2006 Nebraska Revised Statutes - § 25-21,237 — Motor vehicle owner or operator; liability to guest passenger; limitation.

Section 25-21,237
Motor vehicle owner or operator; liability to guest passenger; limitation.

The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person related to such owner or operator as spouse or within the second degree of consanguinity or affinity who is riding in such motor vehicle as a guest or by invitation and not for hire, unless such damage is caused by (1) the driver of such motor vehicle being under the influence of intoxicating liquor or (2) the gross negligence of the owner or operator in the operation of such motor vehicle.

For the purpose of this section, the term guest is hereby defined as being a person who accepts a ride in any motor vehicle without giving compensation therefor but shall not be construed to apply to or include any such passenger in a motor vehicle being demonstrated to such passenger as a prospective purchaser. Relationship by consanguinity or affinity within the second degree shall include parents, grandparents, children, grandchildren, and brothers and sisters. Should the marriage of the driver or owner be terminated by death or dissolution, the affinal relationship with the blood kindred of his or her spouse shall be deemed to continue.


Source:
    Laws 1931, c. 105, § 1, p. 278

    C.S.Supp.,1941, § 39-1129

    R.S.1943, § 39-740

    Laws 1981, LB 54, § 1

    R.S.1943, (1988), § 39-6,191

    Laws 1993, LB 370, § 5

Annotations:
    Summary judgment was properly granted as deceased was clearly a guest and undisputed facts did not satisfy requirement that gross negligence of host be proved. Luther v. Pawling, 195 Neb. 679, 240 N.W.2d 42 (1976).

    The guest statute relieves both the owner and the operator from liability for damages to a guest unless caused by the driver being under the influence of intoxicating liquor or because of the gross negligence of the owner or operator. Gertsch v. Gerber, 193 Neb. 181, 226 N.W.2d 132 (1975).

    The term compensation is not limited to payment for transportation in cash or its equivalent. Vandenberg v. Langan, 192 Neb. 779, 224 N.W.2d 366 (1974); Van Auker v. Steckley's Hybrid Seed Corn Co., 143 Neb. 24, 8 N.W.2d 451 (1943).

    Upon the facts in this case, the trial court's determination that plaintiff was a guest and that there was no gross negligence was correct; and the issue of constitutionality of the guest statute was not before the court because not raised in pleadings and could not have been because plaintiff having sought the benefit of it could not question its constitutionality. Zoimen v. Landsman, 192 Neb. 561, 223 N.W.2d 49 (1974).

    This section, formerly 39-740, is applicable to operation of a motor vehicle upon private property as well as upon public highways; and one just entering the vehicle having accepted a ride therein without giving compensation is a guest. Hale v. Taylor, 192 Neb. 298, 220 N.W.2d 378 (1974).

    Term compensation not limited to payment for transportation in cash or equivalent or required to pass exclusively from passenger to driver. Johnson v. Riecken, 185 Neb. 78, 173 N.W.2d 511 (1970).

    Instructions of trial court were sufficient to raise the issue of liability under the guest statute. Younker v. Peter Kiewit Sons Co., 180 Neb. 835, 146 N.W.2d 202 (1966).

    A thirteen-year-old child riding as a gratuitous passenger in a motor vehicle is a guest. Kolar v. Divis, 179 Neb. 756, 140 N.W.2d 658 (1966).

    A guest is a person who accepts a ride in a motor vehicle without giving compensation therefor. Davis v. Landis Outboard Motor Co., 179 Neb. 391, 138 N.W.2d 474 (1965); Carter v. Chicago, B. & Q. R. R. Co., 175 Neb. 188, 121 N.W.2d 44 (1963); Sunderman v. Wardlaw, 170 Neb. 70, 101 N.W.2d 848 (1960); Eilts v. Bendt, 162 Neb. 538, 76 N.W.2d 623 (1956); Born v. Estate of Matzner, 159 Neb. 169, 65 N.W.2d 593 (1954).

    Minor child was not a guest where owner of motor vehicle was paid compensation for taking care of child. Snelling v. Pieper, 178 Neb. 818, 135 N.W.2d 707 (1965).

    Instruction given on definition of a guest passenger was not erroneous. O'Brien v. Anderson, 177 Neb. 635, 130 N.W.2d 560 (1964).

    To remove an occupant riding in a motor vehicle from the provisions of the guest statute, the benefit to the owner or operator must be tangible and substantial. Carter v. Chicago, B. & Q. R.R. Co., 170 Neb. 438, 103 N.W.2d 152 (1960).

