in favor of all of those threatened by negligent conduct of his activity with a risk of harm greater than that which they would be subject to in the absence of 2 1 the activity. Where the duty of affirmative action is involved, in the absence of the special relationship, the rule is that you get what you pay for. Duties of affirmative action arise out of contracts, and the obligation to act is measured by the terms of the contract.22 However, where one has already begun to act, his obligations are not dependent on a special relationship or promise. The principle that you 23 get what you pay for is irrelevant in this situation. The paradigm of the distinction between duties of affirmative action and the duty of due care, where one acts, is embodied in the 24 rules governing the liability of owners and occupiers of land.

20. Hand v. Rorick Const. Co., 190 Neb. 191, 194-95, 206 N.W.2d 835, 837-38 (1973); Peterson v. State Auto. Assoc., 160 Neb. 420, 428-29, 70 N.W.2d 489, 494 (1955). 21. Simon v. O.P.P.D., 189 Neb. 183, 190-91,202 N.W.2d 157, 163 (1972); H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168-69, 159 N.E. 896, 898-99 (1928). 22. This rule is the flip side of the rule in RESTATEMENT (SECOND) OF TORTS § 233 (1965) that duties arise out of an undertaking. In the absence of an undertaking the general source of a duty would be a contract with the duty according to contract principles being measured by the instrument itself. There is also support in the criminal cases for duties based upon relationship. See W. LAFAVE & A. SCOTT, CRIMINAL LAw § 26 at 184 (1972). The premise of the duty to act approach is that the sphere of legally imposed duties should be contained in order that a sub- stantial space is left available for private contract. See H. HAVIGHURST, THE NATURE OF PRIVATE CONTRACT 124-25 (1961). The judges who shaped the law of torts and contracts believe that, "since contract was the legal category which gave the great- est means of self-expression its sphere was not only increasing, but ought to be increased." D. PARRY, THE SANCTITY OF CONTRACTS IN ENGLISH LAw 15 (1959). Contract can also function to raise the duty owed above mere due care. Bozell & Jacobs, Inc. v. Blackstone Term. Garage, Inc., 162 Neb. 47, 53, 75 N.W.2d 336, 370 (1956). In the absence of a contract, a court may impose a duty beyond due care in favor of those who pay for a service, such as customers of a common carrier. Daly v. Publix Cars, 128 Neb. 403, 405, 259 N.W. 163, 164 (1935). 23. W. PROSSER, s-upra note 15, § 56 at 343-44. 24. Since the common law only imposed liability where one had performed an activity, mere ownership of land was not a basis for liability. See Noel, Nuisances from Land in its Natural Condition, 56 HARv. L. REv. 772, 773 (1943). Merely allowing someone to enter onto land is not in and of itself an activity which increases CREIGHTON LAW REVI, W [Vol. 14

When a plaintiff is injured by the condition of the premises, his right to recover is measured by his status upon the land.25 Inspec- tion of premises and modification to assure safety is a duty of affirmative action. This duty is owed to those who come upon the land as invitees. 26 Roughly, one is an invitee when his presence confers a benefit upon the landowner sufficient to purchase the duty of affirmative action.27 One who does not fall within this higher status but enters with permission, the licensee, is owed 28 only a warning of known hidden dangers. The distinction between licensees and invitees has no application to a landowner's duty of due care, however, where he undertakes an activity upon his premises dangerous to those upon the premises. 29 As the Privy Council commented in Perkowski v. Wel- 30 lington Corporation: If an occupier negligently drove a motor car into a licensee, the principle that the licensee must take the land 3 1 as he finds it could clearly have no application. The situation of the licensee injured by an activity on premises is central to the demonstration of the irrationality of the Guest Statute. The central role played by the situation of the licensee arises for two reasons. First, the licensee upon land enters under circumstances analogous to those of the guest entering an automobile. Second, the rule with regard to the licensee demonstrates that the "you get what you pay for" rationale for the Guest Statute 32 has no application beyond the ambit of the act. In Nebraska the status of an entrant on land is irrelevant to the duties owed him by a landowner, if the landowner undertakes the risk of harm to that individual. See Waters v. Markurn, 204 Wis. 332,-, 235 N.W. 797, 799 (1931). Hence something more than the invitation was required for a due care obligation to arise. In the classic case of Indermaur v. Dames (1866) LR. I P.C. 274, the court found the something else in the implied promise of care arising out of the acceptance of benefit from the visitor and created by the category of invitees. Id. at 277. In this perspective, the duty to the invitee becomes an exception to the usual rule that a promise without more is not adequate understanding to found a tort duty. See Thorne v. Deas, 4 Johns. 84, 97 (N.Y. 1809). 25. RESTATEMENT (SECOND) OF TORTS §§ 333, 342, 343 (1965). 26. Niemeyer v. Forburger, 172 Neb. 876, 884, 112 N.W.2d 276, 282 (1961); RE- STATEMENT (SECOND) OF TORTS § 343 (1965). 27. Von Dollen v. Stulgies, 177 Neb. 5, 11, 128 N.W.2d 115, 118-19 (1964); RE- STATEMENT (SECOND) OF TORTS § 332. 28. Casey v. Addison, 190 Neb. 634, 636, 211 N.W.2d 410, 411 (1973). 29. W. PROSSER, supra note 15, § 60 at 379-80; RESTATEMENT (SECOND) OF TORTS §§ 341 & 341A (1965). 30. (1959) A.C. 53 (P.C.). 31. Id. at 67. 32. See Brown v. Merlo, 8 Cal.3d 855, -, 106 Cal. Rptr. 388, 395-96, 506 P.2d 212, 219-20 (1973). 1980] GUEST STATUTE to act while the person is on the premises. 33 The person most analogous to the automobile guest, the licensee upon premises, is treated more favorably than the auto guest. The cases on the rights of a licensee injured by negligent conduct of an activity to recover demonstrate that Nebraska does not apply the "you get what you pay for" principle in negligence cases. The rule is that the obligation of due care arises out of the danger an activity creates and runs in favor of all who might be injured by the activity, without regard to whether they have conferred any benefit upon the actor. The Guest Statute severs out the automobile guest from all other persons threatened by dangerous conduct. He alone is required to pay for due care. Even the licensee, the person whose situation most closely tracks that of the guest, is treated more favorably. Is there any rational basis for these dis- criminations?

THE DEFENSE Since the essence of an equal protection attack on a statutory scheme is the showing of difference of treatment, the argument that the guest is treated dissimilarly is crucial to the attack on the guest statute.34 The attack proceeds by creating a generalized sketch, the safety sketch, of the usual rules in negligence cases and then showing that the guest is not subsumed under these rules. 35 In the safety sketch, negligence is the failure to give to another party the protection which is his due. The claim to that

33. In Botch v. Reisdorff, 193 Neb. 165, 170, 226 N.W.2d 121, 126 (1975), the court regarded the claimed analogy between the licensee and the guest passenger as central to the validation of the Guest Statute. The like treatment of the two classes validated the liability scheme of the Guest Statute. If the treatment of the two classes is analogous, then much of the attack on the Guest Statute collapses in the absence of a rejection of the categories. However, the guest passenger is treated substantially less favorably than the licensee. When a licensee is injured by a condition on premises, he may only recover if the condition was a concealed danger of which the owner knew. Casey v. Addison, 190 Neb. 634, 636, 211 N.W.2d 410, 411 (1973). An identical rule applies to the guest in an automobile. Paxton v. Nichols, 157 Neb. 152, 161-62, 59 N.W.2d 184, 190-91 (1953); McGuire v. O'Byrne's Estate, 133 Neb. 750, 754, 277 N.W. 74, 76 (1938). However, the typical case in which the Guest Statute has its bite is the case in which the driver is negligent in operating his vehicle. Operation of a vehicle is an activity. The question, then, is what rule applies in Nebraska to a licensee injured by activity on premises, not what rule applies when a licensee is injured by a condition of the premises. The Nebraska cases apply the ordinary due care obligation, even though the injured party is a licensee, where activities are involved. Thompson v. Hagen, 96 Idaho 19, -, 523 P.2d 1365, 1369 (1974); Boardman v. McNeff, 177 Neb. 534, 538, 129 N.W.2d 457, 460-61 (1964); Mitchell v. Missouri Pac. R.R., 114 Neb. 72, 76-77, 206 N.W. 12, 13-14 (1925); Chicago B.Q.R. v. Wymore, 40 Neb. 645, 58 N.W. 1120, 1121-22 (1894). 34. Obviously a classification problem cannot arise when all are treated alike. 35. See notes 11-33 supra. CREIGHTON LAW REVIEW [Vol. 14 protection arises independently of the will of either the actor or the endangered party. The standard of care is an objective one im- 36 posed for the benefit of the endangered party by operation of law. Under this model, the rules of negligence are analagous to safety statutes. While they do not particularize norms of conduct, the generalized standard is as much a public standard as is a particu- larized provision of a safe place statute. While this general sketch need not invoke the notion of risk distribution, the idea works behind it and adds to its strength. At least where the actor is capable of risk distribution through insurance, liability rules should operate to assure that injured parties within the protected class can make contact with the previously created insurance fund as a source of compensation for their injuries. It is clear that the guest statute does not apply the safety sketch to the guest. Therefore, if the sketch appropriately models the existing tort law rules, then the difference is established. The question, however, arises as to whether the sketch in fact captures the principles of ordinary negligence law. Under the more traditional model, the expectancy sketch, the alleged difference in treatment is far from obvious. To begin to bring into sharp relief the characteristics of the expectancy sketch and its divergence from the safety sketch, it is appropriate to begin with the relationship between tort and contract under each of the two models. Under the safety sketch which supports the invalidity of the guest statute, tort and contract are distinct areas of law proceeding on a radically different basis. Tort is designed to protect against violation of a public standard.37 In this respect, it is analogous to criminal law. It diverges from criminal law in protecting by individualized compensation rather than by punishment.38 Contract, on the other hand, protects personal expectations engendered by promissory acts supported by adequate consideration. 39 Objective due care is the norm of tort, while

