Deborah Glass, as mother and next friend of Laura Leigh Knight, a minor v. Jacquelynn Kristina Clark

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REL: 05/25/2012 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2011-2012 2100829 Deborah G l a s s , as mother and next f r i e n d o f Laura L e i g h Knight, a minor v. Jacquelynn K r i s t i n a C l a r k Appeal from Madison C i r c u i t Court (CV-09-901067) PITTMAN, Judge. Deborah Laura the Glass, a c t i n g on b e h a l f Leigh Knight, appeals Madison Circuit Court of h e r minor f r o m a summary i n favor daughter, judgment e n t e r e d by of Jacquelynn Kristina 2100829 C l a r k on c l a i m s of negligence and wantonness a s s e r t e d against Clark. In behalf September of Knight vehicle 2009, for injuries accident while operated by C l a r k . conducting a summary Glass Knight a hearing on t h a t m o t i o n , i n favor within the scope of Alabama's had taken judgment concluded while and, as a m a t t e r and ( 2 ) t h a t G l a s s to support appealed; thus, court In that Knight had entered judgment, the been a "guest" G u e s t S t a t u t e , A l a . Code 1975, i n Clark's that v e h i c l e when Clark was o f law as t o G l a s s ' s had f a i l e d t o present her wantonness claim against the accident entitled to negligence a claim; s u b s t a n t i a l evidence Clark. h e r a p p e a l was t r a n s f e r r e d t o t h i s § 12-2-7(6), On ( 1 ) that riding place on i n a motor v e h i c l e the t r i a l of Clark. court 32-1-2, damages had s u f f e r e d i n a motor- she had been r i d i n g trial § seeking C l a r k moved f o r a summary j u d g m e n t . A f t e r 1 judgment sued C l a r k , Glass timely court pursuant to A l a . Code 1975. appeal, Glass contends that the evidence adduced i n Glass also asserted claims of v i c a r i o u s liability; negligent entrustment; and n e g l i g e n t h i r i n g , t r a i n i n g , and s u p e r v i s i o n a g a i n s t C o l b y D e v e l o p m e n t , I n c . The t r i a l c o u r t e n t e r e d a summary j u d g m e n t i n f a v o r o f C o l b y D e v e l o p m e n t as t o a l l c l a i m s a g a i n s t i t . That judgment has n o t been c h a l l e n g e d on a p p e a l . 1 2 2100829 connection genuine guest with issue subject o f the rode Beach, F l o r i d a , Before for Clark's her meals and people, was record Glass, accepted vehicle the to trip, reveals their and on during the on Friday), Clark and Clark Saturday. d i d not go On alcohol, the to bed following i n v i t e d C l a r k t o go fiancé, and Clark others that and rode i n a Clark last until June Knight City separate would w o u l d pay for trip. most nights Knight and night during smoked of the trip socialized with the b e t w e e n 5:00 3 on Glass's d e s t i n a t i o n i n Panama but to applicability the other cigarettes m i d n i g h t e a c h n i g h t ; t h e y a w a k e n e d a r o u n d 11:00 and as the p a r t i e s agreed t h a t Glass that consumed so a that 2009, t h r o u g h Sunday, the a was asserts the invitation. accommodations reveals Knight adduced Glass's the Glass gasoline record ( T h u r s d a y and young her, presented whether notwithstanding The while pay The wantonness on W e d n e s d a y , J u n e 17, Knight to In June 2009, K n i g h t with in Clark's vehicle. as motion A d d i t i o n a l l y , Glass liability facts. f i a n c e ' s son fact of statute. trip 2009. material vehicle. to guest beach summary-judgment evidence Clark undisputed 21, of in Clark's substantial a the a.m. trip, and 6:00 on until Friday Knight a.m. and They 2100829 smoked cigarettes while they were out that e v i d e n c e was p r e s e n t e d t o s u g g e s t t h a t Glass testified t h e m when t h e y Clark that to Glass invited Glass ride with Father's so t h a t herself. Knight t e s t i f i e d [Clark]" before any c o n v e r s a t i o n that was t h e o n l y ability the only to drive girls left awakened testified they looked and e x p r e s s e d h e r plans t o Day w i t h her father. she had wanted but that Clark had occurred that Glass on Glass would back Knight to stay and had ordered her not drive back was " k i n d o f f u s s i n g by over but her testimony d i dnot i n d i c a t e evidence suggests Glass morning but that that Glass they l e f t , that as that and t h e others Clark morning. alcohol w a n t e d t o go a h e a d a n d d r i v e at her deposition with much that them t o l u n c h t o spend smelling 9:00 a n d 1 0 : 0 0 a.m. f o rthe day, but C l a r k testified to between t h e y seemed t o be f i n e Huntsville eat home t h a t b u t no t h e y consumed a l c o h o l . she d i d n o t r e c a l l had gotten and K n i g h t tired. stay that night, made p a r t any between Glass that she had told Clark Huntsville (without Glass's Glass Clark testified i t was w h i c h so regarding Clark's and Glass before at her deposition okay t o go f o l l o w i n g h e r ) so l o n g 4 and C l a r k ; of the record conversation had occurred on S u n d a y . between back to a s i t was 2100829 okay with Clark's recall having raised concerns her any ability Clark alone. The of being that they could not tired to drive. not recall testified that she that, that had before w h i c h she and she to on Clark their stopped to or about any with her about that accident, too smoke stopped Knight cigarettes she stated had Clark being too not feel tired and on t o him. been that or a l l ; her tired because tired did him the Knight she telephoned drive Huntsville. to being the discussed at fatigued had and way to making v e h i c l e . Knight stated "not had