Klaber By and Through Klaber v. Elliott
| Decision Date | 16 September 1988 |
| Citation | 533 So.2d 576 |
| Parties | Sherry Rena KLABER, a minor, who sues By and Through her mother and next friend, Nell KLABER v. Renee ELLIOTT. 86-1639. |
| Court | Alabama Supreme Court |
William H. Atkinson of Fite, Davis, Atkinson and Bentley, and Bill Fite, Hamilton, for appellant.
Jeffery A. Mobley of James & Lowe, Haleyville, for appellee.
Plaintiff Sherry Klaber was injured while a passenger in the automobile driven by defendant Renee Elliott. Klaber sued Elliott for negligence and wantonness in the operation of her car, and the trial court granted summary judgment in favor of Elliott. Klaber appeals from that judgment.
On Sunday afternoon, May 27, 1984, Elliott, Klaber, and three other girls, Stacey Johnson, Marsha Williams, and Tracy Defoor, left Elliott's house in Elliott's car and headed to the house of some friends, the Holdbrooks, just outside Haleyville on Bear Creek Lake. After staying about 15 minutes, the girls left around 4 p.m., while it was still daylight, in order for one of them to go to church at 6 p.m. that night. Klaber was in the front passenger's seat, Elliott was driving, and the other three girls were seated in back. It had been raining earlier that day and was still drizzling when the girls headed back to Haleyville on Pepper's Mill Road. This road curves to the right just before it intersects with county road 71, or Dime Road. As Elliott approached the curve on Pepper's Mill Road, with which she says she was unfamiliar, she applied her brakes, at which time the car slid off the right side of the road into an adjacent ditch and continued up out of the ditch onto Dime Road, where it finally stopped in the far lane. As a result of the accident, Klaber received compression fractures to a vertebra, which necessitated a one and one-half week stay in a hospital.
The trial court found that wanton conduct, not negligence, was the standard of liability, and granted summary judgment. The two issues on appeal are whether Klaber was a guest or a passenger within the terms of Alabama's guest statute, Ala.Code 1975, § 32-1-2, 1 and whether the trial court erred in not submitting the issue of wantonness to the jury.
Klaber, who was not licensed to drive at the time, was a good friend of Elliott's, who was licensed, and rode with her frequently, pitching in for gasoline on occasion. Regarding that practice, Klaber testified in her deposition:
Klaber contends that the fact that she occasionally helped Elliott with gas made her a paying "passenger" and not a "guest" and took her from the purview of § 32-1-2, which covers only those "being transported without payment therefor."
The cases construing § 32-1-2 have distinguished a "guest" from a paying "passenger" based upon the context within which the transportation was rendered. More specifically, they turn upon whether the ride was purely social or had a business-related purpose, thus conferring some benefit, whether immediate or anticipated, upon the driver. See Blair v. Greene, 247 Ala. 104, 22 So.2d 834 (1945); Sullivan v. Davis, 263 Ala. 685, 83 So.2d 434 (1955); Klein v. Harris, 268 Ala. 540, 108 So.2d 425 (1958); Wagnon v. Patterson, 260 Ala. 297, 70 So.2d 244 (1954).
In explaining this dichotomy, we have quoted with approval from 60 C.J.S. Motor Vehicles, § 399(5), p. 1015 (1969), that "the sharing of the cost of operating the car on a trip, when the trip is undertaken for pleasure or social purposes and the invitation is not motivated by, or conditioned on, such contribution, is nothing more than the exchange of social amenities and does not transform into a paying passenger one who without the exchange would be a guest." Wagnon, 260 Ala. at 304, 70 So.2d at 250. Regarding the context of each case, "[i]t is sometimes necessary to enter into a detailed examination of the present and former relations between driver and passenger; implied and expressed arrangements made between them as to the conduct of the particular trip; the purpose of the mission; the benefits accruing to the driver and passenger from the expedition; and any other factors that bring into proper focus the true status of the parties at the time of the accident which give rise to the legal action." Sullivan, 263 Ala. at 688, 83 So.2d at 436.
Examining the context of the ride in this case, we find it apparent that the venture was purely social. The girls had been swimming at Elliott's house earlier that afternoon, and they drove to the Holdbrooks' house, where more of their friends were swimming. Neither Klaber nor Elliott disputes their intended destination that day or the purpose behind it.
Harrison v. McCleary, 281 Ala. 87, 91, 199 So.2d 165, 168 (1967) (citation omitted). See also Roe v. Lewis, 416 So.2d 750 (Ala.1982). We consider Klaber's occasional helping with gas a mere social courtesy on behalf of a friend. Whatever benefit was conferred upon Elliott was "incidental to hospitality, good will or the like," 199 So.2d at 167, and was insufficient to remove Klaber from § 32-1-2.
Therefore, we hold as a matter of law, based upon the factual context of this case, that Klaber was indeed a guest and not a paying passenger in Elliott's car.
This determination restricts Klaber's cause of action to one for wanton misconduct and not negligence. English v. Jacobs, 263 Ala. 376, 82 So.2d 542 (1955); Costarides v. Miller, 374 So.2d 1335 (Ala.1979); Maffett v. Roberts, 388 So.2d 972 (Ala.1980).
" 'Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced injury.' "
Whitmore v. Burge, 512 So.2d 1320, 1327 (Ala.1987).
In reviewing the trial court's order granting summary judgment on this issue, we must look to the circumstances on the day of the accident, including weather conditions, the type of road, the speed of the car, etc., to determine whether there exists a genuine issue of material fact as to wanton misconduct.
Both Klaber and Elliott testified at their depositions that it had rained hard earlier that day and was still drizzling when they left their friend's house. When asked about Elliott's speed, Klaber responded, "I do remember thinking it was going too fast to make the curve right as it...
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