Appendix — Tolbert v. Tolbert ex rel. Estate of Key

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APPENDIX A — OPINION OF THE

SUPREME COURT OF ALABAMA

DATED OCTOBER 8, 2004

SUPREME COURT OF ALABAMA

1030434.

Oct. 8. 2004.

Darryl TOLBERT, individually and as personal

representative of the estate of Steven L. Tolbert, a

deceased minor

V.

Candis TOLBERT, as administrator of the estate of

Anna Jane Key, deceased.

HARWOOD, Justice.

The father of a minor son killed in a motor-vehicle

accident while a passenger in an automobile operated by his

maternal grandmother, who was also killed in the collision,

appeals from a summary judgment entered in favor of the

grandmother’s estate in the father’s wrongful-death action.

We affirm.

Steven Tolbert was the 14-year-old son of Darryl Tolbert

and Candis Tolbert, who were divorced. Although Darryl had

been awarded legal custody of Steven, the boy lived primarily

with Candis in Cullman. Steven was being “homeschooled,”

although Candis worked in Huntsville at a job to which she

had to report by 8:00 a.m. each day, and from which she

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frequently did not return home until 6:00 p.m. Candis’s

mother, Anna Jane Key, who was retired, stayed at Candis’s

house every week Monday through Thursday. She supervised

the homeschooling and otherwise cared for Steven during

the day. On Fridays Ms. Key would visit Candis’s sister in

Atlanta; Steven often went with her. Ms. Key and Steven

were quite close, and while Candis was at work, Ms. Key

was Steven’s primary caregiver.

On the morning of the accident, July 25, 2000, Candis

left for work as usual and mid-moming Ms. Key drove her

car, accompanied by Steven, to pick up his best friend, Chris

Givens; she then returned with the two boys to Candis’s

house. During that day Chris helped Steven with his

homework, and the boys accompanied Ms. Key while she

drove her car to run some errands. Early that evening, while

it was still daylight, Ms. Key, accompanied by Steven, drove

Chris home. A light rain had begun to fall. The route to Chris’s

house, which Ms. Key had traveled a few times during the

preceding year carrying Chris to and from his house, was

uphill on a double “S” curve on Highway 278 West. After

dropping Chris off at his house, Ms. Key began the return

trip, traveling eventually downhill and into the portion of

the road forming the double “S” curve. Ms. Key lost control

of the car on the rain-slicked roadway; it slid into the

opposing lane of traffic and collided with another vehicle,

resulting in the death of the driver of that vehicle, Steven,

and Ms. Key.

State troopers who investigated the accident concluded

that Ms. Key’s “driving was improper for the conditions.”

The posted speed limit was 55 miles per hour. There were no

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skid marks on which the troopers could base an estimate of

Ms. Key’s speed, but one of them was of the opinion “that

for whatever reason she was driving improper for the

environment and was unable to negotiate the curve.... [I]t’s

my opinion that for whatever reason that Ms. Key as the

primary contributor was at fault in this crash.” There was no

evidence from which the troopers could conclude that Ms.

Key was driving in excess of the speed limit; whether she

was traveling 40 miles per hour or 60 miles per hour simply

could not be estimated according to one of them, but “they’re

all possibilities.” The downhill stretch of road Ms. Key was

traveling involved “‘a fairly steep grade” and fairly significant

curves. At the top was a warming sign reading: “Sharp curve

ahead. Trucks must slow to 35 mph.” Horace Elmore, a

motorist following behind the truck with which the Key

automobile collided, Causing it to hit Elmore’s vehicle,

testified that he was traveling up the steep grade when:

“I seen a gray car shoot around the curve and it

looked like that she didn’t never even—she didn’t

even—the car never did even start to make a curve.

It just went straight across almost like it was

headed toward the guardrail and it looked like that

maybe she might have got control of it and it come

back across the road and then it went into a spin

and come spinning down the hill and hit the little

truck in front of me.”.. ..

“Well, I don’t know if it was—you know, generally

when a car goes into a skid it speeds up. And I

don’t know if the car was skidding when it come

around through there so fast or whether she was

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just—but I’m just estimating, you know, and |

would say that she was probably going over the—

about 60 miles an hour.”

Darryl asserts on appeal that the trial judge erred in several

different respects involving venue and the merits of his

wrongful-death action. We address each of those contentions.

l. Venue

Darryl filed this action in the Etowah Circuit Court, but

consented to its transfer to the Cullman Circuit Court after

the defendant, “the estate of Anna Jane Key” (hereinafter

“the estate”), moved the Etowah Circuit Court to transfer

the case based on the assertions that Ms. Key “was a resident

of Cullman County, Alabama, at the time of the motor vehicle

accident made the basis of this action” and that her estate

was “being administered in the Probate Court of Cullman

County, Alabama.” (Letters of administration were granted

to Candis as administratix of the estate by the Probate Court

of Cullman County on September 14, 2000.) Subsequently,

Darryl moved the Cullman Circuit Court to transfer the case

back to Etowah County, based on the fact that the estate, in

answering an interrogatory, had identified Ms. Key’s “home

address at the time of her death” as an address in Gadsden,

Etowah County, Alabama. Candis later explained in her

deposition, however, that after her mother retired, she “didn’t

ever stay at home—at her house”; rather, “she had been either

with me or my sister continuously.” The Cullman Circuit

Court denied the motion to transfer the case back to Etowah

County.

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Darryl argues in his brief to this Court that venue was

proper where Ms. Key resided or where the accident occurred,

citing § 6-3-2(a)(3), which provides that all “personal

actions” of this type “against individuals” may be brought in

the county where the defendant “has within the state a

permanent residence” or in the county in which the act or

omission occurred. As the estate points out in its brief,

however, venue of actions against estates is governed not by

§ 6-3-2, but by §.43-2-130, which provides, in pertinent part,

that “[c]ivil actions may be brought against executors or

administrators in their representative character, in all cases,

in the county in which letters were granted.” In Ex parte

Wiginton, 743 So.2d 1071, 1073 (Ala.1999), this Court

observed:

“The defendants in this case are of three types:

corporations, a natural person (or ‘individual’),

and an executrix. Venue as to these three types of

defendants is addressed by separate statutes.” .. . .

[Defendant] Mildred E. Kennedy is an executrix.

The venue statute applicable to her is § 43-2-

Lack

Darryl claims that “[t]he case was moved [to Cullman

County] based on a false allegation,” but the grant of letters

of administration to Candis by the Cullman Probate Court

stands, and Darryl’s attempt at a collateral indirect attack on

the grant of letters of administration is procedurally

impermissible. “Where the fact of inhabitancy does not exist,

the grant of administration is not void, but may be avoided

by a direct proceeding for that purpose.” Holmes v. Holmes,

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212 Ala. 597, 599, 103 So. 884, 886 (1925). Furthermore,

“[c]ourts of probate, within their respective counties, have

authority to grant letters of administration on the estate of

persons dying intestate ... [w]Jhere the intestate, at the time

of his death, was an inhabitant of the county.” § 43-2-40(1),

Ala.Code 1975. Given the circumstances of Ms. Key’s living

arrangements at the time of her death, Darryl has not

established that his consent to the transfer of the action to

Cullman County was “based on a false allegation.”