drive. mentioned being s a i d was Glass recall never being the not Huntsville to that had Clark not back not stated times Clark did did drive be that anything she to not smoke i n t h e said tired would tired they never too she i n which Clark too three that Glass riding shows record testified with that Knight's that testified being and further approximately did her drive so Clark possibility about about solely Clark conversation to conversation parents. the father way Clark listening l o u d " b e c a u s e K n i g h t was also home and testified to music, sleeping, "blasting cold a i r . " Clark and Knight were involved 5 in a single-car accident 2100829 while that t r a v e l i n g north the last right is lane does blacked had asleep operating down Clark asleep out who Clark lose Clark had of sleep a hill. The notes the accident at the wheel. and t h a t However, t h e t o the scene of him that the night the she had before, vehicle she who as w e l l as t h e d e p o s i t i o n doctor who after treated Clark a u t h o r i t i e s at the scene, so she had s i m p l y by anyone Knight gone the that with authorities. Clark, had that fallen recorded Clark she had had assumed along 6 was treated When a s k e d a b o u t t h e s t a t e m e n t s telling which t h e roadway and of the paramedic occurred s h e knew t h a t questioned at the wheel, driver. told of of the emergency-room that d i d n o t , and asleep responded control reveals d r i v i n g i n the f a r and had caused t h e v e h i c l e t o l e a v e she d i d n o t r e c a l l being she f e l l trooper due t o a l a c k the aforementioned asleep, was the accident, that to The r e c o r d i n the passenger seat. I t a t the scene of the a c c i d e n t , report that asleep whether stated her transcript by being of the state caused roll remembered after n o t , know accident fallen that, 65. o u t , o r was c u t o f f b y a n o t h e r affidavit the Clark and K n i g h t ' s undisputed still thing on I n t e r s t a t e stated blacked she had scenario Knight fallen when sustained 2100829 permanent It injuries is well as s e t t l e d that a s u m m a r y j u d g m e n t de the trial court. (Ala. Civ. must review App. established 2011). the the movant v. Sem no makes accident. appellate the Ray, to genuine the the Under Rule evidence that an novo, u s i n g Neal thereby e n t i t l i n g If a r e s u l t of court same s t a n d a r d Inc., 56(c), determine issue of 68 showing, So. Ala. material the by 194, 196 3d R. review applied Civ. whether m o v a n t t o a j u d g m e n t as that i s to P., the fact movant existed, a m a t t e r of nonmovant we law. thereafter b e a r s the burden to adduce " s u b s t a n t i a l e v i d e n c e " to r e b u t movant's c o n t e n t i o n fact. 794, of Bass 797-98 such v. (Ala. 1989). of existence of Life SouthTrust weight exercise that there and the Assurance Bank of Baldwin that of Cnty., fair-minded judgment can f a c t s o u g h t t o be Co. genuine i s s u e of " [ S ] u b s t a n t i a l evidence quality impartial i s no Florida, 547 So. So. 870 , in the infer West v. 2d 2d evidence persons reasonably proved." material 538 is the the Founders 87 1 (Ala. 1989). We guest begin by in Clark's statute, Ala. addressing the issue whether v e h i c l e under Alabama's guest Code 1975, § 32-1-2, 7 provides: Knight statute. was a That 2100829 "The o w n e r , o p e r a t o r , o r p e r s o n r e s p o n s i b l e f o r t h e o p e r a t i o n o f a m o t o r v e h i c l e s h a l l n o t be l i a b l e f o r l o s s o r damage a r i s i n g f r o m i n j u r i e s t o o r d e a t h of a g u e s t w h i l e b e i n g t r a n s p o r t e d w i t h o u t payment t h e r e f o r i n or upon s a i d motor v e h i c l e , r e s u l t i n g from the o p e r a t i o n t h e r e o f , u n l e s s such i n j u r i e s or d e a t h a r e c a u s e d by t h e w i l l f u l o r w a n t o n m i s c o n d u c t of such o p e r a t o r , owner, or p e r s o n r e s p o n s i b l e f o r the o p e r a t i o n of s a i d motor v e h i c l e . " In trial Neal v. court's Ray, Inc., supra, summary judgment claim asserted negligence which the Sem by trial court an concluded in this favor occupant been a guest. cousins. driver, were d r i v e r , had her on initially a The driver during her could the d r i v e r on not and go and the We favor definition Neal. of the the the the the that were injuring o c c u p a n t and the a go dump-truck term accompany instead occupant's i n her in an o c c u p a n t and place. accident prompting driver. summary j u d g m e n t e n t e r e d In a the involved the on law, as of occupant she a vehicle, in d e l i v e r y because the requested delivery trip, a f f i r m e d the in that employed delivery; occupant action against driver asked the occupant's mother to job-related accompanied the mother The a reviewed a matter In t h a t case, driver of of t h a t , as o c c u p a n t had court that opinion, "guest," 8 as we i n the elaborated i t i s used in § driver's on the 32-1-2: 2100829 "'"'The g e n e r a l rule i s that i f the transportation of a r i d e r confers a benefit o n l y o n t h e p e r s o n t o whom t h e r i d e i s g i v e n , a n d no b e n e f i t s o t h e r t h a n s u c h a s are i n c i d e n t a l t o h o s p i t a l i t y , g o o d w i l l o r the like, on t h e p e r s o n f u r n i s h i n g t h e transportation, the rider i s a guest; but i f h i s c a r r i a g e tends t o promote t h e mutual i n t e r e s t o f both himself and t h e d r i v e r f o r t h e i r common b e n e f i t , t h u s c r e a t i n g a j o i n t b u s i n e s s r e l a t i o n s h i p between t h e m o t o r i s t and h i s rider, or where the rider accompanies t h e d r i v e r a t t h e instance o f the l a t t e r f o r t h e purpose o f having t h e r i d e r render a b e n e f i t or service t o the d r i v e r on a t r i p w h i c h i s p r i m a r i l y f o r t h e a t t a i n m e n t o f some o b j e c t i v e o f t h e d r i v e r , the r i d e r i s a passenger and n o t a g u e s t . ' " "'Quoting Hasbrook v. Wingate, N . E . 