SMU Law Review Volume 27 Issue 5 Article 8 1973 Guest Statute Violates Equal Protection Dana G. Kirk Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Dana G. Kirk, Note, Guest Statute Violates Equal Protection, 27 SW L.J. 881 (1973) https://scholar.smu.edu/smulr/vol27/iss5/8 This Case Note is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. 1973] NOTES was, "the legislative history of Title VII is in such a confused state that it is of minimal value in its explication. '79 In sum, as the dissent suggests, "the Court adjudicates wherein the Con- gress failed to legislate." 80 Moreover, the court allowed disclosure of con- gressionally-protected confidential information before any judicial pro- ceeding compelled the production of such evidence. Gary John Manny Guest Statute Violates Equal Protection Plaintiff brought suit against the driver of an automobile in which he was riding for damages resulting from injuries received when the host's vehicle crossed the centerline of a highway and collided with an embank- ment. The plaintiff alleged willful misconduct and negligence and the de- fendant pleaded the California guest statute1 as a bar to the negligence count of the action. The trial court granted defendant's motion for summary judgment on the negligence issue. The issue of willful misconduct was tried by a jury, which returned a verdict for the defendant. Plaintiff ap- pealed only from the summary judgment against his cause of action in negli- gence. Held, reversed: The classification of passengers by an automobile guest statute which prohibits recovery for ordinary negligence by non-pay- ing passengers does not bear a substantial and rational relationship to the statute's primary purposes of protecting the hospitality of the host driver and preventing collusive lawsuits, and, thus, the guest statute violates the equal protection guarantees of the Constitution of the State of California 2 and the United States Constitution.3 Brown v. Merlo, 8 Cal. 3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973). I. THE GUEST STATUTE IN PERSPECTIVE Guest statutes, as well as other types of tort immunities which have either been created by statute or judicial precedent, have been eliminated in many jurisdictions. 4 In California the traditional tort immunity of a property owner as to a trespasser and limited duty as to a licensee has been sup- planted by a duty of ordinary care for all people upon his property.5 Similarly, the parental, 6 charitable, 7 and family s immunities have been 79 Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970). 80 472 F.2d at 1152. 1 CAL. VEHICLE CODE § 17158 (West 1971). 2 CAL. CONST. art. 1, §§ 11, 21. 3 U.S. CONST. amend. XIV. 4 See Comment, Judicial Nullification of Guest Statutes, 41 S. CAL. L. REv. 884 (1968). 5 Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968). 6 See Gibson v. Gibson, 3 Cal. 3d 914, 479 P.2d 648, 92 Cal. Rptr. 288 (1971). 7 See Malloy v. Fong, 37 Cal. 2d 356, 232 P.2d 241 (1951). 8 See Emery v. Emery, 45 Cal. 2d 421, 289 P.2d 218 (1955). SOUTHWESTERN LAW JOURNAL [Vol. 27 abolished in California because they were over-inclusive and prevented many legitimate suits as well as collusive ones. Although California has been one of the more progressive jurisdictions in removing immunities created by the judiciary or the legislature and has returned for the most part to the common-law standard of care, many other jurisdictions have also taken steps to remove some types of tort immunities.9 At common law a guest passenger could recover for an injury caused by the negligence of the driver of a vehicle. 10 No distinction was drawn between paying and non-paying passengers, but twenty-seven states have enacted automobile guest statutes drawing such distinctions in derogation of the common law." While the provisions vary, each requires a lower standard of care to be exercised by the host driver with respect to non- paying passengers. 12 The California guest statute allows only certain classes of plaintiffs to recover for the ordinary negligence of their driver. 13 The statute does not bar a passenger's action for ordinary negligence of the driver if the pas- senger has given any compensation for the ride, 14 or if the non-paying pas- senger can show that the driver was intoxicated. 