Darryl has shown no error with respect to the trial court’s

refusal to transfer the case back to Etowah County.

Il. The Merits

The summary-judgment order entered by the trial court

stated:

“There being no evidence of wantonness on the

part the Defendant and the motion being well

taken and there being no genuine issue of fact or

law and the Defendant being entitled to Judgment

as a matter of law, Summary Judgment is hereby

entered for the Defendant and against Plaintiff.”

A. Constitutionality of the Guest Statute

At a point in the proceedings, Darryl filed a

“Constitutional Challenge of the Guest Statute.” ;

1. A copy of the challenge was duly served upon the attorney

general of the State of Alabama who filed, albeit after the summary

judgment was entered, his “Acceptance and Waiver” waiving further

service of pleadings and discovery and waiving the right to be heard.

See § 6-6- 227, Ala.Code 1975; Terry v. City of Decatur, 601 So.2d

949 (Ala.1992)

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Appendix A

Section 32-1-2, Ala.Code 1975, commonly known as the

guest statute, was enacted by the Legislature in 1935. It reads:

“The owner, operator or person responsible for

the operation of a motor vehicle shall not be liable

for loss or damage arising from injuries to or death

of a guest while being transported without

payment therefor in or upon said motor vehicle,

resulting from the operation thereof, unless such

injuries or death are caused by the willful or

wanton misconduct of such Operator, owner or

person responsible for the operation of said motor

vehicle.”

Darryl contended that the guest statute violates §§ 13

and 22 of the Alabama Constitution and Amendment 14 of

the United States Constitution. He acknowledged that this

Court had rejected identical constitutional challenges to the

guest statute in Pickett v. Matthews, 238 Ala. 542, 192 So.

261 (1939), and Beasley v. Bozeman, 294 Ala. 288, 315 So.2d

570 (1975). Darryl’s argument then, and now, is that societal

and legal changes occurring subsequent to Beasley justify

revisiting and overruling that case and Pickett. In his brief to

this Court, Darryl cites a California case and a Texas case as

support for his position that we should overrule Pickett and

Beasley: Brown vy. Merlo, 8 Cal.3d 855, 506 P.2d 212, 106

Cal.Rptr. 388 (1973), and Whitworth v. Bynum, 699 S.W.2d

194 (Tex.1985). Merlo was decided two years before this

Court decided Beasley and was specifically noted in that

opinion, the Court concluding, nonetheless, that

“under the distribution of powers section of our

State Constitution, it is within the province of the

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Legislature to ascertain and determine when the

welfare of the people might require that the guest

statute should be repealed. The Legislature’s

power should not be interfered with unless it is

exercised in a manner which plainly conflicts with

some higher law. Pickett v. Matthews, supra.

294 Ala. at 290, 315 So.2d at 571.

Justice Jones wrote an opinion concurring specially in

Beasley, which two other Justices joined, in which he

questioned the wisdom of the guest statute, but in which he

also expressed his strong belief “in the wisdom of the

separation of powers doctrine which is the foundation of our

system of government... .” Justice Jones continued:

“(T]he Court is powerless to strike down as invalid

a legislative act unless such act is constitutionally

prohibited or otherwise violative of constitutional

proscriptions. The legislative process, through

elective representatives, with all of its faults, and

its tendency to be unduly influenced by pressure

groups, is the best method yet derived by man for

the enactment of laws expressive of the public

policy of its people. (I would add parenthetically:

My faith in this process further leads me to believe

that a legislature sensitive to the will of the people

it represents will now exercise its prerogative to

repeal this inherently bad law.)”

294 Ala. at 291, 315 So.2d at 571.

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Appendix A

Despite Justice Jones’s express invitation, the Legislature

has chosen not to repeal the guest statute.

In Whitworth, the Texas Supreme Court noted, as had

this Court in Beasley, that the United States Supreme Court

had upheld the right of states to enact guest statutes, as against

a claim that such statutes violated the Equal Protection Clause

of the Fourteenth Amendment. In Silver y. Silver, 280 U.S.

117, 50 S.Ct. 57, 74 L.Ed. 221 (1929), the Supreme Court

found a rational distinction between gratuitous passengers

in automobiles and guests in other modes of transportation.

In Whitworth, the Texas Supreme Court acknowledged the

continued authority of Silver with regard to the equal-rights

provision of the United States Constitution but concluded

that it was at liberty to interpret differently the equal-

protection clause appearing in the Texas Constitution, which

provides: “All free men, when they form a social compact,

have equal rights, and no man, or set of men, is entitled to

exclusive separate public emoluments, or privileges, but in

consideration of public services.” 699 S.W.2d at 196 mf:

The Court declared that “we are at liberty to interpret state

Statutes in light of our own constitution and to fashion our

Own tests to determine a statute’s constitutionality.” 699

S.W.2d at 196. The Texas guest statute, as revised in 1973,

discriminated against only guest passengers who were “

‘related within the second degree of consanguinity or affinity

to the owner or operator of a motor vehicle.’ “ 699 S.W.2d at

195: Pointing out that “{e]ven when the purpose of a statute

is legitimate, equal protection analysis still requires a

determination that the classifications drawn by the statute or

rationally related to the statute’s purpose,” the court

concluded that the classification system of the revised statute

lacked such rationality:

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“The Texas Guest Statute creates a

presumption that all automobile passengers suing

a driver who is within the second degree of affinity

or consanguinity do so collusively. We refuse to

indulge in the assumption that close relatives will

prevaricate so as to promote-a spurious lawsuit.”

699-S.W.2d at 197.

“The question whether §§ 1, 6, and 22 of Article

I, Constitution of Alabama 1901, combine to

guarantee the citizens of Alabama equal protection

under the laws remains in dispute. See Black v.

Pike County Comm'n, 360 So.2d 303 (Ala.1978);

Ex parte Jackson, 516 So.2d 768 (Ala.1986), and

Ex parte Branch, 526 So.2d 609 (Ala.1987)

(implying that those provisions do provide for

equal protection); but see Ex parte Melof, 735

So.2d 1172 (Ala.1999).”

Hutchins v. DCH Reg'l Med. Ctr., 770 So.2d 49, 59

(Ala.2000).

Darryl does not argue that Art. I, §§ 1, 6, and 22, Alabama

Constitution of 1901, combine to guarantee the citizens of

Alabama equal protection under the laws. Rather, he argues

that the guest statute is unconstitutional because it violates §

22 and § 13 of the Alabama Constitution and the Equal

Protection Clause of the United States Constitution, his

argument consisting simply of the following:

”»The Alabama Guest Statute is unconstitutional for the

following reasons:

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Appendix A

“1. The Alabama Guest Statute is a derogation

of the common law.

“2. The Alabama State Constitution guarantees a

remedy for any injury, which includes injuries to

guests:

“Sec. 13. Courts to be open; remedies for all

injuries; impartiality of justice.

“*That all courts shall be open; and that every

person, for any injury done him, in his lands,

goods, person, or reputation, shall have a remedy

by due process of law; and right and justice shall

be administered without sale, denial, or delay.’