2 d 87 ( 1 9 4 9 ) . ' " Neal, 68 S o . 3 d a t 198 ( q u o t i n g 1 00 1 , 10 03 Caldwell, genuine riders (Ala. supra, issue 1 992)). i n which trip planned t o stop the proceeded o u r supreme fact When from i n Alabama the pair d r i v e r , asked court as i n their to v i s i t reached Texas, them t o c o n t i n u e 9 Cash had h e l d v. that t o whether a two of the driver; i n that a husband and a w i f e , California 603 S o . 2 d to discuss existed i n a motor v e h i c l e were g u e s t s country S t . 5 0 , 87 Cash v. C a l d w e l l , We of material c a s e t h e two r i d e r s , mother. 152 O h i o had taken mobile home the husband's t h e husband's a crossand had ailing sister, on t o A l a b a m a b e c a u s e s h e 2100829 needed them mother. riders been to help her with her and the husband's sick One e v e n i n g w h e n t h e s i s t e r was d r i v i n g home w i t h t h e from the hospital visiting involved where t h e s i s t e r t h e mother, the vehicle i n an a c c i d e n t . and t h e r i d e r s had s h e was o p e r a t i n g was Our supreme c o u r t concluded: "[Those] facts ... w o u l d p e r m i t a f a c t f i n d e r t o c o n c l u d e t h a t t h e [ r i d e r s ] w e r e p r o m o t i n g t h e i r own mutual i n t e r e s t and that of t h e i r s i s t e r and s i s t e r in-law i n caring f o r [ t h e ]a i l i n g mother. They e s t a b l i s h that [ t h e d r i v e r ] asked [ t h e r i d e r s ] t o come t o B i r m i n g h a m e a r l i e r t h a n t h e y h a d p l a n n e d t o , in order to help her with the care of the a i l i n g mother. We c a n n o t s a y , a s a m a t t e r o f l a w , t h a t t h e [ r i d e r s ] were ' g u e s t s ' w i t h i n t h e meaning of t h e Guest S t a t u t e under these c i r c u m s t a n c e s . Whether the [ r i d e r s ] were g u e s t s o r were passengers i s a q u e s t i o n f o r t h e j u r y .... Roe v . L e w i s , 416 S o . 2 d 750 ( A l a . 1 9 8 2 ) ; S e l l e r s v . S e x t o n , 5 7 6 S o . 2 d 172 (Ala. 1991)." Cash, 603 So. 2 d a t 1 0 0 3 . that, "'"'where instance render the rider of the latter a benefit Our supreme court further accompanies f o r the purpose or service the driver of having to the driver stated at the the rider on a t r i p which i s primarily f o r t h e a t t a i n m e n t o f some o b j e c t i v e of the driver, the i s a passenger Id. rider Relying that she sufficient and not a guest.'"'" on C a s h v . C a l d w e l l , had been a passenger f o r the t r i e r of fact 10 the occupant and that i n Neal argued the evidence to conclude that was the driver 2100829 had asked driver her by to keeping objective of hand, guest because and evidence social the We the was disagreed that could have at the driver's demonstrated provided of to that the the occupant social; that at behest of the was benefit incidental the the the a that accompanied rider's mother the argument the that "only [ t h e d r i v e r ] was 11 a occupant's from which, of the t r i p occupant the the benefit that was the purely the d r i v e r only there was that the was so and the fact-finder had accompanied However, the trip because we agreed undisputed [the companionship." 199. been occupant derived the j o b - r e l a t e d duty that the r a t h e r than m a t e r i a l or had purpose On had companionship, driver's insistence. that the d r i v e r ' s employer. conclusion that concluded to fulfilling while service purely the occupant perform a with the d r i v e r ' s contentions the indicating driver the her only render company d r i v e r ' s only with insistence could was driver the riding and driver at trip supported evidence the and contended, tangible. at driver the that occupant's driver the to the d r i v e r a s s e r t e d accompanied mother; i n order driver the other had ride with evidence occupant Neal, the 68 had] So.3d 2100829 In the present with Clark's trip before into such than a guest, case, parents they l e f t an Glass argues to certain and t h a t agreement the fact that vehicle. would h e r , (b) C l a r k cost o f gas w i t h with Clark, to rather on t h e o t h e r (e) gave there underlying Knight's no only business on (Ala. 1991), i n which the d r i v e r from t h e same that hometown rider's that on a t l e a s t the driver mother addressing Clark to share the o f gas on t h e r i d e of had back companionship, relationship or purpose h a v i n g a c c o m p a n i e d C l a r k o n t h e r i d e home. heavily together Clark the benefit relies established unless d i d not ask Knight Glass facts v e h i c l e b e c a u s e (a) to the beach accompanying Clark was hand, (c) K n i g h t d i d n o t s h a r e t h e c o s t (d) K n i g h t ' s Huntsville and her, the entered Clark, Knight accompanied regarding they had t h a t K n i g h t was a g u e s t i n C l a r k ' s gone agreed a passenger, Knight asserts n o t have she had arrangements rendered i n Clark's that Sellers who three the issues pay Sexton, attended t h e same and out of four drove the i n Sellers, 12 57 6 S o . and t h e r i d e r were the driver routinely would v. weekends driver $10 month, and t h a t o u r supreme c o u r t the traveled each per 172 friends college; the r i d e r h e r c a r home, 2d trip. the In discussed 2100829 the general confers given, a principle benefit is only a n d no b e n e f i t s hospitality, a guest," further goodwill Sellers, explained "that on i f the t r a n s p o r t a t i o n of a the person other than or the l i k e such t o whom rider the ride i s as a r e i n c i d e n t a l on t h e [ d r i v e r ] , to the r i d e r 57 6 S o . 