    To recover, plaintiff must establish either gross negligence or that he was a passenger for hire when negligence is less than gross. Lincoln v. Knudsen, 163 Neb. 390, 79 N.W.2d 716 (1956).

    Passengers for hire are exempted from provisions of this section. Hansen v. Lawrence, 149 Neb. 26, 30 N.W.2d 63 (1947).

    Where filling station operator invited his employee to attend sales meeting and then took him to night clubs and upon leaving night clubs employee went to sleep and was injured in collision, whether employee was a guest at time of accident was question for jury. Svitak v. Sun Indemnity Co., 136 Neb. 303, 285 N.W. 604 (1939).

    A guest is any passenger or person riding in a motor vehicle as a guest, or by invitation, and not for hire. McWilliams v. Griffin, 132 Neb. 753, 273 N.W. 209 (1937).

    Driver of automobile owes passengers duty of exercising ordinary care in the operation of the automobile whether invited guests or engaged in joint enterprise. Garrotto v. Butera, 123 Neb. 682, 243 N.W. 879 (1932).

    Where transportation was for mutual benefit of all concerned, decedent was not a guest within purview of this section. Carman v. Harrison, 362 F.2d 694 (8th Cir. 1966).

    Status of guest did not exist where compensation was paid to owner of automobile by federal government for transportation of owner and passenger in carrying on governmental program. Bailey v. Pennington, 274 F.2d 328 (8th Cir. 1960).

    Guest statute was not applicable to transportation of veteran in ambulance to hospital. Fulmer v. United States, 133 F.Supp. 775 (D. Neb. 1955).2. Gross negligence defined

    Gross negligence within the meaning of the guest statute is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty; it may be established if there is a persistence in negligence without regard for the consequences. Youngs v. Potter, 237 Neb. 583, 467 N.W.2d 49 (1991).

    Under the guest statute the defendant is not liable to the plaintiff unless the accident was caused by the defendant's being under the influence of intoxicating liquor or by his gross negligence. Gross negligence is great or excessive negligence, or negligence in a very high degree, indicating absence of even slight care in the performance of a duty. Trial court had no evidence before it, on motion for summary judgment, which would support a finding of gross negligence by the defendant, under the guest statute. Carlson v. Waddle, 223 Neb. 671, 392 N.W.2d 777 (1986).

    Significant in the determination of gross negligence is the presence of imminence of danger that is visible to, known by, or made known to a driver together with the persistence in negligence, heedless of the consequences. Jones v. Foutch, 203 Neb. 246, 278 N.W.2d 572 (1979).

    Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule. Jones v. Foutch, 203 Neb. 246, 278 N.W.2d 572 (1979); Thorpe v. Zwonechek, 177 Neb. 504, 129 N.W.2d 483 (1964).

    Gross negligence within the meaning of this section means gross and excessive negligence or negligence in a very high degree, the absence of slight care in the performance of duty, an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the safety of others. Wagner v. Mines, 203 Neb. 143, 277 N.W.2d 672 (1979).

    The owner of a motor vehicle who entrusts it to an underage minor is liable to an injured guest only if the operator of the motor vehicle is guilty of gross negligence; entrustment in itself is not gross negligence. Wagner v. Mines, 203 Neb. 143, 277 N.W.2d 672 (1979).

    Failure to stop before entering an intersection, as directed by a traffic signal or stop sign, is not when standing alone sufficient to constitute gross negligence. Liston v. Bradshaw, 202 Neb. 272, 275 N.W.2d 59 (1979).

    The meaning of gross negligence under the comparative negligence rule is contrasted with its meaning under the guest passenger statute. Johnson v. Roueche, 188 Neb. 716, 199 N.W.2d 1 (1972); Brackman v. Brackman, 169 Neb. 650, 100 N.W.2d 774 (1960); Sheehy v. Abboud, 126 Neb. 554, 253 N.W. 683 (1934).

    The definition of gross negligence in Nebraska Jury Instruction No. 7.51 has been approved by the Supreme Court of Nebraska. Demont v. Mattson, 188 Neb. 277, 196 N.W.2d 190 (1972).

    Gross negligence is negligence in a very high degree; the absence of slight care in performance of a duty; or entire failure to exercise care. Reeder v. Rinne, 183 Neb. 734, 164 N.W.2d 203 (1969).

    Gross negligence within meaning of this section defined. Brugh v. Peterson, 183 Neb. 190, 159 N.W.2d 321 (1968).

    Guest passenger failed to prove gross negligence of driver of motor vehicle. Warmbier v. Zeurlein, 182 Neb. 425, 155 N.W.2d 364 (1967).

