Petition — Sharon Hill v. David Max Garner

Sep nie Wit, a. Dy .

Fe -

8

, Tot

i

ji t

\ 4

MICHAEL ROOK, JR., CLERK |

yer er ee es | eee

No. ~

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1977

SHARON HILL, )

Appellant, ; Circuit Ct. No. 6960

vs. SC No. P=-2459

DAVID MAX GARNER, ;

Appellee.

On Appeal from the Supreme Court

of the State of Oregon

JURISDICTIONAL STATEMENT

LIVELY & WISWALL

William Wiswall

Jill E. Golden

644 North "A" Street

Springfield, Oregon 97477

(503) 747-3354

Of Attorneys for Appellant

i

INDEX

GUEMEGS BOE s coe cecssciesdcecsececes 1

Re ee a seuss ecovoeesd

eee ee ee

See Meeesseshcoeseisesceescease §

Statement of the Case,,

A.

B.

occee cocscsee

2) a ee

Proceedings Below.......... 5

The Federal Question is

I i 7

A.

The Conflict Between the

States Attests to the

Importance of the Issue,

Its Difficulty, and the

Need for a Conclusive

DOSSUMERSCEGM ce cccccccsccecse F

The Federal Courts Are Also

in Conflict Over the Valid-

ity of Guest Statutes in the

Face of Equal Protection

Challenges.........e22++--- 10

Oregon's Guest Statute is

Simply Unconstitutional in

That It Is Not Rationally

Related to a Legitimate

State Purpose, and Thereby

Violates the Provisions of

the Fourteenth Amendment

ii

to the United States

Constitution....... in ot 13

COMCLUBIEGR cc cccccccccccccceceesees 16

Appendix A.

In the Supreme Court of the

State of Oregon; Opinion

(Bryson, J.) cccccccccccccs -- A-l

Appendix B.

In the Supreme Court of the

State of Oregon; Denial of

Petition for Rehearing....... B-l

Appendix C.

In the Circuit Court of Hood

River County, Oregon; Judgment

Puivewesoeéoenecoee “eevee *eeere eee Cc-1

Appendix D.

In the Circuit Court of Hood

River County, Oregon; Notice

of Appeal to the Supreme

Court of the United States... D-l

TABLE OF AUTHORITIES

Cases:

BEHRNS v. BURKE, 229 N.W.2d 86,

(S.D. 1975) .. cee eee eccececces oo

BOTSCH v. REISDORFF, 226 N.W.2d

121 (Neb. 1975) .....--eeeeeees 9

BROWN v. MERLO, 8 Cal.3d 855, 106

Cal. Rptr. 388, 506 P.2d 212

[APES 066% oHe vere eer eecesece® 6,8,10,

CANNON v. OVIATT, 520 P.2d 883

(Utah 1974), Appeal dis-

missed for want of sub-

stantial federal question,

419 U.S. 810, 95 S. Ct. 24,

42 L.Ed.2d 37 (1974), reh.

denied, 419 U.S. 1060, 95

S. Ct. 645, 42 L.Ed.2d 658

LAS7E) ccvcvescceccevecsese eee 9,10,

11,12

DUERST v. LIMBOCKER, 260 Or. 252,

323 P.26 99 (1976) .. cccccces 6,9,14

HARLOW v. RYAN, 172 F.2d 784

(Sth Cir. 1949) ...cccccccces 12

HENRY v. BONDER, 518 P.2d 362

(Kam. 1976) .cccccccccccccecss 8

HICKS v. MIRANDA, 422 U.S. 332,

95 S. Ct. 2281, 45 L.Ed.2d

— i 11,12

HUFFMAN v. PURSUE, Ltd., 420 U.S.

592, 95 S. Ct. 1200, 43 L.Ed.

2d 482, reh. denied, 421 U.S.

971, 95 S. Ct. 1969, 44 L.Ed.

ae Gee GROVES ceeccecs Seeeeunee 3

JENSEN v.- SPENCER, 269 Or. 411, 525

Waa Dee GPE eceoececeesCe 6

JOHNSON v. HASSETT, 217 N.W.2d

FOe GD. BBTSD ccccse eeteese 8

JUSTICE v. GATCHELL, 325 A.2d 97

Sinh« Deratseeeoocsce bMoanéece 9,10

KEASLING v. THOMPSON, 217 N.W.2d

ae Gee DPE coceecesceecos 4

1V

KRUSE v. FITZPATRICK, 278 Or.

185, 563 P.2d 680 (1977)......-. 15

LAAKONEN v. EIGHTH JUDICIAL

DISTRICT COURT, 538 P.2d

574 (Nv. 1975) ccc ccccssevcesee® 8

MANISTEE BANK & TRUST CO. v.

MCGOWAN, 232 N.W.2d 636,

(Rich. 1975) ...ccoscesovesesus . 8

McGEEHAN v. BUNCH, 450 P.2d 238

(W.0. BSIS) oc vr ccvesesesceseupan 8

MCGINNIS v. ROYSTER, 410 U.S. 262,

S. Ct. 1055, 35 L.Ed.2d 282

(1973) ..000e6esdes cee eee 13

NEU v. GRANT, 548 F.2d 281 (10th

Cig. BOFFD .cis coedeesess eee ll

PEROZZI v. GANIERE,. 149 Or. 330,

40 P.26 1609 C29FS) cccccusesees 5,6

PRIMES v. TYLER, 43 Ohio St.2d 195,

331 B.8.28 723 CiD7S) -ccecseves 8

REED v. REED, 404 U.S. 71, 92S.