2 d a t 1 7 4 ; o u r s u p r e m e court that " t h e s h a r i n g o f t h e c o s t o f o p e r a t i n g a c a r on a t r i p , when t h e t r i p i s u n d e r t a k e n f o r p l e a s u r e o r s o c i a l p u r p o s e s and t h e i n v i t a t i o n i s n o t m o t i v a t e d by, o r c o n d i t i o n e d o n , s u c h s h a r i n g , i s n o t h i n g more than t h e exchange o f s o c i a l a m e n i t i e s and does n o t t r a n s f o r m i n t o a p a s s e n g e r f o r h i r e o n e who, w i t h o u t t h e e x c h a n g e , w o u l d be a g u e s t . However, where t h e offer of t r a n s p o r t a t i o n i s conditioned on t h e passenger's c o n t r i b u t i o n toward the expenses, or where i t appears that the arrangement for t r a n s p o r t a t i o n b e a r s one o r more o f t h e i n d i c i a o f a business arrangement, especially where the arrangement i s s p e c i f i c a l l y f o r t r a n s p o r t a t i o n , or comprehends a t r i p of c o n s i d e r a b l e magnitude, or c o n t e m p l a t e s t h e r e p e t i t i o n o f more o r l e s s r e g u l a r rides, the person paying for gasoline and o i l consumed o r c o n t r i b u t i n g t o w a r d o t h e r automobile e x p e n s e s i s h e l d t o be a p a s s e n g e r f o r h i r e a n d n o t a guest. This i s t r u e even though t h e u l t i m a t e p u r p o s e o f t h e a r r a n g e m e n t may b e f o r p l e a s u r e . Wagnon v . P a t t e r s o n , 260 A l a . 2 9 7 , 70 S o . 2 d 244 (1954)." Sellers, In fact 576 S o . 2 d a t 1 7 4 . Sellers, o u r supreme e x i s t e d because, friends and o f t e n court although engaged that a question t h e d r i v e r and t h e r i d e r i n social 13 held activity together, of were there 2100829 was in place contemplated thus, the arrangement regular trips particular accruing trip, factors Sellers, 4 1 6 S o . 2 d 750 Glass agreement did; of between the of to the and, between and e x p r e s s e d the conduct into trip, of the the popular and t h e passenger 576 So. (Ala. the of t h i s as t o whether 2d at focus benefits the at the time 174-75 (citing the trip parties case, i nthis i n the r i d e r i n Sellers, was such Glass i n the present of the Roe v. "paid" that case 14 f o rClark's agreed the t r i p . that the issue or a guest i n i n Sellers i s that, like during Clark's l e a s t , r a i s e an a passenger contention the accommodation costs parties true case p a r a l l e l s t h e Sellers at the very Knight Glass's and 1982)). c a r o n t h e r i d e home, a s t h e c i r c u m s t a n c e s specifically, covering the r e l a t i o n s as: implied as that magnitude" contends t h a t t h e agreement reached between circumstances Clark's them bring parents and h e r s e l f before fact such purpose that of the d r i v e r accident." Lewis, between the transportation t o t h e d r i v e r and t o t h e passenger from t h e t r i p , other status of consider d r i v e r and t h e p a s s e n g e r , made for of considerable the f a c t - f i n d e r "could arrangements any "an t h e mother gasoline Even Clark by though would pay 2100829 for h e r own Clark's case and meals accommodations interest different in Sellers, transported not ridden with that the driver, would in Sellers. and t h e r i d e r Even they were shared i f the rider the rider cover of the present the facts to which college. Glass the facts from the driver to a destination in arriving: and on t h e t r i p , are s i g n i f i c a n t l y Crucially, had gasoline being an equal i n Sellers nonetheless would h a v e e n g a g e d i n some f o r m o f t r a n s p o r t a t i o n t o g e t t o c o l l e g e ; the driver traveling go; the together benefit. Clark and i n other invitation which because, words, but planned they each routine for derived a that Knight otherwise, Knight f o r Knight's a mutual invited d i d n o t want t o having extended t o C l a r k , K n i g h t m i g h t n o t h a v e g o n e t o Panama and C l a r k c e r t a i n l y Therefore, that from merely Here, however, i t i s u n d i s p u t e d on t h e t r i p Beach rider would the arrangement mutually whereas i n this Knight's benefitted riding case n o t have i n Sellers both the Clark's taking w i t h h e r was an City gone there at a l l . reflects an exchange rider and the driver, h e r c a r t o t h e beach and so t h a t K n i g h t would accept her mother's v a c a t i o n o f f e r , a n d K n i g h t ' s r i d i n g w i t h C l a r k on t h e return incidental trip was merely 15 to that. Like Neal, the 2100829 undisputed only was evidence benefit Clark in the present received case from being establishes that a c c o m p a n i e d by the Knight companionship. In N e a l , a f t e r d e t e r m i n i n g t h a t d e r i v e d f r o m b e i n g a c c o m p a n i e d by we then a rider at the rider form looked to i s a guest instance of the the 3d at 199 in N e a l was 2d latter or companionship] attainment of on a 603 driver's r i d e r was "whether, rider for as trip purpose driver which the So. 2d at of the 1003). of law, driver having the [solely in the is primarily driver.'"'" benefit companionship, accompanies the of sole a matter to the service some o b j e c t i v e (quoting Cash, as of the '"'where the render a benefit of issue the Neal, Our for the 68 So. discussion follows: " I n K l i e n v . H a r r i s , 268 A l a . 