“3. The Alabama Constitution forbids any grant

of privilege or immunity:

“Sec. 22. Ex post facto laws; impairment of

obligations of contracts irrevocable or exclusive

grants of special privileges or immunities.

“That no ex post facto law, nor any law impairing

the obligations of contracts, or making any

irrevocable or exclusive grants of special

privileges or immunities, shall be passed by the

legislature; and every grant of franchise, privilege,

or immunity shall forever remain subject to

revocation, alteration, or amendment.’

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Appendix A

“4 The Guest Statute violates the Equal Protection

Clause of the U.S. Constitution.

“5 There is no rational basis between ‘guest’ and

other passengers. All guests and passengers should

receive the benefit of the driver’s insurance when

the driver is negligent.

“As applied to this case, the Alabama Guest

Statute is unconstitutional because it only protects

the insurance company and there is no rational

basis between ‘guests’ and passengers. Anna Key,

the grandmother, is dead. The insurance company

of Anna Key is the only beneficiary of the Guest

Statute in this case. Anna Key has no estate and

there will be no recovery against the estate unless

her insurance company is held responsible.”

(Appellant’s brief, pp. 30-32.)

Merely quoting § 13 and § 22, Ala. Const-1901, without

citing or discussing relevant caselaw, falls far short of

argument adequate to demonstrate that Pickett and Beasley

were wrongly decided with respect to the effect of §§ 13 and

22. Butler v. Town of Argo, 871 So.2d I, 20 (Ala.2003)

(Furthermore, ‘it is not the function of this Court to do a

party’s legal research or to make and address legal arguments

for a party based on undelineated general propositions not

supported by sufficient authority or argument.’ Dykes v. Lane

Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)(citing Spradlin

v. Spradlin, 601 So.2d 76 (Ala.1992)).”). See also Orkin

Exterminating Co.v. Larkin, 857 So.2d 97 (Ala.2003);

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Crutcher v. Wendy's of North Alabama, Inc., 857 So.2d 82

(Ala.2003).

Likewise, the naked statement that “{t]he Guest Statute

violates the Equal Protection Clause of the U.S.

Constitution,” falls far short of demonstrating that we should

presume Silver v. Silver to no longer be controlling authority.

B. Applicability of the Guest Statute to a

Claim of Negligent Supervision

In Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973),

a year-and-half-old infant pulled a skillet of hot grease off a

counter onto himself while he was being cared for by a

volunteer babysitter at her residence. This Court concluded

that by undertaking to supervise, watch, and care for the child,

the babysitter had bound herself to the exercise of due care

in those activities. Acknowledging that “the recognized duty

owed by an occupier of land in Alabama to a licensee is not

to wilfully or wantonly injure him, or not to negligently injure

him after discovering him in peril,” the Court explained that

that duty “in no way abrogates or insulates a land occupier

from duties which arise from other relationships between

himself and another on his premises.” 291 Ala. at 436, 282

So.2d at 263.

“The place at which such supervision occurred

should not affect the duty owed the plaintiff. The

location of the alleged breach of duty is

unimportant, whether it occurred on the plaintiffs

premises or elsewhere.”. .. .

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“ __ The occurrence of the breach of duty on one’s

own premises is a mere fortuity.”

291 Ala. at 436, 282 So.2d at 263. The Court pointed out

that it had recently held in Beasley v. MacDonald Engineering

Co., 287 Ala. 189, 249 So.2d 844 (1971), that a volunteer

undertaking a gratuitous safety inspection of business

premises was under a duty “once he has acted or assumed

the duty, to execute the task undertaken with reasonable care.”

291 Ala. at 437, 282 So.2d at 263. Accordingly, having

undertaken to supervise the activities of the child, the

volunteer babysitter necessarily incurred the duty to exercise

due care in the undertaking. -

Darryl argues that the guest statute has no application to

a claim of negligent supervision even if the breach of the

duty to exercise due care involves the operation of a motor

vehicle. In that regard Darryl relies on this statement in

Walker v. Garris, 368 So.2d 277, 280 (Ala.1979): “The guest

statute is inapplicable to a claim for negligent supervision

of children even though the instrumentality which inflicted

the harm may have been a ‘motor vehicle.”” That statement

must be understood in context, however. In Walker, the

defendant Garris held a hayride for a church youth group

consisting of some 15 to 25 children, including 13-year-old

Lisa Walker. Garris provided a flatbed trailer loaded in the

center with bales of hay. The children sat around the hay

bales “towards the edge of the trailer” and “(t]here were no

fenders over the trailer’s wheels, and there were no sides,

railings, or handholds.” 368 So.2d at 278. Garris pulled the

trailer with his pickup truck, accompanied by another adult.

No adults were on the trailer with the children during the

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hayride, and there was testimony “that some of the children

at various times were dangling their feet over the edge and

jumping on and off the trailer as it moved at a slow speed”

down the roadway. 368 So.2d at 278. Garris and his adult

companion in the pickup truck neither observed these

activities nor instructed the children to stop them. “Lisa

somehow got off the trailer and was run over by it,” sustaining

personal injuries. 368 So.2d at 278. There was no claim that

Garris had negligently or wantonly operated his pickup truck

or the trailer being pulled behind it, or that he had in any

other way driven improperly. Rather, the complaint filed in

the ensuing personal-injury action alleged simply that Garris

“so negligently conducted said hayride on said highway at

said time and place” as to allow Lisa to fall off and be run

over by the trailer. 368 So.2d at 279.

“These allegations are sufficient to state a claim

for relief under Standifer v. Pate, 291 Ala. 434,

282 So.2d 261 (1973). In that case we held that a

volunteer babysitter on her own premises owed a

duty of due care in supervising a child under her

care and control, thereby overruling Nelson v.

Gatlin, 288 Ala. 151, 258 So.2d 730 (1972). In

Standifer we noted that the gist of the action is

negligent supervision. When an individual

undertakes the control and supervision of a child,

reasonable care must be exercised to protect that

child from injury, irrespective of compensation.

Garris was under no obligation to hold a hayride

for these children, but once he undertook to do so

he was under a duty to conduct the hayride

properly by providing a suitable conveyance for

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the hayride and by controlling and supervising the

children so as to protect them from injury. The

guest statute is inapplicable to a claim for

negligent supervision of children even though the

instrumentality which inflicted the harm may have

been a ‘motor vehicle.’ The duty is to supervise

the children properly, and an individual should

not be allowed to escape liability simply because

the child is injured by a motor vehicle rather than

a hot pan of grease as in Standifer.

“Sufficient evidence was presented for a jury to

find that Garris was negiigent in the manner in

which he conducted the hayride.”

368 So.2d at 279-80 (emphasis supplied).

As can be seen, Walker involved a claim of negligent

supervision totally separate from and independent of the

manner in which the motor vehicle (and the towed trailer)

were operated. The duty alleged to have been breached was

not a duty imposed by law on the operator of a motor vehicle

as to third parties, but rather was the duty imposed by law on

one who voluntarily undertakes to supervise children.