36. Classic examples of this approach would include Sergeant v. Ross, 113 N.H. 388, 308 A.2d 528 (1973). 37. Sergeant v. Ross, 113 N.H. at -, 308 A.2d at 530. The contrast I am drawing can be brought out by comparing Sergeant v. Ross, which views due care as an obligation independent of consent, with the prior case law dealing with lessors and lessees. Under that approach, the landlord's obligation was measured by the state of the premises at the time of letting. To the extent that the condition of the premises was knowable, then the lessee accepted the premises by leasing. The landlord's obligation was to warn of concealed dangers, since the concealment could not be within the scope of the lessee's consent. Roan v. Bruckner, 180 Neb. 399, 402-03, 143 N.W.2d 108, 111 (1966); W. PROSSER, supra note 15, § 63 at 399-402. 38. G. WILLIAMS & B. HEPPLE, FOUNDATIONS OF THE LAw OF TORT 3 (1976). 39. J. CALAMARI & J. PERILLO, THE LAW OF CONTRACTS § 1-1 & § 4-14 (2d ed. 1977). 19801 GUEST STATUTE reasonable expectation is the norm of contract. 40 Under the expectancy sketch, there is a close analogy between tort and contract. The governing principle under each is that reasonable expectations should not be disappointed.4 1 The divergence is in the source of expectations. In contract, as in the safety sketch, the source of the obligation is the promissory act supported by consideration. The source of expectation in tort cases must be a reasonable expectation engendered by the prior conduct of the actor.4 2 As tort and criminal law vary in the safety sketch according to the relief they grant, so tort and contract vary in the relief they will give where expectations are disappointed. Contract will vindicate a disappointed expectation, even when the expectancy is of prospec- tive benefit.4 3 Tort protects an expectation only where its disap- pointment has left the relying party in a worse position than he would have been in had he not relied.4 To flesh out the expectancy sketch, it becomes necessary to underline its presuppositions. Individuals are a danger to one another.45 In order to avoid these mutual dangers, they have to coor- 46 dinate their conduct to assure mutual safety from one another. This can be done through contractual relationships.4 7 However, in

40. It is this type of disjunct which supports the cases which have abolished the defense of implied assumption of risk. See, e.g., Rosenau v. Estherville, 199 N.W.2d 125 (Iowa 1972); Meistrich v. Casino Arena Attrac., Inc., 31 N.J. 44, 155 A.2d 90 (1959). Since the duty of due care is an objective one which arises independent of consent, a doctrine which modifies that duty upon the basis of the plaintiff's knowledge that he is entering into a relationship in which the standard will not be met becomes an unreasonable doctrine. McConville v. State Farm Auto. Ins. Co., 15 Wis. 2d 374, -, 113 N.W.2d 14, 16-19 (1962). 41. C. MCCORMICK, HANDBOOK ON THE LAW OF DAMAGES § 137 at 561 (1955); RE- STATEMENT (SECOND) OF TORTS § 323(b) (1965). 42. RESTATEMENT (SECOND) OF TORTS §§ 324(b), 324A(c), Comment e (1965). 43. G. WILLAMs & B. HEPPLE, supra note 38, at 12-13. 44. Id. 45. "The cooperative interaction of men requires a higher degree of predict- ability than the instinctive regularities of human nature provide." A. QUINTON, THE NATURE OF THINGS 380 (1973). "For example in maneuvering in a traffic jam ... mutual dependence ... demands some kind of collaboration or mutual accommo- dation-tacit, if not explicit-even if only in the avoidance of mutual disaster." T. SCHELLING, THE STRATEGY OF CONFLICT 83 (1960). In these situations each person's best choice of action depends on the choices other persons made. Id. at 86. The parties can reach a satisfactory solution only through a system of coordinated expectations about one another's conduct. D. LEWIS, CONVENTION: A PHILOSOPHICAL STUDY 25 (1969). But in many situations of social interaction, there is no natural solution. Where a car and a funeral procession meet at an intersection no regular- ity of human nature determines which should proceed first. 46. D. LEWIS, supra note 45, at 25; T. SCHELLING, supra note 45, at 86. 47. H. HAVINGHURST, supra note 22, at 21-26. As Havinghurst notes, ".... when risk can be spotted, it is much easier to obtain agreement in advance than it is to settle a controversy after it has arisen." See D. LEWIS, supra note 45, at 33-34. CREIGHTON LAW REVIEW [Vol. 14

many instances transaction costs will make this impossible.48 For example, one could not arrange in advance with all other drivers a contractual scheme governing which side of the road cars will proceed. It is not important whether we drive on the right like Ameri- cans or on the left like the English. It is important that we all drive on the same side. Coordination of conduct in circumstances like 49 these can be developed through the adoption of conventions. Once such a convention is adopted, departure from the convention is dangerous because it is unexpected. Others assume adherence to the convention and are, therefore, threatened by the surprising driver who exercises his creativity in choice of which side of the road to drive.50 Even where a situation has not been sufficiently recurrent for a convention of conduct to crystalize, conduct can be coordinated to avoid harm, if individuals have a common back- ground of knowledge, share a common system of beliefs, and have similar attitudes toward risk.51 By assuming that the other individual would do what you would do in his position, if you are normal and he is normal, then you can predict his action and take that action into account.52 Injury will result only if one actor or the

48. See T. SCHELLING, supra note 45, at 101; see generally D. LEWIS, supra note 45, at 35; Coase, The Problem of Social Cost, 3 J. LAw & ECON. 1 (1960). 49. D. LEWIS, supra note 45, at 6, 25, 41-42. See G. HARMON, THE NATURE OF MORALITY 110 (1977); T. SCHELLING, supra note 45, at 91. 50. The point is obvious, as any driver who has been struck by a car running a red light can testify. However, it has a broader application. The notion of a convention suggests an arbitrary choice among a number of mutually incompatible but alternately satisfactory solutions. Even in situations where a solution has been chosen because it usually produces the most favorable outcome, once the solution is adopted, if the solution is to function as a rule of decision, consideration of the merits of individual situations is suppressed. G. WARNOCK, THE OBJECT OF MORAL- rry 46-47, 65 (1971); J. RAZ, PRACTICAL REASON AND NORMS 60-62 (1978). Once such a rule is adopted, one not only knows what to do, but also knows what to expect others to do. R. HARRE & P. SECORD, THE EXPLANATION OF SOCIAL BEHAVIOUR 181-82 (1973). 51. See T. SCHELLING, supra note 45, at 117, who regards cases of such similarity as "special." 52. D. LEWIS, supra note 45, at 27. See S. HAMPSHIRE, FREEDOM OF THE INDIVID- UAL 130 (1975). For such a theory to work broadly the same attitudes toward risk must be assumed. See also A. GEORGE & R. SMOKE, DETERRENCE IN AMERICAN FOR- EIGN POLICY: THEORY AND PRACTICE 489 n. 6 (1974). If there are such attitudes, then cost-benefit theories of negligence such as that in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) as glossed in Posner, A Theory of Negligence, I J. LEGAL STUD. 29, 32-34 (1972), tend to collapse into a conventional theory. That is to say since what is involved is a trade-off of the chances of different outcome, what is being valued is the utility of the chances and not directly their values as deter- mined by an objective probability calculus applied to the values of different outcome. An actor seeking minimal risk, for example, rates courses of conduct differently than an actor seeking to maximize gain. Following Rawls' "maximin rule," J. RAWLS, A THEORY OF JUSTICE 152-53 (1971), presents different strategies than pursuing Hare's "insurance strategy." Hare, Rawls' Theory of Justice, in READING RAWLS 104-05 (N. Daniels ed. 1975). See Baber, Justifying Justice: 1980] GUEST STATUTE

