Opinion
No. 75-659
Decided August 26, 1976. Rehearing denied September 30, 1976. Certiorari granted January 17, 1977.
Personal injury action by passenger and his wife against automobile driver. Finding passenger to have been a guest within the meaning of the guest statute, and finding defendant guilty of only simple negligence, trial court directed verdict for defendant. Plaintiffs appealed.
Affirmed
1. AUTOMOBILES — Guest-Host Relationship — Ordinarily Question for Jury — No Evidentiary Dispute — Matter of Law. The question of whether a guest-host relationship exists between the owner or operator and occupant of a car is ordinarily a question for the jury, but where there is no conflict in the evidence with regard thereto, it is a function of the court to rule as a matter of law upon the occupant's status.
2. Guest Statute Issue — Only Benefit — To Car Owner — Gratification — Contribution to Community Affairs — Passenger Was A Guest. In order for an occupant of a car not to have the status of a guest within the meaning of the guest statute, the benefit to the owner or operator of the car arising from the occupant's presence must be sufficiently real, tangible and substantial to serve as an inducing cause of transportation; accordingly, where a driver transported an occupant without payment for such transportation and the only benefit to the driver was the gratification for contributing to his community and its affairs, the trial court was correct in ruling that such occupant was a guest.
3. Falling Asleep at the Wheel — Standing Alone — Not Ordinarily — Wilful or Wanton Negligence. Ordinarily, falling asleep at the wheel does not constitute wilful or wanton negligence unless there is evidence to indicate that there was a warning to the defendant that sleep was imminent, or there is evidence of subsequent disregard of any warning of sleepiness; hence, in a personal injury action against an automobile driver who apparently fell asleep at the wheel, there being no evidence of such aggravating factors, and the record being in support of the trial court's conclusion that plaintiff was a guest within the meaning of the guest statute, and therefore precluded from recovery for simple negligence, the trial court properly directed verdict against the plaintiff.
Appeal from the District Court of the County of Arapahoe, Honorable Marvin W. Foote, Judge.
Overton, Dittemore Nutt, P.C., A.L. (Sid) Overton, for plaintiffs-appellants.
Burnett, Horan Hilgers, William P. Horan, for defendant-appellee.
Plaintiffs, the Petersons, appeal from an adverse directed verdict in their action to recover damages for injuries occurring in an accident resulting from defendant Grattan's alleged negligence. Defendant was driving the car in which plaintiff, Helmer Peterson, was riding, and the trial court ruled that plaintiff was a guest as a matter of law in accordance with the Colorado Guest Statute, § 42-9-101, C.R.S. 1973 (repealed in 1975). The trial court also found the defendant was guilty of simple negligence but it concluded that the evidence did not present a jury question as to whether defendant's negligence was wilful and wanton. We affirm.
At the time of the accident, plaintiff and defendant were members of the Englewood Jaycees chapter, which had a project in Buena Vista requiring numerous visits. In November 1973, plaintiff, on defendant's request, accompanied defendant to Buena Vista to explain certain financing plans to the Buena Vista Jaycees. Defendant was reimbursed for gasoline expenses by the Englewood Jaycees. Both plaintiff and defendant drank some beer en route to Buena Vista, and defendant joined in drinking more beer with the Buena Vista Jaycees before leaving for Englewood at 11:00 p.m. Approximately one and one-half hours after leaving Buena Vista, defendant drove off the road, the car struck a post and overturned, and plaintiff was ejected from the car. Plaintiff was sleeping at the time of the accident. Defendant later said that a deer crossing in front of the car had caused the accident, but there was one witness who testified that defendant had told him he thought that he had fallen asleep. An accident analysis expert testified that the accident had occurred because the driver had become drowsy and fallen asleep, and an investigating officer said there was no physical evidence of a deer crossing.
Asserting that defendant received payment for the transportation, that both parties and their mutual principal benefitted from the transportation, and that defendant received a real, tangible and substantial benefit from plaintiff's presence on the trip, plaintiff argues that he was a passenger and not a guest within the meaning of the statute. Alternatively, plaintiff maintains that the evidence at least presents a jury question.
The trial court found at the end of plaintiff's case-in-chief that plaintiff was a guest under the terms of the Colorado Guest Statute, particularly that defendant transported plaintiff without payment for such transportation. The court stated that Klatka v. Barker, 124 Colo. 588, 239 P.2d 607, was directly in point. We agree that this case is dispositive of plaintiff's claim that he was a passenger instead of a guest.
[1] Whether the guest-host relationship has been established may be either a question of law or one of fact depending upon the circumstances. Coffman v. Godsoe, 142 Colo. 575, 351 P.2d 808. However, where there is no dispute as to the facts of a relationship, the question of whether the operator is entitled to the benefits of the guest statute becomes one of law. Eads v. Spoden, 172 Colo. 231, 472 P.2d 131. In other words, the question of whether a guest-host relationship exists between the owner or operator and occupant of a car is ordinarily a question for the jury, but where there is no conflict in the evidence with regard thereto, it is a function of the court to rule as a matter of law upon the occupant's status. Katz v. Ross, 216 F.2d 880 (3d Cir.); 8 Am. Jur. 2d Automobiles and Highway Traffic § 475.
In the present case there is no dispute as to the facts concerning the agreement of the plaintiff and defendant. Rather the problem arises in applying the requirements of the statute to the facts. Since there was no dispute in the evidence, this decision was properly for the court.
Plaintiff relies on Hotchkiss v. Preble, 184 Colo. 157, 519 P.2d 360, and Dobbs v. Sugioka, 117 Colo. 218, 185 P.2d 784, but both of these cases are distinguishable. In Hotchkiss, the plaintiff had taken many trips with defendant wherein they had shared gas and oil expenses, and the court ruled that such sharing could negate the guest-host relationship. In the current case, plaintiff and defendant did not have a history of traveling together, nor were they sharing the expense. In Dobbs, the parties were on an obligatory mission under an employment agreement; however, in this case the trip to Buena Vista was a voluntary undertaking arising from a sense of responsibility to the community.
[2] The rule in Klatka requires that the benefit to the owner or operator of the car be "sufficiently real, tangible and substantial to serve as an inducing cause of transportation." However, there, as here, the only benefit to the defendant was the gratification for contributing to his community and its affairs. Thus, the trial court was correct in ruling that plaintiff was a guest.
[3] Furthermore, there was no evidence indicating that defendant was wilfully or wantonly negligent so as to require resolution of this question by the jury. Ordinarily, falling asleep at the wheel does not constitute wilful or wanton negligence unless there is evidence to indicate that there was a warning to the defendant that sleep was imminent, or there is evidence of subsequent disregard of any warning of sleepiness. In Hodges v. Ladd, 143 Colo. 143, 352 P.2d 660, the court stated:
"Ladd's admitted drowsiness was his premonitory symptom of impending sleep — — a warning which he saw fit to intentionally and wilfully disregard, as evidenced by his statement that he thought 'it was so close to home that he could make it on home.' Ladd took the needless chance of falling asleep while driving; he and all drivers are chargeable with knowledge that driving while asleep will probably lead to an accident."
In summary then, the record supports the trial court's conclusion that plaintiff was a guest and was therefore precluded from recovery for simple negligence, and there was no evidence of wilful and wanton negligence which would take the defendant out of the protection of the statute.
Judgment affirmed.
JUDGE SMITH and JUDGE VAN CISE concur.