5 4 0 , 425, 429 (1958), our supreme c o u r t 545, 108 stated: "'As s a i d i n B l a i r v . G r e e n e , 247 A l a . 104, 22 So. 2d 834 [(1945)], quoting from another case, i f the trip is for any benefit to the driver (defendant), c o n f e r r e d or a n t i c i p a t e d , i t i s s u f f i c i e n t to t a k e the c a s e out of the g u e s t s t a t u t e . But i t i s s a i d i n S u l l i v a n v. D a v i s , 263 A l a . 685, 83 So. 2d 434, 437 [(1955)] that a mere i n c i d e n t a l b e n e f i t t o t h e d r i v e r i s n o t s u f f i c i e n t . The b e n e f i t t h u s c o n f e r r e d m u s t i n some way h a v e i n d u c e d t h e d r i v e r t o e x t e n d t h e o f f e r t o t h e r i d e r . I t m u s t be 16 So. 2100829 " m a t e r i a l and t a n g i b l e and must the transportation provided".' flow from "However, t h e p a r t i e s have n o t c i t e d any cases specifically addressing the issue whether companionship i s merely i n c i d e n t a l or i s m a t e r i a l and t a n g i b l e f o r p u r p o s e s o f d e t e r m i n i n g w h e t h e r a r i d e r i s a p a s s e n g e r o r a g u e s t . Our r e s e a r c h has n o t l o c a t e d a n A l a b a m a c a s e o n p o i n t ; h o w e v e r , we have l o c a t e d a d e c i s i o n o f t h e O h i o Supreme C o u r t that provides guidance. I n S t i l t n e r v . B a h n e r , 10 O h i o S t . 2 d 2 1 6 , 227 N . E . 2 d 192 ( 1 9 6 7 ) , t h e d r i v e r had t e l e p h o n e d t h e r i d e r a t a b a r - r e s t a u r a n t and asked t h e r i d e r t o spend t h e n i g h t a t t h e d r i v e r ' s home b e c a u s e the driver was l o n e l y . The rider r e f u s e d t h e d r i v e r ' s r e q u e s t ; however, t h e d r i v e r drove t o t h e b a r - r e s t a u r a n t and, by repeated r e q u e s t s , persuaded t h e r i d e r t o spend t h e n i g h t a t the d r i v e r ' s home. W h i l e t h e r i d e r was r i d i n g w i t h the driver en r o u t e to the driver's home, a n a c c i d e n t o c c u r r e d a n d t h e r i d e r was i n j u r e d . The rider then sued the driver, stating a claim of n e g l i g e n c e . The t r i a l c o u r t d i r e c t e d a v e r d i c t i n f a v o r o f t h e d r i v e r b a s e d on t h e O h i o G u e s t S t a t u t e , w h i c h was t h e n i n e f f e c t . The r i d e r a p p e a l e d t o t h e Ohio Court o f A p p e a l s , which r e v e r s e d t h e judgment o f t h e t r i a l c o u r t . The d r i v e r t h e n a p p e a l e d t o t h e Ohio Supreme C o u r t . R e v e r s i n g t h e j u d g m e n t o f t h e Ohio Court of Appeals, t h e Ohio Supreme Court stated: "'The f i r s t q u e s t i o n t o b e d e t e r m i n e d is whether t h e e v i d e n c e was s u c h a s t o e n a b l e r e a s o n a b l e minds t o c o n c l u d e t h a t [the r i d e r ] , at the time of the a c c i d e n t i n w h i c h s h e was i n j u r e d , was r i d i n g i n [ t h e d r i v e r ' s ] a u t o m o b i l e a s "a g u e s t ... w h i l e ... b e i n g t r a n s p o r t e d w i t h o u t p a y m e n t " f o r her t r a n s p o r t a t i o n , w i t h i n t h e meaning o f t h o s e words as u s e d i n t h e Ohio Guest S t a t u t e , S e c t i o n 4515.02, R e v i s e d Code. 17 2100829 "'Payment, within the meaning of Section 4515.02, R e v i s e d Code, must be payment o r b e n e f i t a c c e p t e d o r a g r e e d upon by t h e d r i v e r as c o n s i d e r a t i o n f o r the t r a n s p o r t a t i o n . However, such payment o r b e n e f i t n e e d n o t be money. I t i s s u f f i c i e n t that t h e g u e s t , by h i s p r e s e n c e i n the automobile, renders s e r v i c e or a s s i s t a n c e intended to p r i m a r i l y benefit the d r i v e r , or i n t e n d s t o render s e r v i c e or a s s i s t a n c e at the d e s t i n a t i o n which w i l l primarily b e n e f i t the d r i v e r , or has b e f o r e the t r i p rendered such s e r v i c e or a s s i s t a n c e , i fthe benefit or service is material, as d i s t i n g u i s h e d f r o m a mere s o c i a l b e n e f i t , or nominal or i n c i d e n t a l c o n t r i b u t i o n t o expenses. " ' I n t h e i n s t a n t c a s e , no m o n e y was agreed upon as consideration. A nonmonetary b e n e f i t of a r i d e r ' s company, s o c i e t y or companionship i s not such a material consideration a s may constitute payment and remove the r i d e r from the s t a t u s o f "a g u e s t ... b e i n g transported w i t h o u t payment t h e r e f o r . " " ' I f we w e r e t o h o l d t h a t [ t h e r i d e r ] i n t h e i n s t a n t c a s e was n o t a g u e s t " b e i n g t r a n s p o r t e d w i t h o u t payment t h e r e f o r , " t h e n any t i m e a d r i v e r - h o s t , d e s i r i n g t o a t t e n d a s o c i a l or s p o r t i n g event or even watch T.V. a t home b u t w a n t i n g companionship, should persuade a r e l u c t a n t f r i e n d to j o i n him, t h e f r i e n d , w h i l e b e i n g transported f o r s u c h p u r p o s e , w o u l d be a p a y i n g g u e s t . "'A r e l u c t a n t g u e s t may s t i l l be a guest within the meaning of the guest s t a t u t e ; and t h e f a c t , t h a t t h e h o s t - d r i v e r is much m o r e interested i n having the r i d e r ' s s o c i a l companionship than the r i d e r 18 2100829 is i n giving that social companionship, cannot support a conclusion e i t h e r that the r i d e r i s n o t a g u e s t o r t h a t he i s p a y i n g for h i s transportation. "'The Court of Appeals i n the i n s t a n t case r e l i e d upon i t s u n r e p o r t e d o p i n i o n i n H o g a n v . F i n c h , w h i c h was a f f i r m e d in 8 O h i o S t . 