    There is no fixed rule for the ascertainment of what is gross negligence. Callen v. Knopp, 180 Neb. 421, 143 N.W.2d 266 (1966); Cole v. Wentworth, 175 Neb. 325, 121 N.W.2d 567 (1963); Pester v. Nelson, 168 Neb. 243, 95 N.W.2d 491 (1959).

    A guest passenger can recover only if negligence of operator of motor vehicle is gross. Boismier v. Maragues, 176 Neb. 547, 126 N.W.2d 844 (1964); Schlines v. Ekberg, 172 Neb. 510, 110 N.W.2d 49 (1961); Bishop v. Schofield, 156 Neb. 830, 58 N.W.2d 207 (1953).

    Gross negligence means negligence in a very high degree, or the absence of even slight care in the performance of a duty. Robinson v. Hammes, 173 Neb. 692, 114 N.W.2d 730 (1962); Sautter v. Poss, 155 Neb. 62, 50 N.W.2d 547 (1951); Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82 (1943); Fairman v. Cook, 142 Neb. 893, 8 N.W.2d 315 (1943); Rogers v. Brown, 129 Neb. 9, 260 N.W. 794 (1935); Morris v. Erskine, 124 Neb. 754, 248 N.W. 96 (1933).

    Several acts of negligence charged are to be considered as a whole in determining issue of gross negligence. Smith v. Damato, 172 Neb. 811, 112 N.W.2d 21 (1961).

    Several acts of ordinary negligence do not necessarily constitute gross negligence. Cunning v. Knott, 157 Neb. 170, 59 N.W.2d 180 (1953).

    Guest must establish that gross negligence proximately caused accident. Paxton v. Nichols, 157 Neb. 152, 59 N.W.2d 184 (1953).

    What amounts to gross negligence depends upon facts and circumstances of each case. Montgomery v. Ross, 156 Neb. 875, 58 N.W.2d 340 (1953); Covey v. Anderson, 130 Neb. 702, 266 N.W. 595 (1936).

    Gross negligence means negligence in a very high degree. Pavlicek v. Cacak, 155 Neb. 454, 52 N.W.2d 310 (1952); Gilbert v. Bryant, 125 Neb. 731, 251 N.W. 823 (1933).

    Gross negligence indicates absence of even slight care in the performance of a duty. Johnson v. Jastram, 155 Neb. 376, 52 N.W.2d 245 (1952).

    Gross negligence is great or excessive negligence, or negligence in a very high degree, and indicates absence of even slight care in performance of duty. Komma v. Kreifels, 144 Neb. 745, 14 N.W.2d 591 (1944).

    Gross negligence, under guest statute, is the entire failure to exercise care, or the exercise of so slight a degree of care. Mierendorf v. Saalfeld, 138 Neb. 876, 295 N.W. 901 (1941).

    Gross negligence is negligence of a very high degree that includes but does not necessarily extend to wanton, willful or intentional disregard of the guest's safety. Gosnell v. Montgomery, 133 Neb. 871, 277 N.W. 429 (1938).

    Generally, an automobile host is liable for injuries to guest caused by a defective automobile, where defect is known to him, but not known or discoverable by the guest. In re Estate of O'Bryne, 133 Neb. 750, 277 N.W. 74 (1938).

    Gross negligence within meaning of the statute means negligence in a very high degree, or the absence of even slight care in performance of a duty, and the existence of gross negligence must be determined from the facts and circumstances of each case. Lemon v. Hoffmark, 132 Neb. 421, 272 N.W. 214 (1937); Heesacker v. Bosted, 131 Neb. 42, 267 N.W. 177 (1936).

    Gross negligence signifies a degree of negligence greater than want of ordinary care or slight negligence, but not necessarily extending to wanton, willful or intentional disregard for the guest's safety. Sterns v. Hellerich, 130 Neb. 251, 264 N.W. 677 (1936).3. Intoxication

    Driving of motor vehicle by a person under the influence of intoxicating liquor constitutes gross negligence. O'Neill v. Henke, 167 Neb. 631, 94 N.W.2d 322 (1959).

    Meaning of term under the influence of intoxicating liquor is defined. O'Neill v. Henke, 167 Neb. 631, 94 N.W.2d 322 (1959).

    An unintoxicated owner or operator of a motor vehicle is not liable to guest riding therein in the absence of gross negligence, which term means a degree of negligence greater than want of ordinary care. James v. Krebeck, 142 Neb. 757, 7 N.W.2d 637 (1943).

    Under this section, owner is not liable for injury to guest except where driver is under influence of intoxicating liquor or is guilty of gross negligence. Brown v. Mulready, 140 Neb. 500, 300 N.W. 421 (1941).

