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A Dialogue on the Constitutionality of the Guest Statute

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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 ap- peared 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 man- date 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 equal- ity. 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 stat- utes survived early constitutional challenges and had been around for many years with few doubts expressed as to their constitution- ality.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 judg- ment 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 com- pensating those injured by dangerous activities, the Guest Statute makes little sense. Under the other sketch, which I call the expec- tancy 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 neg- ligent 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 diffi- cult 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.
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