2 d 3 1 , 222 N . E . 2 d 633 (1 9 6 6 ) . However, there, the [driver] agreed t o transport [ t h e r i d e r ] t o h e r home, i f t h e [rider] would look after [the driver's] younger brother a t a s w i m m i n g c l u b . The [rider] there was n o t g i v i n g only the p l e a s u r e o f h e r company, b u t h a d p e r f o r m e d a material service for the driver i n return for her transportation. "'We c o n c l u d e t h a t , w h e r e a d r i v e r b y r e p e a t e d r e q u e s t s p e r s u a d e s a f r i e n d t o go i n t h e d r i v e r ' s v e h i c l e t o spend t h e n i g h t a t t h e d r i v e r ' s home b e c a u s e t h e d r i v e r i s l o n e l y , a n d w h e r e no o t h e r s e r v i c e i s t o b e p e r f o r m e d b y t h e f r i e n d , a n d no b e n e f i t o t h e r t h a n h i s company i s t o be c o n f e r r e d upon t h e d r i v e r , s u c h f r i e n d , as a m a t t e r of law, becomes a g u e s t " b e i n g transported without payment therefor" within the meaning o f t h e Ohio Guest S t a t u t e . ' "[Stiltner], 194-95. 10 O h i o S t . 2 d a t 2 1 8 - 2 0 , 227 N . E . 2 d a t "We f i n d S t i l t n e r p e r s u a s i v e a n d c o n c l u d e t h a t , because the only b e n e f i t [the occupant's] r i d i n g with [the driver] conferred o n [ t h e d r i v e r ] was c o m p a n i o n s h i p , [ t h e o c c u p a n t ] , as a m a t t e r o f l a w , was a guest i n t h e dump t r u c k driven by [ t h e driver]. Accordingly, we a f f i r m t h e ... s u m m a r y judgment i n f a v o r o f [ t h e d r i v e r ] w i t h r e s p e c t t o [the occupant's] claim of negligence i n the o p e r a t i o n o f t h e dump t r u c k . " 19 2100829 Neal, 68 S o . 3 d a t 1 9 9 - 2 0 1 In N e a l , occupant driver despite there had ridden or at nonetheless the (footnote with being a question the driver instance affirmed omitted). of at the instance the t h e summary as t o w h e t h e r t h e occupant's judgment of the mother, i n favor we of the d r i v e r on t h e g r o u n d t h a t t h e o c c u p a n t h a d been a g u e s t i n t h e vehicle. In this case, Knight accompanied record reveals to the evidence Clark at the instance had Knight not ridden undisputed that with f o r agreeing Knight Glass, t o accompany Huntsville Father's whether Neal of Glass, as t h e asked h e r , much l e s s t h a t that Knight Clark -¬ 18 y e a r s o l d - - w o u l d n o t h a v e d r i v e n b a c k t o H u n t s v i l l e motivation facts establishes no e v i d e n c e t o s u g g e s t t h a t C l a r k r i d e back t o H u n t s v i l l e w i t h being clearly that Knight of this i n support occupant was not Clark, Clark. a desire because her father a n d was she rather 20 than encouraged to drive wanted back to than that a Therefore, those on the present i n the injured paying to spend i n no w a y d e p e n d e n t stronger of the proposition Knight's the evidence i s h e r on t h e d r i v e . a r e even guest, Clark, of was t h e o n e who Clark's was accompanied case regardless to ride with morning Day w i t h her; vehicle passenger. We 2100829 therefore Glass's a f f i r m the negligence Next, we summary j u d g m e n t i n f a v o r to that whether there In her circumstances Clark was Clark too tired because, she posits, evidence, was presented her no which she knew that, the trial evidence, an the much night before injury would 24, C l a r k , was brief 214 So. relies 2d d r i v e r had 301 p r i m a r i l y on (1968), in u n a b l e t o r e c a l l what had automobile accident. the was the continued court to did less drive not err substantial conscious presented likely a that danger occur. Both this issue length. Glass's Ala. evidence inferred that p a r t i e s ' b r i e f s discuss p e r t i n e n t caselaw regarding at in "[u]nder reasonably t o d r i v e and that erred of the motor v e h i c l e asserts be court t o s u g g e s t t h a t s h e was s m a l l amount o f s l e e p from substantial operation Glass responds trial no o f t h i s c a s e , i t may knew s h e anyway." brief, the was demonstrating that Clark's wanton. to claim. look determining o f C l a r k as had accident very In that little because he had which during worked 21 v. the Mong, driver, h a p p e n e d l e a d i n g up case, the sleep Lankford record the both like to showed t h a t two nights nights as 283 an the before a piano 2100829 player and singer; experienced driver, had i t was which following his immediately had having the Glass was submitted 2d 1104 to driver a jury the had, nonetheless, impression whether submission of explained the had the where 80-mile i n which he was day 12:30 had a.m. worked and Atlanta, Gunnells v. Dethrage, the i s s u e of wantonness evidence indicating dozed off a few times continued to drive. which the addressed evidence issue of asleep sufficient the Our case the from of of evidence facie he before as was wantonness of at an driving issue sufficient to evidence the while wheel a of to jury, warrant the indicating as a to e s t a b l i s h negligence court that a for a basis on as extent the p a r t s u p r e m e c o u r t e x p l a i n e d t h a t t o make a of wantonness, but first w a n t o n n e s s c l a i m , d i s t i n g u i s h i n g i t f r o m t h e n a t u r e and driver. an drive basis significance fallen he after the had Lankford, club also cites on the sometime the ( A l a . 