Ct. 251, 30 L.B@.2€ 225 (197%). 13

RICHARDSON v. HANSEN, 527 P.2d 536,

(Cole. 1976) .ccccececteaeeeeae 9

SALMON v. MILLER. 269 Or. 267, 525

P.26 106 (iOTSD oc ccecoescnveuns 6

SIDLE v. MAJORS, 536 F.2d 1156 (7th

Cir. 1976), cert. denied,

__U.S. _, 97 S. Ct. 366, 50

L.£G.28 S16 (A976) .ccccccessees 7,9,

SILVER v. SILVER, 280 U.S. 117,

50 S. Ct. 57, 74 L.Ed. 221

(1929) .. ccccvcccsesceseeesesess 10,11,

STOEHR v. WHIPPLE, 405 F.Supp.

1249 (D. Neb. 1976).....-..--.-- 12

Vv

THOMPSON v. HAGAN, 523 P.2d

(Idaho 1975). “7* ee “freee

TISCO v. HARRISON, 500 S.W.

565 (Tex. Civ. App. 197

WEBER v. AETNA CASUALTY &

1365

2d

) Pre r

SURETY CO., 406 U.S. 164,

92 S. Ct. 1400, 31 L.Ed

wn re » os oe eees

WHITE v. HUGHES, 519 S.W. 2d

(Ark. 1975), appeal dis

missed for want of sub-

70,

stantial federal question,

423 U.S. 805, 96 S. Ct.

46 L.Ed.2d 26 (1975)...

Statutes:

Oregon Revised Statutes

§§ 18.470 - 18.490.....

Oregon Revised Statutes

i nh oo es oe eee oc

Oregon Revised Statutes

EEE eee

Oregon Revised Statutes

§§ 743.800 - 743.835...

28 U.S.C. § 1257 (2)...

Constitutional Provisions:

15,

oo oes &€ © @

Constitution of the United

States

Fourteenth Amendment

13

3,7,8,

9,10,

11,12,

13,16

vi

Other Authorities:

Allen, "Why Do Courts

Coddle Insurance Com-

panies,” 61 AM. L. REV.

FF CEPR Chart ee ees sot ceveseveos

Comment, "Constitutionality

of Automobile Guest Statutes:

A Roadmap to Recent Equal

Protection Challenges."

1975 BRIGHAM YOUNG U. L.

ee é ved eh ou eerwee wee és ee 0%

Vetri, "The Case for Repeal of

the Oregon Guest Passenger

Legislation." 13 WILLAMETTE

ee Geo BO CEOPOs ce wsccccvecevecse

Weinstein, “Should We Kill

the Guest Passenger Act," 33

U. DET. L. REV. 185 (1965).....

White, "The Liability of An

Automobile Driver to a Non-

Paying Passenger," 20 VA. L.

Bee SEO CAPSS) Co ecccveseceesec

l

In The

SUPREME COURT OF THE UNITED STATES

No.

SHARON HILL,

Appellant,

vs.

DAVID MAX GARNER,

Appellee.

On Appeal From the Supreme

Court of Oregon

JURISDICTIONAL STATEMENT

Sharon Hill, the Plaintiff and Ap-

pellant below, appeals to the Supreme

Court of the United States to review the

judgments of the Oregon Supreme Court in

the above-entitled proceedings.

OPINIONS BELOW

Two opinions have been rendered by

2

the Oregon Supreme Court in this case.

The first was rendered on March 24, 1977,

by Justice Bryson, affirming the trial

court's JUDGMENT. Hill v. Garner, 277

Or. 641, 561 P.2d 1016 (1977). On April

26, 1977, the Oregon Supreme Court ren-

dered a decision denying Appellant's

PETITION FOR REHEARING, which decision

has not been reported as of this writing.

See, Appendices A and B.

JURISDICTION

Appellant seeks review of the Judg-

ment of the Oregon Supreme Court affirm-

ing the trial court's JUDGMENT NOTWITH-

STANDING THE VERDICT“ on March 24, 1977,

and the Oregon Supreme Court's denial of

Appellant's PETITION FOR REHEARING on

April 26, 1977. The initial proceeding

was a common law action for money damages

in which the jury returned a verdict for

the Plaintiff and assessed damages in the

sum of $85,362.95. This verdict was set

aside by the trial court judge on the

grounds that the evidence presented was

insufficient to sustain a finding of

gross negligence as required by the Ore-

gon guest statute, Oregon Revised Stat-

utes § 30.115~, and thereby to justify a

verdict in favor of the Plaintiff. The

Oregon Supreme Court sustained the valid-

ity of such statute in its opinions.

The jurisdiction of this Court is

invoked under 28 U.S.C. § 1257(2). See,

1. Oregon Revised Statutes will be here-

after referred to as O.R.S.

