Le v. Lautrup

716 N.W.2d 713

271 Neb. 931

Huy LE and Melissa Le, individually and as parents of Thanh Le, appellants, v. Thomas LAUTRUP, appellee.

No. S-04-743.

Supreme Court of Nebraska.

July 7, 2006.

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Daniel P. Chesire, of Lamson, Dugan & Murray, L.L.P., Omaha, and Raymond E. Walden, of Walden Law Office, for appellants.

Michael G. Mullin and Michaela A. Messenger, of McGrath, North, Mullin & Kratz, P.C., L.L.O., Omaha, for appellee.

Maren Lynn Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, Scottsbluff, for amicus curiae Nebraska Association of Trial Attorneys.

Robert T. Grimit and Molly M. Egley Brummond, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for amicus curiae Nebraska Insurance Information Service.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Thanh Le was injured in a one-vehicle accident. The vehicle was driven by Thanh's grandfather, Thomas Lautrup. Thanh's parents, Huy Le and Melissa Le, filed a negligence action against Lautrup in the district court for Douglas County. In their petition, the Les challenged the constitutionality of Nebraska's guest statute, Neb.Rev.Stat. § 25-21,237 (Reissue 1995), which limited Lautrup's liability to damage caused by his gross negligence or intoxication. Intoxication was not an issue in this case.

The district court rejected the Les' challenge to the constitutionality of § 25-21,237 and, in response to Lautrup's demurrer, dismissed the Les' theories of recovery based on simple negligence. The action went to trial on the sole remaining theory of gross negligence, and the jury found in Lautrup's favor. The Les appeal. We conclude that the district court did not err in rejecting the Les' challenge to the constitutionality of § 25-21,237, and we affirm.

STATEMENT OF FACTS

On June 20, 2001, Thanh Le, then 15 years old, was a passenger in the back seat of a vehicle driven by Lautrup. Lautrup and Thanh were returning to Omaha, Nebraska, from a family fishing and camping trip at Calamus Lake near Burwell, Nebraska. While driving on Highway 91 in Platte County, Nebraska, Lautrup's vehicle drifted off the right side of the highway and the right wheels of the vehicle left the paved surface. Lautrup attempted to correct his course, but the right wheels hit the edge of the pavement, causing Lautrup to lose control of the vehicle and causing the vehicle to roll. Thanh was thrown from the vehicle and was injured. Police investigators determined that Lautrup had not been drinking, that he had not fallen asleep, and that he was not speeding prior to the accident, but that a momentary inattention on Lautrup's part contributed to the accident. At the time of the accident, neither Thanh nor his parents lived with Lautrup nor were they financially supported by Lautrup.

The Les filed an action against Lautrup on February 21, 2002. In an amended petition, the Les set forth three theories of recovery: (1) negligence in the operation of the vehicle, (2) gross negligence within the meaning of § 25-21,237, and (3) negligence in failing to ensure that Thanh was properly secured by a seatbelt. The Les alleged in their petition that Lautrup's liability could be predicated on negligence without the need to prove gross negligence under § 25-21,237 because § 25-21,237 was unconstitutional to the extent it pertained to the grandparent-grandchild relationship.

Section 25-21,237, as amended in 1981, controls this case. Section 25-21,237 provides:

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.

Lautrup demurred to the two theories of recovery based on simple negligence and argued that recovery on such basis was barred by § 25-21,237. The Les responded to the demurrer by arguing that § 25-21,237 was unconstitutional. The district court concluded that § 25-21,237 was constitutional and that it prevented recovery on the basis of simple negligence. The court therefore dismissed those theories of recovery based on simple negligence. The case proceeded to trial solely on the basis of gross negligence. The jury found in favor of Lautrup. The Les appeal.

ASSIGNMENTS OF ERROR

The Les assert that the district court erred in failing to find § 25-21,237 to be unconstitutional and in dismissing their theories of recovery based on simple negligence.