1979), that driver left upon So. morning of occurred embarking 366 In early to Anniston. Georgia, that t h a t he h a d b e e n l o s i n g s l e e p , a n d t h a t b e e n awake s i n c e t h e accident, undisputed opposed to n e g l i g e n c e , 2 of prima requires In Lankford, reiterating the h o l d i n g i n Whiddon v. M a l o n e , 220 A l a . 2 2 0 , 2 2 3 , 124 So. 5 1 6 , 518 ( 1 9 2 9 ) , t h e c o u r t 2 22 2100829 evidence e s t a b l i s h i n g not o n l y t h a t a d r i v e r driving, but reckless sleep he continues to manifest that of that, " ' i f experienced for a considerable the to d r i v e under a wilful and Drowsiness, Affecting 283 driver of of Falling Liability for in Lankford nearly 24-hour period little sleep before I n j u r y , 28 Motor and has fact that been held has of the d r i v e r ' s leading t h a t , and up Vehicle A.L.R.2d to further time d i s r e g a r d f o r the of in been A l a . a t 2 6 - 2 7 , 214 Asleep drive has s l e e p , the circumstances while ... So. Drechsler, Annotation, P h y s i c a l Defect, or evidence wanton to symptoms,'" period approach such asleep "'continued i t appears t h a t the Lankford, ( q u o t i n g C.T. driver premonitory symptoms o f others The that disregard explaining without also fell 21, safety 2d at 303 Illness, Operator 72 of as (1953)). l a c k of s l e e p f o r the his accident, his h i s keen awareness of the very effect opined that "'going to sleep at the wheel w h i l e o p e r a t i n g a car i s evidence of negligence. The d a n g e r s o f r u n n i n g a c a r w h i l e a s l e e p a r e s o o b v i o u s a s t o n e e d no c o m m e n t . I t i s t h e d u t y o f t h e d r i v e r t o keep awake o r c e a s e t o d r i v e . A failure s o t o do i s p r i m a f a c i e e v i d e n c e o f n e g l i g e n c e . ' " 283 A l a . A t 2 6 , 214 So. 2 d a t 3 0 2 - 0 3 . We n e e d n o t d i s c u s s t h e s u f f i c i e n c y of the evidence i n t h i s case w i t h regard to negligence because we h a v e a l r e a d y d e t e r m i n e d t h a t , a s a m a t t e r o f l a w , Knight was a g u e s t i n C l a r k ' s v e h i c l e a t t h e t i m e o f t h e a c c i d e n t a t i s s u e i n t h i s case, thus t r i g g e r i n g the bar of the guest statute to Glass's negligence claim. 23 2100829 that that lack with h i sbeing issue in was having o n h i m , when considered a n e x p e r i e n c e d d r i v e r , was e n o u g h t o p e r m i t t h e of wantonness Gunnells, was of sleep t o be s u b m i t t e d to the jury. the d r i v e r had continued conscious of the fact that to drive he h a d d o z e d Similarly, e v e n t h o u g h he o f f a few times already. Clark failed the answers to present issue support Glass's s u b s t a n t i a l evidence o f w a n t o n n e s s t o be r e s o l v e d of that position, Clark which our courts have c l a r i f i e d Gunnells i n holding question of fact Jones, that evidence that enough (Ala. by i t s e l f driver had some w r o n g f u l the injury.'" 1982 ) , to raise "'consciously a c t or omitted Glass to permit by t h e f a c t - f i n d e r . In us t o two c a s e s i n insufficient Clark i n which a question and to raise a points t o Tew the court driver the time of the accident i s s u e o f w a n t o n n e s s when t h e r e the sufficient a particular delivery until that and d i s t i n g u i s h e d L a n k f o r d as t o w a n t o n n e s s . S o . 2 d 146 arguing directs c e r t a i n evidence 417 f r o m 2:00 a.m. not assertions, had held worked a t 5:30 p.m. of fact v. was as t o t h e was no e v i d e n c e i n d i c a t i n g t h a t and i n t e n t i o n a l l y some known d u t y [committed] which produced 417 So. 2d a t 147. A d d i t i o n a l l y , C l a r k 24 cites 2100829 Roszell v. Martin, 591 case i n which t h i s in the only present 2 hours court case; of i n w h i c h she that driver's could support 511 (Ala. Civ. App. addressed facts s i m i l a r i n the was lack an 2d i n R o s z e l l , a 16-year-old sleep accident the So. 36-hour p e r i o d involved. of sleep inference to the leading A l t h o u g h we that the driver a facts d r i v e r had during that 1991), up had to an acknowledged extended had period knowingly e x p e r i e n c e d p r e m o n i t o r y symptoms by m e r e l y h a v i n g k n o w l e d g e of her such an driver had own lack of was not inference "'realiz[ed Roszell, the 591 sleep, sufficient onset So. 2d Caselaw thus c a s e must in which drivers yet in which the they On evidence pertinent tiredness, had and 513 one was a that the symptoms" Tew, 417 of 2d So. sleep.'" at a spectrum w i t h i n which the are Lankford adduced experienced the an [yet] end inference asleep or at the or Tew to sleepiness, be of cases pertinent and wheel awareness continued 25 are the 147). present Gunnells, drowsiness other allow fell and i n d i c a t i n g that "'consciousness fatigue held to e s t a b l i s h t h a t (quoting end would drivers nonetheless "premonitory t o d r i v e . On evidence had at knowingly continued of] affords fall. had we Roszell, drawn but not that that sleepiness, to d r i v e with reckless 2100829 i n d i f f e r e n c e to the consequences.'" R o s z e l l , (quoting Tew, 417 So. of the pertinent knowledge 'scintilla rule,' legitimate before In her the inference 591 road So. sleep, and at wheel," can the be 2d Glass's 146). at admitted of is that premonitory to the the there 513 old be a symptoms a jury." 3 asserts that a l l night, feeling sleepy posits that, Clark had "Clark