other does not fit into the normal pattern. The underlying assumption of the conventional approach is that conduct has meaning and its meaning is known to those in a community.53 The members of the community rely on the messages that conduct gives in formulating their action. This is the thrust, for example, of doctrines like implied consent and consent implied through custom.5 4 Until one gives the message that he has opted out of the community meanings of rules, his acts are measured by community standards of meaning. 55 The approach is analogous to the construction of a contract. When I promise to do an act, I contract to do that act with the act defined according to the public understanding of the description of that act, not my private notion as to its meaning. The other party's expectations as to meaning will be honored to the extent that they are isomorphic 56 with the public understanding. Similarly, to the extent that a community has norms or standards of safety, one who undertakes an act in an area governed by such norms, by the very fact he undertakes to act, signals to others that they may rely on his meeting these safety norms.5 7 Hence failure to meet norms defeats reasonable expectations and creates a right to recovery. The situation is again analogous to the situation in contract. Here the appropriate analogy would be the implied term.58

Problems of Psychology, Politicsand Measurement in Rawls, in N. Daniels, supra at 297-98. If there are conventional or shared attitudes toward risk, they should be used so that sgnals from adverse judgments will be read appropriately. A. GEORGE & R. SMOKE, supra at 489 n. 36. If there is no convergence of attitudes, then it is difficult to see how cost-benefit analysis could perform its deterrent function. F. ZIMRING & G. HAwKINs, DETERRENCE 104 (1973). 53. The solution of coordination problems involves what ScheUing calls "ma- neuver"; the mutual signalling of plans and expectations through patterns of behavior. T. SCHELLING, supra note 45, at 101-02, 104. If these problems are solvable, and they are solved, then conduct must have a speech-like characteristic of meaning. See generally P. WINCH, THE IDEA OF A SOCIAL SCIENCE 82-83 (1967). 54. W. PROSSER, supra note 15, § 18 at 101-02. 55. Marsh v. Colby, 39 Mich. 626 (1878). 56. See 4 WILLISTON, A TREATISE ON THE LAW OF CONTRACTS § 600A at 286-87 (3d ed. 1961). 57. The classic example would be that one can not be a quarterback and refuse to be tackled. See W. PROSSER, supra note 15, § 18 at 102. One who should know usage is bound whether he knows of the usage or not; 5 WILLISTON, supra note 56, § 651 at 34; Miller v. Great W. Comm'n Co., 98 Neb. 392, 394-95, 152 N.W. 787, 788 (1915). See Davco Realty Co. v. Picnic Foods, Inc., 198 Neb. 193, 252 N.W.2d 142 (1977). 58. Exemplary are the cases implying a due care term in a contract of service: Rickertsen v. Carskadon, 172 Neb. 46, 48, 108 N.W.2d 392, 394 (1961); Van Nortwick v. Holbine, 62 Neb. 147, 86 N.W. 1057 (1901) (with performance measured by local custom). Henggeler v. Jindra, 191 Neb. 317, 318-19, 214 N.W.2d 925, 926 (1974); O'Connor v. Burns, Potter & Co., 151 Neb. 9, 30, 36 N.W.2d 507, 519 (1949). Even more dramatic CREIGHTON LAW REVIEW [Vol. 14

We may compare the two sketches of negligence law by look- ing at the situation of the minor child engaging in adult activities. Ordinarily children are subject to special standards, rather than to the ordinary due care standards. 59 However, where a child en- gages in an activity customarily engaged in by adults, he is held to the adult standard.60 Under the safety sketch, either of two alternative explanations is available as to why the child is held to the adult standard. Fist, the adult activities engaged in are generally dangerous ones. If one cannot conduct these activities without meeting a standard of safety, he should not engage in them. 61 This explanation is analogous to the standard explanation for traditional strict liability. 62 Alternatively, since the usual adult activities engaged in are activities such as driving, where insurance is common, the use of the adult standard simply makes an efficient use of the risk distribution system which already exists.63 Under the expectancy sketch, the basis for holding the child to the adult standard is different. When one is around children, one expects childish behavior. However, when a child disguises himself as an adult by engaging in an adult activity, the expectation of childish behavior is not engendered. 64 Thus others are not prepared for such conduct when it occurs. Under the safety sketch, a person who rides in a car with a child, absent assumption of risk, is as much entitled to the adult standard as is a driver in an oncoming vehicle.65 Under the expectancy approach, however, the passenger does not meet the child in disguise, and cannot claim to have been surprised that his own driver was the child. Therefore, the adult are cases where something like a minimally acceptable in the area standard has been used to fill out end result construction contracts which contained only the loosest description of the result sought. Bettancourt v. Gilroy Theatre Co., 162 Cal. App. 57, -, 261 P.2d 351, 356 (1953); Fraley v. Bentley, 1 Dak. 25, -, 46 N.W. 506, 508 (1874); Davco Realty Co. v. Picnic Foods, Inc., 198 Neb. 193, 197-98, 252 N.W.2d 142, 146 (1977); Tobin v. Union News Co., 18 App. Div.2d 243, 239 N.Y.S.2d 22, 25 (1963), affid, 13 N.Y.2d 1155, 196 N.E.2d 735 (1964); Lawrence v. Saratoga Foke Ry. Co., 36 N.Y. Sup. Ct. 467, 472-73 (N.Y. App. Div. 1885). 59. Sacca v. Marshall, 180 Neb. 855, 865-66, 146 N.W.2d 375, 381-82 (1966); Eden v. Class, 166 Neb. 354, 356, 89 N.W.2d 74, 78 (1958); W. PROSSER, supra note 15, § 32 at 154-56. 60. RESTATEMENT (SECOND) OF TORTS § 283A, Comment c (1965). See Daniels v. Evans, 107 N.H. 407, -, 224 A.2d 63, 66 (1966). 61. Neumann v. Schlansky, 58 Misc. 2d 128, 294 N.Y.S. 2d 628 (1968). 62. J. FLEMING, LAW OF TORTS 158-59 (1969). 63. See C. MORRIS & R. MORRIS, TORTS 52-53 (2d ed. 1980). 64. This is substantially the theory advanced in Dellwo v. Pearson, 259 Minn. 452, -, 107 N.W.2d 859, 863 (1961). 65. While the Restatement does not specifically address this question, this ap- pears to be the logical outcome; see RESTATEMENT (SECOND) OF TORTS § 283A, Com- ment c (1965). 19801 GUEST STATUTE standard would not be applicable to the child's passenger.66 This example brings us to the heart of the justification of the guest statute in terms of the expectancy sketch. Under this sketch, a due care duty is owed only when we would expect due care. Par- ties who are not expected to exercise due care are not obligated to do so. For example, the licensee expects no more from the owner 67 of land than that he would be allowed to enter on to the land. If the conditions of the land are different than they appear to be, he is entitled to a warning, where the owner knows this, since the de- ceptive appearance amounts to a trap.68 However, since he comes for his own purposes, he cannot expect the owner to scurry around and prepare the premises for him.69 Only where mutual advantage to the owner is involved will an expectation of preparation be reasonable.7 0 Similarly, when one seeks advice from another, unless the other person is compensated or has special skills with regard to the subject matter of the inquiry, then at least where economic 7 1 loss is involved, only honesty can be expected from the advisor. Where the advisor did not hold himself out to the inquirer as being prepared to provide information of the kind required, he made no claim to any skill or competence which the law could require him to achieve. 72 "The ordinary courtesies and exchanges of life would become impossible if it were sought to attach legal obligation to '73 every kindly and friendly act. The question then becomes what do guests ordinarily expect from their hosts? Do they expect due care or merely honest effort? The legislature has said that they expect only honest effort. In so defining the expectation, the legislature performs a function no different than when it prescribes a specific safety precaution. When the legislature prescribes a precaution, the law of negligence ordinarily accepts it.74 It does so because it regards the legislature as a