2. See Appendix C.

3

Huffman v. Pursue, Ltd., 420 U.S. 592,

95 S. Ct. 1200, 43 L.Ed.2d 482, reh.

denied, 421 U.S. 971, 95 S. Ct. 1969,

44 L.Ed.2d 463 (1975).

The NOTICE OF APPEAL to this Court

was filed with the Hood River Circuit

Court in Hood River, Oregon, on the 19th

day of July, 1977. See, Appendix D.

QUESTION PRESENTED

The question presented by this

appeal is:

Is Oregon's guest statute, O.R.S.

§ 30.115, which prohibited Plaintiff's

recovery, invalid on the ground that it

is pepugnant to the Constitution of the

United States, and specifically the Equal

Protection and Due Process clauses of the

Fourteenth Amendment?

STATUTE INVOLVED

Section 30.115, Volume 1, page 275,

Oregon Revised Statutes, provided:

“No person transported by the owner

or operator of a motor vehicle, an air-

craft, a watercraft, or other means of

conveyance, as his guest without payment

for such transportation, shall have a

cause of action for damages against the

owner or operator for injury, death or

loss, in case of accident, unless the

accident was intentional on the part of

the owner or operator or caused by his

gross negligence or intoxication. As

used in this section:

4

(1) "Payment" means a substantial

benefit in a material or business sense

conferred upon the owner or operator of

the conveyance and which is a substantial

motivating factor for the transportation,

and it does not include a mere gratuity

or social amenity.

(2) “Gross negligence" refers to

negligence which is materially greater

than the mere absence of reasonable care

under the circumstances, and which is

characterized by conscious indifference

to or reckless disregard of the rights

of others."

STATEMENT OF THE CASE

A. The Facts

On January 5, 1972, Sharon Hill was

riding as a passenger in an automobile

driven by David Garner, when said vehicle

crossed the centerline of a highway and

collided with a vehicle travelling in the

opposite direction. The evidence pre-

sented at trial revealed, in part, that

Defendant's tires were substantially bald,

that the road on which the parties were

travelling was slick and icy (for some un-

known reason having been failed to be

sanded by the highway crews that morning),

and that Defendant was aware of such con-

ditions prior to the collision. From all

the evidence presented, the jury could

well have concluded that Defendant was

negligent in failing to keep a proper

lookout, in operating his vehicle at an

excessive rate of speed under the circum-

stances, in failing to maintain his vehi-

cle in a safe operating condition, and in

5

failing to keep his vehicle under proper

control. ’ xy

At the conclusion of the evidence,

the trial court instructed the jury that

in order for Plaintiff to recover, they

were required to find that Defendant's

conduct constituted "gross" negligence

as that term is defined by the Oregon

statute and by the cases interpreting

such statute. Tr. 277-279. Such stat-

ute was read to the jury by the court,

(Tr. 278), and the difference between

"ordinary" and "gross" negligence was

explained. Tr. 278-279.

As noted above, the jury thereupon

returned a verdict in favor of the Plain-

tiff, in the amount of $85,362.95. On

Defendant's MOTION, the trial court

thereafter entered a JUDGMENT NOTWITH-

STANDING THE VERDICT and dismissed

Plaintiff's COMPLAINT on the grounds that

the evidence was insufficient to sustain

a finding that the Defendant was "grossly"

negligent.

B. Proceedings Below

The validity of Oregon's guest stat-

ute was indirectly raised during the

pleading stage of this case. Appellant's

original COMPLAINT filed on September 23,

1973, had alleged that the Defendants

were negligent in certain enumerated par-

ticulars. At such time, the status of

Oregon law with respect to the validity

of the guest statute was uncertain.

As early as 1935, in the case of

Perozzi v. Ganiere, 149 Or. 330, 351, 40

P.2d 1009, 1017 (1935), the Oregon Su-

6

preme Court had upheld the validity of

such law. However, just seven months

prior the filing of Plaintiff's

COMPLAINT, in Brown v. Merlo, 8 Cal.3d

855, 106 Cal. Rptr. 388, 506 P.2d 212

(1973), the California Supreme Court had

struck down its own guest statute as re-

pugnant to the Federal and State Consti-

tutions, which statute was similar to the

Oregon law. In September of 1973 there -

fore, it appeared to be a reasonable

possibility that the Oregon court would

follow California's example and invali-

date O.R.S. § 30.115.

A DEMURRER was filed to Plaintiff's

COMPLAINT, asserting O.R.S. § 30.115 in

support of the same. However, as the

Oregon Supreme Court had yet to strike

down the Oregon statute, Plaintiff felt

compelled under Perozzi to amend her

COMPLAINT so as to allege the Defendants'

"gross" negligence as required by such

statute. Shortly thereafter, in August

of 1974, the Oregon Supreme Court gave

plenary consideration to the question of

the Oregon statute's constitutionality,

and held the law valid in three separate

decisions. Duerst v. Limbocker, 269 Or.

252, 525 P.2d 99 (1974); Salmon v. Miller,

269 Or. 267, 525 P.2d 104 (1974); Jensen

v. Spencer, 269 Or. 411, 525 P.2d 153

CLOT hy.

In view of such rulings, at the

trial of this cause on May 27, 1975,

Plaintiff did not offer any argument with

respect to the federal question herein

presented. The futility of such an exer-

cise, in view of the above-cited cases,

was apparent.

7

Appellant raised the question of

the validity of this statute in her

first brief to the Qregon Supreme Court.

