# Petition — Sharon Hill v. David Max Garner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 989

## Text

Sep nie Wit, a. Dy .
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2267%3A1. Public record. Not legal advice.