    Nebraska guest statute, unlike that of Kansas, specifies as a distinct ground of liability that the driver of automobile is intoxicated. McCown v. Schram, 137 Neb. 498, 289 N.W. 890 (1940).4. Speed

    Excessive speed of a vehicle does not necessarily establish gross negligence, although it is a factor to be considered. Jones v. Foutch, 203 Neb. 246, 278 N.W.2d 572 (1979).

    Driving at excessive rate of speed in combination with other acts of negligence may be sufficient to make a case for the jury on question of gross negligence. Jennings v. Lowrey, 168 Neb. 831, 97 N.W.2d 345 (1959).

    Operation of a motor vehicle at a rate of speed prohibited by law is not in itself gross negligence. Calvert v. Miller, 163 Neb. 501, 80 N.W.2d 123 (1957).

    Where host's automobile was being driven on a protected highway on the proper side of the road at a lawful rate of speed, and no other acts of negligence were shown, trial court should direct verdict for host. Gohinghorst v. Ruess, 146 Neb. 470, 20 N.W.2d 381 (1945).

    A rate of speed which would amount to gross negligence in one case might, under different surroundings and circumstances, fall far short thereof. Gummere v. Mudd, 139 Neb. 370, 297 N.W. 622 (1941).

    Rate of speed which would be gross negligence under certain circumstances may fall short thereof under other conditions. Thurston v. Carrigan, 127 Neb. 625, 256 N.W. 39 (1934).5. Failure to maintain lookout

    A momentary distraction cannot be defined as gross negligence under the automobile guest statute where there is no evidence that the driver knew of an imminent danger and yet persisted in a negligent manner. Youngs v. Potter, 237 Neb. 583, 467 N.W.2d 49 (1991).

    Momentary inattention to driving does not ordinarily constitute gross negligence. Holliday v. Patchen, 164 Neb. 53, 81 N.W.2d 593 (1957).

    Gross negligence cannot be predicated upon momentary distraction of driver. Ottersberg v. Holz, 159 Neb. 239, 66 N.W.2d 571 (1954).

    The continued failure of driver of automobile to maintain proper lookout, when driving at high speed on country road at night, is sufficient to take case to jury on question of gross negligence. Larson v. Storm, 137 Neb. 420, 289 N.W. 792 (1940).

    Where only negligence shown was driver's failure to see unlighted truck ahead in time to avoid a collision, it is not sufficient to constitute gross negligence. Holberg v. McDonald, 137 Neb. 405, 289 N.W. 542 (1940).

    Where speed is not in itself excessive, turning of head by driver for an instant is not sufficient to constitute gross negligence. Black v. Neill, 134 Neb. 764, 279 N.W. 471 (1938).6. Failure to control

    Motorist who is forced to swing off of icy pavement to avoid collision and who in returning to pavement catches rear wheel on pavement causing his car to skid in front of approaching automobile is not guilty of gross negligence rendering him liable to a guest for injuries. Amerine v. O'Neal, 136 Neb. 642, 287 N.W. 56 (1939).

    Failure to lift foot off the gas and put it on the brake when attempting to turn into a narrow street traveling about twenty miles per hour is not gross negligence. Munsell v. Gardner, 136 Neb. 214, 285 N.W. 555 (1939).

    Failure to negotiate a turn onto a bridge constructed on an angle to right of general line of highway did not, under the circumstances, constitute gross negligence. Johnk v. Scanlon, 136 Neb. 187, 285 N.W. 488 (1939).

    Where person driving automobile is suddenly confronted with an emergency requiring instant decision, he is not necessarily guilty of negligence in pursuing a course which deliberate judgment might prove to be wrong. Oakes v. Gregory, 133 Neb. 407, 275 N.W. 607 (1937).

    Where guest sued for injuries resulting when automobile skidded on icy pavement and collided with truck, evidence justified trial court in directing verdict for defendants. Woodworth v. Johnston, 131 Neb. 113, 267 N.W. 243 (1936).

    Driver confronted with emergency is not necessarily guilty of negligence in pursuing a course which mature reflection might prove to be wrong. Belik v. Warsocki, 126 Neb. 560, 253 N.W. 689 (1934).

    If accident was caused by loss of control occasioned by punctured rear tire, driver is not guilty of gross negligence under this section. State Farm Mut. Auto. Ins. Co. v. Bonacci, 111 F.2d 412 (8th Cir. 1940).7. Admissibility of evidence

    Driving a motor vehicle down a steep hill, in the night-time, in a cloud of dust which lights fail to penetrate, is evidence of gross negligence. Kovar v. Beckius, 133 Neb. 487, 275 N.W. 670 (1937).