Consequently, as in Standifer, the duty owed by Garris, as

the operator of a motor vehicle, in no way abrogated or

insulated him from the duty he owed as a volunteer adult

supervisor of a child. It was that latter duty he breached by

failing to use due care in its execution, rather than the separate

duty he owed arising from his status as the operator of a

motor vehicle.

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In the present case Darryl does not argue that Ms. Key

failed to use due care in supervising Steven, apart from the

fact that he was a passenger in her automobile when she is

alleged to have negligently or wantonly operated it. Thus,

the duty implicated is not a duty she owed Steven as his

supervisor; rather, it is the separate duty she owed him arising

from their relationship as automobile operator and passenger.

That duty, and its breach, are governed by the guest statute.

There is no allegation that Steven was engaging in any

conduct or activity that posed a danger to him, or that Ms.

Key, in the exercise of her duty to use due care in supervising

him, should have monitored or curtailed. For all that appears,

Steven was simply passively present in the automobile,

requiring no particular control or supervision. Accordingly,

we understand the statement in Walker that “[t]he guest

Statute is inapplicable to a claim for negligent supervision

of children even though the instrumentality which inflicted

the harm may have been a ‘motor vehicle,’” 368 So.2d at

280, to mean that the claim being asserted must actually relate

to some negligence in the supervision of the child, thus

implicating the duty the supervisor owes as a result of that

relationship to exercise due care. Here Darryl argues no such

claim, other than the idea that while Steven was under the

continuing supervision of Ms. Key, as a passenger in her

automobile, she negligently or wantonly operated that

vehicle.

C. Applicability of the Guest Statute to a

14-year-old Child

In Walker, this Court held “that the applicability of the

guest statute to a child under fourteen is a jury question.”

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Appendix A

368 So.2d at 279. Steven was born on November 22, 1985;

he was 14 years and 8 months old at the time of the accident

on July 25, 2000.

In Fox v. Hollar Co., 576 So.2d 223 (Ala.1991), an action

was filed on behalf of an 11-year-old boy against The Hollar

Company and others stemming from personal injuries the

boy received as the result of a traffic accident that occurred

while the boy was riding as a passenger in a tanker truck

owned by Hollar and being driven by the boy’s father, an

employee of Hollar. Following a verdict for the defense, the

plaintiff appealed, arguing, among other things, that the trial

court had erred in submitting to the jury the question whether

the boy was a “guest” within the meaning of the guest statute.

This Court noted that “[t]he relationship between a host and

a guest is consensual in nature and involves some acceptance

by the guest of the relationship and its attendant hazards”

and stated that the question presented was whether the 11-

year-old boy “was legally capable of giving his consent to

ride in the Hollar tanker truck driven by [his father] so as to

bring him within the guest statute.” 576 So.2d at 226. The

Court noted that in Walker it had “adopted the position that

the question whether a child under 14 is subject to the guest

statute is to be determined by the factfinder, based on the

individual child’s capacity to consent.” 576 So.2d at 226.

Darryl does not argue that Steven was not as intelligent

or perceptible as any other boy his age or that he was

otherwise mentally incapable of consenting to the status of

automobile guesi; rather, he argues only that whether a child

that age could become a guest is always a jury question. In

this case the facts are undisputed. Candis testified that

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Appendix A

“Steven was smart” and was “able to appreciate any particular

danger.” Ms. Key had transported Chris simply because he

was Steven’s best friend and was going to help him with his

homework.

“Whether one is a ‘guest’ within the meaning of

this [the guest] statute is ordinarily a question of

fact for the jury; however, where reasonable minds

can reach but one conclusion from the evidence,

the question becomes one of law for the court.

Harrison v. McCleary, 281 Ala. 87, 199 So.2d 165

(1967).”

Davis v. Davis, 622 So.2d 901, 902 ( Ala.1993). “If the only

benefits received by a driver are those such as are incidental

to goodwill, then the passenger is a ‘guest’ within the meaning

of the statute.” Jd.

In Walker, we observed that “[s]everal of our cases have

properly applied the [guest] statute against minors over the

age of 14. See e.g. Boggs v. Turner, 277 Ala. 157, 168 So.2d

1 (1964); Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77

(1954).” 368 So.2d at 279. In Boggs v. Turner, 277 Ala. 157,

168 So.2d 1 (1964), the age of the injured minor passenger

is not specifically stated, but she is identified as one of the

“girl cheerleaders at Vigor High School in Mobile County,

Alabama,” and referred to as one of “the kids” and one of

“the children.” As noted, this Court, having access to the

record in Boggs, indicated in Walker that she was over the

age of 14. In Boggs, the Court held “that there was not, as a

matter of law, enough benefit to the appellee [defendant

motor-vehicle operator] to remove the appellant [student

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Appendix A

cheerleader] from the influence of the guest statute, and she

was, therefore, a guest.” 277 Ala. at 161, 168 So.2d at 5.

Our caselaw relating to a minor’s capacity for

contributory negligence is instructive by analogy. In Aplin v.

Tew, 839 So.2d 635, 639 (Ala.2002), we affirmed a judgment

as a matter of law entered on the ground that the 14- year-

old plaintiff had been contributorily negligent. The plaintiff

argued that he should not be held to the same standard of

contributory negligence to which we would hold an adult.

“The question of contributory negligence 1S

normally one for a jury. However, where the facts

are such that all reasonable persons must reach

the same conclusion, contributory negligence may

be found as a matter of law.... ”

“(The minor plaintiff] is correct that we apply a

different standard to children below the age of 14.

A child between the ages of 7 and 14 is prima

facie incapable of contributory negligence.

Superskate, Inc. v. Nolen, 641 So.2d 231, 236

(Ala.1994); Savage Indus., Inc. v. Duke, 598 So.2d

856, 858 (Ala.1992). However, at the time of the

accident, [the minor plaintiff] was already 14 years

old and was about to enter the ninth grade. Thus,

[the minor plaintiff] was capable of contributory

negligence.”

839 So.2d at 638-39.

21a

Appendix A

Because the facts of this case present no jury question

with regard to the applicability of the guest statute to Steven,

apart from the issue of his capacity to consent to being a

passenger and because he was over the age of 14 and of at

least ordinary intelligence and perception for that age, the

guest statute was applicable to him as a matter of law.

D. Wantonness

Darryl asserts that it was error for the trial court to enter

a summary judgment for the estate with respect to his claim

that Ms. Key was operating her vehicle “wantonly” on th2

occasion complained of. He argues that he submitted

substantial evidence of her wantonness in the form of these

facts:

“Anna Key had notice of the existence of a

dangerous double s-shaped curve on Highway 278

West. She had just driven through the curve going

uphill. Minutes later in a light rain, she drove

through the same dangerous curve at a high rate

of speed. She lost control of her vehicle. The

vehicle skidded out of control into the oncoming

lanes of traffic striking two oncoming vehicles.

Both passengers of the vehicles were killed. Such

facts constitute substantial evidence of

wantonness.”

(Appellant’s brief, p. 34.)