66. Under the Dellwo rationale, this is the logical outcome. It also explains a case like Purtle v. Shelton, 251 Ark, 519, 474 S.W.2d 123 (1971) better than the court's view that hunting is not an adult activity. 67. F. BOHLEN, STUDIES IN THE LAW OF TORTS 159-60 (1925). 68. RESTATEMENT (SECOND) OF TORTS § 342, Comment d (1965). 69. RESTATEMENT (SECOND) OF TORTS § 342, Comment f (1965); F. BOHLEN, supra note 67, at 159-60. 70. Indermaur v. Dames, (1866) L.R. I P.C. 274. 71. Ames Bank v. Hahn, 205 Neb. 353, 287 N.W.2d 687 (1980). See RESTATEMENT (SECOND) OF TORTS § 552 (1965). 72. Mutual Life & Citizen's Assur. Co. v. Evatt (1971) A.C. 793, 805. 73. Hedley Byrne & Co. v. Heller & Partners, Ltd. (1964) A.C. 465, 494 per Lord Morris. 74. Some jurisdictions treat a violation of a statute as negligence per se, that is, they treat the statute as fixing the precaution which due care requires. Other jurisdictions treat a violation of statute only as evidence of negligence. See W. PROSSER, supra note 15, § 36 at 200-201, where this distinction is drawn and explained. Ne- CREIGHTON LAW REVIEW [Vol. 14 peculiarly appropriate bellweather of community expectations.7 5 The function of a legislature in the negligence process is analogous to that of a jury. The jury, unlike the legislature, is not a representative in the sense of being elected, but in the sense of acting on behalf of the community. The selection process is designed to assure that the jury is representative in the sense of being typical so that its ethical judgments represent those which the community would make. The selection process replaces the periodic election as the guarantor that those who act on behalf of the community are 7 6 typical of the community. The jury is then asked to examine the conduct of the parties, decide what in fact occurred, and determine what reasonable members of the community would expect in the circumstances. They make an inverted commas; they use the values of the community from which they come.7 7 On this basis, they formulate braska generally treats a violation of a statute as evidence of negligence; Morrissey v. Johnson, 179 Neb. 219, 222-23, 137 N.W.2d 713, 715 (1965); though in particular cases, it has treated a violation of a statute as negligence per se. Johnson v. Weborg, 142 Neb. 516, 522, 7 N.W.2d 65, 68 (1942). 75. The use of statutes can be explained by analogy to other evidentiary rules in negligence cases of the requirements of due care. Nebraska treats a violation of a custom as evidence of negligence. See Brackman v. Brackman, 169 Neb. 650, 659, 100 N.W.2d 774, 780-81 (1960); Tite v. Omaha Coliseum Corp., 144 Neb. 22, 27-28, 12 N.W.2d 90, 94 (1943). Nebraska also treats violation of a privately adopted safety code, such as the rules of the American Hospital Association, as evidence of negligence. Simon v. O.P.P.D., 189 Neb. 183, 195, 202 N.W.2d 157, 165 (1972); Foley v. Bishop Clarkson Memorial Hosp., 185 Neb. 89, 93, 173 N.W.2d 881, 884 (1970). A statute has at least the same evidentiary value as a private custom for the statute creates "a statutory custom, which is entitled to admission as evidence." W. PROSSER, supra note 15, § 36 at 202. Similarly, a statute is adopted with at least as much prior investigation and care as is the safety standard of a private organization. It thus has at least the same evidentiary value as such a private standard. However, if our explanation of negligence is correct, statutes are special. Where an arbitrary choice is involved, the statute saves the time that would otherwise be required to establish settled patterns of conduct. It sets the standards which will be relied on in deter- mining what to expect from others. Where the statute is definitional of expectation, the legislature is, by virtue of its contacts with the community, well situated to define what is already expected. 76. A juror is supposed to exercise his "common sense and sound judgment." Schultz v. Pennsylvania R.R., 350 U.S. 523, 525 (1956). The reasonableness test allows this by "linking the legal standard of care to accepted community evalua- tions." J. FLEMING, supra note 62, at 35. The jury constructs the evaluation rather like the people reconstructing the clause in Hare, PhilosophicalDiscoveries, in Es- SAYS ON PHILOSOPHICAL METHOD 22-29 (R. Hare ed. 1972). See generally S. CAVELL, MUST WE MEAN WHAT WE SAY? 1-43 (1976); P. WINCH supra note 53, at 32. 77. The phrase "inverted commas" is from R. HARE, THE LANGUAGE OF MORALS 124-25 (1952). I use it to suggest that it is the conventional morality of the community and not the juror's personal moral views that is relevant to the juror's role. This approach to the jury's function can be illustrated by recognizing that the jury determines the level of risk and the cost of precaution in order to determine whether or not it is fair to leave the costs of injury where the risk results in harm on the injured party or whether it should be transferred to the actor who created the 19801 GUEST STATUTE

rules of conduct by which to judge the party. These rules, however, do not bind beyond the individual case. Alternatively, the legislature when it legislates safety, performs the function of standard setting for all cases. However, the sources of the standards are presumably identical. We may sharpen the defense of the guest statute by examin- ing the defense of assumption of risk in the expectancy model. When a party does not know what to expect, he is given the right to expect the normal or the reasonable, but when he knows what to expect, he cannot expect more than he knows. That is the essential idea behind the notion of assumption of risk.78 When a plaintiff knows in advance that the defendant cannot meet a standard, that is, the defendant cannot avoid creating more than the normal risk, as where the plaintiff accepts a ride from a drunk driver, he cannot claim that he acted in reliance on the social norm.79 Since

risk. In making this kind of evaluation we assume that there are customary levels of risk, which the community is willing to tolerate, available as a measure or standard. The idea that the presence or absence of negligence is measured by a community tolerance of risk or danger is analogous to the notion of nuisance. Nuisance cases start with the assumption that there is a certain level of offensiveness which we must tolerate as the price of being able to act at all. Nuisance law tries to draw a line between this ordinary or normal level of offense and an unreasonable level of offense. Central to the enterprise is the determination of what is tolerable in a particular context of use, the notion of positional inappropriateness. The question is much more analogous to a determination of whether conduct has gone beyond the bounds of decency in intentional infliction of mental distress cases. The jury in Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344 (1961) did not need to weigh the rela- tive utility of the conduct of the parties under a cost-benefit, or Carroll Towing, approach to know that the defendant's conduct was outrageous, nor did they go through any such process in declaring that conduct is a nuisance despite Prosser's contrary suggestion, W. PROSSER supra note 15, § 87 at 580-581; J. FLEMING, supra note 62, at 187-88. As Leach observes "... 'Dirt is matter out of place.' Earth in the garden is just earth, it is normal matter in its normal place. Earth in the kitchen is dirt; it is matter out of place. The more sharply we define our boundaries, the more conscious we become of the dirt that has ambiguously got onto the wrong side of the frontier. Boundaries become dirty by definition and we devote a great deal of effort to keep- ing them clean, just so that we can preserve confidence in our category system." E. LEACH, CULTURE AND COMMUNICATIONS 61 (1976). It is because we understand our social categories that we know that the clunk of a diving board and the smell of chlorine are an acceptable part of a residential neighborhood where swimming pools prevail, Slaird v. Klewers, 760 Md. 2, 271 A.2d 345 (1970), while the noise and dirt of a ready mix cement plant are out of place, Bates v. Quality Ready-Mix Co., 261 Iowa 696, 154 N.W.2d 852 (1967). In other words sections 828(c) and 828(b) of the Second Restatement of Torts are definitive of nuisance, while the remainder of those sections conflates nuisance with the balancing of equities. 78. RESTATEMENT (SECOND).OF TORTS § 496A, Comment b; § 496C, Comments c & d (1965). 79. Sandberg v. Hoogensen, 201 Neb. 190, 198-99, 266 N.W.2d 745, 750 (1978); Lan- drum v. Roddy, 143 Neb. 934, 946-47, 12 N.W.2d 82, 89-90 (1943). But see Comment, CREIGHTON LAW REVIEW [Vol. 14 his expectations are not disappointed, he cannot claim damages because the due care norm has not been met.80 Where the position of one party is not dependent on the consent of another party, for example, two drivers on the highway, the defense of assumption of risk has no application. 81 Mere knowledge that another is not meeting the standards in such a situation is not sufficient to engage the doctrine of assumption of risk. Where a relationship is nonconsensual it cannot be modified. However, where the relationship is consensual, a party may condition his consent on less than due care. 82 For example, in traditional products liability law an open and obvious defect was not actionable. A manufacturer was entitled to make whatever product he wanted. So long as he let people know what he was making, and the open and obvious defect did this, no one had the right to 83 complain, since no one was forced to buy the product. While the ordinary assumption of risk case is the case of individual knowledge of a specific risk, the more general principle that in choice cases the parties are given greater freedom to define their performance standards is also applicable at the level of duty.84 For example, in the traditional products liability situation, the standard defining defect was reasonable expectation, a standard analogous to that applied in commercial law under the rubric of warranty of merchantability. 85 Industry norms were virtually decisive in this area, since if something was typical of what was ordina-