    In action for damages for personal injuries sustained by guest in automobile, it was error to exclude from evidence testimony as to statements of defendant admitting negligence. McDaniel v. Farlow, 132 Neb. 273, 271 N.W. 905 (1937).

    Statements of driver made a few minutes after injury were part of res gestae. Roh v. Opocensky, 125 Neb. 551, 251 N.W. 102 (1933).8. Province of court and jury

    In an action based on gross negligence under this section courts cannot hesitate in directing a verdict where the conviction is clear that negligence in a very high degree is not present. Liston v. Bradshaw, 202 Neb. 272, 275 N.W.2d 59 (1979).

    Where there is adequate proof of negligence in an action under the guest statute, a verdict should be directed for defendant only when the evidence fails to approach the level of negligence of a high degree. Thompson v. Edler, 138 Neb. 179, 292 N.W. 236 (1940).

    Where the nature of the case and the clearly established relations of the parties involved necessitate, strict tests should be applied to evidence. Bonacci v. Cerra, 134 Neb. 588, 279 N.W. 314 (1938).

    In passing on question of gross negligence, it is the province of reviewing court to take a series of facts and circumstances conceded or proved, and to declare the rights of the parties arising out of them. Clark v. Weatherly, 131 Neb. 816, 270 N.W. 316 (1936).

    Question of gross negligence is for the jury. Swengil v. Martin, 125 Neb. 745, 252 N.W. 207 (1933).

    Evidence held sufficient to create a differing of reasonable minds as to whether or not actions of driver constituted gross negligence; issue should therefore have been submitted to jury under sections 39-6,191 and 39-6,191.01. Arthur v. Arthur, 684 F.2d 558 (8th Cir. 1982).

    Great care should be exercised by reviewing court in weighing evidence owing to fact that defendants are often willing to confess negligence. Ohio Casualty Co. of Hamilton, Ohio v. Swan, 89 F.2d 719 (8th Cir. 1937).9. Constitutionality

    Guest statute held constitutional. Cushing v. Bernhardt, 210 Neb. 272, 313 N.W.2d 688 (1981).

    This section is constitutional; court's holding to that effect in Wagner v. Mines, 203 Neb. 143, 277 N.W.2d 672 (1979), followed. Kreifels v. Wurtele, 206 Neb. 491, 293 N.W.2d 407 (1980).

    The guest statute does not violate the Constitution of Nebraska. Circo v. Sisson, 193 Neb. 704, 229 N.W.2d 50 (1975).

    This statute does not violate the Equal Protection Clause of the Fourteenth Amendment nor any provision of the Constitution of Nebraska. Lubash v. Langemeier, 193 Neb. 371, 227 N.W.2d 405 (1975).

    The guest statute is not unconstitutional. Botsch v. Reisdorff and Marohn, 193 Neb. 165, 226 N.W.2d 121 (1975).

    Motor vehicle guest statute is not violative of equal protection clause. Stoehr v. Whipple, 405 F.Supp. 1249 (D. Neb. 1976).10. Miscellaneous

    For purposes of this statute, the affinial relationship with the blood kindred of one's ex-spouse does not continue if dissolution was granted before the motor vehicle accident occurred. Clinchard v. White, 223 Neb. 139, 388 N.W.2d 477 (1986).

    A motorboat is not a motor vehicle within the meaning of the automobile guest statute. Reed v. Reed, 182 Neb. 136, 153 N.W.2d 356 (1967).

    Two distinct grounds for recovery under this section are provided. Kaufman v. Tripple, 180 Neb. 593, 144 N.W.2d 201 (1966).

    Addition to verdict for plaintiff that defendant was guilty of slight negligence made verdict contradictory and authorized granting of new trial. Olson v. Shellington, 162 Neb. 325, 75 N.W.2d 709 (1956).

    Enforcement of motor vehicle laws of a sister state on a cause of action arising therein is not contrary to public policy of this state. Whitney v. Penrod, 149 Neb. 636, 32 N.W.2d 131 (1948).

    Prior to statute, owner of private motor vehicle owed guest duty of exercising ordinary care in its operation and was liable in damages if his failure to exercise care was proximate cause of guest's injury. Moran v. Moran, 124 Neb. 379, 246 N.W. 711 (1933).

    Contention that Nebraska guest statute denied equal protection would not be considered for first time on appeal. Gardner v. Meyers, 491 F.2d 1184 (8th Cir. 1974).

    Federal court applied lex loci delecti conflicts rule on guest statute tort claim where accident occurred in foreign state. United States v. Neal, 443 F.Supp. 1307 (D. Neb. 1978).



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