Our standard of review in this regard and the essential

elements and characteristics of “wantonness” were

22a

Appendix A

thoroughly detailed in Ex parte Anderson, 682 So.2d 467,

469-70 (Ala.1996):

“In reviewing the disposition of a motion for

summary judgment, we utilize the same standard

as the trial court in determining whether ‘the

evidence before [it} made out a genuine issue of

material fact’ and whether the movant was

‘entitled to a judgment as a matter of law.’ Bussey

v. John Deere Co., 531 So.2d 860, 862 (Ala. 1988);

Rule 56(c), [Ala.]R.Civ.P. When the movant

makes a prima facie showing that there is no

genuine issue of material fact, the burden shifts

to the nonmovant to present substantial evidence

creating such an issue. Bass v. SouthTrust Bank

of Baldwin County, 538 So.2d 794, 797-98

(Ala.1989). Evidence 1s ‘substantial’ if it is of

‘such weight and quality that fair-minded persons

in the exercise of impartial judgment can

reasonably infer the existence of the fact sought

to be proved.’ West v. Founders Life Assurance

Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

Our review is further subject to the caveat that

this Court must review the record in a light most

favorable to the nonmovant and must resolve all

reasonable doubts against the movant. Hanners

v. Balfour Guthrie, Inc., 564 So.2d 412, 413

(Ala.1990).

“Anderson [the motor-vehicle operator] argues

that Hughes [the passenger] did not present

substantial evidence to defeat the defendant’s

23a

Appendix A

properly supported motion for summary judgment.

In order to hold a defendant liable under

Alabama’s Guest Statute, a plaintiff must show

that the defendant’s actions amounted to wanton

conduct. The Alabama Guest Statute, codified as

§ 32-1-2, Ala.Code 1975, states:

““The owner, operator or person responsible for

the operation of a motor vehicle shall not be liable

for loss or damage arising from injuries to or death

of a guest while being transported without

payment therefor in or upon said motor vehicle,

resulting from the operation thereof, unless such

injuries or death are caused by the willful or

wanton misconduct of such operator, owner or

person responsible for the operation of said motor

vehicle.’

“The purpose of this statute is ‘to prevent generous

drivers, who offer rides to guests, from being sued

in what often are close cases of negligence.’ Roe

v. Lewis, 416 So.2d 750, 753 (Ala.1982) (citing

Blair v. Greene, 247 Ala. 104, 22 So.2d 834

(1945)). In a case subject to the Guest Statute, a

plaintiff's showing of ‘wanton misconduct’

requires more than a showing of some form of

inadvertence on the part of the driver; it requires

a showing of some degree of conscious culpability.

George v. Champion Ins. Co., 591 So.2d 852

(Ala.1991).

24a

Appendix A

“What constitutes wanton misconduct depends on

the facts presented in each particular case. Central

Alabama Electric Cooperative v. Tapley, 546

So.2d 371 (Ala.1989); Brown v. Turner, 497 So.2d

1119 (Ala.1986); Trahan v. Cook, 288 Ala. 704,

265 So.2d 125 (1972). A majority of this Court,

in Lynn Strickland Sales & Service, Inc. v. Aero-

Lane Fabricators, Inc., 510 So.2d 142 (Ala.1987),

emphasized that wantonness, which requires some

degree of consciousness on the part of the

defendant that injury is likely to result from his

act or omission, is not to be confused with

negligence (i.e., mere inadvertence):

“‘Wantonness is not merely a higher degree of

culpability than negligence. Negligence and

wantonness, plainly and simply, are qualitatively

different tort concepts of actionable culpability.

Implicit in wanton, willful, or reckless misconduct

is an acting, with knowledge of danger, or with

consciousness, that the doing or not doing of some

act will likely result in injury. .. .

“Negligence is usually characterized as an

inattention, thoughtlessness, or heedlessness, a

lack of due care; whereas wantonness is

characterized as an act which cannot exist without

a purpose or design, a conscious or intentional

act. “Simple negligence is the inadvertent

omission of duty; and wanton or willful

misconduct is characterized as such by the state

of mind with which the act or omission is done or

25a

Appendix A

omitted.” McNeil v. Munson S.S. Lines, 184 Ala.

420, [423], 63 So. 992 (1913)....7 6...

““*“Willful and wanton conduct has a well-defined

meaning at law. It is sometimes expressed in terms

of ‘reckless disregard of the safety of another.’

Willful and wanton conduct should not be

confused with negligence. It has been correctly

2 stated that the two concepts are as ‘unmixable as

399 666

oil and water. twee

ae Willfulness or wantonness imports

premeditation, or knowledge and consciousness

that the injury is likely to result from the act done

or from the omission to act, and strictly speaking,

is not within the meaning of the term ‘negligence,’

which conveys the idea of inadvertence, as

distinguished from premeditation or formed

intention.’”

“510 So.2d at 145-46 (citations omitted.) See also,

Central Alabama Electric Cooperative v. Tapley,

546 So.2d 371 (Ala.1989).”

This Court held in Anderson that Hughes, the passenger,

had not presented substantial evidence of wantonness on the

part of Anderson, the operator of the motor vehicle, where

all that was shown was that a collision occurred when

Anderson, “attempting to turn left at an intersection, crossed

in front of an oncoming lane of traffic” at a time when

“Anderson could not see if any traffic was approaching her

as she turned, because her vision was partially blocked by

Ae ft AN EL OLB ENGR TORS, SI DBT PAP Be iar tets

fb REI

26a

Appendix A

an automobile, which was waiting to turn left in the opposite

left-turn lane.” 682 So.2d at 469. In her supporting affidavit,

Anderson had stated that she waited at the intersection until

she believed that it was safe to turn.

“Although Anderson may have been negligent in

turning left while her view of the oncoming traffic

was blocked, we do not believe that this evidence

is sufficient to prove that she was guilty of

‘wanton conduct,’ as that term is defined in our

cases. In other words, viewing the evidence most

favorably to Hughes, we find no substantial

evidence that the defendant Anderson acted ‘with

knowledge of danger, or with consciousness, that

the doing [of the act would] likely result in injury.’

Lynn Strickland, 510 So.2d at 145.”

682 So.2d at 470.

Darryl distinguishes Anderson on the basis that, through

her affidavit, “Anderson presented direct evidence of a lack

of wantonness.” He relies on two other decisions of this Court

to support his contention that the circumstances under which

Ms. Key lost control of her automobile constitute substantial

evidence of wantonness—Sellers v. Sexton, 576 So.2d 172

(Ala.1991), and Scott v. Villegas, 723 So.2d 642 (Ala.1998).