See, Appellant's Brief and Abstract of

Record, pages 15-17. After reviewing the

status of guest statutes throughout the

United States, their purposes and fail-

ures, and arguing the denial of equal

protection resulting from such statutes,

Appellant argued (despite the Oregon

Supreme Court's several recent decisions

to the contrary), that: "Your Appellant

respectfully suggests that the Court

might again look at the issue of the

constitutionality of the Oregon Guest

Passenger Statute." See, Appellant's

Brief and Abstract of Record, at page 17.

THE FEDERAL QUESTION IS SUBSTANTIAL

A. THE CONFLICT BETWEEN THE STATES

ATTESTS TO THE IMPORTANCE OF THE ISSUE,

ITS DIFFICULTY, AND THE NEED FOR A CON-

CLUSIVE DETERMINATION.

Of the approximate 30 states which

originally adopted some form of guest

passenger legislation, eight states have

repealed such laws, two states have re-

strictively amended them, and the debate

in state legislatures continues. Vetri,

"The Case For Repeal Of The Oregon Guest

Passenger Legislation", 13 WILLAMETTE

L.J. 53 (1976). Additionally, as noted

in Mr. Justice Brennan's dissenting

opinion in Sidle v. Majors, U.S. ’

97 S. Ct. 366, 50 L.Ed.2d 316 (1976):

"Within only the past five years

3. Sidle v. Majors, 536 F.2d 1156, 1160

(7th Cir. 1976)

8

high courts of not less than

seventeen states have examined

or re-examined their automobile

guest statutes challenged as deny-

ing equal protection, and almost

one-half of those courts have

struck down their State's stat-

utes as unconstitutional under

both the Federal and State

Constitutions."

In view of the above, both the

judiciary and the legislatures of the

several States have consumed and will

continue to consume an enormous amount

of time in efforts to resolve the con-

stitutional and socio-economic questions

raised by such legislation. In Oregon

alone, there have been in excess of 110

guest act cases that have reached the

Oregon Supreme Court since the law was

enacted in 1927, Vetri, 13 WILLAMETTE

L.J. 53, 56, fn. 18.

4. Since 1973, guest statutes have been

struck down as violative of equal pro-

tection in the following states: Cali-

fornia: Brown v. Merlo, 506 P.2d 212

(Cal. 1973); Idaho: Thompson v. Hagan,

523 P.2d 1365 (Idaho 1975); Kansas:

Henry v. Bonder, 518 P.2d 362 (Kan. 1974);

Michigan: Manistee Bank & Trust Co. v.

McGowan, 232 N.W.2d 636 (Mich. 1975);

Nevada: Laakonen v. Eighth Judicial

District Court, 538 P.2d 574 (Nev. 1975);

New Mexico: McGeehan v. Bunch, 450 P.2d

238 (N.M. 1975); North Dakota: Johnson

v. Hassett, 217 N.W.2d 771 (N.D. 1974);

Ohio: Primes v. Tyler, 43 Ohio St.2d

195, 331 N.E.2d 723 (1975).

9

Further, lawyers, jurists and other

commentators have written hundreds of

pages of articles attackirg such statutes

on workability, economic and equal pro-

tection grounds. In this regard, See,

Comment, "Constitutionality of Automobile

Guest Statutes: A Roadmap to Recent

Equal Protection Challenges," 1975 BRIG-

HAM YOUNG U. L. REV. 99; Weinstein,

"Should We Kill the Guest Passenger Act,"

33 U. DET. L. REV. 185 (1965); White,

"The Liabiiity of an Automobile Driver

~ On the other hand, guest statutes

have been challenged and upheld in the

following states: Arkansas: White v.

Hughes, 519 S.W.2d 70 (Ark. 1975), appeal

dismissed for want of substantial federal

question, 423 U.S. 805, 96 S. Ct. 15,

46 L.Ed.2d 26 (1975); Colorado: Richard-

son v. Hansen, 527 P.2d 536 (Colo.

(subsequently repealed by statute); Dela-

ware: Justice v. Gatchell, 325 A.2d 97

(Del. 1974); Indiana: Sidle v. Majors,

536 F.2d 1156 (7th Cir. 1976), cert.

denied, U.S. _, 97 S. Ct. 366, 50

L.Ed.2d 316 (1976); Iowa: Keasling v.

Thompson, 217 N.W.2d 687 (Iowa 1974);

Nebraska: Botsch v. Reisdorff, 226 N.W.

2d 121 (Neb. 1975); Oregon: Duerst v.

Limbocker, 525 P.2d 99 (Or. 1974); South

Dakota: Behrns v. Burke, 229 N.W.2d 86

(S.D. 1975); Texas: Tisco v. Harrison,

500 S.W.2d 565 (Tex. Civ. App. 1973);

(subsequently restrictively amended) ;

Utah: Cannon v. Oviatt, 520 P.2d 883

(Utah 1974), appeal dismissed for want

of substantial federal question, 419

U.S. 810, 95 S. Ct. 24, 42 L.Ed.2d 37

(1974), reh. denied, 419 U.S. 1060, 95

S. Ct. 645, 42 L.Ed.2d 658 (1974).

10

to a Non-Paying Passenger", 20 VA. L.