Assumption of Risk and the'Automobile Guest: Time to Reevaluate Their Relation- ship, 13 CREIGHTON L. REV. 251, 251-52 (1979). 80. Landrum v. Roddy, 143 Neb. 934, 946-47, 12 N.W.2d 82, 89-90 (1943). 81. See Hurlbut v. Landgren, 200 Neb. 413, 418, 264 N.W.2d 174, 177 (1978). 82. J. CLERK & W. LINDSELL, TORTS § 113 (14th ed. 1975). 83. Jamieson v. Woodward & Lothrop, 247 F.2d 23, 28 (D.C. Cir. 1957); Campo v. Scofield, 301 N.Y. 468, 473, 95 N.E.2d 802, 804, 100 N.Y.S. - (1950); but see Waegli v. Caterpillar Tractor Co., 197 Neb. 824, 827-28, 251 N.W.2d 370, 372-73 (1977); Micallef v. Miehle Co., 39 N.Y.2d 376, 384-85, 348 N.E.2d 571, 576-77, 384 N.Y.S. 2d 115, 120-21 (1976). 84. See Posner, supra note 52, at 45-46; Epstein, Intentional Harms, 4 J. LEGAL STUD. 391, 420-23 (1975). Implicit in the conventional approach is Blackburn's view in Rylands that due care is merely the meeting of community norms which a plaintiff tacitly accepts by his own participation in social life. Fletcher v. Rylands, L.R. I Ex 265, 287-88 (1866), affd, L.R. 3 H.L. 330 (1868). To me this approach renders coherent the interrelationship between tort cases involving consensual and non-consensual interractions which are unified by the concept of reasonable expectation. But see, Epstein, Defenses and Subsequent Pleas in a Strict Liability System, 3 J. LEGAL STUD. 165, 188-190 (1974). 85. Compare RESTATEMENT (SECOND) OF TORTS § 402A, Comment g (1965), requiring that a risk be one "not contemplated by the ultimate consumer" with U.C.C, § 2-314(c). The essential idea is that the buyer should get what he asks for with its normal benefits and risks but without risks not generis to the type. See RESTATE- MENT (SECOND) OF TORTS § 402A, Comment i; § 388, Comment k (1965); R. NORD- STROM, HANDBOOK OF THE LAW OF SALES § 76 at 236 (1970). 19801 GUEST STATUTE rily sold as a car, it was a car, and you could not expect a car to be more than a car.86 Similarly, one who goes to a baseball game can only expect the precautions usually taken by ballparks to protect their patrons. 87 Since no one has to buy a car or go to a baseball game, so long as the ordinary practices of the industry are fol- lowed, a plaintiff who fails to find what the practices are cannot 88 complain if he is disappointed by the standards. The automobile guest case combines both elements of the assumption of risk principle. On the one hand, the ground rules for guests are defined in advance. No one has to become a guest. If he does so, he cannot complain that he expected more than the ground rules provided. On the other hand, the guest has at least some opportunity to familiarize himself with his host's driving before he accepts a ride. Knowing the ground rules and knowing the driver, he can complain only if the driver's performance is shockingly defective. That in essence is what gross negligence means. From the viewpoint of the expectancy sketch, the guest statute becomes highly defensible. The basic principle of negligence law is the vindication of reasonable expectations. Most people expect more when they pay for a service than when they get it for free. The guest statute defines its standard in terms of consensual transactions. Since no one has to accept a free ride, he can avoid whatever risks he thinks are inherent in the lower standard either by paying or by refusing to ride. He can protect himself by famil- iarizing himself with the driver's ordinary pattern of driving. If he is then faced with a shocking departure from that ordinary standard, he will be protected by the gross negligence standard contained in the guest statute. Thus the question of the constitutionality of the guest statute can only be answered after a court has committed itself to its sketch of tort law. If it adopts the safety sketch, then the arguments for unconstitutionality are very strong. If it adopts the ex-

86. See Bruce v. Martin-Marrietta Corp., 544 F.2d 442, 447-48 (10th Cir. 1976); but see Hancock v. Paccar, Inc., 204 Neb. 468, 283 N.W.2d 25, 35 (1979); Noel, Manufac- turer's Negligence of Design or Directionfor Use of a Product,71 YALE L. J. 816, 848- 50 (1962) (where the older cases giving nearly conclusive effect to industry custom are reviewed and criticized). 87. Tite v. Omaha Coliseum Corp., 144 Neb. 22, 25, 12 N.W.2d 90, 93 (1943). See RESTATEMENT (SECOND) OF TORTS § 496A, Comment c (1965). 88. When one performs services requiring skill, due care duty is impliedly measured by local usage. See note 57 and accompanying text infra. This is because the usage represents the standard. In the absence of shocking eccentricity of standard, one impliedly agrees to it. See Miller v. Great W. Comm'n Co., 98 Neb. 392, 394-95, 152 N.W. 787, 788 (1915). CREIGHTON LAW REVIEW [Vol. 14

pectancy sketch, those arguments tend to evaporate. However, in adopting the safety sketch, a court should recognize that it places in jeopardy those doctrines which tend to arise out of the expecta- tional model of tort law: the doctrine of categories of entrance on land, the doctrine of the variable rule applicable to negligence in connection with words, the doctrine of open and obvious defect both in connection with land and products, and the doctrine of assumption of risk itself. These doctrines are all part of the expecta- tional model of torts. They do not make a considerable amount of sense when the function of tort law is conceptualized as the guar- anteeing of a minimal safety standard measured by an objective standard and available without regard to the consent of either the actor or the injured party.8 9

THE PREVENTION OF COLLUSIVE LAWSUITS

THE ATrACK

One purpose of the Guest Statute is the prevention of collusive suits to the detriment of automobile liability insurance carri- ers. The premise of the statute is that "In guest cases the insurer, who is required to pay the damages, is peculiarly exposed to collusion between the injured guest and a host anxious to see compensation paid, so long as he does not have to pay it-so that the truth does not come out in court, and there is a resulting increase in insurance rates."90 The relationship between this rationale, and the line which the Guest Statute draws is difficult to follow. If the owner and the guest are willing to collude to make out a case of negligence, would they not be equally willing to collude to make out a case of gross negligence or, alternatively, to concoct evidence of compensation? 91 Nebraska law grants to a party within the zone of risk created by a negligent act, a cause of action for any personal injury caused him by that act. The Guest Statute continues this rule as to the paying passenger; however, it denies the cause of action to the in-

89. E.g., on assumption of risk, see McConville v. State Farm Auto. Ins. Co., 15 Wis.2d 374, -, 113 N.W.2d 14, 19 (1962); James, Assumption of Risk: Unhappy Rein- carnation,78 YALE L. J. 185 (1969); on open and obvious defect, see Keeton, Per- sonal Injuries Resulting from Open and Obvious Conditions, 100 U. PENN. L. REV. 629 (1952); on the categories, see Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968). 90. W. PROSSER, supra note 15, § 34 at 187. 91. Johnson v. Hassett, 217 N.W.2d 771, 777-78 (N.D. 1974). See Memorial Hosp. v. Maricopa County, 415 U.S. 250, 268 (1974); Manistee Bank & Trust Co. v. Mc- Gowan, 394 Mich. 655, -, 232 N.W.2d 636, 647 (1975); Behrns v. Burke, 89 S.D. 96, -, 229 N.W.2d 86, 90-91 (1975). 1980] GUEST STATUTE jured guest. The cause of action is denied not because of any wrong which the guest has committed, but because other guests might be prone to lie. The denial of benefits to the innocent guest because other guests might lie "is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. '92 If fraud is to be pre- vented, the rational route to prevention is by direct attack upon the fraud. The indirect method of benefit denial with its attendant im- 9 3 pact on the innocent is too gross a tool. Brown v. Merlo, focuses on yet another irrationality of the classification created by the Guest Statute. The court notes: First, the "paying-nonpaying" or "passenger-guest"