In Sellers, another guest-statute case, the automobile driver

was proceeding along a highway with which she was

intimately familiar on a day in January when travel advisories

had been issued because of expected inclement weather and

the possibility of freezing precipitation. The day before, the

county engineer’s office had placed a coarse type of slag on

4

3

ae ES te

27a

Appendix A

several bridges in anticipation of the freezing weather. The

route the driver and her passenger were traveling took them

across a series of three bridges. She was traveling “at or about

the maximum legal speed of 55 m.p.h. when she crossed the

first of the three bridges.” 576 So.2d at 173. She observed

that there was loose rock and stone on that bridge. “[{S]he

did not slow down as she approached the second bridge,”

although “[s]he acknowledged that she normally slowed

down before entering this bridge because of a wide curve to

the left.” 576 So.2d at 173. Upon entering the second bridge,

she lost control of her car, “first pulling to the right and then,

in an attempt to correct the direction of the vehicle, steering

to the left and traveling completely into the lane of oncoming

traffic.” 576 So.2d at 173. The ensuing collision resulted in

the death of the passenger. This Court concluded that the

- evidence, establishing that the driver proceeded onto the

second bridge while continuing her speed at or near the

maximum posted speed limit, at a time when she “should

have known” that the bridge had been spread with slag in

preparation for the bad weather and with knowledge that there

was a wide curve that would obstruct her view of any

oncoming traffic constituted substantial evidence to support

the wantonness claim. 576 So.2d at 175.

In Scott, Villegas was driving an automobile he had just

purchased and that he had driven only one time previously.

Scott, his passenger, had driven the automobile several times

while it was owned by the seller. Villegas was well aware

that the vehicle (a 1990 Ford GT-50) was “souped up,” with

a 5- speed transmission and a V-8 engine. “According to the

Villegas, ‘it was a fast car ... It was bad.’” 723 So.2d at

643. In pulling out of the driveway at the start of the trip,

28a

Appendix A

Villegas stalled the automobile, and Scott asked if he could

drive. Villegas refused. As Villegas then drove the car down

the road, he “spun off” because, as he later explained, he

was not used to the “tight gears,” which required that the

driver give the engine some gas. Accordingly, he

“fishedtail[ed] a little bit.” 723 So.2d at 643. It had been

raining and the roads were wet. Scott again asked if he could

drive and Villegas declined, stating that he wanted to drive

his own car. Next, at an intersection Villegas “ “gave it a

little too much gas and it spun a little bit more.’ “ 723 So.2d

at 643. Scott again asked if he could drive and Villegas again

insisted on driving. At another intersection Villegas spun off

again. He then told Scott “ ‘[i]f | mess up one more time,

you can drive the car.”” /d.

“Subsequently, ‘because [Villegas and Scott were]

in a hurry to get’ to [their] destination, [Villegas]

shifted from fifth gear into third gear and passed

another automobile; Villegas’s automobile went

into a spin, struck another automobile, spun some

more, and turned over. When Villegas was asked

what he thought caused the spin, he testified as

follows:

““I believe that when I did it—well, it was a wet

road. And I believe it hydroplaned or, then again,

it was a lot of power. I did turn it over. And nght

when I turned the steering wheel, when I was

switching lanes, my car spinned. It went sideways.

ee

29a

Appendix A

““l was going normal speed.””.. . .

““45 [mph]. Because I just threw it down.””. . . .

““[W]hen I shifted up, the RPM gauge went up

and I gave it a little more power, and that’s what

happened.’”

723 So.2d at 643-44.

The Court concluded that “there is substantial evidence

from which the jury could find that Villegas acted with a

reckless or conscious disregard of the rights or safety of others

by consciously driving the automobile while knowing that

he could not control it on the wet pavement and knowing

that if he lost control of it, injury would likely or probably

result.” 723 So.2d at 644.

As noted, this Court observed in Ex parte Anderson,

supra, that “[w]hat constitutes wanton misconduct depends

on the facts presented in each particular case.” 682 So.2d at

470. As also noted, Darryl contends in his brief that it is

undisputed that Ms. Key was driving “‘at a high rate of speed.”

Darryl’s expert witness, Rodney Pack, a qualified

accident reconstructionist, reviewed the various reports

concerning the accident, reviewed photographs of the

accident site, and visited the site on two occasions. He stated

that he had made no determination concerning Ms. Key’s

speed at the time of the accident. He concluded that the

accident was caused by driver error in the sense that

Ms. Key, aware of the existing road conditions, failed “to

30a

Appendix A

reduce her speed according to the situation I would think

would be—not necessarily speed, but failure to acclimate

her vehicle-to the condition at the time,” i.e., the steep grade,

the sharpness of the curve, and the rain. Asked if that

environment would present “‘a situation where anyone going

down that hill would have lost control at or about the speed

limit,” Pack answered “Yes, there is nothing to prevent

somebody from losing control.” Pack acknowledged that he

had not concluded that Ms. Key “was doing any kind of

reckless driving or excessive speed or anything of that nature”

and reiterated his acknowledgment that the accident could

have occurred had an individual been coming down the hill

at or about the speed limit.

As discussed earlier, the investigating state troopers

likewise concluded that the accident was the result of driver

error, in that Ms. Key might have been driving too fast for

the conditions, but they acknowledged that there was no

indication that Ms. Key was exceeding the speed limit at the

time of the accident. One of the troopers was allowed to

testify without objection that he had found no evidence

indicating that Ms. Key “consciously took any action that

she knew was going to cause injury to anyone out there that

day.”

Chris Givens testified that he had ridden with Ms. Key

on a number of occasions and had never seen her speeding

or driving recklessly and that as she was driving him home

on the occasion in question, she was driving within the speed

limit; as she drove up the hill to his house, she was proceeding

“under the speed limit anywhere from 40 to 50.”

3la

Appendix A

One of the troopers testified on deposition that he

believed “it was drizzling when the wreck happened.”

According to this trooper, “a lot of time when a drizzle first

begins because of a specific gravity, the oil will float on top

of the water and most things will float, and a washing rain

will basically wash that off but a light drizzle will bring that

to the surface and at that point it’s usually slippier than it

would be if you had a washing rain.” Asked if such a

condition normally surprised people, the trooper answered,

“Absolutely” and stated that he “certainly considered the

roadway condition to be a contributing factor to the wreck.”

Darryl’s contention that the evidence that Ms. Key was

proceeding at a high rate of speed is “undisputed” is

necessarily based on the statements by witness Horace Elmore

quoted earlier. Elmore’s observations boil down to the fact

that he could not say whether Ms. Key’s car was already

“skidding when it came around through there so fast,” but

he knew that “generally when a car goes into a skid it speeds

up,” and when he saw the car it was probably going about 60

miles per hour in his estimation. These qualified opinions

would not constitute substantial evidence that Ms. Key was

in fact exceeding the speed limit immediately before she lost

control of her vehicle and went into a spin.

Elmore was emphatic that he had “seen too many wrecks

thege. If you don’t slow down in that curve, you are going to

wreck and that’s all there is to it.” Elmore traveled the road

everyday going to and from work and knew “there has been

a lot of people killed there. A lot of people killed there.”

He was “surprised that the State Road Department hasn’t

done something to [the road] years before, because so many

32a

Appendix A

accidents had occurred on it.” He stated: “As a matter of fact

my neighbor almost got killed there a few months back, same

spot. Very same spot.” Elmore knew that it was “just a real

slick road when it rains,” and that on the occasion in question

“it had just started raining” and the road was “very slick.”