REV. 326 (1934); Allen, “Why Do Courts

Coddle Insurance Companies", 61 AM. L.

REV. 77 (1927).

Clearly, the debate in the States

rages on. See, e.g. the conflict be-

tween the California Supreme Court's

views and that of the Utah Supreme Court

in Brown v. Merlo, supra, and Cannon v.

Oviatt, 530 P.2d 88 Utah 1974), appeal

dismissed for want of substantial federal

question, 419 U.S. 810, 95 S. Ct. 24, 42

L.Ed.2d 37 (1974), reh. denied, 419 U.S.

1060, 95 S. Ct. 645, 42 L.Ed.2d 658

(1974).

Further, in their decisions on

challenges to guest statutes, the state

courts have virtually begged this Court

for guidance. See, e.g. White v. Hughes,

257 Ark. 627, 519 S.W.2d 70, 71, appeal

dismissed for want of substantial federal

question, 423 U.S. 805, 96 S. Ct. 15, 46

, L.Ed.2d 26 (1975). As the Delaware Su-

preme Court stated, if the status of the

body of law pursuant to Silver v. Silver,

280 U.S. 117, 50 S. Ct. 57, 74 L.Ed. 221

(1929), "...is to be changed and the

strictures of the Fourteenth Amendment

extended in this area of the law, we

shall await the views of the United States

Supreme Court on the subject." Justice v.

Gatchell, 325 A.2d 97 (Del. 1974).

B. THE FEDERAL COURTS ARE ALSO IN

CONFLICT OVER THE VALIDITY OF GUEST

STATUTES IN THE FACE OF EQUAL PROTECTION

CHALLENGES.

Although the decisions of the federal

ll

courts which have faced the question pre-

sented are outwardly harmonious, it is

clear from.the opinions of su¢h courts

that several judges on the federal bench

have diametrically opposed views with

respect to the constitutionality of such

legislation.

Silver v. Silver, supra, is the only

decision on the merits of the constitu-

tionality of a guest statute ever handed

down by this Court. Because of this 1929

opinion, the ruling of this Court in

Hicks v. Miranda, 422 U.S. 332, 95 S. Ct.

2261, 45 L.Ed.2d 223 (1975) (which held

that the lower courts are bound by the

Supreme Court's summary dismissals as

adjudications on the merits), and the

summary dismissal for want of a substan-

tial federal question in Cannon v. Oviatt,

supra, the lower federal courts have felt

themselves bound to uphold the validity

of guest statutes presented for their

consideration, often despite their own

better judgment. See, e.g. Neu v. Grant,

548 F.2d 281, 285 (10th Cir. 1977).

The Seventh Circuit likewise is of

the opinion that, at least, the Indiana

guest statute violates the Equal Protec-

tion clause of the Fourteenth Amendment.

Sidle v. Majors, 536 F.2d 1156, 1159 (7th

Cir. 1976). After a thorough and reasoned

analysis of such statute, the Court

stated:

"We can find no necessary

rational relation to a legi-

timate state interest...that

would require us to sustain the

legislation." Id. at 1159.

12

Yet, because of the Supreme Court's

refusal to consider the merits of Cannon,

supra, and the Hicks v. Miranda decision,

the Court stated, "...we are obligated to

affirm.” Id. at 1160. Finally, as the

state courts have requested a definitive

answer from the United States Supreme

Court, the Seventh Circuit concluded:

"The frequency with which the ques-

tion has arisen and the disagree-

ment among the courts attest to

the importance of the issue, its

difficulty and the need for con-

clusive resolution so that the

present viability of Silver v.

Silver can be authoritatively

determined." Id. at 1160.

The Eighth Circuit, on the other

hand, held in 1949 that the Arkansas

guest law was not violative of the Due

Process and Equal Protection clauses

of the Fourteenth Amendment, and that

such statute constituted a valid exer-

cise of the state's police power. Har-

low v. Ryan, 172 F.2d 784 (8th Cir.

1949). Similarly, the District Court

of Nebraska upheld the constitutionality

of that state's law in Stoehr v. Whipple,

405 F.Supp. 1249 (D. Neb. 1976).

From all of the above, can there be

any question but that the federal courts

are at odds on this issue? The inter-

action of Hicks v. Miranda and Cannon in

both federal and state courts, as Mr.

Justice Brennan noted in his dissenting

opinion from the dismissal of Sidle,

. —— a

supra, Clearly results in a “bias in

favor of upholding those statutes.”

13

50 L.Ed.2d at 318. It is obvious that

the courts need guidance in this area.

An end to the time-consuming and costly

debate can only result from an adjudica-

tion on the merits after plenary consid-

eration by this Court.

C. ASIDE FROM ALL OF THE ABOVE,

OREGON'S GUEST STATUTE IS SIMPLY UNCON-

STITUTIONAL IN THAT IT IS NOT RATIONALLY

RELATED TO A LEGITIMATE STATE PURPOSE,

AND THEREBY VIOLATES THE PROVISIONS OF

THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.

Statutory classifications violate

the Equal Protection clause of the

Fourteenth Amendment if they are not

rationally related to "some legitimate,

articulated state purpose." McGinnis v.

Royster, 410 U.S. 263, 270,93 S. Ct. 1055,

1059, 35 L.Ed.2d 282 (1973); Weber v.