15 The California statute 9 Charitable immunity has been abolished in other jurisdictions as well as California. See, e.g., Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P.2d 220 (1951); Haynes v. Presbyterian Hosp. Ass'n, 241 Iowa 1269, 45 N.W.2d 151 (1950); Sheehan v. North Country Community Hosp., 273 N.Y. 163, 7 N.E.2d 28 (1937). Also, parental im- munity has been abrogated in several jurisdictions. See, e.g., Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968); France v. A.P.A. Transp. Corp., 56 N.J. 500, 267 A.2d0 490 (1970). 1 Perkins v. Galloway, 194 Ala. 265, 69 So. 875 (1915); Callet v. Alioto, 210 Cal. 65, 290 P. 438 (1930); Bauer v. Greiss, 105 Neb. 381, 181 N.W. 156 (1920). 11 When a statute is in derogation of common law it has generally been held that its provisions must be strictly construed. See, e.g., Weber v. Pinyan, 9 Cal. 2d 226, 70 P.2d 183 (1937); Clinger v. Duncan, 166 Ohio St. 216, 2 Ohio Op. 2d 31, 141 N.E.2d 156 (1957). 12 See Comment, supra note 4, at 898-901. 13 CAL. VEHICLE CODE § 17158 (West 1971): No person riding in or occupying a vehicle owned by him and driven by another person with his permission and no person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person has any right of action for the civil damages against the driver of the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the owner or guest during the ride, unless plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or willful misconduct of the driver. 14 See, e.g., Whitechat v. Guyette, 19 Cal. 2d 428, 122 P.2d 47 (1942), where the passenger promised some future monetary compensation for the ride he was entitled to recover. In Boykin v. Boykin, 260 Cal. App. 2d 768, 67 Cal. Rptr. 520 (1968), the court held that sharing of expenses for a trip which is primarily social in nature is not compensation paid by the passenger to the driver. However, if the driver's motivating influence for providing the transportation was monetary payment, sharing of expenses will be considered compensation within the meaning of the statute. See, e.g., Thompson v. Lacy, 42 Cal. 2d 443, 267 P.2d 1 (1954). See also Comment, supra note 4, at 890. 15 In De Armond v. Turner, 141 Cal. App. 2d 574, 297 P.2d 57 (1956), the court defined an intoxicated driver as one who is so affected as to hamper his ability to operate a car as would an ordinarily prudent man in full possession of his faculties, under similar circumstances. Generally, the injured passenger will not be barred from recovery for the ordinary negligence of an intoxicated driver, merely because he was drinking himself. However, in Reposa v. Pearce, 11 Cal. App. 2d 517, 54 P.2d 475 (1936), the guest was not allowed to recover where he knowingly and intentionally 19731 NOTES also allows recovery by a non-paying passenger if "willful misconduct" by the driver proximately caused the passenger's injury. 16 II. THE GUEST STATUTE AND THE EQUAL PROTECTION CHALLENGE Guest statutes have been held constitutional by ten states where they do not wholly deny an automobile guest an action against the host for injuries received as a result of his negligence. 17 In five states guest statutes have been upheld against the assertion that they unconstitutionally violate the guest's right to equal protection of the law.' s During recent years courts have allowed the state legislatures a wide range of discretion in enacting guest statutes as well as other types of social and economic legislation. There has been a presumption -that these statutes do not violate equal protection guarantees unless the categorization of individuals affected by the statute is clearly arbitrary. 19 TraditionalEqual Protection Analysis. Although the United States Supreme Court has applied a strict standard of review to statutes which rely upon suspect classifications or which affect fundamental interests, 20 ithas been inclined to apply a much more flexible equal protection standard to social and economic legislation. The test which has been applied by the Court with respect to this type of legislation was well stated by Chief Justice Warren in McGowan v. Maryland: "A statutory discrimination will not took part in the drinking which led to the driver's intoxicated condition and the resulting accident. 16 Williams v. Carr, 68 Cal. 2d 579, 440 P.2d 505, 509, 68 Cal. Rptr. 305, 309 (1968). The court stated that "willful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result ...