having to that 2d a t under wantonness she and "Even of So. touchstone required knowledge 513. partying The driver: issue Glass inferred symptoms of of the brief, after at [Alabama] submitting Roszell, 2d 591 k n o w i n g l y got only prior based to on knowledge four hours falling those of on of asleep facts, i t premonitory sleep. contentions regarding wantonness claim are presented. Glass admits i n her what caused simply her the factual inconsistent not recall to was no had been " p a r t y i n g " at a l l the b r i e f on run off evidence p r e s e n t e d to support the night basis with the of the evidence appeal that Clark the Also, there assertion that Clark before road. did the accident; the P r i o r t o J u n e 11, 1987, the s c i n t i l l a r u l e , rather than the current substantial-evidence rule, applied in civil a c t i o n s . See § 1 2 - 2 1 - 1 2 , A l a . C o d e 1975. 3 26 2100829 record night establishes only before presented the that the accident. indicating that Clark Moreover, Clark day of t h e a c c i d e n t , i n the record experienced thought that Clark less drive, she it Although concern asleep had looked Glass, to Clark Glass's deposition ability that to drive about tired Clark's Although there are reports C l a r k may h a v e i n d e e d was p r e s e n t e d symptoms undisputed during of a t any that when claims Clark to drive, that the t r i p suggest about three the the accident. opposite: Clark up she to claim; that n o r does regarding Clark's departed. suggest that no e v i d e n c e t o suggest t h a t she had e x p e r i e n c e d facts that that and Knight i n the record before woke too t i r e d f a l l e n asleep while d r i v i n g , sleepiness t h a t she they being only Clark does n o t i n d i c a t e any c o n c e r n before time "admitted testimony to substantiate testimony evidence she had i n her brief, she e x p r e s s e d to Clark sleepy no suggesting was c o n c e r n e d t h a t C l a r k was t o o t i r e d indicate was a t t h e w h e e l . " The remotely no e v i d e n c e was p r e s e n t e d fact, that t h a t day i s Glass's and Knight morning. expressed in sleepiness even there had f e l t much feeling sleepy p r i o r to f a l l i n g evidence h a d smoked c i g a r e t t e s t h e premonitory In fact, had the stopped times and had spoken t o her f a t h e r 27 2100829 while d r i v i n g ; during never mentioned a n y way The stops to her father m i g h t be t i r e d in those or that t o wantonness basis presented because by Glass f o r a finding that knowledge. Roszell, the we summary wanton she f e l t or to drive was i s that not e s t a b l i s h a Clark on knowingly court of Clark fact sufficient experienced s h e was s l e e p y the authority the t r i a l judgment i n f a v o r substantial to drive with reckless Therefore, conclude not disregard o f Tew correctly as t o G l a s s ' s or and entered claim of conduct. In affirm Clark a genuine issue of m a t e r i a l i t does drowsy and t h a t she c o n t i n u e d that that that her a b i l i t y p r e m o n i t o r y symptoms i n d i c a t i n g t o h e r t h a t of calls, impaired. evidence factual or to Knight she f e l t evidence s u f f i c i e n t to create as and telephone light of the foregoing t h e judgment o f t h e t r i a l facts and authorities, we court. AFFIRMED. Thompson, P.J., concurs. Bryan, J . , concurs Moore, J . , concurs writing, which Thomas, i n the r e s u l t , i n part J., joins. 28 and without dissents writing. i n part, with 2100829 MOORE, J u d g e , I concurring concur affirms the with summary claim on the Guest Statute, affirmance however, The that to daughter, of claim part. extent to as judgment the that negligence by Alabama's regard to the wantonness Ezekiel, the state to been w i t h o u t s l e e p Adam indicated that became t i r e d 27, 214 Annotation, Asleep Glass, acting trooper Jacquelynn Knight, of Injury, [i.e., So. indicates Kristina that 301, Motor 303 Vehicle A.L.R.2d of her Clark 21, Lankford (1968) Operator 72 most "'ha[d] ha[d] v. (quoting Illness, the minor p e r i o d o f t i m e and P h y s i c a l Defect, 28 behalf sleepiness].'" 2d who from l a c k of sleep on for a considerable e x p e r i e n c e d symptoms the claim, T h a t s t a t e m e n t , when v i e w e d i n a l i g h t Leigh i t dissent. accident, Deborah for regard in With Laura Liability the Code 1975. night." Falling to the favorable or with that " s t a t e d t h a t she Drechsler, opinion § 32-1-2, A l a . affidavit 24, dissenting barred I respectfully Ala. and is of C l a r k had 283 main judgment basis responded to the previous the in part Mong, C.T. Drowsiness, as Affecting (1953)). Clark's " ' c o n t i n u [ i n g ] to d r i v e under such circumstances'" constitutes s u b s t a n t i a l evidence from which a j u r y c o u l d i n f e r wantonness. 29 2100829 Id. Although that Clark had conflicting summary there was a l s o n o t been substantial judgment. HealthSTRATEGIES, s u b s t a n t i a l evidence i n d i c a t i n g aware of evidence See, e.g., I n c . , 886 So. J . , concurring "conflicting s u b s t a n t i a l evidence fact Accordingly, ... I would which precludes Mobile (Johnstone, material h e r oncoming in 2d the reverse the the entry Airport 773, 786 result) creates precludes sleep, trial of Auth. a v. ( A l a . 2004) (stating a genuine summary the that issue of judgment"). court's summary j u d g m e n t on t h e w a n t o n n e s s c l a i m a n d w o u l d remand t h e c a s e f o r a jury t r i a l Thomas, on t h a t issue. J . , concurs. 30

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