Aetna Casualty & Surety Co., 406 U.S.

164, 172, 92 S. Ct. 1400, 1405, 31

L.Ed.2d 768 (1972). As the Supreme

Court itself recently pronounced, the

Equal Protection clause of the Fourteenth

Amendment does

"...deny to States the power to

legislate that different treat-

ment be accorded to persons placed

by a statute into different classes

on the basis of criteria wholly un-

related to the objective of that

statute." Reed v. Reed, 404 U.S.

71, 75, 92 S. Ct. 251, 30 L.Ed.2d

225 (1971).

The rationales traditionally advanced

for such statutes, and the Oregon guest

14

passenger law in particular; the preven-

tion of collusive lawsuits and the en-

couragement and protection of hospitality

(See, Duerst v. Limbocker, supra, 269 Or.

at 256), simply are not rationally re-

lated to the discrimination between per-

sons and classes of persons created by

such law. Without venturing into too

much detail or argument, the following

is clear:

1. The Oregon statute withdraws a

remedy from all injured guests in order

to disallow a rare recovery based upon

collusion, thereby barring the great

majority of valid suits to prevent a few

fraudulent claims. Thus, the statute is

overinclusive and overbroad.

2. The statute ignores the fact

thata guest and host may still circum-

vent the statute's purposes and maintain

a fraudulent claim by arranging for false

testimony concerning the host's gross

negligence, or the guest's payment for

the ride.

3. It completely ignores the preva-

lence of liability insurance coverage

today, "...a factual development which

largely undermines any rational connec-

tion between the prevention of suits and

the protection of hospitality," Brown v.

Merlo, supra, 506 P.2d at 215, and which

has virtually eliminated any notion of

ingratitude which formerly adhered to a

suit by a guest against his host. Sidle

v. Majors, supra, 536 F.2d at 1157.

4. The irrationality of the stat-

ute's classification is aggravated by the

ee

15

prevalence of "loopholes" "...which for-

*uitously stay the operation ~f the

statute under a variety of diverse,

illogical circumstances." Brown v.

Merlo, supra, 506 P.2d at 215. See for

example, the Oregon Supreme Court's most

recent pronouncement, creating a loophole

for a guest who was injured as she was

about to enter the host's vehicle and the

car moved, Kruse v. Fitzpatrick, 278 Or.

185, 563 P.2d 680 (1977).

5. Collusion in any event is un-

likely because attorneys representing

the parties would not tolerate such

collusion that becomes known to them.

6. Further, the likelihood of

collusion is minimal because of the

host drivers' recognition that they

must testify under oath, their fear

that they could be criminally prosecuted

for false testimony, and the significant

likelihood of increased liability insur-

ance premiums or outright cancellation

of their insurance policy.

7. Drivers, in general, are not

aware of the statute and its implications,

and therefore, as an encouragement to the

giving of free rides or hospitality, the

statute is ineffective.

8. Finally, the guest statute it-

self is incompatible with recent legisla-

tive action in the State of Oregon; spe-

cifically, comparative negligence, no-

fault, and joint tortfeasor contribution

statutes, O.R.S. 18.470-18.490, O.R.S.

743.800-743.835 and O.R.S. 18.440(1),

respectively. For an excellent analysis

16 17

review, the Supreme Court would

not hold that Silver controls

the question before us." Sidle

v. Majors, supra, 536 F.2d at

of the relationship between these

statutes, See, Vetri, 13 WILLAMETTE

L. J. at 66-70.

— + er emee renee =

1159.

CONCLUSION '

N_ Respectfully submitted,

This appeal raises an issue of LIVELY & WISWALL

fundamental importance to our system By William Wiswall

of constitutional due process and Jill E. Golden

equal protection. This Court has Of attorneys for

not given plenary consideration to Appellant

the question presented since 1929

when the world of automobiles and

liability insurance was in its in-

fancy. The rationales and justifi-

cations originally promulgated in

support of such legislation simply

are no longer furthered by or ration-

ally related to the discrimination

between persons similarly situated

that is a consequence of such legis-

lation.

In light of modern authority, the

widespread availability of liability

insurance, the innate overinclusive-

ness of such laws, whereby meritori-

ous claims fail in an effort to prevent

a rare collusive lawsuit, the provisions

of the Fourteenth Amendment to the

United States Constitution, and the

doctrine of fundamental fairness, the

Oregon guest statute simply cannot

be permitted to stand. As the Seventh

Circuit Court stated:

",...we believe that on plenary

A-1l

APPENDIX A

A-2

IN THE SUPREME COURT OF entered judgment in defendant's favor,

THE STATE OF OREGON and plaintiff appeals.

Plaintiff states:

In Banc

"The sole question on appeal

is whether there was sufficient

No. 6960 evidence to enable the jury

to find the Defendant grossly

SHARON HILL, )

)

)

) : a

vs. ) SsC P-2459 negligent.

)

)

)

)

Appellant,

In her brief, plaintiff also attacks

the constitutionality of the Oregon

guest passenger statute, O.R.S. 30.115.

This court has recently held the

BRYSON, J. statute constitutional. Duerst v.