92. Jimenez v. Weinberger, 417 U.S. 628, 635-37 (1974); Weber v. Aetna Casualty Ins. Co., 406 U.S. 164, 175 (1972); McGeehan v. Bunch, 88 N.M. 308, -, 540 P.2d 238, 243-44 (1975); Primes v. Tyler, 43 Ohio St. 2d 195, -, 331 N.E.2d 723, 726-27 (1975). As the court noted in Botch v. Reisdorff, 193 Neb. 165, 174-75, 226 N.W.2d 121, 128 (1975), this argument is essentially an overinclusive argument. The Nebraska Court has not generally been receptive to such arguments. Fraternal Order of Po- lice v. Nebraska Liquor Cont. Comm'n, 199 Neb. 712, 717-18, 261 N.W.2d 106, 110 (1978). In general, "legislative resort to somewhat overinclusive classifications is legitimate as a prophylactic device to insure the achievement of statutory ends. . . ." L. TRIBE, AMERICAN CONSTITUTIONAL LAw § 16-4 at 999 (1978). Clearly, if the Guest Statute situation is to be distinguished from legitimate uses of overinclusion, the justification must run along the following lines: In the usual overinclusion case, a type of transaction is either being outlawed or regulated because it contains a subclass of improper transactions, and the two groups are factually difficult to segregate. However, in any such instance, the party is not denied an opportunity to engage in appropriate transactions. Either the transaction in which he is engaged is subject to regulation, or if it is outlawed, he has other alternatives available to him. For instance, in FraternalOrder of Police, policemen could not own bars, but they still had their jobs as policemen and other forms of moonlighting were available. 99 Neb. at 706-18, 261 N.W.2d at 109-10. In the Guest Statute cases, the plaintiff is denied virtually the only form of compensation available and is left without alternative opportunities. 93. See Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73, 76 (1968); Thomp- son v. Hagen, 96 Idaho 19, -, 523 P.2d 1365, 1369 (1974); Bierkamp v. Rogers, 293 N.W.2d 577, 582-85 (Iowa 1980); Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, -, 232 N.W.2d 636, 644 (1975). A number of cases dealing with the Guest Statutes have indicated that the judicial rejection of the doctrine of interspousal immunity constitutes a rejection of the notion that the possibility of collusion is a grounds for denial of tort relief to a class of parties. Brown v. Merlo, 8 Cal.3d 855, -, 506 P.2d 212, 226, 106 Cal. Rptr. 388, 402 (1973); Laakonen v. Eighth Judicial Dist. Court, 91 Nev. 506, -, 538 P.2d 574, 578 (1975); Johnson v. Hassett, 217 N.W.2d 771, 778 (N.D. 1974). In Imig v. March, 203 Neb. 537, 279 N.W.2d 382 (1979), Nebraska rejected the doctrine of interspousal immunity. In Kreifels v. Wurtele, the Chief Justice suggested that this rejection constitutes a rejection of the possibility of collusion rationale. 206 Neb. at 499, 293 N.W.2d at 410-11 (Krivosha, C.J., dissenting). The difficulty with this argument is that it assumes that what judges are now doing is the only rational solution, and their past activities are irrelevant. A legislator might feel that the older approach had the better argument on the collusion rationale without becoming unreasonable. Brewer v. Copeland, 86 Wash. 2d 58, -, 542 P.2d 445, 452-53 (1975). CREIGHTON LAW REVIEW [Vol.. 14

distinction drawn by the guest statute is a far grosser indi- cant of the likelihood of collusion than any of the categories involved in the family immunity cases. Thus, on the one hand, the "paying passenger" category, whose members are permitted to recover for negligent injuries, is defined by the statute to include anyone who gives any "compensation" whatsoever; this classification frequently encompasses close friends or relatives who, for example, share expenses through "car pool" arrangements . . . or provide some marginal benefit to the driver . . ., and yet who pose as great a risk of collusion as nonpaying guests. On the other hand, the "nonpaying guest" classification ensnares many persons, such as hitchhikers, with whom no close relationship and with respect to the driver shares 94 whom the danger of collusion is remote. While Nebraska's notions of compensation may not be as attenu- ated as those of California, the Nebraska Guest Statute likewise allows anyone who gives compensation to recover even though he belongs to a class likely to collude with the criver. In Van Auker v. Steckley's Hybrid Seed Corn Co.,95 the injured guest, who had given compensation, was the father of the driver. In Svitak v. Sun Indemnity Co.,96 the injured passenger was an employee of the driver. In Snelling v. Pieper,97 the injured guest was a young boy, who was being cared for by the driver in return for a modest weekly compensation.98 All of these cases involved parties in relationships as close as the supposed friendship between guest and host, the claimed inducement to collusion. Conversely, a hitch- hiker would come within the status of guest, even if the driver had never met him before. Similarly, if two parties met for the first time at some gathering, and the one as a kindness offered the other a ride, though the parties were virtual strangers, the statute would apply.99 Since the two classes of automobile passengers cannot mean- ingfully be distinguished on the basis of propensity to collude, the classification created by the Guest Statute runs afoul of the Ne- braska Constitution. 10 0 Even if persons riding in automobiles con-

94. Brown v. Merlo, 8 Cal. 3d 855, -, 506 P.2d 212, 226, 106 Cal. Rptr. 388, 402, (1973). 95. 143 Neb. 24, 8 N.W.2d 451 (1943). 96. 136 Neb. 303, 285 N.W. 604 (1939). 97. 178 Neb. 818, 135 N.W.2d 707 (1965). 98. Id. at 819, 135 N.W.2d at 708. 99. It is of course the absence of compensation, and not the relationship between the parties which is decisive under the Guest Statute. 100. What is involved here is the type of underinclusion condemned in Elder v. Doerr, 175 Neb. 483, 493-94, 122 N.W.2d 528, 535-36 (1963). 1980] GUEST STATUTE stitute a separate class, since the propensity to collude has not been demonstrated to adhere more in the guest than in the paying passenger class, payment does not constitute a rational basis for the subdivision of the class into subclasses.

THE DEFENSE Under the expectancy sketch, the question of legislative purpose does not arise. The statute defines an expectation, in the belief that it is in fact the normal one guests have when they accept a free ride. Expectation is the norm because that is the rule of tort law. The question as to why people in fact have the explanation is psychological not legal. There are two possible attacks on the definition of the expectation. The first attack embodies the argument that people should expect more safety, even if they do not. This argument misses the point of the expectancy sketch. To adopt this argument is to adopt a version of the safety sketch. 1 1 The second argument is that the legislature has irrationally defined the requisite expectation. While that argument may be true, it is difficult to see how it could be established, since a legislature is a better mirror of public ex- 10 2 pectations than an appellate court.

THE PROMOTION OF HOSPITALITY

THE ATTACK The promotion of hospitality rationale for the Guest Statute has two aspects. First, an attempt is made to justify the classification which the Guest Statute draws by arguing that the legislature could legitimately believe that the recipient of a benefit, who sued his benefactor, is an ingrate. 10 3 Second, it is argued that giving rides to friends is a form of hospitality which the legislature could legitimately single out for encouragement. 10 4 Neither of these arguments rationalizes the limited ambit of the policies. If these pol-

101. Compare Waters v. Markum, 204 Wis. 332, -, 235 N.W. 797, 800-01 (1931) with McConville v. State Farm Auto Ins. Co., 15 Wis.2d 374, -, 113 N.W.2d 14, 19 (1962), the case which overruled the line of cases starting with O'Shea v. Lavoy, 175 Wis. 456, 185 N.W. 20 (1921) which included the Markum case. 102. Duerst v. Limbocker, 269 Or. 252, -, 525 P.2d 99, 102-03 (1974). 103. The ingratitude notion goes back to the distinction drawn in Indermaur v. Dames (1866) L.R. 1 P.C. 274, where the court in explaining the rules applicable to the licensee indicated that a licensee claiming due care was one "whose complaint may be said to where the colour of ingratitude, so long as there is no design to injure him." Id. at 285. See Duerst v. Limbocker, 269 Or. 252 -, 525 P.2d 99, 102-03 (1974). 104. Botch v. Reisdorff, 193 Neb. 165, 170-71, 226 N.W.2d 121, 126 (1975). CREIGHTON LAW REVIEW [Vol. 14

icies have vitality, they are applicable beyond the limited area of the auto-guest-host relationship. But it is only here that they find application. One who undertakes to confer a benefit upon another, but 0 5 winds up injuring him instead, is liable if he was negligent. It matters not how precious the benefit he was attempting to confer was. Even the physician who accepts a charity patient, unless his act of charity comes within the narrow ambit of the Nebraska Stat- ute Section 25-1152, is liable for his negligence. 10 6 Moreover, the immunity charities once had from suit by, their beneficiaries has 10 7 now been taken from them. Given this general policy of allowing suit against a benefactor, how is the Guest Statute justified? The State Constitution requires rationality of classification. It is incomprehensible that a reasonable man would view the act of offering another a ride in a car as a grant of beneficience so magnificent that the benefactor should be singled out for special legal protection. It is difficult to discover rationality in a scheme which treats a guest in a car who sues as an ingrate, but sees no ingratitude in a suit by a houseguest l0 8 A similar line of analysis is applicable to the alternative argument that the Guest Statute is designed to encourage generosity in society'by giving the generous host a partial immunity from suit. The argument is made that: • . . It is apparent that there are two competing social considerations in this area, the encouragement of generosity in society and the interest in compensating injured persons. The legislature has given a preference for the former consideration at the expense of the latter. Certainly this preference may be deemed unwise, but it is definitely not "irrational" in any equal protection sense .... 109