In both Sellers and Scott the operators of the motor

vehicle survived the collision and were able to acknowledge

in testimony their consciousness and appreciation of the

attendant circumstances, including road conditions, that made

their driving choices dangerous. In the present case, the fact-

finder, even when viewing the facts most favorably to Darryl,

could not conclude, other than as a matter of speculation,

that Ms. Key had been exceeding the 55 miles-per-hour speed

limit before she lost control of her vehicle. Clearly, she lost

control of her vehicle through “driver error” relating to her

failure to appreciate the hazard created on the curving

downhill road by the slickness of the road surface resulting

from the recent light rain. In the final analysis, it cannot be

said that this evidence establishes “more than a showing of

some form of inadvertence on the part of the driver” or that

it rises to the required showing of “some degree of

consciousness on the part of the defendant that injuries are

likely to result from his act or omissions.” Ex parte Anderson,

682 So.2d at 469-70. Therefore, the summary judgment as

to the wantonness claim was not error.

33a

Appendix A

Il. Conclusion

Accordingly, for all of the reasons discussed above, we

affirm the summary judgment in favor of the estate.

AFFIRMED.

NABERS, C.J., and SEE, BROWN, and STUART, JJ.,

concur.

34a

APPENDIX B — MINUTE ORDERS FROM THE

CIRCUIT CIVIL COURT

CV 2000 000631.00

JUDGE: JUDGE DON L HARDEMAN

ALABAMA JUDICIAL DATA CENTER

CASE ACTION SUMMARY CONTINUATION

CIRCUIT COURT

IN THE CIRCUIT COURT OF CULLMAN COUNTY

DARRYL TOLBERT, ET AL VS. THE ESTATE OF

ANNA JANE KEY

FILED: 10/20/2000

TYPE: WRONGFUL DEATH

TYPE TRIAL: JURY

DATE1: 10/06/2003 CA: CA DATE:

DATE 2: AMT: $.00 PAYMENT:

10-1-03 MOTION IN LIMINE

10/2/03 ORDERED, Defendant’s Motion in Limine will

be considered prior to trial.

Copies s/ Don L. Hardeman JUDGE

10/6/03 CONSTITUTIONAL CHALLENGE OF THE

GUEST STATUTE (Plaintiff)

10/6/03

10-14-03

10-14-03

10/21/03

10-29-03

11/6/03

35a

Appendix B

ORDERED, the Attorney General’s Office shall

respond to the Constitutional Challenge of the Guest

Statute wiiain 30 days. FURTHER, this case is

continued over the October 6, 2003 trial docket and

shall be reset for trial on the next available docket.

10-6-03 Copy: All Parties & Attorney General

s/ Don L. Hardeman JUDGE

NOTICE OF APPEARANCE (HESS)

MOTION TO DISMISS “CONSTITUTIONAL

CHALLENGE OF THE GUEST STATUTE”

ORDERED, Plaintiff shall respond to Defendant’s

Motion for Summary Judgment within 30 days.

s/ Don L. Hardeman JUDGE

PLAINTIFFS RESPONSE TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT AND

SUBMISSION

ORDERED, on Defendant’s Renewed Motion for

Summary Judgment, there being no evidence of

wantonness on part of the Defendant and the motion

being well taken and there being no genuine issue

of fact or law, and the Defendant being entitled to

Judgment as a matter of law, Summary Judgment is

hereby entered for the Defendant and against

Plaintiff. Costs taxed as paid.

Copies s/ Don L. Hardeman JUDGE

* * *

36a

APPENDIX C — ORDER OF THE SUPREME

_COURT OF ALABAMA DENYING PETITION FOR

REHEARING DATED DECEMBER 17, 2004

IN THE SUPREME COURT OF ALABAMA

December 17, 2004

1030434

Darryl Tolbert, individually and as personal representative

of the estate of Steven L. Tolbert, a deceased minor

V.

Candis Tolbert, as administrator of the estate of

Anna Jane Key, deceased

(Appeal from Cullman Circuit Court: CV 00-631).

ORDER

The application far rehearing filed in this cause is

overruled.

HARWOOD, J.—Nabers,C ” 2d Houston, See, Lyons,

Brown, Johnstone, Woodall, and Stuart, JJ., concur.

37a

APPENDIX D — CHRONOLOGICAL ENACTMENT

AND SUBSEQUENT HISTORY OF AUTOMOBILE

GUEST STATUTES

Oregon: Act of Mar. 3, 1927, ch. 342, 1927 Or. Laws

448 (no liability to guests}—Held unconstitutional in Stewart

v. Houk, 127 Or. 589, 271 P. 998, on reh’g, 127 Or. 597, 272

P. 893 (1928).

Iowa: Act of Mar 28, 1927, ch. 119, 1927 lowa Acts

112 (codified at lowa CopE ANN. § 321.494 (West 1966))—

Held unconstitutional in Bierkamp v. Rogers, 293 N.W.2d

577 (lowa 1980).,

Connecticut: Act of June 8, 1927, ch. 308, 1927 Conn.

Pub. Acts 4404 (codified at CONN. GEN. STAT. ch. 82,

§ 1628 (1930)) Repealed by Act of July 1, 1937, ch. 270,

1937 Conn. Pub. Acts __, 1937 Supp. § 351d.

Oregon: Act of Mar. 8, 1929, ch. 401, 1929 Or. Laws

550 (codified at Or. Rev. Stat. § 30.115 (1979))}—Portion

applicable to automobile guests repealed by Act of July 26,

1979, ch. 866, § 7, 1979 Or. Laws 1197, 1198.

Vermont: Act of Mar. 13, 1929, no. 78, 1929 Vt. Acts

87 (codified at Vr. Stat. Ann. tit. 23, § 1491 (1959))—

Repealed by Act of Mar. 12, 1970, no. 194, 1969 Vt.

Acts 70.

Indiana. Act of Mar. 14, 1929, ch. 201, 1929 Ind. Acts

679 (codified at IND. Cope ANN. §§ 9-3-3-1 to -2 (Burns

1973))—Amended by Act of Mar. 1, 1984, P.L. 68-1984,

§ 2, 1984 Ind. Acts 925, 925-26 to apply only to hitchhikers

and close relatives of hosts.

38a

Appendix D’

Michigan: Act of Mar. 27, 1929, no. 19, 1929 Mich.

Pub. Acts 43 (codified at Micn. Comp. Laws ANNn. § 257.401

(West 1977))—Held unconstitutional in Manistee Bank &

Trust Co. v. McGowan, 394 Mich. 655, 232 N.W.2d 636

(1975). ~-

Delaware: Act of Apr. 1, 1929, ch. 270, 36 Del. Laws

795 (1929) (no liability to guests)}—Held unconstitutional

in Coleman v. Rhodes, 35 Del. 120, 159 A. 649 (1932).

California. Act of June 13, 1929, ch. 787, 1929 Cal.

Stat. 1580 (codified at Cat. Ven. Cope § 17158 (West

1971)}—Held unconstitutional in Brown v. Merlo, 8 Cal. 3d

855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973) (portion

applicable to owners riding as passengers in their own cars

also held unconstitutional in Cooper v. Bray, 21 Cal. 3d 841,

582 P.2d 604, 148 Cal. Rptr. 148 (1978).

South Carolina. Act of Mar. 7, 1930, no. 659, 1930 S.C.

Acts 1164 (codified at S.c. Cope Ann. § 15-1-290 (Law.