. T1578} Salmon “sm tt wg g- 267

5 ate ; Salmon v. Miller, Or. ,

TERENAS, & GUNES PRNPenged, 525 P.2d 104 (1974); and Jensen v.

brought this action against the driver > oa 15

of the motor vehicle in which she was es li agg gym a in vine

« ’

satanien Gesmemmal te toe 0g game plaintiff's assertions of unconstitu-

accident. At the close ot evidence, tionality.

defendant moved for a directed verdict

on the ground that no evidence had

been presented to prove defendant's

guilt of gross negligence. Upon Plain-

support the verdict. Williamson v.

tiff's request, the case was submitted McKenna, 223 Or. 366, 392, 354 P.2d 56

to the jury. O.R.S. 18.140(2). The

(1960); Austin v. Sisters of Charity,

jury returned a verdict in favor of 256 Or. 179, 183, 470 P.2d 939 (19707.

Plaintiff. Thereafter defendant moved In determining whether there was evi-

. t . .

for judgment in favor of defendant not- dence to support the jury's finding

withstanding the verdict, arguing that that defendant's conduct constituted

"the evidence was insufficient to sub- _ negligence, we review the evi-

mit the question of gross negligence to dence ~ the Light most favorabie to

the jury and that the verdict is con- the piaintifs.

trary to the evidence and not in accor-

dance with the instructions." The

trial court allowed the motion and

DAVID MAX GARNER,

Respondent.

A judgment n.o.v. ought not to be

granted if there is any evidence to

The accident occurred at approxi-

mately 7:45 a.m. on the highway

connecting the cities of Parkdale and

Hood River. At the time of the

A-3

accident defendant and plaintiff were

on their way to high school. The

evidence reveals that defendant's 1962

Impala lost traction on “black ice"

while negotiating a gentle right-hand

turn, went out of control and struck

an auto traveling in the opposite di-

rection. Although the accident con-

cerning the condition of defendant's

front tires and that describing the

weather conditions at the time of the

accident is disputed, the standard of

review applicable in cases of this type

compels us to find that defendant's

tires were substantially bald; that the

morning of the accident was cold and

misty; and that the pavement was damp

but, except for the site of the acci-

dent, not icy. Defendant also stated

that he encountered some sleet as he

was driving towards Hood River. Road

conditions, however, were not so severe

as to cause the highway crews to sand

the highway.

Plaintiff has virtually no remem-

brance of the accident, having suffered

nearly total amnesia with regard to the

incident. Plaintiff did testify, how-

ever, that during those portions of the

trip she did remember, the defendant

exercised care in the operation of his

vehicle:

"Q At any time during that

morning did David [defendant]

drive anything but carefully?

"A Yes, he did.

"Q You say he did drive care-

fully?

A-4

"A Yes he did.

"Q All right. Do you recall

how fast you drove at any

time during that short

period?

"A He didn't drive fast."

Defendant testified that he was

traveling between 35 and 40 miles per

hour at the time of the accident. This

testimony was collaborated by Mike

Snodgrass, a friend of defendant.

Defendant and Snodgrass had made ar-

rangements the day before the accident

that defendant would meet Snodgrass in

Parkdale, follow him to the Dodge

garage in Hood River, and then give him

a ride to the high school. Snodgrass

testified that he had met defendant

according to plan; that they had left

Parkdale simultaneously, with Snodgrass

in the lead; that he had maintained a

speed of between 35 and 40 miles per

hour; and that defendant had never

passed him.

The evidence is uncontested that

the “black ice" was not visible to

drivers entering the curve, and that

the drivers of the two vehicles which

immediately preceeded defendant's car

into the curve also lost control of

their vehicles. The first of the vehi-

cles was a two-year-old 911T Porsche.

The Porsche was equipped with studded

radial tires and was traveling at ap-

proximately 40 miles per hour when it

hit the ice, went out of control and

crossed into the wrong lane of traffic.

A-5

The second vehicle was the Dodge driven

by Mike Snodgrass. This vehicle was

equipped with treaded street tires in

front and snow tires in the rear. It

also was traveling at between 35 and

40 miles per hour at the time it lost

traction and went out of control. Both

vehicles had already passed through the

curve and were out of sight when defen-

dant's vehicle entered the curve.

Plaintiff offered the testimony of

an accident reconstruction expert that

the friction coefficient (traction) of

defendant's vehicle was substantially

less than that of a vehicle with prop-

erly treaded tires. Plaintiff's expert

concluded that defendant could have

negotiated the curve without incident

at speeds up to 47 miles per hour if

his tires had been in good condition.

However, there was no evidence that the

lack of tread on defendant's tires ren-

dered his vehicle totally unsafe or

uncontrollable.

O.R.S. 30.115 prohibits actions by

guests in the absence of proof that the

accident was intentional or caused by

the defendant's gross negligence or in-

toxication. O.R.S. 30.115(2) defines

gross negligence as follows:

""Gross negligence’ refers to

negligence which is materially

greater than the mere absence

of reasonable care under the

circumstances, and which is

characterized by conscious

indifference to or reckless

disregard of the rights of others."

ee > SEN oe ~~

A-6

The elements of gross negligence

unde. the statute have been discussed at

length in two prior opinions, Bottom v.