105. W. PROSSER, supra note 15, § 56 at 343-44. See McGeehan v. Bunch, 88 N.M. 308, -, 540 P.2d 238, 239-41 (1975). 106. W. PROSSER, supra note 15, § 56 at 344. 107. Id. at § 56; Nebraska rejected the doctrine of charitable immunities in My- ers v. Drozda, 180 Neb. 183, 141 N.W.2d 852 (1966). A number of cases following Brown v. Merlo have found this rejection of charitable immunity to be a rejection of the rationale of hospitality. Thompson v. Hagen, 96 Idaho 19, -, 523 P.2d 1365, 1368 (1974); Johnson v. Hassett, 217 N.W.2d 771, 778 (N.D. 1974); Primes v. Tyler, 43 Ohio St. 2d 195,-, 331 N.E.2d 723, 728 (1975). The Chief Justice takes a similar position in Kriefels v. Wurtele, 206 Neb. 491, 499, 293 N.W.2d 407, 411 (1980) (Krivosha, C.J., dissenting). However, again, this argument seems to suffer from the underlying assumption that only what judges are now doing is rational. 108. Johnson v. Hassett, 217 N.W.2d 771, 778 (N.D. 1974). 109. Rationality of Guest Statute Classifications Questioned, 53 NEn. L. REv. 267, 273 (1974). But see Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, -, 1980] GUEST STATUTE

The difficulty with this analysis is that it focuses solely on the promotion of generosity, and not on the real question. The real question is not whether or not the legislature could rationally believe that a grant of immunity would promote generosity. The question is whether the legislature, once it entertained that belief and deter- mined that generosity should be promoted, could rationally determine that the only area where the policy of generosity promotion would operate was in the auto-guest-host situation. Since the situation of the automobile guest cannot meaning- fully be distinguished from other cases where the benefit is granted, the singling out of the automobile guest for special treatment offends the constitutional mandate to equality.1 10 Only one rationale has been offered for the singling out of the automobile host-guest relationship as exceptional. The Utah Supreme Court in Cannon v. Oviatt argued that: In a State such as Utah a significant portion of our economic resources must be devoted to the construction and maintenance of highways; the economic burden bears a direct relationship to the number of vehicles and the total cumulative mileage on the highways each year. The guest statute encourages hospitality and directly affects the number of vehicles present on the highways, thus avoiding traffic congestion and wear to the surfaces of the roadway. The guest statute promotes the conservation of petroleum and other natural resources consumed in highway travel."' At the start two comments are in order on this rationale. First, the prescience of a legislature which in a period when the energy problem was one of oversupply, foresaw the energy crises of the mid- 1970's is astounding. u 2 Second, if conservation is the purpose of the Guest Statute, it has failed. The number of cars on the highway and the number of highways constructed have continually increased. The only deterrent to the expansion of the car population with its concommitant demand for an increase in roadways has been an increase in the cost of vehicle operation. 113 Since the

232 N.W.2d 636, 644-45 (1975) questioning whether the statute even succeeds in pro- moting hospitality. 110. The advice here is the type of underbreadth condemned in cases such as Skag-way Dep't Stores, Inc. v. Omaha, 179 Neb. 707, 712-13, 140 N.W.2d 28, 32 (1966) and State ex rel. Rogers v. Swanson, 192 Neb. 125, 136-37, 219 N.W.2d 726, 733-34 (1974). 111. Botch v. Reisdorff, 193 Neb. 165, 173, 226 N.W.2d 121, 127 (1975); Cannon v. Oviatt, 520 P.2d 883, 888 (Utah 1974). 112. See Panama Ref. Co. v. Ryan, 293 U.S. 388, 418 (1935). 113. At least that seems to be the effect of increasing gas prices on my wife's driving. CREIGHTON LAW REVIEW [Vol. 14

Guest Statute reduces the driver's liability, it reduces the expo- sure of those who write liability insurance on vehicles. Therefore, the Guest Statute would have the effect of reducing liability insurance rates with a corresponding reduction in the costs of vehicle operation. As a conservation measure, therefore, the Guest Stat- ute is counterproductive. If increased multiple passenger utilization of vehicles, rather than naked generosity, is what the Guest Statute is designed to encourage, the line it draws is still irrational. The paid host contributes as much to this purpose as does the generous host. If a passenger is riding in a car, he is not driving his own car, whether he paid or did not pay for his ride. The car pool is the exemplar of efficient utilization of the passenger motor vehicle. While many car pools arise as "an exchange of social amenities," it is perhaps more common for membership in a car pool to be conditioned on contributions to the cost of operation of the car. This would take 1 14 the typical car pool out of the operation of the Guest Statute. In any of its variant guises the promotion of hospitality rationale rests on the assumption that a recovery by a guest will produce an out-of-pocket loss to the host. The guest is an ingrate because he improverishes his benefactor. The potential host is deterred from generosity by the fear of personal liability. Whatever the merits of this analysis might once have been, it has no application where the source of funds to which the injured guest looks is a liability insurance policy. The legislature has taken steps to assure that passenger vehicles are covered by liability insurance)' 5 The usual uninsured motorist is most unlikely to be sued. He is protected by an immunity stronger than that granted by the Guest Statute, the doctrine that "you can't get blood from a turnip." With insurance as the source of compensation, any notion of ingratitude evaporates. The presence of an insurance policy sets at rest any 11 6 fear of liability which would otherwise deter hospitality.

THE DEFENSE

The ingratitude argument is illogical under the safety sketch of tort law because it is inconsistent with its premises. It is no dis- play of ingratitude to another to point out that he has failed in a legal duty. However, under the expectancy sketch, the notion of

114. Born v. Estate of Matzner, 159 Neb. 169, 178-79, 65 N.W.2d 593, 599 (1954). 115. NEB. REV. STAT. § 60-509 (Reissue 1978). 116. Brown v. Merlo, 8 Cal. 3d 855, -, 106 Cal. Rptr. 338, 397, 506 P.2d 212, 221 (1973); McGeehan v. Bunch, 88 N.M. 308,-, 540 P.2d 238, 242 (1975); Johnson v. Has- sett, 217 N.W.2d 771, 779 (N.D. 1974). 1980] GUEST STATUTE ingratitude makes considerable sense. There is "some rough common sense in the notion that a social guest, broadly, takes a host as he is, expecting that the host will take as much care of his guest as he takes of himself ....-117 So long as the care which the host is taking of himself is not shockingly bad, if the host endangers himself no more than he endangers the guest, the guest has no grounds for complaint."l 8 He is an ingrate then because he took the ride under one set of rules and wants a different set of rules to apply after things have not worked out to his satisfaction."19 The expectancy sketch has no occasion to defend the guest statute on the basis of eccentric projections as to the impact of a guest statute on hospitality. The statute is not bottomed on a de- sire to promote hospitality, but rather on a recognition of the rules under which hospitality is granted. Separate from the basic choice between models, which is implicit in the issue of the constitutionality of the guest statute, the promotion of hospitality rationale raises a separate issue: the issue of whether choice of models must be made. Even if a court is committed to the safety sketch as the general approach, is it necessarily inconsistent with the first model to have pockets of more traditional tort law? Traditional pockets of strict liability coexisted with the fault system for a considerable period of time before they were reconceptualized along risk distribution principles and changed from historic anachronisms into exemplars of the future 120 of tort law. When a random catastrophe struck an individual his need for relief might be an important fact to take into account in determin- ing whether or not he was entitled to some kind of aid. However, his claim to aid was not a claim against any particular individual. Hence, there was no grounds for assigning his need for aid to another member of society as a duty to compensate. His claim was on whatever societal mechanism existed to meet the need. Where, however, fault caused harm, a basis for a claim on an individual