Coop. 1976))—Held unconstitutional in Ramey v. Ramey,

273 S.C. 680, 258 S.E.2d 883 (1979), cert. denied, 444 U.S.

1078 (1980).

Kentucky. Act of Mar. 21, 1930, ch. 85, 1930 Ky. Acts

253 (liability only for intentional wrongs) (codified at

Carroll’s Ky. Stat. § 12-7 (Baldwin Supp. 1931)}—Held

unconstitutional in Ludwig v. Johnson, 243 Ky. 534, 49

S.W.2d 347 (1932).

39a

Appendix D

Wyoming: Act of Jan. 29, 1931, ch. 2, 1931 Wyo. Sess.

Laws 3 (codified at Wyo. Stat. § 31-5-1116 (1977))—Held

unconstitutional in Nehring v. Russell, 582 P.2d 67

(Wyo. 1978).

North Dakota. Act of Mar. 2, 1931, ch. 184, 1931 N.D.

Sess. Laws 310 (codified at N.p. Cent. Cope § 39-15-01

(1972)}—Held unconstitutional in Johnson v. Hassett, 217

N.W.2d 771 (N.D. 1974).

Kansas: Act of Mar. 11, 1931, ch. 81, 193! Kan. Sess.

Laws 146 (codified at Kan. Stat. ANN. § 8-122b (1949))—

Held unconstitutional in Henry v. Bauder, 213 Kan. 751, 581

P.2d 362 (1974).

Idaho: Act of Mar. 14, 1931, ch. 135, 1931 Idaho Sess.

Laws 232 (codified at IDAHo Cope § 49-1401 (1980))—Held

unconstitutional in Thompson v. Hagan, 96 Idaho 19, 523

P.2d 1365 (1974).

Montana: Act of Mar. 20, 1931, ch. 195, 1931 Mont.

Laws 550 (codified at Mont. Cope Ann. §§ 32-1113 to-1115

(1961))—Repealed by Act of April 3, 1975, ch. 236, 1975

Mont. Laws 466.

Colorado: Act of Apr. 29, 1931, ch. 118, 1931 Colo.

Sess. Laws 460 (codified at Coto. Rev. Stat. § 42-9-101

(1973))—Repealed by Act of April 9, 1975, ch. 379, 1975

Colo. Sess. Laws 1568.

40a

Appendix D

Nebraska. Act of May 1, 1931, ch. 105, 1931 Neb. Laws

278 (codified at Nes. Rev. Stat. § 39-6,191—Amended by

Act of Mar. 11, 1981, LB 54, 1981 Neb. Laws 214 to apply

only to close relatives of host.

Texas: Act of May 26, 1931, ch. 225, 1931 Tex. Gen.

Laws 379 (codified at Tex. Rev. Civ. Stat. ANN. art. 6701b

(Vernon 1973)) —Amended by Act of Apr. 9, 1973, ch. 28,

§ 3, 1973 Tex. Gen. Laws 41, 42-43 to apply only to close

relatives of host, and as amended, held unconstitutional in

Whitworth v. Bynum, 699 S.W.2d 194 (Tex. 1985).

Illinois: Act ofjuly 2, 1931, 1931 111. Laws 779

(codified at ILL. ANN. Stat. ch. 95 1/2, § 10-201 (Smith-Hurd

1971))—Amended by Act of Sept. 8, 1971,. no. 77-1482, 1971

Ill. Laws 2716 to apply only to hitchhickers.

Washington: Act of Feb. 18, 1933, ch. 18, 1933 Wash.

Laws 145 (liability only for intentional wrongs), amended

by Act of Mar. 19, 1957, ch. 132, 1957 Wash. Laws 484

(adding liability for intoxication or gross negligence)

(codified at WasH. Rev. Cope -ANN. §§ 46.08.080, -.086

(1970))—Repealed by Act of Feb. 11, 1974, ch. 3, 1974 Wash.

Laws 2.

Nevada: Act of Feb. 24, 1933, ch. 34, 1933 Nev. Stat.

29 (codified at Nev. Rev. Stat. § 41.180 (1967))—Held

unconstitutional in Laakonen v. Eighth Judicial Dist. Court,

91 Nev. 506, 538 P.2d 574 (1975).

4la

Appendix D

South Dakota. Act of Mar. 2, 1933, ch. 147, 1933 S.D.

Sess. Laws 154 (codified at S.p. CopiFiED Laws ANN.

§§ 32-34-1, -2 (1976))—Repealed by Act of Feb. 23, 1978,

ch. 240, 1978 S.D. Sess. Laws 421.

Ohio: Act of Mar. 16, 1933, § 6308-6, 1933 Ohio Laws

57 (codified at Onto Rev. Cope ANN. § 4515.02 (Page

1953))—Held unconstitutional in Primes v. Tyler, 43 Ohio

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

Delaware: Act of May 22, 1933, ch. 26, 38 Del. Laws

159 (codified at Det. Cope ANN, tit. 21, § 6101 (1979))—

Repealed by Act of June 23, 1983, ch. 59, § 1, 64 Del. Laws

(1983).

New Mexico: Act of Feb. 11, 1935, ch. 15, 1935 N.M.

Laws 26 (codified at N.m. Stat. ANN. § 64-24-1 (1972))—

Held unconstitutional in McGeehan v. Bunch, 88 N.M. 308,

540 P.2d 238 (1975).

Arkansas: Act of Feb. 20, 1935, no. 61, 1935 Ark. Acts

138 (codified at Ark. Stat. ANN. §§ 75-913, -914 (1979))—

Repealed by Act of Feb. 2, 1983, no. 13, § 1, 1983 Ark.

Acts 44.

Arkansas: Act of Mar. 21, 1935, no. 179, 1935 Ark. Acts

481 (no liability to close relatives of host, liability only for

intentional wrongs to other guests) (codified at Ark. STAt.

Ann. § 75-915 (1979))}—Portion applicable to close relatives

held unconstitutional in Emberson v. Buffington, 228 Ark.

120, 306 S.W.2d 326 (1957), and remainder repealed by Act

of Feb. 2, 1983, no. 13, § 2, 1983 Ark. Acts 44, 44.

42a

Appendix D

Utah: Act of Mar. 21, 1935, ch. 52, 1935 Utah Laws

129 (codified at Uran Cope Ann. §§ 41-9-1 to -9-2 (1981))—

Held unconsitutional in Malan v. Lewis, 693 P.2d 661 (Utah

1984).

Alabama: Act of Sept. 13, 1935, no. 442, 1935 Ala. Acts

918 (codified at ALA. Cope § 32-1-2 (1983).

Florida. Act of May 20, 1937, ch. 18033, 1937 Fla.

Laws 671 (codified at Fra. Stat. Ann. § 320.59 (West

1965))—Repealed by Act of Feb. 14, 1972, ch. 72-1, 1972

Fla. Laws 113.

Virginia. Act of Mar. 28, 1938, ch. 285, 1938 Va. Acts

417 (codified at Va. Cove § 8-646.1 (1957))—Repealed by

Act of Apr. 1, 1977, ch. 617, art. 7, 1977 Va. Acts 1052,

1063.