STANDARD OF REVIEW

Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below. Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (2006).

ANALYSIS

The Les assert that § 25-21,237 is unconstitutional and that the district court erred when it concluded that their theories of recovery based on simple negligence must be dismissed and that they were required to prove gross negligence by Lautrup in order to succeed on their petition. We conclude that the Les have failed to establish that § 25-21,237 is unconstitutional and that therefore, the district court did not err when it concluded that § 25-21,237 was not unconstitutional and dismissed their theories of recovery based on simple negligence.

The guest statute, as amended in 1981 and found at § 25-21,237, controls this case. In Botsch v. Reisdorff, 193 Neb. 165, 226 N.W.2d 121 (1975), this court rejected a constitutional challenge to an earlier version of the guest statute which was then codified at Neb.Rev.Stat. § 39-6,191 (Reissue 1974). Prior to the Legislature's amendment of the guest statute in 1981, this court rejected various invitations to reconsider Botsch and to declare the guest statute unconstitutional. See, Cushing v. Bernhardt, 210 Neb. 272, 313 N.W.2d 688 (1981); Beebe v. Sorensen Sand & Gravel Co., 209 Neb. 559, 308 N.W.2d 829 (1981); Kreifels v. Wurtele, 206 Neb. 491, 293 N.W.2d 407 (1980); Circo v. Sisson, 193 Neb. 704, 229 N.W.2d 50 (1975); Lubash v. Langemeier, 193 Neb. 371, 227 N.W.2d 405 (1975).

The Legislature amended the guest statute in 1981. Prior to the amendment, the statute had pertained to all nonpaying guests; that is, nonpaying guests were precluded from bringing suit based on simple negligence. After the amendment, the guest statute pertained to only nonpaying guests who were related to the driver within the second degree of consanguinity which was defined to include parents and children, grandparents and grandchildren, and brothers and sisters. In 1998, this court rejected a constitutional challenge to the post-1981 version of the guest statute. Coburn v. Reiser, 254 Neb. 495, 577 N.W.2d 289 (1998).

The Les argue that Coburn is not controlling because the question of constitutionality was not fully explored and was not necessary to the disposition of that case. We recognize that Coburn, relying on pre-1981 authority, summarily concluded that the guest statute was not unconstitutional without discussion of the bases for the challenge in Coburn or the fact that the statute had been amended subsequent to the time that prior challenges had been rejected. We therefore believe it would be helpful to consider whether the current guest statute is constitutional in light of the arguments offered by the Les.

On appeal, the Les argue that the guest statute violates three provisions of the Nebraska Constitution: the due process and equal protection clauses of Neb. Const. art. I, § 3, and the special privileges and immunities clause of Neb. Const. art. III, § 18. Neb. Const. art. I, § 3, provides: "No person shall be deprived of life, liberty, or property, without due process of law, nor be denied equal protection of the laws." Neb. Const. art. III, § 18, provides: "The Legislature shall not pass local or special laws . . . [g]ranting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever." We consider the constitutionality of § 25-21,237 under Neb. Const. art. I, § 3, and art. III, § 18.

Section 25-21,237 Does Not Violate Neb. Const. art. I, § 3.

Although the Les assert that the statute violates both the due process and the equal protection clauses of the Nebraska Constitution, their arguments focus mainly on the equal protection aspects of Neb. Const. art. I, § 3, and we therefore focus our analysis on the equal protection clause. The party attacking a statute as violative of equal protection has the burden to prove that the classification violates the Equal Protection Clause. Waste Connections of Neb. v. City of Lincoln, 269 Neb. 855, 697 N.W.2d 256 (2005). We conclude that the Les have not proved that § 25-21,237 violates Nebraska's equal protection clause.

The principle of equal protection guarantees that similar persons will be dealt with similarly by the state, but does not foreclose the state from classifying persons or from differentiating one class from...