117. Smith v. Arbaugh's Rest., Inc., 469 F.2d 97, 108 (D.C. Cir. 1972) (Leventhal, J., concurring). 118. In other words what the notion of gross negligence is designed to suggest is that the guest may legitimately say, I wanted no more care than my host was willing to take for himself, but nobody would have expected him to be that careless about himself. 119. Indermaur v. Dames (1866) L.R. 1 P.C. 274, 285. 120. See for example the difficulties in integrating respondeat superior with fault detailed in P. ATUJAH, VICARIOUS LIABILITY IN THE LAW OF TORTS 12-28 (1967); on the early rejections of Ryland v. Fletcher, in America see W. PROSSER, SELECTED Topics ON THE LAw OF TORTS 149-50 (1953). CREIGHTON LAW REVIEW [Vol. 14

was available. 121 Where insurance is not prevalent, the fault system makes strong sense. However, the presence of insurance begins to change matters. 122 A claim from an insurance fund is not a claim against an individual. It is a demand on a fund created by actors as a hedge against future needs. To distribute such a fund on the basis of fault, at least arguably, selects an irrelevant principle of distribution, since need would appear to be the appropriate criterion. 23 In other words with insurance the liability system can be viewed as a system for meeting a social responsibility to satisfy needs rather than a system for moving a claim from the societal to 124 the individual level. Moreover, the presence of insurance takes the edge off many of the critical issues in negligence law. If the fault principle was designed to assure that beneficial activities were not excessively deterred, then the deterrent impact of liability findings is diminished by the presence of insurance. 125 If the fault principle was designed to assure that innocent individuals were not required to shoulder a burden that did not justifiably belong to them, then the risk of this is diminished when an insurance system rather than an individual carries the burden.126 When in doubt it is better to compensate the injured party than to leave him to fend for himself. 127 The trend of tort law has been toward the dilution of its traditional doctrines under the impact of insurance. Thus as Harper and James note: "The whole trend has been towards diluting the concept of fault so as to ease recovery by accident victims. Courts and juries have been increasingly willing to find legal fault with less and less moral blameworthiness on the part of the actor."128 Similarly, either through greater willingness to leave defense issues to the jury or through the outright abolition of some of the

121. L. GREEN, TRAFFIC VICTIMS 28-34 (1958); 0. HOLMES, THE COMMON LAW 70 (1881); W. SEAVEY, COGITATIONS ON TORTS 24-28 (1954); Harris, The Legal System of Compensations in IMPAIRMENT DISABILITY AND HANDICAP 37-39 (D. Lees & S. Shaw eds. 1974). 122. J. FLEMING, supra note 62, at 8-9; L. GREEN, supra note 121, at 77-78. 123. This is the standard argument for no-fault plans. 124. L. GREEN, supra note 121, at 77, 95; J. FLEMING, supra note 62, at 8-9. 125. J. FLEMING, supra note 62, at 14. 126. G. WILLIAMS & B. HEPPLE, supra note 38, at 122; D. HARRIS, supra note 121, at 37. 127. Once loss is widely distributed, the risk bearing group is in a better position to deal with mistaken awards than is an individual to deal with a mistaken denial. The logic is the same as that of the original decision to risk distribution. See L. GREEN, supra note 121, at 59-61. 128. 2 F. HARPER & F. JAMES, TORTS § 25.22 at 1345-46 (1956). 19801 GUEST STATUTE

defenses, the injured party has been favored. 129 The doctrine of 1 30 quantum of proof itself has probably been affected. Where insurance is the norm, and particularly where the individual on whom liability will be imposed is able to redistribute insurance costs, such a shift toward an insurance based liability system might be defensible. 13 1 Clearly, however, the party unable to insure would be in an unfortunate situation if he was judged by a set of rules designed for an insurance scheme. The host driver is in an intermediate situation. He can and does obtain insurance. However, on the one hand his insurance may not be adequate to cover potential liability claims, and on the other hand, he cannot pass his own insurance cost on to others.13 2 If the liability rules have been diluted to take account of insurance, then the application of a different and more protective standard to a party who does not fit directly within the typical case of the insured risk dis- tributor is at least defensible. As Judge Leventhal noted with regard to the categories in his concurring opinion in Smith V. 33 Arbaugh's Restaurant,Inc.:1 A second factor which underscores a change of rule as to business establishments is the matter of loss distribution. The cost of foreseeable harms can, in a business context, be distributed among all customers by means of insurance or self insurance. However, this loss distribution capability does not necessarily apply in nonbusiness situations. The occupier of residential property is not in a position to distribute either the costs of foreseeable losses or the cost of insurance 34 against those losses. He must bear such costs himself.' The effort to analogize the guest statute situation to the now discredited doctrine of charitable immunity fails on this analysis. The ordinary charity sued, a hospital, charges for its services and passes its insurance costs on to those who benefit from the services, its patients. It is a reasonable candidate for risk distribution because of its ability to pass on the cost. In this respect it differs 1 35 markedly from the host driver.

129. W. PROSSER, supra note 15, at §§ 65 & 68. 130. L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 596 (1965). 131. J. FLEMING, supra note 62, at 8-10. 132. Botch v. Reisdorff, 193 Neb. 165, 171-72, 226 N.W.2d 121, 126-27 (1975); Duerst v. Limbocker, 269 Or. 252,-, 525 P.2d 99, 103 (1974); Brewer v. Copeland, 86 Wash. 2d 58, -, 542 P.2d 445, 451 (1975). 133. 469 F.2d at 108 (Leventhal, J., concurring). See C. MORRIS & R. MORRIS, supra note 63, at 232-37. 134. Id. at 108. 135. See C. MORRIS & R. MORRIS, supra note 63, at 232. CREIGHTON LAW REVIEW [Vol. 14

There is an additional difference between the usual risk dis- tributor and the automobile host driver. The usual candidate for the risk distribution principle, a product manufacturer for example, creates risk against others where those others have no recipro- cal opportunity to create comparable risk against him. 136 Even where his relations with the parties at risk are consensual, the manufacturer at least arguably, stands in a position of significant bargaining advantage over those others. 3 7 On the other hand, the usual host is probably offering a ride to a friend, in the expectation that somewhere along the line the friend will reciprocate. There is no significant bargaining advantage on either side of the relationship. If both parties are willing, promotion from the guest to the passenger status can be accomplished by the giving of a minimal consideration. Thus most of the arguments that underpin a risk distribution approach to tort law are not strongly applicable in the host-guest situation.

CONCLUSION A court in dealing with a challenge to a guest statute cannot decide the issue on the basis of what it thinks negligence ought to be. Unless it has already adopted and largely implemented the safety sketch, a guest statute cannot be condemned as inconsistent with existing tort law, and therefore does not draw unreasonable lines. It treats similarly situated persons as they would be treated under existing common law principles. Once, however, the safety sketch has been adopted and implemented, unless a court feels a high degree of deference to legislative judgment, it has little choice but to condemn a guest statute. The question then arises where on the scale is Nebraska? The doctrine of the categories continues to obtain in this state. 138 The doctrine of open and obvious defect largely maintains its common law form. 13 9 Taken in conjunction with assumption of risk, this doctrine justifies the assertion that in Nebraska the highest duty in negligence law remains a duty of warning. 140 That being the case,

136. On the importance of nonreciprocity, see Fletcher, Fairnessand Utility in Tort Theory, 85 HARV. L. REV. 537, 551-56 (1972). 137. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960) is a classic example of the impact of bargaining power on liability decisions. 138. See notes 25-27 supra. 139. Schwartz v. Selvage, 203 Neb. 158, 160, 277 N.W.2d 681, 683 (1979); Laaker v. Hartman, 186 Neb. 774, 777, 186 N.W.2d 494, 496 (1971). But see Jensen v. Hawkins Const. Co., 193 Neb. 220, 224-25, 226 N.W.2d 346, 350 (1975). 140. Waegli v. Caterpillar Tractor Co., 197 Neb. 824, 827-28, 251 N.W.2d 370, 372-73 (1977); Lock v. Packard Flying Serv., Inc., 185 Neb. 71, 73-75, 173 N.W.2d 516, 518-19 (1970). 19801 GUEST STATUTE existing Nebraska negligence law fits more closely within the expectancy than the safety sketch of negligence. On the other hand, there has been more than a little movement toward the safety sketch. 14 1 Whether the movement has been adequate to justify a present condemnation of the Guest Statute is questionable, but even if Nebraska is in the process of remodeling its tort law to con- form to the safety sketch, the remodeling has not yet been com- pleted.

141. See Imig v. March, 203 Neb. 537, 544-45, 279 N.W.2d 382, 386 (1979).