McClain, 260 Or. 186, 489 P.2d 940

(1971), and Williamson v. McKenna, 223

Or. 336, 354 P.2G 56 (1960). Nothing

1s to be gained by repeating those dis-

cussions here. We note only that in

order to show gross negligence it is

incumbent upon the plaintiff to prove

that defendant's conduct, when measured

objectively, reveals "a state of mind

indicative of an indifference to the

probable consequences of one's acts."

This state of mind has been described

as an "I don't care what happens" atti-

tude. Bottom v. McClain, supra at

191-92. We find no evidence that plain-

tiff possessed such a state of mind.

Plaintiff would have this court

look to defendant's conduct in deciding

to drive to school, knowing as he did

the condition of his tires and the

weather, to determine whether or not

any substantial evidence of gross neg-

ligence exists. Plaintiff cites Layman

v. Heard, 156 Or. 94, 66 P.2da 492

937), for the proposition that driv-

ing in poor weather on bald tires is

sufficient in and of itself to consti-

tute gross negligence. We do not agree

that driving on worn tires in cold and

misty weather is sufficient, without

more, to establish gross negligence.

In Layman, defendant encountered

five or six icy places on the road

prior to losing control of his vehicle

and consistently ignored requests by

his guests to slow down. Passengers

A-7

in the vehicle testified that defendant

was in an angry mood and actually

seemed to drive faster when they re-

quested that he slow down. Here there

were no warnings or remonstrations as

to defendant's driving by plaintiff, as

in Bottom v. McClain, supra.

The evidence presented in the

instant case reveals that no icy spots

were encountered, other than those at

the scene of the accident, and that

defendant was driving carefully and at

a speed substantially under the posted

speed limit. Although plaintiff cannot

remember most of the events leading up

to the accident, she did testify that

defendant drove carefully and that he

didn't drive fast. Furthermore, the

evidence is conclusive that the “black

ice" was not visible to drivers and

completely unanticipated by those using

the highway that morning. Under these

facts, we conclude the court did not

err in granting judgment in favor of

the defendant n.o.v.

Affirmed.

i ee re

re ee

B-1

APPENDIX B

OREGON SUPREME COURT

April 26, 1977

Case Title: Hill v. Garner, SC P-2459

Jill E. Golden

William Wiswall

Attorneys at Law

The Supreme Court has today denied

appellant's Petition for Rehearing in

the above-entitled matter.

cc - Duane Vergeer

STATE COURT ADMINISTRATOR

By /Ss/_ Marilyn Hartley

Marilyn uartley

Calendar Clerk

C-1

APPENDIX C

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR THE COUNTY OF HOOD RIVER

SHARON HILL,

Plaintiff, No. 6,960

vs. JUDGMENT NOTWITH-

STANDING TH®

DAVID MAX GARNER, VF RDICT

eee eee eee ee ee

Defendant.

The above entitled cause came on

for trial before the undersigned on the

27th day of May, 1975, at which time

plaintiff appeared in person, and by

William H. Wiswall and John L. Svoboda,

her attorneys, and the defendant

appeared in person and by Duane Vergeer,

of counsel for the defendant. A jury

was duly empaneled and sworn, and test-

imony was introduced and heard for and

on behalf of each of the parties, and

thereafter the Court instructed the

jury as to all matters of law pertain-

ing to the evidence and the issues.

The jury having retired, returned its

verdict into Court in the following

terms, to-wit: (title and venue

omitted)

"We, the jury, duly empaneled

and sworn, to well and truly

try the above entitled case,

hereby find our verdict in

favor of the plaintiff and

against the defendant in the

sum of $85,362.95. Dated this

29th day of May, 1975.

C-2

/s/ 3. T. McGrann

Foreman

and the defendant having moved for

Judgment Notwithstanding said Verdict,

and the Court being of the opinion and

finding that the evidence introduced at

the time of trial was insufficient to

sustain a finding that the defendant

was grossly negligent or acted in reck-

less disregard of the plaintiff's

rights, and that the verdict is contrary

to the instructions and the law, now

therefore,

IT IS HEREBY ORDERED AND ADJUDGED

that plaintiff's Complaint herein be

and the same is hereby dismissed not-

withstanding the verdict of the jury,

and

Judgment is hereby entered in favor

of the defendant and against the plain-

tiff, and further that defendant have

and recover his costs and disbursements

incurred herein, taxes and allowed in

the sum of $ .

Dated this 24th day of June, 1975.

/s/ John M. Copenhaver

JUDGE

D-1

APPENDIX D

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR THE COUNTY OF HOOD RIVER

SHARON HILL,

Plaintiff, Case No. 6960

)

)

)

)

vs. )

)

DAIVD MAX GARNER, )

)

Defendant. )

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that SHARON

HILL, the Plaintiff above named, hereby

appeals to the Supreme Court of the

United States from the final judgment

of the Supreme Court of the State of

Oregon of April 26, 1977, denying

Plaintiff-Appellant's Petition for

Rehearing, and from the judgment of the

Supreme Court of the State of Oregon of

March 24, 1977, affirming the Judgment

Notwithstanding the Verdict of the

Circuit Court of the State of Oregon

for the County of Hood River. This

appeal is taken pursuant to 28 U.S.C.

§ 1257(2).

LIVELY & WISWALL

By /s/ William Wiswall

William Wiswall

Of Attorneys for Plaintiff

644 North “A" Street

Springfield, OR 97477